Com. v. Medina, J. (memorandum)
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J-S32024-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JUAN MEDINA Appellant No. 1559 EDA 2016 Appeal from the Judgment of Sentence June 13, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0009759-2011 BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD, * JJ. MEMORANDUM BY STABILE, J.: FILED JULY 17, 2017 Appellant, Juan Medina, appeals from the June 13, 2012 judgment of sentence entered in the Court of Common Pleas of Philadelphia County (“trial court”) sentencing him to a term of 7-14 years’ incarceration following his conviction for possession with intent to deliver a controlled substance (PWID).1 Upon review, we affirm. Briefly, on June 13, 2012, Appellant was convicted of PWID following a jury trial. Following multiple reinstatements of his direct appellate rights, Appellant filed the instant appeal. The trial court summarized the factual history of the matter as follows. ____________________________________________ * 1 Former Justice specially assigned to the Superior Court. 35 P.S. § 780-113(a)(30). J-S32024-17 At trial, the Commonwealth first presented the testimony of Philadelphia Police Officer Brian Myers. Officer Myers testified that, on March 30, 2011, at approximately 5:40 p.m., he was on duty with the Narcotics Field Unit, which is responsible for investigating illegal sales of narcotics. On this particular date, he and his surveillance team were on assignment in the target area of North 5th Street and Hunting Park Avenue, specifically to investigate street sales of narcotics. From a discreet position at the northeast corner of the above intersection, Officer Myers observed a Hispanic male wearing a green jacket and blue jeans standing on the corner and looking in all directions. A few moments later, Appellant, who was wearing a red hat and brown jacket emerged from a corner store located one half-black away on the southeast corner of Fairhill Street and Hunting Park Avenue. Appellant walked eastbound to 5th Street, where he met up with the other male and engaged in a brief conversation. Appellant then walked back to the corner store on Fairhill Street with his right hand in his jacket pocket the entire time. At that point, Officer Myers radioed a description of Appellant to his backup officers and instructed them to stop Appellant for investigation. (See N.T. 06/12/12, pp. 14-20). Philadelphia Police Sergeant Robert Friel testified next for the Commonwealth. Sergeant Friel testified that, on March 30, 2011, he was on duty with the Narcotics Field Unit, serving as a back-up officer to Officer Myers. Sergeant Friel observed Appellant walking westbound on Hunting Park Avenue, between 5th and Fairhill Streets, before he entered a store on the corner of Fairhill Street and Hunting Park Avenue. Upon receiving information from Officer Myers, Sergeant Friel and his partner, Officer Coolen, entered the corner store, where they encountered Appellant sitting at a table toward the back of the store. Sergeant Friel and Officer Coolen approached Appellant and announced “Police”, at which time Sergeant Friel observed Appellant retrieve a clear plastic bag from his right jacket pocket, and discard it onto the floor beneath the table. As Officer Coolen tried to get Appellant to stand up, Sergeant Friel immediately went under the table and retrieved the bag. He testified that, “At that point, [Appellant] started to fight us.” Upon detaining Appellant in handcuffs, Sergeant Friel placed the bag, which contained a tan substance suspected to be heroin, under property receipt, and submitted it to the chemistry lab for further analysis. (See N.T. 06/12/12, pp. 36-47). -2- J-S32024-17 The Commonwealth also presented the testimony of Philadelphia Police Officer Antonio Morrone, who testified as an expert in the field of packaging and distribution of narcotics. Officer Morrone testified that he examined the heroin recovered by police, and that based on its size (173 grams) – in addition to its purer color (tan) and consistency (grounded and moist) – the heroin was possessed with an intent to deliver. Officer Morrone explained that, beside never personally encountering a single, personal purchase of this size, a user never would purchase 173 grams of heroin because it would be too expensive (it would cost between $8,500 and $13,000) and lose its purity over time (more rapidly depending on exposure to light and air). He further explained that a heavy user ingests 100 to 130 milligrams per day, and therefore the 173 grams of heroin recovered in this case would last a user 12 to 17 months. Moreover, in his experience, users typically purchase only a couple small packets at a time, not 737 [(sic)] grams. In fact, the only people he had encountered with such an amount were at a higher level in the drug distribution chain – i.e., “not a regular street dealer, it would be somebody in the higher chain of the distribution of heroin.” (See N.T. 06/12/13, [(sic)], pp. 420). [FN2] Both Sergeant Friel and Officer Coolen were in plain clothes, with their police badges exposed. (See N.T. 06/12/12, pp. 37-38, 49-50). [FN3] The Commonwealth introduced via stipulation chemical analysis evidence establishing that the item recovered by police – one clear bag containing a tan powder – tested positive for heroin and weight 173.7 grams. (See N.T. 06/12/13 [(sic)], p.24). [FN4] At the time of trial, Officer Morrone had spent 28 years with the Philadelphia Police Department, 25 of which were in the Narcotics Field Unit. In addition to undergoing narcotics training with the New York, New Jersey and Pennsylvania state police, he spent five years working, and undergoing extensive narcotics training, with the Federal Drug Enforcement Agency (DEA), including training on the manufacturing of narcotics from plant source to final packaged product. Over the course of his career, Officer Morrone personally had participated in more -3- J-S32024-17 than 800 drug arrests. (See N.T. 06/12/13 [(sic)], pp. 4-15). Trial Court Opinion, 8/17/16, at 2-3 (quoting Trial Court Opinion, 3/13/13). Appellant raises four issues on appeal, which we repeat verbatim. I. Whetther [(sic)] the trial court abused its discretion by improperly admitting Officer Morrone’s testimony as to his personal opinion? II. Whether there was sufficient evidence to sustain a conviction without evidence of the delivery or transport of the drugs in question? III. Whether there was sufficient evidence to sustain a conviction without the fact that Appellant possessed the drugs in question being proven beyond a reasonable doubt? IV. Whether the [trial] court abused its discretion in denying Appellant’s objection to closing argument of prosecutor based on prosecutorial misconduct[?] Appellant’s Brief at 9. Appellant’s first challenge is to the trial court’s admission of Officer Morrone’s testimony regarding his opinion about the use of the quantity of drugs found at the scene. Officer Morrone was qualified as an expert witness in the field of packaging and distribution of narcotics. Appellant is challenging the following testimony by Officer Marrone. It’s my personal opinion, I have never seen one purchase this large amount, because mostly users that I know, and have spoken to several thousands of them, and distributors and dealers, would not have this amount. They would just buy a couple of bags, a bundle per day. Having this much finger tips, my personal opinion, they would abuse it. -4- J-S32024-17 N.T. Jury Trial, 6/13/12 at 14. The Pennsylvania Rules of Evidence provide for opinion testimony by expert witnesses. Pa.R.E. 702. “Our standard of review in cases involving the admission of expert testimony is broad: ‘Generally speaking, the admission of expert testimony is a matter left largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion.’” Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) (quoting Commonwealth v. Brown, 596 A.2d 840, 842 (Pa. Super. 1991), appeal denied, 616 A.2d 982 (Pa. 1992) (additional citation omitted)). Upon review of the record, Appellant failed to object to this testimony, thus Appellant failed to preserve the issue for appeal and the issue is waived. 1288 See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, (Pa. Super. 2004) (“It is well established that absent a contemporaneous objection [to an evidentiary issue,] the issue is not properly preserved on appeal”) (citations omitted). Even if the issue was not waived, we find that the trial court did not abuse its discretion in admitting the testimony of Officer Morrone as he was qualified as an expert in the field of packaging and distributing narcotics. Moreover, the trial court’s August 17, 2016 opinion adequately addresses the issue. See Trial Court Opinion, 8/17/16, at 5-10. Thus, Appellant’s claim fails. Appellant’s next two issues are challenges to the sufficiency of the evidence, namely, whether there was evidence of a delivery or transfer of -5- J-S32024-17 the drugs in question and whether Appellant possessed the drugs in question. 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 weight 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 finder 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. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (quoting Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010) (citations omitted)). “To sustain a conviction for PWID, ‘the Commonwealth must prove both the possession of the controlled substance and the intent to deliver the controlled substance.’” Id., (quoting Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008)). Upon review, the trial court’s August 17, 2016 opinion adequately addresses these issues. See Trial Court Opinion, 8/17/16, at 10-12. When the officers announced their presence, Appellant retrieved the bag of heroin from his jacket pocket and threw it on the floor. Thus, the Commonwealth established possession. Moreover, the -6- J-S32024-17 quantity of drugs, the packaging, the condition, and the circumstances of the arrest, established that Appellant intended to deliver the controlled substance. Thus, Appellant’s claims fails. Appellant’s final claim is that the trial court abused its discretion when it overruled Appellant’s objection, based upon prosecutorial misconduct, to the Commonwealth’s closing argument. Specifically, Appellant challenges the prosecution’s comments “Should we have turned [Appellant], should we have gone up the chain, try to figure out who this next connection was? Maybe. There is only one person in the room who knows whose [Appellant’s] next connection was, that’s [Appellant.]” 6/13/12, at 19-20. N.T. Jury Trial Upon review of the record, the trial court adequately addressed this issue in its August 17, 2016 opinion. See Trial Court Opinion, 8/17/16, at 13-16. Thus, we find that the trial court did not abuse its discretion in overruling Appellant’s objection. In conclusion, we find that Appellant’s claims are waived, or meritless. Therefore, we affirm the judgment of sentence. We direct that a copy of the trial court’s August 17, 2016 opinion be attached to any future filings in this case. Judgment of sentence affirmed. -7- J-S32024-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/17/2017 -8- Circulated 06/29/2017 11:43 AM
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