J-S41042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TOMMY TIBURCIO :
:
Appellant : No. 1816 MDA 2016
Appeal from the Judgment of Sentence September 29, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001319-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 26, 2017
Appellant, Tommy Tiburcio, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following his jury trial
convictions for one (1) count each of possession of a controlled substance
(“POCS”)─heroin, POCS─cocaine, conspiracy to commit POCS─heroin,
conspiracy to commit POCS─cocaine, possession with intent to deliver
(“PWID”)─cocaine, PWID─heroin, conspiracy to commit PWID─cocaine,
conspiracy to commit PWID─heroin, and possession of drug paraphernalia.1
We affirm.
The trial court opinion sets forth the relevant facts and procedural
____________________________________________
1
35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30),
18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(32), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S41042-17
history of this case as follows:
FACTS
On February 16, 2016, Criminal Investigator David Haser
executed a search warrant for 1321 Hickory Street, located
in the City of Reading, Berks County. This house was
secured with security cameras and a fortified door. When
initially entering the house, C.I. Haser and other Officers
immediately proceeded to the kitchen. In the kitchen, in
plain sight C.I. Haser observed a black revolver on the
counter, later identified as a Colt Python. Looking up the
stairs, C.I. Haser observed [Appellant] on the ground.
Appellant was [detained shortly] thereafter. Proceeding
further into the house, Carlos Armenta Villa, Co-
Conspirator, was also discovered and detained.
After arresting Appellant, the house was searched by
numerous officers who identified evidence. It was C.I.
Haser’s ultimate responsibility to collect all this evidence.
As the amount of evidence discovered was considerable,
we shall address what was found in each room separately.
…
In the kitchen, the following evidence was discovered. As
already stated, on top of the kitchen counter, a Colt
Python revolver was found. Experts for the
Commonwealth testified that Appellant had possessed the
firearm, as his fingerprints were found on the gun. Within
feet of the revolver, under the sink, was a large Tommy
Hilfiger Purse. This purse contained large quantities of
heroin and cocaine, a cutting agent, a grinder, rubber
bands, a scale, glassine baggies, sandwich bags, and a
strainer. An additional bag contained more heroin, cutting
agent, and a large box of empty packaging material.
Additionally, a brown paper bag was discovered containing
cocaine and heroin, which was already packaged for street
sale.
Moving on to the bedroom, additional quantities of heroin
were discovered. While some of this heroin had already
been processed for individual sale, a significant quantity of
heroin was found in bulk form.
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Finally, additional evidence of drug distribution was found
in the basement. In the basement, a second revolver was
exposed, as well as ammunition for this weapon.
Moreover, the officers found 36 boxes of packaging
material, containing 300 glassine baggies each, and a
press, which is used to press the drugs back into a bulk
form.
At trial, the Co-Conspirator also testified. He stated that
he lived at the searched residence and that he also sold
drugs there. However, the Co-Conspirator also stated that
Appellant was permitted to use the house during the day
to sell and cook narcotics. Additionally, the Co-Conspirator
testified that Appellant had offered a bribe of
$5,000─$10,000 for him [to] claim that [Appellant] had
“no knowledge” of the drug activities.
Considering all this evidence, a qualified Commonwealth
expert, Criminal Investigator Brian Errington, testified as
to how the paraphernalia and quantity of narcotics was
indicative of someone who intended to distribute drugs,
and not a user. First, in reaching this conclusion the
expert relied upon the fact that there was no evidence of
paraphernalia for personal use. Additionally, the expert
considered that presence of cutting agents, a drug press,
and boxes of glassine baggies tended to indicate that
Appellant wished to process the drugs in a fashion to
maximize profit, by stretching supply and selling in
profitable quantities, opposed to using the drugs. Also,
the expert stated that the weapons found at the house and
the security measures were indicative of a house used for
dealing and storing drugs, as these measures are
commonly needed to protect Appellant from other drug
dealers. Finally, in reaching his ultimate conclusion, the
expert estimated the total value of the drugs found at the
house. In street value, there was approximately $220,000
of heroin and $27,000 of cocaine.
(Trial Court Opinion, dated February 14, 2017, at 2-4).
The court outlined the procedural history as follows:
PROCEDURAL HISTORY
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On September 29, 2016, a jury convicted [Appellant] of
the following offenses:
1. Possession of a Controlled Substance ("POCS")─Heroin;
2. POCS─Cocaine;
3. Conspiracy to Commit POCS─Heroin;
4. Conspiracy to Commit POCS─Cocaine;
5. Possession with Intent to Deliver a Controlled
Substance ("PWID")─Cocaine;
6. PWID─Heroin;
7. Conspiracy to Commit PWID─Cocaine;
8. Conspiracy to Commit PWID─Heroin;
9. Possession of Drug Paraphernalia.
After being convicted, Appellant was sentenced to several
consecutive sentences. The first period of incarceration,
lasting from 54 to 120 months, was received for the
PWID─Heroin. The second period of incarceration, lasting
48 to 120 months, was received for the PWID─Cocaine.
The third period of incarceration, lasting 48 to 96 months,
was received for Conspiracy to Commit PWID─Heroin. The
fourth period of incarceration, lasting 36 to 72 months,
was received for Conspiracy to Commit PWID─Cocaine.
Appellant was made RRRI eligible for all these sentences.
Additionally, Appellant was sentenced to one (1) year
probation for possession of drug paraphernalia.
Following sentencing, by and through counsel, Appellant
filed a post-sentence motion for a new trial and
modification of sentence, on October [5], 2016. [The trial
court] denied this motion on October 6, 2016. On
November 4, 2016, Appellant, now represented by the
public defender, filed a notice of appeal. Subsequently,
Appellant petitioned the Court for an extension to file a
concise statement, which we granted. A Concise
Statement was then filed on December 27, 2016.
(Id. at 1-2).
Appellant raises one issue on appeal:
WHETHER THE VERDICT OF GUILTY FOR THE CRIMES OF
POSSESSION WITH INTENT TO DELIVER, USE OR
POSSESSION OF PARAPHERNALIA, CONSPIRACY, AND
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POSSESSION OF A CONTROLLED SUBSTANCE, IS
CONTRARY TO THE WEIGHT OF THE EVIDENCE
PRESENTED AT TRIAL WHEN A COMMONWEALTH WITNESS
(AND CO-DEFENDANT) WAS HIGHLY MOTIVATED BY SELF-
PRESERVATION; NO DRUGS WERE FOUND ON
APPELLANT’S PERSON, NONE OF APPELLANT’S PERSONAL
EFFECTS WERE FOUND AT THE SEARCHED HOME, AND
THE EXISTENCE OF A PROTECTION FROM ABUSE (PFA)
ORDER EVICTING APPELLANT FROM HIS HOME IS HIGHLY
PROBATIVE THAT APPELLANT WAS MERELY PRESENT AT
THE CRIME SCENE?
(Appellant’s Brief at 9).
Appellant argues the verdict was against the weight of the evidence for
several reasons. First, Appellant asserts the testimony of Commonwealth
witness, co-defendant Carlos Armenta-Villa, was not credible because he
was highly motivated by self-preservation, i.e., he was illegally present in
the United States and faced possible deportation if convicted. Second,
Appellant contends his “mere presence” at the scene was not enough to
support his convictions. Appellant emphasizes there was no evidence that
Appellant had access to the entire home or possession of, or control over,
the drugs discovered there; and police did not discover any of Appellant’s
personal effects in the home. Moreover, Appellant claims he could establish
his presence at the home based on a Protection from Abuse (“PFA”) order,
issued just hours before the search occurred, that evicted Appellant from his
own home. Appellant submits the weight of the Commonwealth’s evidence
did not support the jury’s guilty verdict. For these reasons, Appellant
concludes he is entitled to a new trial. We disagree.
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As a preliminary matter, generally, a challenge to the weight of the
evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.
The Rule provides:
Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(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(A)(1)-(3). “As noted in the comment to Rule 607, the
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal
denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight
of the evidence generally cannot be raised for the first time in a Rule
1925(b) statement. Commonwealth v. Burkett, 830 A.2d 1034
(Pa.Super. 2003). An appellant’s failure to avail himself of any of the
prescribed methods for presenting a weight of the evidence issue to the trial
court constitutes waiver of that claim, even if the trial court responds to the
claim in its Rule 1925(a) opinion. Id.
With respect to our standard of review for a challenge to the weight of
the evidence, we observe:
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The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the lower
court’s verdict if it is so contrary to the evidence as to
shock one’s sense of justice. Moreover, where 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. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted). “A weight of the evidence claim concedes that
the evidence is sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one’s sense of justice.”
Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013),
cert. denied, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014). “[C]redibility
determinations are made by the fact finder and…challenges thereto go to the
weight…of the evidence.” Commonwealth v. Gaskins, 692 A.2d 224, 227
(Pa.Super. 1997).
“Constructive possession is the ability to exercise conscious control or
dominion over the illegal substance and the intent to exercise that control.”
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). “The
intent to exercise conscious dominion can be inferred from the totality of the
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circumstances.” Id. “Constructive possession may be found in one or more
actors where the item [at] issue is in an area of joint control and equal
access.” Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 550
(1992).
Instantly, Appellant filed a post-sentence motion that included a
challenge to the weight of the evidence and requested a new trial. See
Pa.R.Crim.P. 607. The issues Appellant presented in this regard were:
15. [Appellant] avers that the verdicts are contrary to the
weight of the evidence as the testimony at the trial was
not credible to show that [Appellant] possessed the
cocaine or heroin.
16. [Appellant] avers that the verdicts are contrary to the
weight of the evidence as the testimony at the trial was
not credible to show that [Appellant] conspired with Carlos
Armenta-Villa to commit the crimes of Possession of a
Controlled Substance (both cocaine and/or heroin) or
Possession with the Intent to Deliver a Controlled
Substance (both cocaine and/or heroin).
17. [Appellant] avers that the verdicts are contrary to the
weight of the evidence as the testimony at trial was not
credible to show that [Appellant] possessed the drug
paraphernalia.
18. [Appellant] avers that the verdicts are contrary to the
weight of the evidence as the testimony at trial was not
credible to show that [Appellant] possessed with the intent
to deliver a controlled substance (both cocaine and/or
heroin).
19. [Appellant] avers that the co-defendant’s
testimony was not credible and was contradicted by
other witnesses.
20. The verdicts of guilty are against the weight of the
evidence and [Appellant] is otherwise entitled to
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appropriate relief because the Commonwealth did not
establish by credible evidence the requisite elements of
Possession of a Controlled Substance (both cocaine and/or
heroin), Conspiracy to Commit Possession of a Controlled
Substance (both cocaine and/or heroin), Possession with
the Intent to Deliver a Controlled Substance (both cocaine
and/or heroin), Conspiracy to Commit Possession with the
Intent to Deliver a Controlled Substance (both cocaine
and/or heroin), and Possession of Drug Paraphernalia.
(See Post-Sentence Motion, filed 10/5/16, at 3-4 unpaginated) (emphasis
added). In his Rule 1925(b) statement, Appellant presented the following
weight challenge:
The verdict of guilty to all charges is contrary to the weight
of the evidence presented at trial when co-defendant and
prosecution witness Carlos Armenta Villa was not credible,
as he had an interest in making allegations against
the Appellant to avoid deportation, and as he did not
implicate the Appellant at the time of arrest; when
defense witness Nathaly Salazar stated she had kicked the
Appellant out of their house on the night of the arrest
pursuant to a valid Protection from Abuse (PFA) order
issued hours before Appellant’s arrest at the site of the
underlying crimes; and when the Appellant had no
personal belongings, other than those on his person, found
at the site of the underlying crimes.
(See Rule 1925(b) Statement, filed 12/27/16, at 1-2 unpaginated)
(emphasis added). When we compare Appellant’s generic claim regarding
the credibility of his co-defendant’s testimony, as raised in Appellant’s post-
sentence motion, with the more specific claim regarding his co-defendant’s
credibility due to self-preservation in seeking to avoid deportation, as raised
for the first time in his Rule 1925(b) statement, we must conclude Appellant
did not properly preserve this particular aspect of his weight issue. So it is
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arguably waived for purposes of appellate review. See Pa.R.Crim.P. 607;
Gillard, supra; Burkett, supra.
Moreover, the trial court did not specifically address this concern in its
analysis. Nevertheless, the record reveals the witness’ credibility in this
regard was fully pursued at trial through cross-examination and included in
the jury instructions. Thus, even if Appellant had properly preserved this
aspect of his weight claim for appellate review, we would see no error in the
court’s decision to deny relief. See Champney, supra (explaining weight of
evidence is exclusively for finder of fact who is free to believe all, part, or
none of evidence and to determine credibility of witnesses; this Court cannot
substitute its judgment for that of fact-finder and may reverse verdict only if
it is so contrary to evidence as to shock one’s sense of justice).
In response to Appellant’s remaining weight claims, the trial court
reasoned:
Appellant argues that all his convictions are against the
weight of the evidence.
The weight of trial evidence is a choice for the fact-finder.
Commonwealth v. West, 937 A.2d 516, 521 (Pa.Super.
2007). Where the fact-finder renders a guilty verdict and
the defendant files a motion for a new trial on the basis
that the verdict was against the weight of the evidence, “a
trial court is not to grant relief unless the verdict is so
contrary to the evidence as to shock one’s sense of
justice.” Commonwealth v. Stays, 70 A.3d 1256, 1267
(Pa.Super. 2013)….
When an Appellant challenges a trial court’s denial of a
post-sentence motion for new trial based on the weight of
the evidence, the standard of review is limited to whether
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the trial court abused its discretion:
We do not reach the underlying question of whether
the verdict was, in fact, against the weight of the
evidence. We do not decide how we would have
ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this
Court determines whether the trial court abused its
discretion in reaching whatever decision it made on
the motion, whether or not that decision is the one
we might have made in the first instance.
West[, supra at 521]. An abuse of discretion “is not
merely an error in judgment. Rather, it involves bias,
partiality, prejudice, ill-will, manifest unreasonableness or
a misapplication of the law.” Id. (citations omitted). A
proper exercise of discretion, by contrast, “conforms to the
law and is based on the facts of record.” Id.
The Commonwealth introduced evidence that Appellant
constructively possessed and intended to distribute
significant quantities of heroin and cocaine. Primarily, to
accomplish this, C.I. Errington, testified that [Appellant]
constructively possessed significant amounts of material
needed to process, protect, and sell narcotics.
Additionally, C.I. Haser presented copious evidence that
the stash house contained significant quantities of both
cocaine and heroin. Also, the Co-Conspirator testified that
he witnessed [Appellant] sell cocaine and heroin from the
house. Finally, tying this altogether, Commonwealth
witnesses testified that Appellant’s fingerprint[s were]
found on a firearm at the stash house, where [Appellant]
was initially arrested and all the aforementioned evidence
was uncovered. As such, the guilty verdicts, when
weighed against the relevant law and against the facts as
elucidated above, do not reveal any partiality, prejudice,
bias or ill will, nor do the verdicts shock one’s sense of
justice. In light of the testimony and physical evidence
which was presented to the jury, we see no reason to
conclude that the jury’s verdict was contrary to the weight
of the evidence.
(Trial Court Opinion at 7-8). The record supports the court’s analysis. The
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totality of the Commonwealth’s evidence produced a sufficient nexus
between Appellant, the stash house, and the contraband recovered from the
stash house. Based on the foregoing, we see no abuse of discretion in the
trial court’s assessment of Appellant’s weight of the evidence claim. See
Lyons, supra; Champney, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2017
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