Com. v. Echevarria, G. (memorandum)
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GUILLERMO ECHEVARRIA,
Appellant
No. 689 EDA 2012
Appeal from the Judgment of Sentence February 2, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009397-2008
BEFORE: BENDER, BOWES, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.:
FILED JANUARY 28, 2014
Appellant, Guillermo Echevarria, appeals from the February 2, 2012
judgment of sentence of three to six years of incarceration imposed after he
pled guilty to intentional possession of controlled substances by a person not
regulated and was found guilty at a bench trial of possession with intent to
1
After careful review, we affirm.
Briefly, we summarize the relevant facts and procedural history of this
case.
These charges stemmed from police surveillance conducted in the
3300 block of North Amber Street on August 24, 2007, after a report of drug
activity at that location. Officer Brian Kensey observed a white male on the
*
1
Retired Senior Judge assigned to the Superior Court.
We previously remanded this case for the filing of a Pa.R.A.P. 1925(b)
statement, supplementation of the certified record, and issuance of a
Pa.R.A.P. 1925(a) opinion, but retained panel jurisdiction.
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corner near Ontario Street. A woman approached the man, later identified
as Arthur Lex, engaged him in conversation, and handed him money. Arthur
Lex then proceeded to a row house at 3325 North Amber Street, entered,
remained briefly, and returned to the woman and handed her small items.
That woman was arrested a short time later by backup officers and six
Xanax pills were recovered.
As the police officers continued to observe that residence, another
man approached and attempted to enter through the front door. When the
door did not yield, he knocked, and Appellant answered the door and
allowed him to enter.
After approximately one minute, the man, later
identified as David Lex, exited.
David Lex subsequently met up with an
unidentified white male, conversed briefly, and the man handed him money.
David Lex retrieved a white pill bottle, poured items from the bottle into his
hand, and then handed those items to the man.
Police officers arrested both Arthur and David Lex when they
attempted to leave the area. They recovered nineteen dollars in cash from
Arthur; a search of David yielded a white container that contained almost
fifty Oxycodone pills and $200 in cash. Lieutenant Brian Dorsey returned to
3325 North Amber Street to secure the premises and locate Appellant, but
Appellant was not in the house. While the police officers were speaking to
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consent to search form for the residence. The search of the kitchen yielded
substantial quantities of narcotics and $890 in cash.
was denied. On July 6, 2011, Appellant waived his right to a jury trial, pled
guilty to intentionally possessing a controlled substance for personal use,
and was found guilty at a bench trial of the remaining charges. On August
17, 2011, trial counsel was permitted to withdraw, and Attorney Allan Sagot
-verdict motion was
filed on November 4, 2011, seeking a new trial on sufficiency and weight
grounds.2
On February 2, 2012, the trial court, without resolution of the pending
post-trial motion, sentenced Appellant to three to six years of incarceration.
Appellant timely filed a pro se notice of appeal and request for transcript.
On February 27, 2012, the trial court issued an order pursuant to Pa.R.A.P.
1925(b), directing Appellant to file a concise statement of errors complained
of on appeal within twenty-one days. No Pa.R.A.P. 1925(b) statement was
filed with the trial court. Trial Court Opinion, 6/8/12, at 1-2. On July 19,
2
While the docket indicates that a post-verdict motion was filed, it was not
contained in the certified record. Following remand, the trial court located a
copy of an unstamped post-verdict motion that it had received via facsimile,
and appended it to its Pa.R.A.P. 1925(a) opinion. We proceed on the
assumption that this is the post-verdict motion that was filed on November
4, 2011, and that Appellant properly preserved his challenge to the weight of
the evidence.
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Trevan Borum was appointed to represent Appellant.
That same day, the
trial court issued a second order pursuant to Pa.R.A.P. 1925(b) directing
Appellant to file a concise statement of errors complained of on appeal.
Again, no concise statement was filed.
On appeal, this Court initially declined to reach the merits of the
appeal due to the lack of Rule 1925(b) statement.
While retaining
jurisdiction, we invoked Pa.R.A.P. 1925(c)(3), which provides that where the
per se ineffective, the appellate
court shall remand for the filing of a Statement nunc pro tunc and for the
1925(b) statement was filed, the trial court issued a thorough Rule 1925(a)
opinion, and the matter is now ripe for disposition.
Appellant raises two issues for our review:
I.
Is the Defendant entitled to an arrest of judgment on the
charge of PWID and all charges as the evidence is
insufficient to sustain the verdict and where the verdict
was based on nothing more than suspicion, conjecture and
surmise?
II.
Is the Defendant entitled to a new trial as the verdict is not
supported by the greater weight of the evidence with
regard to the charge of PWID, as well as any and all
charges?
Appellant claims that the evidence was insufficient to support the
PWID conviction.
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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
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for 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. Donohue, 62 A.3d 1033 (Pa.Super. 2013) (quoting
Commonwealth v. Knox, 50 A.3d 749, 754 (Pa.Super. 2012)).
Appellant contends that since there was no evidence that he actually
possessed drugs, the Commonwealth had to prove by a totality of the
circumstances
that
he
constructively
possessed
the
contraband.
Constructive possession requires that one have conscious dominion over the
contraband. Appellant argues that the Commonwealth did not prove that he
was supplying either of the Lex brothers with drugs, and the fact that drugs
were found in the home Appellant shared with his girlfriend was not enough.
The Commonwealth counters that evidence Appellant was an active
participant in two typical street-level drug sales, and that the pills recovered
from one buyer matched those seized fr
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reasonable
inference
that
he
possessed
the
drugs
[with]
his
co-
evidence that Appellant welcomed David Lex into his home just moments
before David handed small items, later confirmed to be narcotics, to
someone in exchange for cash.
This, together with expert testimony that
linked the quantity of drugs, the lack of prescriptions, and the type of
packaging, to the sale of drugs was more than sufficient to support the
PWID conviction.
In order to sustain a conviction for PWID, the Commonwealth must
prove that the defendant possessed a controlled substance with the intent to
deliver it to another.
constructive
possession
35 P.S. § 780-113(a)(30).
and
established
the realities of criminal law enforcement.
by
Possession may be
circumstantial
evidence.
Constructive possession is an
inference arising from a set of facts that possession of the contraband was
Commonwealth v. Brown, 48 A.3d 426, 430
(Pa.Super. 2012). Appellant challenges the sufficiency of the evidence that
he constructively possessed the contraband.
We have defined constructive possession as "conscious
dominion." We subsequently defined "conscious dominion" as the
power to control the contraband and the intent to exercise that
control. To aid application, we have held that constructive
possession may be established by the totality of the
circumstances.
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Commonwealth v. Muniz, 5 A.3d 345, 348-349 (Pa.Super. 2010) (quoting
Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa.Super. 2001))
(internal citations and quotations omitted).
Narcotics were found in the home Appellant shared with his girlfriend.
Police observed as Arthur Lex, after receiving cash from a woman, entered
seconds, and then returned to the woman and handed her small items.
Police stopped the woman and recovered six blue pills stamped GG 285,
Approximately fifteen minutes later, police observed Appellant as he
opened the door to David Lex.
David remained i
about one minute, and, shortly after exiting, he had a conversation with a
man. The man handed him cash, and David retrieved a white pill bottle. He
poured out small items into his palm and handed them to the man. Police
then apprehended Arthur and David Lex. Money was recovered from both
men; a container of thirty oxycodone and nineteen purple oxycodone were
ose proximity in a kitchen
cabinet. N.T., 7/5/11, at 23.
Appellant admitted that he knew Arthur and David Lex.
He was
observed opening the door to David Lex. He also knew there were pills in
the kitchen cabinet, but claimed that the pills recovered belonged to his
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girlfriend. The trial court, the fact finder herein, did not find his testimony
credible. Trial Court Opinion, 12/27/13, at unnumbered page 5. Rather, the
court noted that these pills were recovered in the same location in
as the other narcotics that Appellant admittedly possessed
and pled guilty to possessing. The pill containers bore no prescription labels
and were found in close proximity to cash and unused ziplock baggies. The
pills retrieved from the female buyer were of the same type as those found
in the cabinet. The pills found on David Lex also were consistent with pills
than sufficient to support the PWID conviction. We agree that the totality of
the circumstances established that Appellant had both the ability and the
intent to exercise control over the narcotics required for constructive
possession. Commonwealth v. Estepp, 17 A.3d 939 (Pa.Super. 2011).
Next, Appellant challenges the sufficiency of the evidence of a
conspiracy.
He argues that more than mere association among alleged
conspirators is required; the Commonwealth must prove shared criminal
intent.
Title 18 Pa.C.S. § 903(a) defines conspiracy:
A person is guilty of conspiracy with another person or persons
to commit a crime if with the intent of promoting or facilitating
its commission he:
(1)
agrees with such other person or persons that
they or one or more of them will engage in
conduct which constitutes such crime or the
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attempt or solicitation to commit such crime;
or
(2)
agrees to aid such other person or persons in
the planning or commission of such crime or of
an attempt or solicitation to commit such
crime.
defendant entered into an agreement with another to commit or aid in the
commission of a crime; 2) he shared the criminal intent with that other
person; and 3) an overt act was committed in furtherance of the
Commonwealth v. Nypaver, 69 A.3d 708, 715 (Pa.Super.
2013) (citation omitted). Since a formal or explicit agreement to commit a
crime is seldom capable of proof, a conspiracy may be inferred where the
evidence demonstrates some relationship among the parties, and the overt
acts of the co-conspirators prove a criminal confederation. Commonwealth
v. Perez, 931 A.2d 703, 708-09 (Pa.Super. 2007). We utilize four factors
between alleged conspirators; (2) knowledge of the commission of the
crime; (3) presence at the scene of the crime; and (4) in some situations,
Nypaver, supra at 715
(partially quoting Commonwealth v. Feliciano, 67 A.3d 19, 25 (Pa.Super.
2013)).
The evidence established that Appellant, Arthur Lex, and David Lex
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moments before police observed them selling narcotics.
Police found
hundreds of unprescribed pills, ziplock baggies of the type associated with
retrie
Appellant took an active role in the object of the conspiracy by transferring
the narcotics to the Lex brothers. Thus, all four factors are satisfied herein
determination that the proof was sufficient
beyond a reasonable doubt that Appellant and the Lex brothers conspired to
sell drugs. This claim fails.
Appellant argues further that his convictions were against the weight
of the evidence.
He preserved this challenge in a motion for new trial.
with the trial judge in a motion for a new trial orally or written before
rial based
on a claim that the verdict is against the weight of the evidence is addressed
to the discretion of the trial court. Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. 2000).
It is the role of the trial judge to determine
e facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with all the facts is to deny
Id. at 752.
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Our standard of review when presented with a weight of the evidence
claim is distinct from the standard of review applied by the trial court.
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. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (internal
citations omitted).
Appellant misapprehends our standard of review.
We are not
permitted to reside of the ledger as he urges
with deference to its findings. The trial court was the fact finder in this case.
edible. Further,
of the evidence. As we perceive no abuse of discretion, no relief is due.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2014
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