J-S58032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JORGE MORALES-GASPARINI :
:
Appellant : No. 324 MDA 2017
Appeal from the Judgment of Sentence May 21, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003144-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 11, 2017
Appellant, Jorge Morales-Gasparini, appeals from the judgment of
sentence entered in the Berks County Court of Common Pleas, following his
bench trial convictions for four (4) counts each of delivery of a controlled
substance, possession with intent to distribute (“PWID”), and possession of a
controlled substance, three (3) counts of corrupt organizations, and one (1)
count each of criminal use of a communication facility and dealing in
proceeds of unlawful activities.1 We affirm.
The relevant facts and procedural history of this case are as follows.
In May through June 2014, a team from the Berks County District Attorney’s
____________________________________________
135 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. §§ 911(b)(2), 7512(a),
5111(a)(1), respectively.
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office surveilled a group of individuals, which included Appellant, who were
suspected of selling narcotics. During surveillance, the team discovered
Appellant provided transportation to and from drug transactions, answered
the organization’s phone to facilitate drug transactions, took instructions
from superiors, and was present when customers arrived to purchase drugs.
Appellant also discussed financial terms with customers and arranged for
adjusted transactions based on the customers’ finances. Appellant was
arrested and charged with thirty-two (32) counts related to his participation
in the narcotics organization.
On February 20, 2015, Appellant signed a written waiver of a jury trial
and the court conducted an oral colloquy on the record. The court
thoroughly explained the jury selection process and Appellant’s right to a
jury trial during the colloquy. When asked if Appellant wanted a jury trial or
judge trial, Appellant responded, “judge trial.” After a bench trial on April
24, 2015, the court convicted Appellant of four (4) counts each of delivery of
a controlled substance, PWID, and possession of a controlled substance,
three (3) counts of corrupt organizations, and one (1) count each of criminal
use of a communication facility and dealing in proceeds of unlawful activities.
The court sentenced Appellant to an aggregate term of thirteen (13) to thirty
(30) years’ imprisonment on May 21, 2015.
On May 27, 2015, Appellant filed a pro se motion for removal of
counsel and a pro se post-sentence motion, which challenged the weight of
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the evidence. The court entered an order permitting counsel to withdraw on
May 29, 2015, and appointed new counsel on June 16, 2015. Appellant filed
an amended post-sentence motion on August 13, 2015, which challenged
the mandatory fine imposed for dealing in proceeds of unlawful activities,
and the validity of his jury trial waiver. On September 9, 2015, the court
granted in part Appellant’s post-sentence motion regarding the mandatory
fine, but denied in part the remaining issues in his post-sentence motion.
Appellant timely filed a notice of appeal on October 6, 2015, and that same
day, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
complied on October 23, 2015.
On March 9, 2016, this Court dismissed Appellant’s appeal for failure
to file a brief. Appellant filed a pro se petition under the Post Conviction
Relief Act at 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”) on May 16, 2016, seeking
reinstatement of his direct appeal rights nunc pro tunc. On May 19, 2016,
the PCRA court appointed counsel, and on January 24, 2017, the PCRA court
granted PCRA relief and reinstated Appellant’s direct appeal rights nunc pro
tunc. Appellant timely filed a notice of appeal nunc pro tunc on February 22,
2017. On March 1, 2017, the court ordered Appellant to file a Rule 1925(b)
statement, which Appellant timely filed on March 21, 2017.
Appellant raises the following issues for our review:
WHETHER THE CONSECUTIVE SENTENCES WERE
MANIFESTLY EXCESSIVE, UNREASONABLE, IN VIOLATION
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OF THE SENTENCING CODE, AND INSUFFICIENT REASONS
FOR THE SENTENCE APPEAR OF RECORD?
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTIONS
AT COUNTS 1, 2, AND 3: CORRUPT ORGANIZATIONS,
WHERE THERE WAS NO EVIDENCE THAT APPELLANT,
THOUGH AN ADDICT, WAS ALSO AN ORGANIZER,
CONTROLLING PARTICIPANT, AND/OR INTERESTED PARTY
IN ANY PATTERN OF RACKETEERING OR CORRUPT
ORGANIZATION AS REQUIRED BY 18 PA.C.S.A. § 911?
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION AT
COUNT 5: DEALING IN UNLAWFUL PROCEEDS, WHERE
THERE WAS NO EVIDENCE THAT APPELLANT, AN ADDICT,
RECEIVED MONEY AND/OR PARTICIPATED IN A FINANCIAL
TRANSACTION AS DEFINED IN 18 PA.C.S.A. § 5111?
WHETHER THERE WAS INSUFFICIENT EVIDENCE TO
ESTABLISH A KNOWING AND INTELLIGENT WAIVER OF
APPELLANT’S RIGHT TO A JURY TRIAL ON APRIL 24,
2015[,] WHERE NO WRITTEN COLLOQUY OR WAIVER WAS
PLACED ON THE RECORD ON APRIL 24, 2015[?] RATHER,
A COLLOQUY WAIVING APPELLANT’S RIGHT TO A JURY
TRIAL WAS CONDUCTED, IMPROPERLY, ON FEBRUARY 20,
2015, TWO MONTHS BEFORE HIS BENCH TRIAL ON APRIL
24, 2015, WITH THIS COLLOQUY BEING STALE AND
IRRELEVANT AT THE TIME OF APPELLANT’S BENCH TRIAL
ON APRIL 24, 2015[.]
WHETHER APPELLANT’S BENCH TRIAL CONDUCTED [ON]
APRIL 24, 2015, WAS IN ERROR AS THERE WAS NO
KNOWING AND INTELLIGENT WAIVER OF A JURY TRIAL
PLACED ON THE RECORD AT THE TIME OF THE BENCH
TRIAL[,] WHERE THE WRITTEN “WAIVER OF JURY TRIAL”
FORM FILED ON FEBRUARY 20, 2015, DOES NOT MEET
THE REQUIREMENTS OF [PA.R.CRIM.P. 620] AND THE
TRIAL COURT MADE NO EFFORT AT THE TIME OF THE
BENCH TRIAL TO CONDUCT A TIMELY, CONTEMPORARY
KNOWING AND INTELLIGENT WAIVER COLLOQUY?
WHETHER THE BENCH TRIAL WAS CONDUCTED WITHOUT
A KNOWING AND INTELLIGENT WAIVER TO SHOW THAT
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APPELLANT WAS OF A SOUND MIND AND KNOWINGLY
AGREED TO WAIVE HIS RIGHT TO A JURY TRIAL ON APRIL
24, 2015?
(Appellant’s Brief at 5-6).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e 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) (internal citations omitted);
Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003) (stating issues
that challenge discretionary aspects of sentencing are generally waived if
they are not raised during sentencing proceedings or in post-sentence
motion).
A challenge to the sufficiency of the evidence implicates the following
legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether 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
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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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
Pennsylvania Rule of Criminal Procedure 620 governs a defendant’s
waiver of his right to a jury trial and provides:
Rule 620. Waiver of Jury Trial
In all cases, the defendant and the attorney for the
Commonwealth may waive a jury trial with approval by a
judge of the court in which the case is pending, and elect
to have the judge try the case without a jury. The judge
shall ascertain from the defendant whether this is a
knowing and intelligent waiver, and such colloquy shall
appear on the record. The waiver shall be in writing, made
a part of the record, and signed by the defendant, the
attorney for the Commonwealth, the judge, and the
defendant’s attorney as a witness.
Pa.R.Crim.P. 620.
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[A] voluntary waiver of a trial by jury will be found to be
knowing and intelligent when the on-record colloquy
indicates that the defendant knew the essential ingredients
of a jury trial which are necessary to understand the
significance of the right being waived. These essential
ingredients are the requirements that the jury be chosen
from members of the community (a jury of one’s peers),
that the verdict be unanimous, and that the accused be
allowed to participate in the selection of the jury panel.
Commonwealth v. O’Donnell, 559 Pa. 320, 337, 740 A.2d 198, 207-08
(1999).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Scott D.
Keller, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed April 4, 2017, at 4-10) (finding:
(1) Appellant failed to raise challenge to discretionary aspects of sentencing
in his post-sentence motion or amended post-sentence motion; specifically,
Appellant’s post-sentence motions do not question court’s imposition of
consecutive sentence; Appellant has waived his challenge to discretionary
aspects of sentence; (2-3) testimony at trial established Appellant involved
himself as vital member of drug trafficking organization whose purpose was
to profit in drug trade; Appellant provided transportation to and from drug
transactions and answered organization’s phone to facilitate drug
transactions; Appellant took instructions from superiors in organization;
Appellant was present when purchasers arrived to complete transactions;
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Appellant did not have control of organization, but he had direct impact on
daily business of organization and participated in organization’s affairs;
Commonwealth presented sufficient evidence to support Appellant’s
convictions for corrupt organizations; further, Appellant discussed financial
terms with drug customers and arranged for adjusted transactions based on
customers’ finances; Appellant accounted for completed drug transactions
and financial terms of transactions to superiors; Commonwealth presented
sufficient evidence to support Appellant’s conviction for dealing in proceeds
of unlawful activities; (4-6) court orally conducted on-the-record colloquy
for jury trial waiver on February 20, 2015; court explained to Appellant his
right to jury trial, jury selection process, Appellant’s participation in jury
selection, and requirement of unanimous verdict; court enumerated
Appellant’s charges and instructed Commonwealth to explain maximum
penalties for and elements of each offense; Appellant affirmatively
responded when asked by court if he understood charges and maximum
penalties; Appellant stated he wished for “judge trial”; Appellant confirmed
he was not forced or threatened to waive his right to jury trial and indicated
he had previously consulted with counsel; Appellant signed written jury trial
waiver form on same day as oral colloquy; court informed Appellant of
“essential ingredients” of jury trial before Appellant waived his right to jury
trial; Appellant knowingly and intelligently waived his right to jury trial;
Appellant appeared and was represented by counsel at bench trial; court
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would have addressed request if counsel had indicated desire for jury trial;
there is no authority for Appellant’s proposition that waiver conducted prior
to date of bench trial renders waiver stale, therefore, Appellant’s claims are
meritless). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2017
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Circulated 09/19/2017 09:30 AM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
BERKS COUNTY, PENNSYLVANIA
v. : CRIMINAL DIVISION
JORGE MORALES-GASP ARINI : No. CP-06-CR-3144-2014
Appellant : KELLER, S.J.
MEMORANDUM OPINION, -,t,~ April 3 , 2017
Following a bench trial on April 24, 2015, the Court found Appellant guilty of three (3)
counts of Corrupt Organizations,1 one (1) count of Criminal Use of a Communication Facility,2
one (1) count of Dealing in Proceeds of Unlawful Activities;' four (4) counts of Delivery of a
Controlled Substance," four (4) counts of Possession with Intent to Deliver a Controlled
Substance' and four (4) counts of Possession of a Controlled Substance.6
On May 21, 2015, Appellant was sentenced to serve two and a half to five years of
7
incarceration on the Corrupt Organizations conviction, with 'a credit of 332 days of time served.
The Court also sentenced Appellant to a consecutive term of two and a half to five years of
incarceration on the Dealing in Proceeds of Unlawful Activities conviction. Finally, Appellant
was sentenced to four consecutive two to five year terms of incarcerationon the Delivery counts.
Appellant was represented at trial and sentencing by Gary Dorsett, Esquire.
At sentencing, the Court granted the motion of trial counsel to withdraw from
representation. On May 27, 2015, Appellant filed a prose Post Sentence Motion. On June 16,
2015, the Court entered an Order appointing Kevin Feeney, Esquire as counsel for Appellant.
Counsel Feeney filed an Amended Post Sentence Motion on August 13, 2015. The Court
1
18 Pa. C.S.A. § 91 l(b)(2)-(4).
2
18 Pa. C.S.A. § 7512(a). .
3 18Pa.C.S.A.§ ' 511 l(a ){ 1) . ',1_,
• ' ' ,\,' • •:'~.t1\J,.J
' .~ r ,-, C,_;,-,;_1,;,;
\ 1 \ ! --; {'.'
4 35 P.S. § 780-113(a)(30). , , ... , .. ,
5
6
35 P.S. § 780-l 13(a)(30). +J I :OI ~N t1- L }:kr: rnz
35 P.S. § 780-l 13(a)(l6).
7
Appellant was also sentenced to a eoncurrent.termof one to five years of incarceration on the Criminal Use of a
Communication Facility count. · · ·· : · · · -· ·~ , '·
1
directed the Commonwealth to respond to Appellant's post-sentence motions, which the
Commonwealth did on September 2, 2015. After consideration of the filings, the Court entered
I'" an Order on September 9, 2015, granting Appellant's post-sentence motion in part8 and denying
. .....
the remaining motions.
On October 6, 2015, Appellant filed a timely Notice of Appeal to the Superior Court. The
Court ordered Appellant to file within 21 days a Concise Statement of the Errors Complained of
on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure l 925(b ). Appellant filed this
Concise Statement on October 23, 2015. The Court issued a Memorandum Opinion on
November 13, 2015, recommending that Appellant's appeal be denied. On March 9, 2016, the
Superior Court dismissed Appellant's appeal for failure to file a brief.
On May 16, 2016, Appellant filed a timely Post Conviction Relief Act Petition,
requesting reinstatement of direct appellate rights. On May 19, 2016, the Court appointed Osmer
Deming, as counsel for Appellant in this matter. On May 24, 2016, Counsel Deming filed a
Motion for Reassignment of Counsel, which the Court granted on May 25, 2016; on the same
day, the Court appointed Lara Glenn Hoffert, Esquire, as PCRA counsel. On August 3, 2016,
Counsel Hoffert filed a Petition for Extension of Time to File an Amended PCRA Petition or
"No Merit" Letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). The Court granted Counsel Hoffert's
petition on August 8, 2016. Counsel Hoffert filed two additional Petitions for Extension of Time,
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both of which the Court granted.
s The Court granted Appellant's P