J-S81036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JORGE ANDRES RAMIREZ-SIERRA,

                             Appellant                No. 911 MDA 2017


           Appeal from the Judgment of Sentence December 28, 2016
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0000916-2016


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 08, 2018

        Appellant, Jorge Andres Ramirez-Sierra, appeals from the judgment of

sentence imposed after his jury conviction of possession with intent to deliver

a controlled substance—heroin (PWID) and possession of drug paraphernalia,

and his summary conviction of driving with a suspended license.1 We affirm.

        The trial court aptly set forth the relevant factual and procedural

background of this matter in its May 5, 2017 opinion:

        [O]n April 29, 2016[,] at 9:30 p.m., [Detective Ryan Mong] and
        Detective Michael DiPalo [of the Lebanon County Drug Task Force]
        were in an unmarked police vehicle in an area in the City of
        Lebanon which is known for its high level of drug activity. They
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 780-113(a)(30) and (32); and 75 Pa.C.S.A. § 1543(a),
respectively.
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        noticed a white Lexus being operated by [Appellant] with a
        burned-out brake light and license plate light and conducted a
        traffic stop on Lincoln Avenue at Schnieder Drive.      As he
        approached the vehicle on the passenger side, Detective DiPalo
        observed [Appellant] moving his arm and hand in a downward
        motion toward the center console. His hand was empty when he
        raised it from that area.

               When they made contact with [Appellant], the officers
        smelled the odor of burnt marijuana coming from the vehicle and
        noticed that there were cigar wrappers[, which often are used to
        smoke marijuana,] on the floor. The officers obtained the vehicle
        documents from [Appellant] and saw that the registration was in
        the name of another individual. When the officers had [Appellant]
        exit the vehicle, he admitted that he knew the lights were burned-
        out and explained he was planning to have the two burned-out
        lights fixed.

               The officers advised [Appellant] that they smelled the burnt
        marijuana and asked whether he had any on his person or in the
        vehicle. [Appellant] replied that he did not. [He] then agreed to
        a search of his person and the vehicle. During the search, the
        officers found a cellphone and $80.00 on [Appellant’s] person and
        another cellphone in the vehicle. They also found a bundle of nine
        glassine bags of heroin wedged between the driver’s seat and the
        center console where Detective DiPalo had seen [Appellant] place
        his hand and arm. A baggie containing marijuana residue was
        also found in the vehicle.

              After [Appellant] was given his Miranda[2] warnings and
        taken to the police department, he signed a waiver of rights and
        agreed to talk with the officers. He told the officers that he was
        from the Dominican Republic and that he had lived here for five
        years. He had been unemployed for fourteen months, but was
        scheduled to start a job with Ingram-Micro the following Monday.
        He lived with his mother, who would give him $40.00 when he
        asked her. He admitted that he used marijuana, but stated that
        he did not really use heroin.

(Trial Court Opinion, 5/05/17, at 2-3) (footnote omitted).


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2   Miranda v. Arizona, 384 U.S. 436 (1966).

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       On   November       2,   2016,     the   jury   convicted   Appellant   of   the

aforementioned crimes. The trial court imposed an aggregate sentence of

time served to not more than twenty-three months of incarceration on

December 28, 2016. It denied Appellant’s post-sentence motions on May 5,

2017, with an explanatory opinion. This timely appeal followed.3

       Appellant raises three issues for our review:

       (1) Whether the Appellant’s motion for acquittal should be
       granted based on the Commonwealth’s failure to present sufficient
       evidence at trial to prove the possession with the intent to deliver
       element of count one of the information?

       (2) Whether the jury’s verdict of guilty as to the possession with
       intent to deliver charge was against the weight of the evidence?

       (3) Whether the trial court erred when it allowed the
       Commonwealth’s possession with the intent to deliver expert to
       testify about alleged drug related [text] messages on the
       Appellant’s cell phone?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

       In his first issue, Appellant challenges the sufficiency of the evidence to

support his PWID conviction. (See id. at 8-9). Specifically, he “argues the

Commonwealth failed to prove he possessed the heroin with the intent to

deliver[]” it. (Id. at 8). Appellant’s issue does not merit relief.

              The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
____________________________________________


3Appellant filed his court-ordered concise statement of errors complained of
on appeal on June 27, 2017. The court did not file a further opinion. See
Pa.R.A.P. 1925.

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     crime beyond a reasonable doubt. In applying the above test, we
     may not weigh the evidence and substitute our judgment for [that
     of] the fact-finder. In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt by
     means of wholly circumstantial evidence. Moreover, in applying
     the above test, the entire record must be evaluated and all
     evidence actually received must be considered. Finally, the trier
     of fact while passing upon the credibility of witnesses and the
     weight of the evidence produced, is free to believe all, part or none
     of the evidence.

Commonwealth v. Irvin, 134 A.3d 67, 75-76 (Pa. Super. 2016) (citation

omitted).

     Section 780-113(a)(30) of The Controlled Substance, Drug, Device and

Cosmetic Act provides in pertinent part that, “[e]xcept as authorized by this

act, the manufacture, delivery, or possession with intent to manufacture or

deliver, a controlled substance by a person not registered under this act, [is

prohibited].” 35 P.S. § 780-113(a)(30). “[P]ossession with intent to deliver

can be inferred from the quantity of the drugs possessed and other

surrounding circumstances, such as lack of paraphernalia for consumption.”

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (citation

omitted). Further, “expert testimony is important in drug cases where the

other evidence may not conclusively establish that the drugs were intended

for distribution. Such testimony is admissible to aid in determining whether

the facts surrounding the possession of controlled substances are consistent

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with intent to deliver.” Commonwealth v. Ratsamy, 934 A.2d 1233, 1236-

37 (Pa. 2007) (citation omitted).

      In this case, Detective DiPalo testified that, when he and Detective Mong

stopped Appellant’s vehicle, he observed Appellant move “like he was placing

something between the driver’s seat and center console.”           (N.T. Trial,

11/02/16, at 36). Detective Mong located the heroin in the same area. (See

id. at 37). Detective Mong testified as a fact witness and an expert in the

area of drugs packaged for personal use as opposed to with intent to deliver.

(See id. at 4-18, 28). He testified that several factors supported his opinion

that Appellant possessed the heroin for sale rather than personal use. (See

id. at 28-29). For example, the heroin found in the vehicle was packaged in

a bundle containing nine small glassine bags, as it generally is sold. (See id.

at 9). However, Appellant admitted that he used marijuana but not heroin.

(See id. at 14, 29).       Consistent with this, Officer Mong only found

paraphernalia for the use of marijuana. (See id. at 8, 10, 29, 35). Appellant

possessed $80.00, although he had been unemployed for fourteen months.

(See id. at 9, 14, 29, 32).    Finally, the contents of Appellant’s cellphone

factored in to Detective Mong’s opinion. (See id. at 30).

      Based on the foregoing, and viewing all of the evidence in the light most

favorable to the Commonwealth as verdict winner, we conclude that the trial

court properly found that it was sufficient to establish the crime of PWID. See

Irvin, supra at 75-76. Appellant’s first issue lacks merit.


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      In his second issue, Appellant maintains that the verdict is against the

weight of the evidence. (See Appellant’s Brief, at 9-10). This issue does not

merit relief.

             Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Commonwealth v. Leatherby, 116 A.3d 73, 82 (Pa. Super. 2015) (citation

omitted).

      Instantly, the trial court found that the verdict did not shock its

conscience, and observed that the jury was free to make its own credibility

determinations in believing the testimony of the officers over the explanations

advanced by Appellant. (See Trial Ct. Op., at 7-8). Upon independent review

of the record, we agree with the trial court that the jury was within its right to

weigh the evidence in the manner in which it did. Hence, we discern no abuse

of discretion on the part of the trial court in denying Appellant a new trial on

the basis of his weight of the evidence claim. See Leatherby, supra at 82.

Appellant’s second issue lacks merit.

      In his third issue, Appellant argues that “the court erred when it allowed

Det. Mong to testify as to alleged drug related text message on [Appellant’s]


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cell phone when the Commonwealth was unable to overcome the hearsay

objection and was unable to authenticate the text message[s].” (Appellant’s

Brief, at 11) (unnecessary capitalization omitted). This issue lacks merit.

             On appeals challenging an evidentiary ruling of the trial
      court, our standard of review is limited. A trial court’s decision
      will not be reversed absent a clear abuse of discretion. Abuse of
      discretion is not merely an error of judgment, but rather where
      the judgment is manifestly unreasonable or where the law is not
      applied or where the record shows that the action is a result of
      partiality, prejudice, bias or ill will.

Commonwealth v. Aikens, 990 A.2d 1181, 1184-85 (Pa. Super. 2010),

appeal denied, 4 A.3d 157 (Pa. 2010) (citations and quotation marks omitted).

Pursuant to Rule 705 of the Pennsylvania Rules of Evidence, “[i]f an expert

states an opinion[,] the expert must state the facts or data on which the

opinion is based.” Pa.R.E. 705. Further:

             It is well-established that an expert may express an opinion
      which is based on material not in evidence, including other expert
      opinion, where such material is of a type customarily relied on by
      experts in his or her profession. Such material may be disclosed
      at trial even though it might otherwise be hearsay . . . Such
      hearsay is admissible because the expert’s reliance on the
      material provides its own indication of the material’s
      trustworthiness: The fact that experts reasonably and regularly
      rely on this type of information merely to practice their profession
      lends strong indicia of reliability to source material, when it is
      presented through a qualified expert’s eyes.

In re D.Y., 34 A.3d 177, 182 (Pa. Super. 2011), appeal denied, 47 A.3d 848

(Pa. 2012) (citations and quotation marks omitted); see also Pa.R.E. 703.

      Instantly, the trial court explains:

      At trial, the Commonwealth sought to present testimony from
      Detective Mong regarding the text messages contained in the

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       phone [Appellant] had on his person at the time of his arrest.
       (See N.T. Trial, at 15). [The trial court] sustained [Appellant’s]
       objection as hearsay, but [it] permitted Detective Mong to testify
       that he had reviewed the contents of the cellphone prior to
       reaching his opinion and that those messages had factored into
       the conclusion he had reached.         (See id. at 15, 25-27).
       [Appellant] argues that [the court] erred in allowing Detective
       Mong to rely upon the alleged drug-related text messages in
       reaching his opinion because the Commonwealth was unable to
       authenticate those text messages.

                                       *       *   *

             Detective Mong testified that his training included the
       examination of cellphone communications for the purpose of
       conducting investigations of drug trafficking violations. (See id.
       at 16). He explained that he relied, in part, on the text messages
       contained in [Appellant’s] cellphone in formulating his opinion.
       (See id. at 30). Thus, [the trial court] believe[d] that the rules
       of evidence with regard to Detective Mong’s opinion were satisfied
       and [found] no error in this regard.

(Trial Ct. Op., at 8-10) (record citations provided).

       After our independent review of the record, we agree with the trial court

and conclude that it did not abuse its discretion in allowing Detective Mong’s

limited testimony referencing the text messages on Appellant’s cellphone.

See Aikens, supra at 1184-85.4 Appellant’s third issue lacks merit.

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4 Moreover, even assuming arguendo that the trial court abused its discretion
in allowing Detective Mong’s brief reference to the text messages, any such
error would be harmless. The notes of testimony reflect that the text
messages did not affect the outcome of the trial where testimony regarding
other evidence and factors considered by Detective Mong was sufficient to
establish that Appellant possessed the heroin with the intent to deliver. See
Commonwealth v. Rose, 172 A.3d 1121, 1131 (Pa. Super. 2017)
(“Harmless error exists if . . . the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect of the error



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       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/8/2018




____________________________________________


so insignificant by comparison that the error could not have contributed to the
verdict.”) (citation omitted).

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