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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DANILO DeJESUS, : No. 2089 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 23, 2015,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0004319-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 03, 2016
Danilo DeJesus appeals from the June 23, 2015 aggregate judgment of
sentence of 5 years’ and 10 months’ to 20 years’ imprisonment imposed
after a jury found him guilty of two counts of possession with intent to
deliver a controlled substance (“PWID”), possession of a controlled
substance, and criminal conspiracy.1 After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows:
On August 4, 2014, around 11:00 [p.m.],
members of the Allentown Police Department’s Vice
and Intelligence Unit were conducting a drug
investigation in the area of American Parkway and
Hamilton Street in Allentown, Pennsylvania. A
confidential informant (CI) advised officers that two
males in a silver Dodge Magnum were bringing a
* Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S.A. § 903, respectively.
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large quantity of heroin into Allentown from
Philadelphia. The CI provided reliable information on
previous occasions, which led to numerous arrests.
The CI provided a description of the two males to
[Detective Evan] Weaver: One was described as a
bald Dominican with facial hair named Danny, and
the other was described as a stocky Hispanic with
dark hair and facial hair.
Officers observed a silver Dodge Magnum and
a black Toyota Camry parked next to each other in
front of a club at the American Parkway plaza.
These were the only two vehicles in that part of the
lot. There were several children running back and
forth between the two vehicles. Across the street at
a bus terminal, officers observed two males
matching the descriptions given by the CI. The men,
later identified as [appellant], and co-defendant
Josue [Massa] were watching the two vehicles across
the street and were talking on the phone. Both
vehicles were registered out of Philadelphia. The
Magnum was registered to Joseline Coss, [Messa’s]
wife, and the Camry was registered to co-defendant
Pablo Maya-Rodriguez and an unidentified female.
[Appellant] and [Massa] walked back across
the street to the Magnum, and [Massa] entered the
front passenger side and [appellant] entered the rear
passenger area. Ms. Coss was in the driver[’s] seat
of the Magnum and Maya-Rodriguez was in the
driver’s seat of the Camry. Officers approached the
vehicles and spoke with the occupants. Maya-
Rodriguez and Coss both signed a consent to search
form for their respective vehicle[s]. Inside the
Magnum, officers located a small, black digital scale.
Inside the trunk of the Camry, officers located a gym
bag containing approximately 500 grams of heroin
and approximately 100 grams of cocaine.
Trial court opinion, 9/22/15 at 1-3.
On November 12, 2014, appellant was charged with multiple counts of
PWID, possession of a controlled substance, and criminal conspiracy in
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connection with this incident. Appellant proceeded to a jury trial on May 20,
2015, and was subsequently found guilty of the aforementioned offenses.
On May 22, 2015, appellant made an oral motion for a new trial based on
the weight of the evidence, which was denied by the trial court that same
day. On June 23, 2015, appellant was sentenced to an aggregate term of
5 years’ and 10 months’ to 20 years’ imprisonment. Appellant did not file
any post-sentence motions. This timely appeal followed on July 9, 2015.2
On appeal, appellant raises the following issues for our review:
1. DID THE TRIAL COURT ERR IN FAILING TO
GRANT [APPELLANT’S] REQUESTED POINT FOR
CHARGE NUMBER THREE: []EVEN IF THE
PROSECUTOR HAS MADE NO PROMISES,
EITHER ON THE PRESENT CASE OR IN OTHER
PENDING CRIMINAL MATTERS, THE WITNESS
MAY HOPE FOR FAVORABLE TREATMENT FROM
THE PROSECUTOR IF THE WITNESS
PRESENTLY TESTIFIES IN A WAY THAT IS
HELPFUL TO THE PROSECUTION[?]
2. WAS THE VERDICT AGAINST THE WEIGHT OF
THE EVIDENCE FOR THE FOLLOWING
REASONS:
A. TWO VEHICLES WERE INVOLVED IN
THE ALLEGED CONTROLLED
SUBSTANCE TRANSFER, NEITHER OF
WHICH BELONGED TO [APPELLANT]
WHO WAS MERELY A PASSENGER IN
ONE OF THEM.
B. THERE WAS NO FORENSIC EVIDENCE
LINKING [APPELLANT] TO THE
CONTROLLED SUBSTANCES SUCH AS
FINGERPRINTS OR DNA EVIDENCE.
2
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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C. THE CONTROLLED SUBSTANCES
WERE NOT IN PLAIN SIGHT AND
THERE WAS NO PROOF THAT
[APPELLANT] EVEN KNEW OF THE
EXISTENCE OF THEM.
D. A COMMONWEALTH EXPERT WITNESS
TESTIFIED THAT CELL PHONE
INFORMATION IS OFTEN EVIDENCE
OF CONTROLLED SUBSTANCE
DEALING. NO SUCH INFORMATION
WAS FOUND IN [APPELLANT’S] CELL
PHONE.
E. THE EVIDENCE AGAINST [APPELLANT]
WAS MAINLY ACCOMPLICE
TESTIMONY[?]
Appellant’s brief at 4-5.
Appellant first argues that the trial court erred in denying his request
to give the following jury instruction with regard to the testimony of
Commonwealth witnesses Josue Massa and Pablo Maya-Rodriguez:
Even if the Prosecutor has made no promises, either
on the present case or in other pending criminal
matters, the witness may hope for favorable
treatment from the prosecutor if the witness
presently testified in a way that is helpful to the
Prosecution.
Id. at 11.
“In reviewing a challenge to the trial court’s refusal to give a specific
jury instruction, it is the function of this Court to determine whether the
record supports the trial court’s decision.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1257 (Pa.Super. 2014), appeal denied, 104
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A.3d 1 (Pa. 2014) (citation omitted). “[A] trial court has broad discretion in
phrasing its instructions, and may choose its own wording so long as the law
is clearly, adequately, and accurately presented to the jury for its
consideration.” Commonwealth v. Charleston, 94 A.3d 1012, 1021
(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation
omitted). “A jury charge will be deemed erroneous only if the charge as a
whole is inadequate, not clear or has a tendency to mislead or confuse,
rather than clarify, a material issue.” Commonwealth v. Sandusky, 77
A.3d 663, 667 (Pa.Super. 2013).
In the instant matter, the trial court determined that appellant’s
requested instruction was unnecessary in light of its standard jury
instructions on accomplice testimony and credibility. (Notes of testimony,
5/21/15 at 183-184, 208-210.) At the close of the evidence, the trial court
instructed the jury on accomplice testimony at great length, closely
mirroring Pennsylvania Suggested Standard Criminal Jury Instruction § 4.01.
When a Commonwealth witness is an
accomplice, his or her testimony has to be judged by
special precautionary rules. Experience shows that
an accomplice, when caught, may often try to place
the blame falsely on someone else. He or she may
testify falsely in the hope of obtaining favorable
treatment, or for some corrupt or wicked motive. On
the other hand, an accomplice may be a perfectly
truthful witness. The special rules that I will give
you are meant to help you distinguish between
truthful and false accomplice testimony.
In view of the evidence of Pablo
Maya-Rodriguez and Josue Massa’s criminal
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involvement, you must regard them as accomplices
in the crime charged and apply the special rules to
their testimony.
These are special rules that apply to
accomplice testimony: First, you should view the
testimony of an accomplice with disfavor because it
comes from a corrupt and polluted source; second,
you should examine the testimony of an accomplice
closely and accept it only with care and caution;
third, you should consider whether the testimony of
an accomplice is supported, in whole or in part, by
other evidence.
Accomplice testimony is more dependable if
supported by independent evidence. However, even
if there is no independent supporting evidence, you
may still find the defendant guilty solely on the basis
of an accomplice’s testimony if, after using the
special rules I just told you about, you are satisfied
beyond a reasonable doubt that the accomplice
testified truthfully and the defendant is guilty.
Notes of testimony, 5/22/15 at 39-40.
The record further reflects that the trial court also instructed the jury
on the various factors it should consider when judging the credibility of a
witness, in accordance with Pennsylvania Suggested Standard Criminal Jury
Instruction § 4.17. These factors included whether “the witness ha[s] any
interest in the outcome of the case, bias, prejudice, or other motive that
might affect his testimony.” (Id. at 44.)
Upon review, we conclude that these instructions provided the jury
with a sufficient framework to consider any possible motives Massa and
Pablo Maya-Rodriguez may have had in testifying for the Commonwealth.
This court has long recognized that “[t]he trial court is not required to give
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every charge that is requested by the parties and its refusal to give a
requested charge does not require reversal unless the appellant was
prejudiced by that refusal.” Commonwealth v. Brown, 911 A.2d 576, 583
(Pa.Super. 2006) (citation omitted), appeal denied, 920 A.2d 830 (Pa.
2007). Instantly, the trial court’s instructions clearly and accurately set
forth the applicable law and were neither misleading nor confusing to the
jury. Accordingly, appellant’s claim that the trial court erred in failing to
give his requested charge must fail.
Appellant next argues the trial court erred in denying his motion
challenging the weight of the evidence. (Appellant’s brief at 12.)
Specifically, appellant avers the verdict “shocks one’s sense of justice” for
the following reasons:
Two vehicles were involved in the alleged controlled
substance transfer, neither of which belonged to
[appellant] who was merely a passenger in one of
them.
There was no forensic evidence linking [appellant] to
the controlled substances such as fingerprints or
DNA evidence.
The controlled substances were not in plain sight and
there was no proof that [appellant] even knew of the
existence of them.
A Commonwealth expert witness testified that cell
phone information is often evidence of controlled
substance dealing. No such information was found in
[appellant’s] cell phone.
The evidence against [appellant] was mainly
accomplice testimony.
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Id. at 4-5, 12-13.
“An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court.” Commonwealth v. Galvin,
985 A.2d 783, 793 (Pa. 2009), cert. denied, 559 U.S. 1051 (2010) (citation
omitted).
[W]here the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against
the weight of the evidence. Rather, appellate review
is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation
omitted).
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.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
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the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and
emphasis omitted).
Upon review, we discern no abuse of discretion on the part of the trial
court in rejecting appellant’s weight claim. The record reflects that the jury
in this case was fully aware of the fact that neither vehicle in this case was
owned by appellant, and that there was no forensic evidence linking
appellant to the narcotics found in Maya-Rodriguez’s vehicle. Rather, the
Commonwealth presented testimony from appellant’s co-conspirators at trial
to support its theory that the drugs in question belonged to appellant.
Specifically, Massa testified that he and Maya-Rodriguez met up with
appellant and agreed to drive him to Allentown to sell narcotics to an
individual named “Peto.” (Notes of testimony, 5/21/15 at 70-74.)
Maya-Rodriguez further testified that it was appellant who placed the gym
bag later found to contain heroin and cocaine in the trunk of his vehicle, and
this contention was reiterated during the testimony of Detective Weaver.
(Id. at 20-21, 149.) Appellant, on the contrary, testified that the narcotics
found by police did not belong to him. (Id. at 191, 193.)
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It is well settled that “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. Caban, 60 A.3d 120,
132 (Pa.Super. 2012), appeal denied, 79 A.3d 1097 (Pa. 2013) (citation
omitted). In the instant matter, the jury evidently found the Commonwealth
witnesses credible and elected not to believe appellant’s version of the
events. We are precluded from reweighing the evidence and substituting
our judgment for that of the fact-finder. Clay, 64 A.3d at 1055.
Accordingly, appellant’s weight claim must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2016
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