J-S56023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE LUIS SANTIAGO
Appellant No. 2219 MDA 2013
Appeal from the Judgment of Sentence of September 23, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at Nos.: CP-36-CR-0005359-2012
CP-36-CR-0005383-2012
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 12, 2014
Jose Luis Santiago appeals the September 23, 2013 judgment of
sentence, which was imposed following a jury trial that resulted in Santiago
being found guilty of two counts of delivery of a controlled substance. 1 We
affirm.
The trial court has summarized the facts of this case as follows:
In January of 2011, Anthony Munoz, a confidential informant
Police in conducting a series of controlled purchases of cocaine,
purchases drugs from a street level dealer. The trooper
searches the CI before and after the sale, and never allows the
CI to leave his sight throughout the entire transaction. Once the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
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purchase is complete, the dealer is not immediately arrested in
On January 14, 2011, at approximately 6:45 p.m., Mr. Munoz
purchase of cocaine. Mr. Munoz agreed to purchase half of an
ounce, or 14 grams, of cocaine from Lou for $575.00, and
arranged to meet him five to ten minutes later on South Duke
Street in Lancaster City. After searching Mr. Munoz to ensure
that he was not carrying any personal money or drugs, Trooper
Cessna provided him with $575.00 in pre-recorded State Police
Fund money to conduct the transaction. Trooper Cessna then
transported Mr. Munoz to the meeting location and instructed
him to get out of the vehicle and to wait for Lou to arrive.
Several minutes later, Lou picked Mr. Munoz up in a white Ford
Expedition and took him to the area of Marion and North Ann
Streets in Lancaster City, which is within a Drug Free School
Zone. Trooper Cessna followed the Expedition, ensuring that he
never lost sight of Mr. Munoz. After parking his vehicle, Lou took
the $575.00 from Mr. Munoz and walked around the corner to a
house on Marion Street. Five minutes later, Lou returned and
provided Mr. Munoz with a bag containing a white substance.
Lou then transported Mr. Munoz back to South Duke Street,
where he met with Trooper Cessna at a pre-arranged location.
Mr. Munoz provided Trooper Cessna with the substance that he
had purchased, and a second full body search was conducted,
which yielded no other money or contraband.
When Trooper Cessna returned to the police station, he
performed a field test on the white substance which yielded a
positive result for the presence of cocaine. Ultimately, the white
substance was identified by the Pennsylvania State Police
Forensic Laboratory as 14.1 grams of cocaine.
On January 27, 2011, Mr. Munoz made a second controlled
purchase of cocaine from Lou. This time, Mr. Munoz purchased
one ounce of cocaine from Lou for $1,150.00. All other elements
of the sale were nearly identical to the first transaction: Lou
picked Mr. Munoz up on South Duke Street, transported him to
the intersection of Marion and North Ann Streets, collected the
money, briefly left the vehicle, and returned with the cocaine.
Once again, Trooper Cessna followed Mr. Munoz throughout the
entire interaction. After the purchase, Mr. Munoz provided
Trooper Cessna with a second bag containing a white substance
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which was later identified by the Pennsylvania State Police
Laboratory as 26.8 grams of cocaine.
On April 18, 2012, Mr. Munoz contacted Trooper Cessna and
name was Jose Santiago. Trooper Cessna showed Mr. Munoz a
photograph of [Santiago], who Mr. Munoz identified as being the
same individual that he knew as Lou and had purchased cocaine
from on two occasions. Trooper Cessna also recognized
[Santiago] as Lou. As a result of the positive identifications,
Trooper Cessna charged [Santiago] with two counts of delivery
of cocaine.
-4. (headings, citations to
notes of testimony, and footnote omitted; some capitalization modified).
Following a jury trial, Santiago was convicted of both counts on July 9,
2013. On September 23, 2013, Santiago was sentenced to an aggregate
expiration of the statutory deadline for filing a notice of appeal, Santiago
sought leave of the trial court to file an appeal nunc pro tunc. On November
appellate rights nunc pro tunc. Santiago filed a notice of appeal on
December 12, 2013.
On December 16, 2013, the trial court directed Santiago to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), to be served on the court no later than January 6, 2014. Santiago
filed a timely concise statement on January 2, 2014. On February 28, 2014,
the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Santiago raises the following issue for our review:
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Whether the lower court erred in determining that the evidence
is legally
Brief for Santiago at 4.
Santiago claims that the evidence was insufficient to support his
See Brief for Santiago at 9. The Commonwealth argues that it may sustain
its burden entirely with circumstantial evidence, that physical evidence is not
required, and that the jury was free to believe that the testimony was
reliable. See Brief for Commonwealth at 6, 8.
rding the sufficiency of the evidence is
based, in part, upon an assertion that the jury should not have believed the
l history,
which includes drug-related convictions and the crimina falsi of theft and
receiving stolen property, and because the initial description of the actor
provided in the narrative that Trooper Cessna prepared shortly after
observing the offense lacked sufficient detail to identify Santiago. However,
a sufficiency of the evidence claim, the type that Santiago asserts in his brief
and raised in his concise statement, does not include an assessment of the
credibility of the testimony offered by the Commonwealth. Commonwealth
v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003). Rather, an argument
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Commonwealth v. Gibbs,
981 A.2d 274, 281 82 (Pa. Super. 2009). Santiago essentially is asking this
Court to assess the weight, not the sufficiency, of the evidence. Santiago
did not preserve a challenge to the weight of the evidence by raising such a
challenge before the trial court in a post-sentence motion.2 He also does not
address a weight challenge in his brief. Thus, to the extent that Santiago is
advancing a weight claim in this appeal, such a claim has not been properly
preserved and is waived.
Beyond the credibility issue, Santiago argues that the testimony
provided at trial was insufficient to sustain his convictions. When reviewing
challenges to the sufficiency of the evidence, our standard of review is as
follows:
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
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
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2
A claim that the verdict was against the weight of the evidence must
be raised with the trial judge in a motion for a new trial either (1) orally, on
the record, at any time before sentencing, (2) by written motion at any time
before sentencing, or (3) in a post-sentence motion. Pa.R.Crim.P. 607.
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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. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations
omitted). Further, in viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, the court must give the prosecution
the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
Santiago was convicted of two counts of delivery of a controlled
substance in violation of 35 P.S. § 780-113(a)(30).
The crime of delivery of a controlled substance is defined as follows:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
* * *
(30) Except 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,
or a practitioner not registered or licensed by the appropriate
State board, or knowingly creating, delivering or possessing with
intent to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30) (emphasis added).
The term delivery, as used in this section, is defined by the Controlled
Substance, Drug, Device
attempted transfer from one person to another of a controlled substance,
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other drug, device or cosmetic whether or not there is an agency
-102. For a defendant to be guilty of delivery of
a controlled substance, the Commonwealth must present evidence that the
charged defendant knowingly made an actual, constructive, or attempted
transfer of a controlled substance to another person without the legal
authority to do so. Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa.
2004).
Viewing the evidence of record in the light most favorable to the
Commonwealth, the evidence was more than sufficient to sustain both of
two
occasions, Santiago knowingly made an actual transfer of a controlled
substance to Mr. Munoz without the legal authority to do so. Santiago first
sold 14.1 grams of cocaine to Mr. Munoz in exchange for $575.00, and on a
second occasion, Santiago sold 26.8 grams of cocaine to Mr. Munoz in
exchange for $1,150.00.
Mr. Munoz testified that, on both occasions before they executed the
provided Mr. Munoz with the money for the drug transaction, and dropped
him off near the pre-arranged meeting area. Mr. Munoz testified that
Santiago met him at the designated area and drove the two of them to the
same intersection on both occasions. Once at the intersection, Santiago
took the money from Mr. Munoz and left the vehicle to go around a corner.
After five or ten minutes, Santiago returned to the vehicle and provided Mr.
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Munoz with a bag containing cocaine, which Mr. Munoz then delivered to
Trooper Cessna. Mr. Munoz testified that he did not know
name at the time of the transactions, but learned it afterwards. Mr. Munoz
identified Santiago by a photograph that Trooper Cessna provided to him,
and he identified Santiago during the trial as the individual who had sold the
cocaine to him.
Mr. Munoz and provided him with pre-recorded State Police Fund money to
complete the transaction. Trooper Cessna followed and observed Mr. Munoz
and Santiago while they conducted their business. He then recovered the
cocaine from Mr. Munoz and searched Mr. Munoz again, confirming that the
Cessna identified Santiago as the individual that he followed and had seen
engaging in these drug transactions.
Finally, Santiago argues that the evidence was insufficient to sustain
his convictions for delivery of a controlled substance because the
Commonw
See Brief for
Santiago at 7, 10. This argument not only ignores the evidentiary value of
the testimony, but it also fails to account for the fact that the
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crime beyond a reasonable doubt by means of wholly circumstantial
Phillips, 93 A.3d at 856.
The jury elected to believe the evidence presented by the
Commonwealth and determined that the evidence was sufficient to find
Santiago guilty beyond a reasonable doubt. This Court will not disturb the
fact-
the evidence is so weak and inconclusive that as a matter of law no
Phillips, 93 A.3d at 856. As the testimony provided by the
of a controlled substance and identified Santiago as the individual who
committed this crime beyond a reasonable doubt, the evidence is not too
weak or inconclusive to sustain the convictions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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