Com. v. Perez, W., Jr.

J-S14045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

WILLIE PEREZ, JR.

Appellant No. 934 MDA 2015

Appeal from the Judgment of Sentence April 30, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003151-2014

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2016

Appellant Willie Perez, Jr. appeals from the judgment of sentence

entered in the Court of Common Pleas of York County on April 30, 2015, by

the Honorable Richard K. Renn. Upon our review of the record, we affirm.

The trial court summarized the facts underlying Appellant’s convictions

as revealed at a jury trial held on March 12th-13th, 2015, as follows:

After explaining what a CI is and how a controlled buy is
conducted, Detective Russell Schauer testified that his role on
the night of March 10, 2014 was to take pictures of the
controlled buy. N.T. 3/12-3/13/2015 at 107-11. Detective
Schauer said that he was informed by his colleague, Officer
Adam Bruckhart, that a controlled buy involving the Appellant
was to occur later that night. Id. at 112. Detective Schauer did
not actually speak to the CI and he was not involved in the
phone conversations between the Appellant, CI, and Officer
Bruckhart; however, he was briefed on what was to happen. Id.
at 113. Detective Schauer was informed that the CI would meet
the Appellant at 750 East Princess Street (Pak's Grocery), buy
cocaine and a firearm, and then meet officers at a pre-selected
location. Id. at 112-13.

*Former Justice specially assigned to the Superior Court.
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Detective Schauer explained that he was parked on the
east side of South Sherman Street, which was about 30 yards
south of East Princess Street; the grocery store was to his west.
N.T. 3/12-3/13/2015 at 114. While waiting at that location,
Detective Schauer testified that Officer Bruckhart radioed to him
that the CI (and his vehicle) had been searched, and he was also
given official funds. Id. Detective Schauer observed the CI arrive
at Pak's around 5:30PM. Id. at 115. The CI parked east pointed
in Detective Schauer's direction. Id.
From his location, Detective Schauer testified that he
observed a black Honda CRV enter Pak's parking lot and park
directly beside the CI's vehicle. N.T. 3/12-3/13/2015 at 116-17.
The driver of the Honda was identified as the Appellant. Id. at
117. The Appellant exited his vehicle and got into the front
passenger seat of the CI's vehicle. Id. About a minute or two
later, the Appellant exited the vehicle. Id. The Appellant leaned
into his vehicle, walked back to the CI's vehicle, leaned in, and
then returned to his trunk. Id. at 119. The Appellant opened his
trunk, walked back to the CI's vehicle, leaned it, [sic] and then
returned to his Honda CRV. Id. Then, the Appellant drove away;
the entire incident took three to five minutes. Id. at 119,127.
The photographs Detective Schauer took that night were
produced for the jury.
On cross-examination, Detective Schauer testified that this
particular controlled buy was a "buy-walk," which meant the
officers did not arrest the suspect on the spot. N.T. 3/12-
3/13/2015 at 129. Detective Schauer also testified that he
personally did not witness the search of the CI or the CI's
vehicle. Id. at 132-33. He also admitted that at no time did he
see the Appellant with a gun or white plastic bag in his hand. Id.
at 146-47.
Trooper Justin Dembowski was also conducting
surveillance on the night of March 10, 2014. N.T. 3/12-
3/13/2015 at 157. He testified that he was positioned about a
half a block away from Pak's. Id. From his vantage point,
Trooper Dembowski observed the Appellant's vehicle pull into a
parking space next to the CI's vehicle. Id. at 159. Trooper
Dembowski saw the Appellant exit his vehicle and get into the
CI's vehicle and remain there for a short time. Id. at 160. He
saw the Appellant exit the CI's vehicle, go back to his vehicle,
then go back to the CI's vehicle, and then finally go back to his
trunk. Id. at 160-61. Trooper Dembowski saw the Appellant
carrying a white object from his trunk to the CI's vehicle where
he leaned in the front passenger side door. Id. at 161. The

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Appellant then left in his SUV. Id. Like Detective Schauer,
Trooper Dembowski testified that the entire incident lasted only
a few minutes. Id. at 162.
On cross-examination, Trooper Dembowski maintained
that nothing obstructed his view of the transaction. N.T. 3/12 -
3/13/2015 at 165-67. Like Detective Schauer, Trooper
Dembowski did not create a supplemental police report. Id. at
168-69. Trooper Dembowski did not know what this white object
was that he observed. Id. at 171.
The next witness for the Commonwealth was the CI, Kevin
Real. N.T. 3/12-3/13/2015 at 196. In April of 2013, Mr. Real was
arrested on two counts of delivery of cocaine and criminal
conspiracy to deliver cocaine, which is how he came in contact
with Officer Bruckhart. Id. at 196-97. On the evening of March
10, 2014, Mr. Real contacted Officer Bruckhart about purchasing
drugs from an individual with a streetname of "Animal."5 Id. at
197. At Officer Bruckhart's request, Mr. Real called the Appellant
to set up the buy. Id. at 199. The Appellant agreed to sell Mr.
Real a half ounce of cocaine and a firearm for a total price of
$1150. Id. at 200-01.
Mr. Real testified that Officer Bruckhart gave him the
official funds and searched his person and his car. N.T. 3-12-
3/13/2015 at 201-02. After being searched, Officer Bruckhart
stayed with him until it was time to meet the Appellant for the
buy. Id. at 202. Mr. Real arrived at the location first, and about
10 to 15 minutes after he arrived the Appellant called him. Id. at
203. The Appellant arrived shortly thereafter, and got into Mr.
Real's car. Id. Mr. Real testified that he gave the Appellant the
$1150 in official funds and the Appellant took it and went back
to his SUV. Id. When he came back to Mr. Real's car the
Appellant had the cocaine, which he put in his center console. Id.
The Appellant then got out of Mr. Real's car and when [sic] to
the trunk of his SUV where he got the firearm and placed it in
Mr. Real's car. Id. Mr. Real testified that the gun was wrapped in
something white. Id. at 206.
On cross-examination, Mr. Real testified that he had
known the Appellant for roughly two years before this incident
occurred. N.T. 3/12-3/13/2015 at 210. With respect to the
search of his person, Mr. Real stated Officer Bruckhart did not
strip search him or conduct a body cavity search. Id. at 215. Mr.
Real also denied having a secret compartment in his car. Id. at
217-18. Lastly, Mr. Real testified that after he was arrested in
2013 he decided to make some positive changes in his life,
which is why he agreed to become a CI. Id. at 224 -25.

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Officer Adam Bruckhart testified that Mr. Real informed
him that he would be able to purchase cocaine and a firearm
from an individual named "Animal." N.T. 3/12- 3/13/2015 at
232. After some investigation, Officer Bruckhart was able to
determine that "Animal" was in fact the Appellant. Id. at 232-33.
On March 10, 2014, Officer Bruckhart met with Mr. Real and
instructed him to call the Appellant; Mr. Real complied. Id.
Although Officer Bruckhart was present for the call, Mr. Real did
not put the conversation on speaker phone. Id. After the deal
was in place, Officer Bruckhart briefed the other members of the
Drug Task Force on the plan. Id. at 234-35. Officer Bruckhart
testified that the [sic] searched Mr. Real and his vehicle and
found no drugs and no firearms. Id. at 237.
Officer Bruckhart followed Mr. Real to the location and
parked his vehicle approximately a half a block away on Princess
Street. N.T. 3/12-3/13/2015 at 238. Officer Bruckhart testified
that from his vantage point he could not tell if the individual in
the black SUV was the Appellant, but that he did see the driver
interacting with Mr. Real, the CI. Id. at 238 -39. After receiving
a call from Mr. Real indicating the deal was complete, Officer
Bruckhart met Mr. Real back at the Drug Task Force building. Id.
at 239-40. Mr. Real and his car were searched again; the
cocaine was found in the center console and the gun was found
underneath the front passenger seat.6
On cross -examination, Officer Bruckhart explained that he
made the decision not to arrest the Appellant on the spot
because it could have jeopardized other investigations that Mr.
Real was working on. N.T. 3/12-3/13/2015 at 258-59. Officer
Bruckhart also testified that it was his understanding that as
long as Mr. Real cooperated through trial his open charges would
be dismissed. Id. at 262 -63. However, evidence was introduced
that Mr. Real's charges were dismissed March 28, 2014,
approximately two weeks after the controlled buy with the
Appellant. Id. at 263.
Finally, the Commonwealth presented two more
stipulations. The first one being that the Appellant was a person
prohibited by law to possess a firearm. N.T. 3/12-3/13/2015 at
269. The second one being that the Appellant did not have a
valid license to carry a concealed firearm or transport one in a
vehicle. Id. The Commonwealth rested, and the Appellant chose
not to present any testimony. Id. at 276.

___

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5
Mr. Real knew that the Appellant went by that street name.
N.T. 3/12-3/13/2015 at 198.
6
The parties stipulated that the substance found in the center
console was cocaine weighing 15.88 grams. N.T. 3/12.
3/13/2015 at 243. The parties also agreed that the firearm
recovered from the car was capable of discharging the kind of
ammunition for which it was manufactured. Id. at 244.45

Trial Court Opinion, 9/1/15, at 4-8.

Having heard this evidence, on March 13, 2015, a jury convicted

Appellant of one count each of Manufacture, delivery, or possession with

intent to manufacture or deliver a controlled substance (cocaine) (“PWID”),

Firearms not to be carried without a license, and Persons not to possess,

use, manufacture control, sell or transfer firearms.1 On April 30, 2015,

Appellant was sentenced to an aggregate term of four years to eight years in

prison, and on May 29, 2015, he filed a timely notice of appeal. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents one question for our review: “Did the trial court err

in holding that the Commonwealth presented sufficient evidence to support

the verdict on the charges of Possession with Intent to Deliver a Controlled

Substance and Possession of a Firearm?” Brief for Appellant at 4. Appellant

specifies that he is challenging only the element of possession contained in

each of the aforementioned charges as he was never in possession of

controlled substances or a firearm. Id. at 10. He maintains that Mr. Real’s
____________________________________________

1
35 Pa.C.S.A. § 780-113(a)(30); 18 Pa.C.S.A. § 6106(a)(1); 18 Pa.C.S.A. §
6105(a)(1), respectively.

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testimony to the contrary is suspect because of his representation that he

agreed to work with police officers because he wanted to turn his life

around. He claims Mr. Real’s dishonesty was illuminated by Officer

Bruckhart’s testimony that criminal charges for drug delivery pending

against Mr. Real in a separate and unrelated matter would be dismissed. Id.

at 14-15.

Appellant also asserts no eyewitness evidence was presented at trial to

establish he possessed cocaine or a firearm. In this regard, he states none

of the officers testified they saw him with controlled substances or a

weapon. Id. at 11-13. Appellant further stresses no marked funds were

recovered from him and no forensic evidence, such as fingerprints, was

obtained from the firearm to bolster Mr. Real’s insufficient testimony that he

possessed a firearm. Id. at 10, 16. Finally, he faults the officers for failing

to search Mr. Real and his vehicle immediately following the transaction, for

this left no way to ensure Mr. Real did not plant drugs and a firearm in his

vehicle. Id. at 15.

We consider a challenge to the sufficiency of the evidence pursuant to

the following standard:

[O]ur standard of review of sufficiency claims requires that we
evaluate the record “in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.” Commonwealth v.
Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). “Evidence will
be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.”

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Commonwealth v. Brewer, 876 A.2d 1029, 1032
(Pa.Super.2005). Nevertheless, “the Commonwealth need not
establish guilt to a mathematical certainty.” Id.; see also
Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super.
2000) (“[T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence”). Any doubt about the defendant's guilt
is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances. See
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.
2001). The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. See Brewer, 876 A.2d at 1032.
Accordingly, “[t]he fact that the evidence establishing a
defendant's participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled with the
reasonable inferences drawn therefrom overcomes the
presumption of innocence.” Id. (quoting Commonwealth v.
Murphy, 795 A.2d 1025, 1038–39 (Pa.Super. 2002)).
Significantly, we may not substitute our judgment for that of the
fact finder; thus, so long as the evidence adduced, accepted in
the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant's crimes beyond a
reasonable doubt, the appellant's convictions will be upheld. See
Brewer, 876 A.2d at 1032.

Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa.Super. 2013).

In order to obtain a conviction under 35 P.S. § 780-113(a)(30), the

Commonwealth must prove that a defendant both possessed a controlled

substance and had an intent to deliver that substance. 35 P.S. § 780-

113(a)(30); See also Commonwealth v. Torres, 617 A.2d 812 (Pa.Super.

1992). In addition, the offense of Persons not to possess firearms provides

in relevant part that:

(1) [a] person who has been convicted of an offense
enumerated in subsection (b) within or without this
Commonwealth, regardless of the length of the sentence or
whose conduct meets the criterial in subsection (c) shall not

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possess, use, control, sell, transfer, or manufacture or obtain a
license to possess, use, control, sell, transfer or manufacture a
firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1). As such, to sustain a conviction on this charge,

the Commonwealth had to prove that Appellant had a prior conviction of a

listed offense and possessed a firearm. Commonwealth v. Williams, 911

A.2d 548 (Pa.Super. 2006). Also,

“[i]n narcotics possession cases, the Commonwealth may meet
its burden by showing actual, constructive, or joint constructive
possession of the contraband.” Commonwealth v. Thompson,
286 Pa.Super. 31, 428 A.2d 223, 224 (1981). Actual possession
is proven “by showing ... [that the] controlled substance [was]
found on the [defendant's] person.” Commonwealth v.
Macolino, 503 Pa. 201, 469 A.2d 132, 134 (1983). If the
contraband is not discovered on the defendant's person, the
Commonwealth may satisfy its evidentiary burden by proving
that the defendant had constructive possession of the drug. Id.
Our Supreme Court has defined constructive possession as “the
ability to exercise a conscious dominion over the illegal
substance: the power to control the contraband and the intent to
exercise that control.” Macolino, 469 A.2d at 134. In the words
of our Supreme Court, “constructive possession is a legal fiction,
a pragmatic construct to deal with the realities of criminal law
enforcement.” Commonwealth v. Johnson, 611 Pa. 381, 26
A.3d 1078, 1093 (2011) (internal quotations, citations, and
corrections omitted). It is a “judicially created doctrine ... [that]
enables law enforcement officials to prosecute individuals in
situations where the inference of possession is strong, yet actual
possession at the time of arrest cannot be shown.” Mark I.
Rabinowitz, Note, Criminal Law Constructive Possession: Must
the Commonwealth Still Prove Intent?—Commonwealth v.
Mudrick, 60 Temple L.Q. 445, 499–450 (1987).

Commonwealth. v. Vargas, 108 A.3d 858, 868 (Pa.Super. 2014) (en

banc).

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Our review of the testimony and evidence presented at trial viewed in

a light most favorable to the Commonwealth as verdict winner reveals

sufficient evidence from which a jury reasonably could have inferred that

Appellant removed cocaine and a firearm from his SUV and placed those

items in Mr. Real’s vehicle. Mr. Real testified he had arranged to purchase

cocaine and a firearm from Appellant at Pak’s Grocery on March 10, 2014.

Specifically, Mr. Real explained that during a telephone conversation made in

the presence of Officer Bruckhart, he agreed to a purchase price of $650.00

for a half ounce of cocaine and of $500.00 for a handgun. N.T., 3/12-

3/13/15, at 200-01. Officer Bruckhart provided Mr. Real with $1,150.00,

thoroughly searched him before he proceeded to Pak’s Grocery, followed him

to the designated spot and watched him throughout the transaction. Id. at

201-02.

Mr. Real further testified that when Appellant initially entered his

vehicle he handed Appellant the money which prompted Appellant to return

to his SUV. When he returned to Mr. Real’s car, Appellant placed a half

ounce of cocaine in the center console. Id. at 203, 205. Appellant went to

his car a second time, opened the back hatch of his SUV, and returned to

Mr. Real who had remained seated alone in his vehicle. At that time,

Appellant was holding a firearm which had been wrapped in a white bag or

towel. Appellant removed the wrapping and placed the gun under the

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passenger side seat of Mr. Real’s vehicle. Appellant took the white cover

with him to his SUV and left the scene. Id. at 203, 206.

On cross-examination, Mr. Real admitted that part of the reason he

was willing to cooperate with Officer Bruckhart was the fact that he had

felony charges pending against him and was told those charges may be

reduced; they were in fact dismissed shortly thereafter. Id. at 208-09.

Regardless of Mr. Real’s motives for acting as a CI, the testimony of

three police officers present at the time of the transaction corroborated his

account. Officer Bruckhart stated that he had been present when Mr. Real

spoke to Appellant on the telephone. Prior to the meeting at Pak’s Grocery,

Officer Bruckhart searched Mr. Real’s person, pockets, clothing and shoes as

well as the passenger compartment, glove box and seats of his vehicle and

discovered no contraband. Id. at 236-37. Officer Bruckhart followed Mr.

Real to and from the designated meeting place where he and other officers

observed Appellant, alone, meet with Mr. Real. Id. at 238. Upon receiving

Mr. Real’s call that the deal had been completed, Officer Bruckhart followed

him to directly the Drug Task Force building where he searched Mr. Real and

his vehicle a second time. This search uncovered cocaine wrapped in a

paper towel in the center console, and a firearm along with a wad of paper

towels containing rounds of ammunition underneath the front passenger

seat. Id. at 239-41

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In addition, Detective Schauer testified he watched Appellant exit his

own vehicle, enter Mr. Real’s, and walk back to his SUV. Appellant leaned

into his SUV and returned to Mr. Real’s only to again return to his own

vehicle, open the trunk and return a second time to Mr. Real’s vehicle. Id.

at 116-19. Detective Schauer remarked that Mr. Real met with only

Appellant, and he took photographs of the entire incident, which lasted three

to five minutes. Id. at 119, 127. Finally, Trooper Dembowski testified that

he, too, watched the entire exchange and saw Appellant remove a white

object from his trunk and place it inside the passenger side of Mr. Real’s

vehicle. Id. at 161.

The parties stipulated the weapon Officer Bruckhart recovered from

underneath the front passenger seat of Mr. Real’s vehicle was a functional

firearm and that Appellant fit the criteria of one who was not permitted

possess firearms. The parties also stipulated that the substance later

recovered from the center console of Mr. Real’s vehicle was cocaine.

It is clear that the jury believed the testimony of Mr. Real and the

police officers even after having been made aware that Mr. Real’s motives

for testifying may not have been purely due to his desire to amend his ways;

it was within their province to do so. See Pettyjohn, supra. “As an

appellate court, we defer to the credibility determinations of the fact-finder.”

Commonwealth v. Heater, 899 A.2d 1126, 1132 (Pa.Super. 2006).

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Accordingly, we hold the evidence was sufficient to prove each element of

PWID and persons to possess a firearm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/17/2016

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