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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LEE PEREZ
Appellant No. 3424 EDA 2014
Appeal from the Judgment of Sentence June 4, 2014
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s):CP-51-CR-0005590-2013
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 12, 2016
Appellant, Lee Perez, appeals from the judgment of sentence of
eleven-and-one-half to twenty-three months’ imprisonment followed by six
years’ probation entered in the Philadelphia County Court of Common Pleas
following jury trial. Appellant claims that the jury’s verdict on the charges of
possession with intent to deliver1 (“PWID”) and conspiracy2 was against the
weight of the evidence. We affirm.
The facts and procedural history relevant to this appeal are as follows.3
A team of Philadelphia Police officers engaged in surveillance for narcotics
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 903(a).
3
The trial court set forth a detailed review of the Commonwealth’s evidence.
See Trial Ct. Op., 1/20/16, at 2-9.
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trafficking on January 9, 2013, between 11:20 a.m. and 12:20 p.m. At
various times during the surveillance, they observed Michael Ocasio, Angel
Seda, and Appellant engage in suspected sales. For all but one of the sales,4
backup officers stopped the buyers and recovered heroin.
Officer Melvin Floyd testified that he observed Appellant engage in two
sales. First, at approximately 12:05 p.m., Officer Floyd saw Seda go into an
alley and when he returned, he handed a “bundle”5 to Appellant. Appellant
then received money from a buyer, Samuel Kramer, and handed Kramer
small blue packets from the bundle. Backup officers stopped Kramer after
the transaction and recovered two blue packets of heroin from Kramer’s
vehicle. Shortly thereafter, Officer Floyd observed Appellant exchange small
blue objects with a buyer, David Croner, for money. Backup officers stopped
Croner and recovered four clear packets of heroin with blue inserts stamped
“my turn.” At 12:20 p.m., Appellant and Seda left the scene in a red Nissan
Altima. Backup officers stopped the vehicle and arrested them. The officers
recovered Appellant’s wallet from the trunk of the vehicle. Appellant’s wallet
contained his identification and a total of $100 composed of one $20 bill,
4
The backup officers were not able to locate the suspected buyers of the
transaction that occurred at 11:43 a.m.
5
A “bundle” consists of numerous “packets” of heroin. N.T. Trial I, 5/8/14,
at 58. Officer Floyd testified that in Philadelphia, in his experience, a bundle
contains twelve to fourteen packets secured by a rubber band. Id.
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four $10 bills, six $5 bills, and ten $1 bills. No narcotics were recovered
from Appellant, Seda, or the vehicle.
At the jury trial held from May 8 to May 13, 2014, the Commonwealth
presented testimony from Officer Floyd regarding his surveillance and from
the police officers involved in the arrests of Appellant, co-defendant, and the
buyers.6 However, during Appellant’s cross-examination of Officer Floyd, the
officer conceded that he was not certain when he first saw Appellant, when
Appellant joined the co-defendant, and whether Appellant was present when
the officer began the surveillance. N.T. Trial I at 89-92, 99. The officer
acknowledged that Appellant was not involved in the first several
transactions he observed. Id. at 92. Moreover, Appellant’s cross-
examination revealed that Officer Floyd, for the first time at trial, stated he
saw Appellant opening the trunk of the Nissan Altima before leaving the
scene. Id. at 103-04. Officer Floyd did not memorialize that information in
his investigation reports or include it in his preliminary hearing testimony.
Id. However, the officer who stopped and searched the Nissan Altima
testified that the radio broadcast initiating the stop indicated that
“something was placed in the trunk before they left.” N.T. Trial III, 5/12/14,
at 66.
6
The parties stipulated that the contraband recovered from the buyers and
in the area of the transactions was heroin.
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Appellant, in his case-in-chief, presented character evidence of his
reputation as a law-abiding person. On May 13, 2014, the jury found
Appellant guilty of PWID and conspiracy, and on June 4, 2014, the trial court
sentenced him to eleven and one-half to twenty-three months’ imprisonment
followed by six years’ probation.
Appellant filed a timely post-sentence motion challenging the weight of
the evidence, which was denied by operation of law on October 10, 2014.
Appellant filed a timely notice of appeal on November 10, 2014, see 1
Pa.C.S. § 1908, and Appellant complied with the trial court’s order to submit
a Pa.R.A.P. 1925(b) statement.
Appellant’s sole claim on appeal is that the evidence was against the
weight of the evidence. See Appellant’s Brief at 3. Appellant contends that
he is entitled to a new trial because of the combined effects of (1) the
inconsistencies in Officer Floyd’s testimony regarding when he first observed
Appellant with co-defendant Ocasio and Seda and (2) Officer Floyd’s failure
to indicate before trial that he observed Appellant open the trunk of the
Altima before leaving the scene. Id. at 14-15. Appellant summarizes his
argument as follows:
In this case, the discrepancies in [Officer Floyd’s]
account of who was dealing drugs, calls into question his
whole story and makes his testimony suspect. His
eleventh hour inclusion of facts that implicate [A]ppellant
is equally suspect. Such testimony calls into question [the
officer’s] credibility and leads to the inescapable conclusion
that there was reasonable doubt as to [A]ppellant’s guilt.
Given such testimony any finding of culpability on
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[A]ppellant’s part would be highly speculative, especially
as [A]ppellant introduced good character evidence, which
may in and of itself create a reasonable doubt of guilt.
Id. at 17 (citation omitted). No relief is due.
The principles governing a challenge to the weight of the evidence are
well settled.
A verdict is against the weight of the evidence “only
when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice.” A weight of the evidence
claim is primarily directed to the discretion of the judge
who presided at trial, who only possesses “narrow
authority” to upset a jury verdict on a weight of the
evidence claim. Assessing the credibility of witnesses at
trial is within the sole discretion of the fact-finder. A trial
judge cannot grant a new trial merely because of some
conflict in testimony or because the judge would reach a
different conclusion on the same facts, but should only do
so in extraordinary circumstances, “when the jury’s verdict
is so contrary to the evidence as to shock one’s sense of
justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.” . . .
Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008) (citations
omitted).
“[T]he role of the trial judge is to determine that ‘notwithstanding all
the 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 justice.’”
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation and
some quotation marks omitted). An appellate court reviews the exercise of
discretion by the trial court, and “not . . . the underlying question of whether
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the verdict is against the weight of the evidence.” Id. (citation and
emphasis omitted).
Instantly, the trial court determined that Officer Floyd’s testimony “for
the most part” was “precise and consistent” and the jury was entitled to
credit his testimony. Trial Ct. Op. at 10. The court concluded that the
verdict did not “shock one’s sense of justice.” Id. at 11.
Although Appellant’s cross-examination revealed discrepancies in
Officer Floyd’s testimony, we agree with the trial court that those
discrepancies did not affect the reliability of his entire testimony. Contrary
to Appellant’s arguments, Officer Floyd’s remaining testimony, which
included his observations of Appellant receiving a bundle of heroin from
Seda, and personally engaging in two sales at approximately 12:05 p.m.,
was not tainted by the discrepancies and could be credited by the jury.
Similarly, we cannot accept Appellant’s contention that his character
evidence was of such greater weight than Officer Floyd’s testimony that to
accord the defense’s evidence lesser weight would deny justice. See Clay,
64 A.3d at 1055. Thus, having discerned no abuse of discretion in the trial
court’s rejection of Appellant’s weight of the evidence challenge, we affirm.
See Blakeney, 946 A.2d at 652-53.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
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