J-S33008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAMARIS RAMIREZ,
Appellant No. 1072 MDA 2016
Appeal from the Judgment of Sentence Entered June 2, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002682-2015
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 16, 2017
Appellant, Damaris Ramirez, appeals from the judgment of sentence of
an aggregate term of 6 to 20 years’ incarceration, imposed after a jury
convicted her of possession with intent to deliver a controlled substance
(PWID) and other drug-related offenses. On appeal, Appellant challenges
the sufficiency and weight of the evidence to sustain her convictions, as well
as discretionary aspects of her sentence. After careful review, we affirm.
The trial court summarized the facts of this case, as established at
Appellant’s May 2016 jury trial, as follows:
Appellant, [c]o-[defendant, Angel Delgado-Melendez,]
[Delgado-Melendez’s] sixteen year-old biological daughter (the
“Daughter”), and [Delgado-Melendez’s] eleven year-old son lived
together at their family home…. On the evening of April 23,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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2015, the Daughter was at the home with her younger brother.
Twice, in the course of that evening, Rocky, identified by the
Daughter as Appellant’s brother, entered and exited the home.
On both occasions, Rocky went immediately into Appellant’s
bedroom, closed the door, produced sounds indicative of
searching through Appellant’s dresser [drawers], and then exited
the house. During his time at the home, Rocky would say very
little to the Daughter. Additionally, during his first visit, he
locked Appellant’s bedroom door and later left the room carrying
something in his fist.
After the intrusion, the Daughter decided that she needed
to secure the premises and seek assistance. Her first step was
to secure the premises and prevent Rocky from returning. Next,
she searched through Appellant’s [drawers] and “[after she]
moved the clothes to the side … [she] found a bag that was
moved, so … [she] opened the bag and … [she] pulled out two
bag things and a little thing of powder….” After uncovering the
substances, using her cellphone, she sent a picture of the
substances to her Aunt. Later, the Daughter had a discussion
with her Aunt about the material she discovered. Finally, after
speaking with [her] Aunt…, the Daughter went to City Hall,
reported the incident, and at some point returned home.
Subsequently, the City dispatched Officer Bradley McClure
to Appellant’s home to conduct a safety check of the premises,
at the Aunt’s bequest. Seeing the Officer, the Daughter came
outside to talk. On her own initiative, the Daughter informed the
Officer that there were drugs in the house. To corroborate her
allegation, the Daughter showed the Officer a video of the drugs.
After viewing this video, the Officer relayed the information to
Sergeant Rodger, who then called the VICE unit and Child and
Youth Services. A search warrant was applied for and was
received.
…
Acting on the search warrant, Investigator [Darren] Smith,
along with Sergeant Rodger,[1] Officer McClure, and another
officer, entered Appellant’s house. The whole house was
searched, however items related to the drug trade were only
____________________________________________
1
No first name was given for Sergeant Rodger.
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found in Appellant’s and [Delgado-Melendez’s] shared bedroom.
In terms of drugs, the police found [the] following quantities and
types of drugs packaged in bulk in Appellant’s and [Delgado-
Melendez’s] dresser [drawers]: [49.51 grams of cocaine, 15.47
grams of cocaine, and 4.93 grams of Methamphetamine.]
Additionally, a spoon, a scale, resealable disposable bags,
and mail addressed to Appellant were found in the [drawers]
along with the drugs. The rest of the bedroom was also
searched and investigators uncovered a Pepsi box containing a
bottle of lidocaine and inositol.
Finally, at trial, Investigator Kevin Hasser, qualified as an
expert in the drug[] trade, testified that the material found in
Appellant’s bedroom was indicative of a drug dealer. First,
Hasser related to the [c]ourt that large bulk quantities of drugs
tend to indicate that the drugs were for sale, because by
repackaging and selling the drugs a significant profit could be
made. Second, Hasser related that the paraphernalia found was
indicative of a drug dealer trying to maximize her profit and
reputation. Specifically, the presence of a spoon for
apportioning the drugs, the baggies to create ready doses of the
drugs for resale, and the scale to weigh the drugs all indicated
that there was a concerted effort to effectively distribute the
drugs in the intended quantity, which would balance the
dealers[’] profitability and reputation concerns. Furthermore,
the presence of lidocaine and inositol were indicative of the
practice of cutting drugs. Hasser reasoned that due to the
numbing effect of these substances, a user can be fooled into
thinking he is consuming higher quality cocaine. It follows, that
a dealer attempting to maximize profitability would attempt to
stretch her product, while protecting the reputation of the quality
of her stock through this deception. Relying on all
aforementioned factors, under the totality of the circumstances,
Hasser was able to conclude that the house had function[ed] as
a stash house, an integral part of a drug deal operation.
Trial Court Opinion, 9/19/16, at 2-4 (citations to the record omitted).
Based on this evidence, a jury convicted Appellant of two counts each
of PWID, 35 Pa.C.S. § 780-113(a)(3); conspiracy to commit PWID, 18
Pa.C.S. § 903(a) and 35 Pa.C.S. § 780-113(a)(3); possession of a controlled
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substance, 35 Pa.C.S. § 780-113(a)(16); and conspiracy to commit
possession of a controlled substance, 18 Pa.C.S. § 903(a) and 35 Pa.C.S. §
780-113(a)(16). She was also convicted of single counts of possession of
drug paraphernalia, 35 Pa.C.S. § 780-113(a)(32), and conspiracy to commit
possession of drug paraphernalia, 18 Pa.C.S. § 903(a) and 35 Pa.C.S. § 780-
113(a)(32). On June 2, 2016, Appellant was sentenced to the aggregate
term of incarceration stated supra.
Appellant filed a timely post-sentence motion, which was denied on
June 7, 2016. She then filed a timely notice of appeal, and she also timely
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Herein, Appellant presents
two issues for our review:
A. Whether the evidence was insufficient as a matter of law and
[whether the verdict was] against the weight of the evidence to
convict [] Appellant of [PWID] and related charges where there
was no evidence that [Appellant] participated in drug trafficking
or had knowledge that drug trafficking was occurring in her
house?
B. Whether the trial court abused its discretion by imposing a
sentence that was manifestly excessive and did not consider the
Sentencing Code criteria?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Within Appellant’s first issue, she presents two separate claims - a
challenge to the sufficiency of the evidence to sustain her convictions, and a
challenge to the weight of the evidence to support the jury’s verdict.
The distinction between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted, would
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preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, whereas a claim
challenging the weight of the evidence if granted would permit a
second trial.
A claim challenging the sufficiency of the evidence is a
question of law. 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. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim the court is required to view the evidence in the
light most favorable to the verdict winner giving the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were
a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the 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. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (internal
citations, quotation marks, and footnote omitted).
Here, Appellant presents the same argument in support of both her
sufficiency and weight claims. Essentially, she maintains that the jury
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should have believed the testimony of Delgado-Melendez’s daughter who,
when asked if Appellant sold drugs, replied, “Not that I know of.” N.T. Trial,
5/23/16-5/24/16, at 151-52. Appellant also argues that the Commonwealth
failed to prove she knew about the drugs, or constructively possessed them,
where the evidence showed that the drugs found in her home were “not
exposed items that were clearly visible.” Appellant’s Brief at 13.
Appellant’s arguments are wholly unconvincing. First, the
circumstantial evidence was clearly sufficient to demonstrate that Appellant
constructively possessed the drugs and paraphernalia that were recovered
from the bedroom she shared with Delgado-Melendez.
When contraband is not found on the defendant’s person, the
Commonwealth must establish “constructive possession,” that is,
the power to control the contraband and the intent to exercise
that control. Commonwealth v. Valette, 531 Pa. 384, 613
A.2d 548 (1992).
The fact that another person may also have control and access
does not eliminate the defendant’s constructive possession; two
actors may have joint control and equal access and thus both
may constructively possess the contraband. Commonwealth v.
Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986). As with any other
element of a crime, constructive possession may be proven by
circumstantial evidence. Commonwealth v. Macolino, 503 Pa.
201, 469 A.2d 132 (1983). The requisite knowledge and intent
may be inferred from examination of the totality of the
circumstances. Commonwealth v. Thompson, 286 Pa. Super.
31, 428 A.2d 223 (1981). The fact that the contraband is located
in an area usually accessible only to the defendant may lead to
an inference that he placed it there or knew of its presence. Id.
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996).
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In this case, the drugs were found in Appellant’s bedroom. The drugs
and paraphernalia were located in a dresser drawer that also contained
women’s clothing, as well as mail and voter registration cards for both
Appellant and Delgado-Melendez. N.T. Trial at 174, 176-77. Additionally,
the “cutting agents” of lidocaine and inositol were found in a closet that also
contained female clothing. The fact that the drugs, paraphernalia, and
cutting agents were not only located within Appellant’s bedroom, but were
also found in areas where her clothing and mail was stored, was sufficient
circumstantial proof that Appellant constructively possessed those drugs and
paraphernalia. Moreover, in light of such evidence, the jury was free to
disbelieve any evidence suggesting that Appellant did not sell drugs, such as
the testimony of Delgado-Melendez’s daughter. See Commonwealth v.
Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (“[T]he [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.”) (citations
omitted). Finally, we ascertain no abuse of discretion in the trial court’s
rejection of Appellant’s weight-of-the-evidence claim, which is premised on
the same arguments as her challenge to the sufficiency of the evidence.
Next, Appellant attacks the discretionary aspects of her sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
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We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
question exists “only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant has met the first three prerequisites for review of her
discretionary aspects of sentencing claims. Therefore, we must next assess
whether her claims constitute substantial questions for our review. In her
Rule 2119(f) statement, Appellant essentially contends that the court failed
to properly weigh mitigating factors when fashioning her sentence. See
Appellant’s Brief at 6 (stressing that Appellant “had no substantial criminal
record, a strong work and family history” and did not commit a violent
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crime). Appellant also argues that her sentence is excessive because the
court imposed “each term of imprisonment consecutive to each other.” Id.
This Court has previously concluded that, generally, neither of these
arguments constitutes a substantial question for our review. See Moury,
992 A.2d at 171 (“An allegation that the sentencing court failed to consider
certain mitigating factors generally does not necessarily raise a substantial
question.”) (citations omitted); id. (“Under 42 Pa.C.S.A. § 9721, the court
has discretion to impose sentences consecutively or concurrently and,
ordinarily, a challenge to this exercise of discretion does not raise a
substantial question.”). However, more recently, we recognized that “an
excessive sentence claim - in conjunction with an assertion that the court
failed to consider mitigating factors - raises a substantial question.”
Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (citation
omitted). In light of Swope, we will construe Appellant’s claims as
constituting a substantial question for our review.
Nevertheless, Appellant’s arguments are meritless. It is well-
established that,
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
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Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
In the present case, Appellant avers that the court failed to consider
mitigating circumstances, yet the record demonstrates otherwise.
Specifically, the court acknowledged most of the mitigating circumstances
Appellant stresses herein. See N.T. Sentencing Hearing, 6/2/16, at 9
(court’s acknowledging Appellant’s “many positive qualities … and that she
has been good to her family at every level and that her family deeply cares
about her and she deeply cares about them”); id. at 10 (noting that
Appellant “has no prior record score”). The court also had the benefit of a
presentence report, and Appellant acknowledges that the court imposed
standard range sentences. Thus, we presume that Appellant’s sentence is
“appropriate under the Sentencing Code[,]” and that the “court was aware of
relevant information regarding [Appellant’s] character and weighed those
considerations along with mitigating statutory factors.” Moury, 992 A.2d at
171 (citations and internal quotation marks omitted).
Additionally, Appellant’s brief assertion that the court’s imposition of
consecutive sentences resulted in “a large sentence for a working mother
with a minor child to serve” is insufficient to demonstrate that the court
acted with “partiality, prejudice, bias or ill will,” or that it “arrived at a
manifestly unreasonable decision.” Shugars, 895 A.2d at 1275.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
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