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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL M. TIBURCIO
Appellant No. 1553 MDA 2016
Appeal from the Judgment of Sentence August 9, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004600-2015
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 19, 2017
Michael M. Tiburcio appeals from the August 9, 2016 judgment of
sentence entered in the Berks County Court of Common Pleas following his
jury trial convictions for two counts of possession with intent to deliver a
controlled substance (“PWID”), two counts of possession of a controlled
substance, and two counts of criminal conspiracy to commit PWID.1 We
affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S. § 903,
respectively. The trial court determined that Tiburcio was eligible for the
Recidivism Risk Reduction Incentive (“RRRI”) program and sentenced him to
an aggregate term of 6 to 80 years’ incarceration, with an RRRI minimum of
4 1/2 years.
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On August 11, 2015, police arrested Karla Romig for facilitating drug
transactions between Tiburcio’s brother, Juan Tiburcio (“Juan”), and
Detective Camilla Karns, who was working undercover at the time. N.T.,
8/1/16, at 110-11, 205. Sergeant Todd Harris testified that he obtained
Romig’s consent to use her phone to contact Juan, and that, with Romig’s
assistance, he set up a meeting. Id. at 208-14. Detective Michael Rowe
testified that he observed a Toyota Camry arrive at the location of the
meeting. Id. at 278-79. The arrest team took Juan, who had exited the
passenger side of the vehicle, into custody. Id. at 214. Tiburcio, who was
driving the vehicle, id. at 235, was also taken into custody, id. at 214.
During a pat-down of Tiburcio’s person, Detective Rowe recovered “41 small
clear plastic packets of crack cocaine, a larger chunk of bulk cocaine, and 1
packet of powder cocaine,” as well as $296 in cash. Id. at 280, 290-91.
Detective Sergeant Pasquale Leporace gave Tiburcio Miranda2 warnings,
after which Tiburcio directed the officers to a small change drawer to the left
of the steering wheel, which contained 15 packets of heroin. Id. at 280-81.
A search of the vehicle further revealed a cell phone. Id. at 296.
Detective George Taveras testified that while waiting to transport
Tiburcio, Tiburcio stated that “he was willing to cooperate with law
enforcement” and “that the reason he was doing this was to get by, that
____________________________________________
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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times were tough.” Id. at 301. Tiburcio further stated “that this was a very
small amount, that he can do bigger things.” Id.
Detective Leporace, testifying as an expert in drug trafficking and drug
packaging, offered his opinion that Tiburcio possessed the drugs with an
intent to deliver. Id. at 319-20. Detective Leporace arrived at this
conclusion after hearing all the evidence regarding the amount of drugs, the
form and packaging of the drugs, the presence of a cellphone, the amount of
cash found, and the lack of drug-use paraphernalia. Id. at 320-30.
The trial court set forth the procedural history of this case in its
opinion, which we adopt and incorporate herein. Memorandum Opinion,
11/29/16, at 1-2 (“1925(a) Op.”).
On appeal, Tiburcio raises the following claims:
A. Whether the evidence presented at trial was insufficient
as a matter of law wherein the Commonwealth’s
evidence presented at trial failed to establish that
[Tiburcio] made any drug transactions and did not have
any drug related conversations, did not possess the
drugs related to any transactions, and there was
insufficient testimony regarding any conspiracy[.]
B. Whether the verdict was against the weight of the
evidence wherein the verdict is so contrary to evidence
and shocks one’s sense of justice where the
Commonwealth’s evidence presented at [sic] failed to
establish that [Tiburcio] made any drug transactions
and did not have any drug related conversations, did
not possess the drugs related to any transactions, and
there was insufficient testimony regarding any
conspiracy[.]
C. Whether the court’s sentence was illegal,
unconstitutional and cruel and unusual wherein the
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sentences were run consecutive and were unreasonably
excessive[.]
Tiburcio’s Br. at 4-5 (full capitalization omitted).
We apply the following standard when reviewing a sufficiency of the
evidence claim:
[W]hether viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [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.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (alterations
in original) (quoting Commonwealth v. Harden, 103 A.3d 107, 111
(Pa.Super. 2014)).
The trial court addressed Tiburcio’s sufficiency claim in its opinion,
applied the relevant law, and found there was sufficient evidence to support
the convictions. We agree with, and adopt, the trial court’s cogent
reasoning. See 1925(a) Op. at 2-7.
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Next, Tiburcio recasts his sufficiency argument as a weight of the
evidence claim. This court reviews a weight of the evidence claim for an
abuse of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.
2013). “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[.]” Id. (quoting Commonwealth v. Widmer,
744 A.2d 745, 753 (Pa. 2000)). “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.” Id.
The trial court addressed Tiburcio’s weight of the evidence claim,
applied the relevant law, and concluded that the verdict was not against the
weight of the evidence. We agree with, and adopt, the trial court’s cogent
reasoning. See 1925(a) Op. at 7-8.
Finally, Tiburcio challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we may address such a challenge, we first
determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
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aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Tiburcio filed a timely notice of appeal and preserved his claim in a
timely post-sentence motion. Tiburcio, however, failed to include in his brief
a concise statement of reasons relied upon for allowance of appeal pursuant
to Pennsylvania Rule of Appellate Procedure 2119(f).
When the Commonwealth raises an objection to appellant’s failure to
include the Rule 2119(f) statement, as it did here, we are precluded from
addressing the merits of appellant’s challenge to the discretionary aspects of
sentencing. See Commonwealth v. Griffin, 149 A.3d 349, 353-54
(Pa.Super. 2016); see also Commonwealth v. Minnich, 662 A.2d 21, 24
(Pa.Super. 1995). Accordingly, Tiburcio has waived his claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
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