Com. v. Cabrera, A.

J-S13009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ALEJANDRO RUIZ CABRERA,

Appellant No. 1071 EDA 2015

Appeal from the Judgment of Sentence Entered December 18, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008513-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 03, 2017

Appellant, Alejandro Ruiz Cabrera, appeals from the judgment of

sentence of an aggregate term of 4 to 8 years’ incarceration, followed by 10

years’ probation, imposed after a jury convicted him of corrupt

organizations, 18 Pa.C.S. § 911(b)(1), dealing in unlawful proceeds, 18

Pa.C.S. § 5111(a)(1), criminal use of a communication facility, 18 Pa.C.S. §

7512(a), possession with intent to deliver a controlled substance (PWID), 35

P.S. § 780-113(a)(3), and criminal conspiracy to commit PWID, 18 Pa.C.S. §

903(a). We affirm.

We need not summarize the complicated facts and procedural history

of this case, as the Honorable Thomas P. Rogers of the Court of Common

____________________________________________

*
Former Justice specially assigned to the Superior Court.
J-S13009-17

Pleas of Montgomery County sets forth a lengthy and detailed discussion of

those matters in his Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion

(TCO), 6/21/16, at 1-18. We only note that on appeal, Appellant raises the

following three issues for our review:

(1). Whether the [trial] court committed an error of law and/or
abuse of discretion when it denied [Appellant’s] post[-]sentence
motion for a new sentence because the sentence was unduly
harsh and excessive?

(2)[]. Whether the [trial] court committed an error of law and/or
abuse of discretion when it denied [Appellant’s] motion at trial
and in [his] post[-]sentence motion[] for a new trial where the
verdict was against the weight and sufficiency of [the] evidence
and the Commonwealth failed to present sufficient evidence for
the trier of fact to find [Appellant] guilty of the crimes charged?

[(3)]. Whether the [trial] court committed an error of law and/or
abuse of discretion when it allowed [evidence of] prior
unadjudicated acts, via testimony of Trooper Martinez, alleged to
have occurred in Berks County where Appellant would have had
to waive his Fifth Amendment rights and in violation of Due
Process to defend himself in Montgomery County having not yet
been adjudicated in Berks County?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

We have reviewed the certified record, the briefs of the parties, and

the applicable law. Additionally, we have reviewed Judge Rogers’ thorough

and well-crafted opinion. We conclude that Judge Rogers accurately

disposes of the issues presented by Appellant. We find no need to add

anything further to Judge Rogers’ well-reasoned analysis, especially

considering the minimally developed, and legally unsupported, arguments

-2-
J-S13009-17

that Appellant presents in his brief to this Court.1 Accordingly, we adopt

Judge Rogers’ opinion as our own and affirm Appellant’s judgment of

sentence on that basis.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/3/2017
____________________________________________

1
Indeed, we could conclude that Appellant has waived his first two issues for
our review, based on his failure to provide any meaningful discussion in
support of those claims. For instance, in regard to his challenge to the
discretionary aspects of his sentence, Appellant only briefly summarizes
certain statements made by him and the court at the sentencing proceeding,
and then concedes that he “cannot specifically identify a manifest abuse of
discretion” by the court in fashioning his term of incarceration. Appellant’s
Brief at 11. Additionally, in his second issue challenging the sufficiency and
weight of the evidence to support his convictions, Appellant provides only
four sentences of discussion, cites no legal authority, and does not even
state which specific offense(s), or element(s) thereof, that the
Commonwealth failed to prove. Accordingly, we could deem Appellant’s first
two issues abandoned or waived. See Commonwealth v. Hardy, 918 A.2d
766, 771 (Pa. Super. 2007) (directing that an appellant must “present
arguments that are sufficiently developed for our review” and support those
arguments “with pertinent discussion, … references to the record and with
citations to legal authorities[;]” where an appellant fails to meet these
requirements, thus “imped[ing] our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived”).

-3-
J-S13009-17

-4-
 IN THE COURT OF COMMON PLEAS OF lVIONTGOMERY COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA : SUPERIOR COURT
: NO. 1071 EDA 2015
v.
}'·\.
: TRIAL COURT
IT}
ALEJANDRO RUIZ-CABRERA : NO. 8513-2013

ROGERS, J. JUNE 21, 2016

OPINION

I. INTRODUCTION

Alejandro Ruiz-Cabrera ("Appellant") has appealed to the Superior

Court of Pennsylvania ("Superior Court") from his judgment of sentence

following a three-day jury trial resulting in a verdict of guilty on one (1)

count of corrupt organizations,1 two (2) counts of possession with intent to

deliver a controlled. substance? two (2) counts of criminal conspiracy to

commit possession with intent to deliver a controlled substance.> one ( 1)

count of dealing in unlawful proceeds" and one (1) count of criminal use of

1
18 Pa.C.S.A. § 91 l(b)(l).
2
35 P.S. § 780-l 13(a)(30).
··- "<,
3
18 Pa.C.S.A. § 903(a).
4
18 Pa.C.S.A. § 511 l(a)(l).
 a communication facility" for his role in a narcotics operation spanning

two counties.
1;:;,;
rn
The court sentenced Appellant to not less than three (3) years nor
1,)
more than six (6) years of incarceration on each of the two (2) convictions

for criminal conspiracy to commit possession with intent to deliver, to run

concurrent to one another, with a consecutive ten-year probationary

period; a concurrent term of not less than fifteen ( 15) months nor more

than thirty (30) months on the conviction for corrupt organizations, with a

ten-year consecutive term of probation to run concurrent to the criminal

conspiracy sentences; a concurrent term of not less than one ( 1) nor more

than two (2) years of incarceration on one of the convictions for possession

with intent to deliver a controlled substance with a five-year consecutive

term of probation, the sentence to run concurrent with the sentence on

corrupt organization, a consecutive term of one ( 1) to two (2) years'

incarceration with a five-year probationary period on the conviction for

dealing in unlawful proceeds, and a determination of guilt without further

penalty on the remaining count for possession with intent to deliver a

controlled substance and the count for criminal use of a communication

facility.

The undersigned granted the Commonwealth's motion to nol pros

counts 2, 3, 9, 10, 11, 13, 14, 15, 16, 17 and 18. In essence, the court

imposed an aggregate sentence of four (4) to eight (8) years' incarceration

5
18 Pa.C.S.A. § 75 l 2(a).

2
 to be followed by ten (10) years of probation, all to run consecutive to the
((l
sentence imposed in Berks County in a corresponding case wherein

Appellant had pled guilty to other narcotics offenses. Appellant's appeal

,, merits no relief.

,,,. II. FACTS AND PROCEDURAL HISTORY
m
The relevant facts and procedural history underlying this appeal are

as follows. Detective Erick Echevarria of the Montgomery County

Detective Bureau, acting undercover in an ongomg narcotics

investigation," met co-defendant Jose DeJesus Montilla ("Montilla") on

December 17, 2012, in Mount Penn, Berks County, Pennsylvania, to

discuss the quantity of cocaine and met:hamphetamine Montilla would be

able to sell to Detective Echevarria. (Notes of Testimony ("N.T.") Trial

9/ 16/ 14, at 15-16). In particular, Detective Echevarria told Montilla that

he was interested in obtaining three (3) to four (4) pounds of crystal

methamphetamine a week if Montilla could handle that amount. (Id. at

16). Montilla told Detective Echevarria that he could indeed handle that

amount but that he would have to talk to his "brother" first. (Id. at 17).

On that date, Montilla sold Detective Echevarria an ounce (28 grams)

6
A number of law enforcement agencies were involved in the investigation of this drug
trafficking organization, including the Montgomery County District Attorney's Narcotics
Enforcement Team, the Berks County District Attorney's Narcotics Enforcement Team,
the Federal Drug Enforcement Administration (DEA), the United States Department of
Homeland Security, Immigration and Customs Enforcement and Removal Operations,
Exeter Township Police Department, Douglass Township Police Department and the
Pennsylvania State Police. (Notes of Testimony ("N.T.") Trial 9/16/14, at 39; N.T.
Sentencing 12/18/14, at 10-1 I; Affidavit of Probable Cause, filed 10/7 /13, at 5) .

..,
_)
 of crystal methamphetamine for one thousand eight hundred dollars

($1,800.00). (Id.).
rn Detective Echevarria met with Montilla again on January 25, 2013
'

,.,. at Zerns Farmers Market in Montgomery County. (Id. at 23). Montilla

mentioned that he had eight (8) ounces of cocaine available for sale. (Id.
,,,.
tn at 25-26). Detective Echevarria told Montilla that he was concerned with

the quality of the cocaine and that what Detective Echevarria was really

interested in was obtaining crystal methamphetamine. (Id. at 25). As the

pair walked around Zerns Farmers Market, Montilla was on his cell phone

talking with someone. (Id. at 26). Montilla explained to Detective

Echevarria that Montilla had people there with him. (Id.). One of

Mantilla's concerns was that the undercover detective was with law

enforcement. (Id. at 22). As they rounded a corner at the market, the pair

came upon two Hispanic males. (Id. at 27). Detective Echevarria shook

the hand of both individuals and noted that one of them sat on a bench

talking on the phone to someone else during the encounter. (Id.).

Detective Echevarria recognized the other individual as co-defendant Juan

Carlos Morales-Soria («Morales-Soria"). (Id.). As Detective Echevarria

shook Morales-Soria's hand in leaving, Morales-Soria slipped Detective

Echevarria a small bag containing a sample of cocaine. (Id. at 28).

Detective Echevarria was instructed to contact Montilla to place an order.

(Id. at 30).

4
 Later that same afternoon, Detective Echevarria contacted Montilla

on Mantilla's cell phone to place an order for two (2) ounces of cocaine.

(Id.). Montilla told Detective Echevarria that someone else would meet

him at Zerns Farmers Market. (Id. at 31). Morales-Soria subsequently

contacted Detective Echevarria and they agreed to meet at Zerns. (Id.).
1··'·
rn Morales-Soria asked Detective Echevarria for a description of his car and

told Detective Echevarria that he was in a black Ford Expedition. (Id.). As

Detective Echevarria sat in the parking lot at Zerns, Morales-Soria entered

Detective Echevarria's undercover vehicle and sat next to the Detective.

(Id. at 32). The pair agreed to a price of two thousand dollars ($2,000.00)

for the two (2) ounces of cocaine. (Id.). As Morales-Soria sat in the front

passenger seat, he took apart an energy drink can that he had brought

with him and removed the cocaine from a false compartment in the can.

(Id.). Morales-Soria told Detective Echevarria that they could get him

whatever quantity of cocaine or methamphetamine that he wanted, but to

go through Montilla to place an order. (Id. at 32, 35). Because of

Mantilla's concern that Detective Echevarria may be law enforcement, he

did not contact Montilla for several months. (Id. at 38).

In or around June of 2013, Pennsylvania State Police Trooper

Geraldo Martinez became actively involved in an ongoing investigation

concerning a narcotics organization known to be trafficking large

quantities of crystal methamphetamine in Reading, Berks County and the

surrounding areas. (Id. at 139). Specifically, on .June 10, 2013, Trooper

5
 Martinez contacted Appellant on Appellant's primary cell phone," having

previously received information that Appellant was one of approximately
,a
rn four (4) main players in this organization. (Id. at 140). Trooper Martinez
-.
I\}
,.,.. then drove to the garage on the 400 block of North 9th Street in the city of

Reading where Appellant worked as a mechanic and asked to purchase
, .•.
m fourteen (14) grams of crystal methamphetamine. (Id. at 141). After

Appellant made a phone call in Spanish to his "boss" to obtain approval to

negotiate the price, eventually the pair came to an agreement that

Trooper Martinez would pay Nine Hundred Dollars ($900.00) for the

methamphetamine and Appellant would provide a sample of a higher

grade methamphetamine at no additional cost. (Id. at 142-45).

Appellant told Trooper Martinez that the methamphetamine was

located across the street and that he would need some time to retrieve it.

(Id. at 141). Trooper Martinez left the garage and received a call a few

minutes later from Appellant, who told the Trooper to meet him on the

900 block of Green Street in Reading. (Id. at 145-46). Trooper Martinez

spotted Appellant walking in an alleyway, at which point Appellant

entered and sat in Trooper Martinez's front passenger seat and they

exchanged the fourteen (14) grams of crystal methamphetamine for $900

in prerecorded U.S. currency. (Id. at 146). No money was exchanged for

the sample that Appellant provided at the same time. (Id.).
7
Both Trooper Martinez and Detective Echevarria called or sent text messages to
Appellant's primary cell phone number (484) 557-3652 to arrange narcotics buys. (N.T.
Trial 9/16/14, at 105, 140). Appellant also provided Trooper Martinez with a secondary
phone number of ( 484) 529-7983. (Id. at 155).

6
 Trooper Martinez contacted Appellant on his cell phone agam on
l}J
July 10, 2013, to purchase more crystal methamphetamine. (Id. at 146-

147). Trooper Martinez again met Appellant at the garage in the 400 block

1·' of North 9th Street and placed an order for another fourteen (14) grams of

crystal methamphetamine. (Id. at 147-148). Trooper Martinez left the

rn area to await Appellant's call that he had the "tires" for the Trooper to

come and examine. (Id. at 149). When the Trooper arrived, Appellant

produced a small white plastic bag containing crystal methamphetamine

from a secret compartment inside of an Arizona Tea can. (Id. at 150).

Trooper Martinez paid Appellant Nine Hundred and Eighty Dollars

$980.00 in prerecorded U.S. currency for the crystal methamphetamine in

that plastic bag and left. (Id.).

On July 31, 2013, Trooper Martinez called Appellant on Appellant's

cell phone to place another order for crystal methamphetamine. (Id. at

150-51). Trooper Martinez went to the same garage to meet Appellant,

only this time Appellant told Trooper Martinez that he only had the higher

grade crystal methamphetamine available to sell to the Trooper, a sample

of which Appellant had already provided. (Id. at 151-52). The two men

agreed on a price. (Id.). Again, Appellant called Trooper Martinez to come

back to the garage to look at the "tires" when Appellant had the narcotics

available. Again, Appellant pulled a plastic bag containing crystal

methamphetamine out of a hidden compartment in an Arizona Tea can

and gave it to Trooper Martinez in exchange for One Thousand Forty

7
 Dollars ($1,040.00) in prerecorded currency. (Id. at 152-153).8 When
en Trooper Martinez expressed his amusement over the compartment in the

Ui tea can, Appellant pointed to an Aqua Fina water bottle sitting atop a

toolbox which Appellant explained also had a concealed compartment

underneath the label. (Id. at 153-54).

After a break in communication of approximately seven (7) months,

Montgomery County Detective Echevarria contacted Montilla on August 6,

2013, to inquire about purchasing more crystal methamphetamine. (Id. at

38). Detective Echevarria and Montilla discussed a sale of at least one ( 1)

pound of crystal methamphetamine to take place on August 12, 2013. (Id.

at 39). However, on the morning of August 12, 2013, Detective Echevarria

received a phone call from Montilla, who said his boss now wanted to

provide just a sample first. (Id.).

The two men engaged in a back and forth discussion concerning the

location where someone would meet Detective Echevarria because the

Detective declined to move more than once. (Id. at 40). Detective

Echevarria then received a call from Morales-Soria, who also tried to get

Detective Echevarria to move to a third location approximately forty (40)

minutes away, but Detective Echevarria refused. (Id. at 41). Finally,

8
The Commonwealth charged Appellant separately in Berks County for the offenses
committed solely in Berks County. See Commonwealth v. Alejandro Ruiz-Cabrera, Berks
County Docket No. CP-06-CR-0000031-2014. Eventually, Appellant entered an open
guilty plea to three (3) counts of delivery of a controlled substance under 35 P.S. § 780-
113(a)(30). The Honorable Stephen B. Lieberman sentenced Appellant to incarceration for
an aggregate period of not less than fifteen ( 15) months nor more than ten ( 10) years. Id.

8
 Montilla told Detective Echevarria to stay put, that someone would come

to him and Montilla gave Detective Echevarria Appellant's cell phone

number. (Id. at 42).

Detective Echevarria called Appellant's cell phone and Appellant told

Detective Echevarria that he was on his way and would meet the Detective

rn in the parking lot at the McDonald's in Gilbertsville, near Zerns Farmers

Market. (Id. at 43, 77). Appellant arrived in the parking lot as a front-seat

passenger in a black pickup truck. (Id. at 44; Trial Exhibits C-7, C-8).

Appellant exited the pickup truck and entered the front passenger side of

Detective Echevarria's undercover vehicle. (Id. at 46). The two men talked

about the confusion, and Appellant explained that Detective Echevarria

would continue to place orders through Montilla in the future but that

}\ppellant would deliver the narcotics. (Id. at 46) ... Appellant provided

Detective Echevarria samples of crystal methamphetamine in two (2)

plastic bags that Appellant removed from a secret compartment in the

bottom of a water bottle. (Id.). One of the bags contained a sample of the

higher grade, darker methamphetamine and the other bag contained a

sample of the clearer crystal methamphetamine. (Id. at 4 7). Appellant did

not ask for any money, and Detective Echevarria did not give Appellant

any money for the samples. (Id. at 48). After Appellant exited the vehicle,

Detective Echevarria called Montilla and told him that everything went

okay. (Id. at 49).

9
 ..
!'•

Detective Echevarria next telephoned Montilla on August 27, 2013,

to conclude the deal to purchase at least one ( 1) pound of

methamphetamine. Montilla explained that the price had risen from

1-·'· twenty-seven thousand dollars ($27 ,000.00) to thirty thousand dollars

($30,000.00) for the pound of higher grade methamphetamine. (Id. at 52-

53). Eventually they agreed that Detective Echevarria would also

purchase thirteen thousand dollars ($13 ,000.00) of the lower grade crystal

methamphetamine. (Id. at 53). They scheduled the exchange for August

31, 2013, at around 5:00 p.m. at the McDonald's in Gilbertsville. (Id. at

54, 77).

At approximately 2:50 p.m. on August 31, 2013, Corporal Pasquale

Leporace from the Berks County District Attorney's Office set up

surveillance on the 400 block of North 9th Street in Reading based on

information the District Attorney's office had about this organization. (Id.

at 59, 61). Corporal Leporace noticed two (2) individuals sitting inside of a

parked Dodge Charger. (Id. at 62). To get a better view and a possible

identification, Corporal Pasquale drove by the parked vehicle and

identified co-defendant Alder Hernandez-Solorio ("Hernandez-Solorio").

(Id. at 64). After Corporal Pasquale turned around and drove back, he saw

the two men from the Charger speaking with the driver of the same black

pickup truck that law enforcement had seen Appellant riding in as a

passenger to deliver the methamphetamine to Detective Echevarria on

August 12, 2013. (Id. at 65).

10
 Detective Echevarria arrived at the McDonald's in Gilbertsville at

around 5:00 p.m. and let Montilla know that he had arrived. (Id. at 77).

Montilla directed him to move across the street to Zerns Farmers Market.

1-'-- (Id. at 77-78). Montilla informed Detective Echevarria that he would be in

a blue Kia. (Id. at 78).

Detective Michael Reynolds of the Montgomery County District

Attorney's Office was working that day as a surveillance officer to assist in

the investigation and help protect Detective Echevarria. (Id. at 67, 69). As

Detective Reynolds was entering the Zerns Farmers Market parking lot, he

observed a Dodge Charger occupied by two (2) males, later identified as

co-defendants Hernandez-Solorio and Eloy Solo_rio-Flores. (Id. at 70, 89).

Detective Reynolds confirmed with other law enforcement that this Dodge

· Charger was the same vehicle observed earlier in the afternoon up on the

400 block of North 9th Street in Reading. (Id. at 71). The Dodge Charger

eventually parked in front of the Kia and Detective Echevarria's

undercover vehicle. (Id. at 72-73).

After Detective Echevarria and supporting law enforcement officers

had moved their vehicles to the Zerns' parking lot, Detective Echevarria

approached the blue Kia Sorento SUV on foot. (Id. at 79). He noticed that

someone other than Montilla was seated in the Kia and later identified the

man as co-defendant Hector Cucuas ("Cucuas"). (Id.). After Cucuas told

Detective Echevarria that he was a friend of Montilla's, Detective

Echevarria asked to see the methamphetamine. (Id. at 80). Once

Il
 Detective Echevarria confirmed that the box inside of a bag in the back

seat of the Kia contained narcotics, he gave a portion ($4,000.00) of the
'"·
I.r~.;
m agreed-upon price to Cucuas and explained that he had to return to his
,.
"
car to get the rest. (Id. at 80, 83-84, 87). Detective Echevarria then

returned to his undercover vehicle to provide some separation for other

01 law enforcement on the scene to make their arrests. (Id. at 88). The

officers arresting Cucuas recovered a loaded Glock 9-millimeter firearm

and three (3) cell phones in addition to just over one (1) pound (16.45

ounces) of the higher grade methamphetamine and just over half a pound

(8.12 ounces) of the lesser grade methamphetamine, along with the

$4,000.00 in currency from inside of the Kia Sorenta. (Id. at 89-90, 121,

123, 125, 130, 131-32; Trial Exhibits C-17, 30, 38, 40-41). The officers

who arrested Hernandez-Solorio and Solorio-Flores from the Dodge

Charger recovered three (3) cell phones from the center compartment,

dash slot and passenger floor as well as a cell phone from the right front

pants pocket of passenger Hernandez-Solorio. (Id. at 74, 93, 99; Trial

Exhibits C-19, 20, 21 and 22).

After obtaining search warrants for the phone records, Detective

Echevarria matched up phone calls and text messages from the call detail

records provided by the cell phone providers. (Id. at 102). Through

Detective Echevarria's investigation, law enforcement was able to

determine who the phones belonged to and link up the text messages and

phone calls concerning the August 31, 2013 delivery and bust. (Id. at

12
 100-114; Trial Exhibit C-27). In that regard, the Commonwealth
1))
ascertained that Appellant had used two (2) phones to communicate with

other members of the organization as well as with Detective Echevarria.

(Id. at 105, 112-14). Of particular interest were calls and text messages to

and from Montilla to and from Appellant after their codefendants had not
1-··
Or returned from the drug deal on August 31 sr, the codefendants having

been arrested unbeknownst to Montilla and Appellant at the time. (Id.).

Appellant was arrested on or about October ·7, 2013. On December

19, 2013, the Commonwealth filed a notice of joinder of cases providing

Appellant notice that the Commonwealth intended to try Appellant's case

together with co-defendants Solaria-Flores, Hernandez-Solorio, Montilla,

Morales-Soria and Cucuas. (Commonwealth's Notice of Joinder of Cases

Pursuant to Pennsylvania Rule of Criminal Procedure 582, filed

12 / 19 / 13). This court scheduled the matter for a jury trial to commence

on September 15, 2014. The five co-defendants entered pleas of guilty

before the commencement of trial.

On September 12, 2014, the Commonwealth filed a motion in limine

to admit other bad acts under Pa.R.E. 404(b) seeking allowance to admit

evidence of Appellant's three (3) narcotics sales to undercover Trooper

Geraldo Martinez at the garage in the city of Reading, Berks County.

Specifically, the Commonwealth requested the court's permission to elicit

evidence of the three (3) prior narcotics transactions to prove intent as

well as a common scheme, plan and design and to negate the anticipated

13
 defense that Appellant was unaware of his involvement in a larger

organization or conspiracy and unaware that he was delivering a sample

that would result in a larger transaction. (Commonwealth's Motion in

1--• Limine to Admit Other Bad Acts under Pa.R.E. 404(b), filed 9 / 12/ 14; N.T.

Trial9/15/14, at 12-13).

After swearing in the jury for the trial, the court heard oral

argument by Counsel outside the presence of the jury, on Monday

afternoon, September 15, 2013. (N.T. Trial 9/15/13, at 12-16). Following

argument and an opportunity to review the law, the undersigned granted

the Commonwealth's rnotion.? The undersigned also stated to Defense

Counsel that the court would not be opposed to giving a limited jury

instruction if Counsel wanted to prepare and submit one for approval.

(N.T. 9/ 15/ 14, at 40).

Prior to the start of testimony, Defense Counsel submitted a

proposed limited jury instruction to be read following the testimony of the

undercover State Trooper who had conducted the controlled buys from

Appellant in Reading, Berks County.t? (N.T. Trial 9/16/14, at 8-9, Trial

9
The court explained as follows:

It's being granted because it will afford the Commonwealth the opportunity
to show intent, common scheme, plan, and design. I think this case is made
stronger, frankly, by the fact that the Commonwealth charged under corrupt
organizations, because in the bill of information it referenced pattern, and
certainly that would go to the common scheme, plan, and design.

(N.T. 9/15/14, at 39-40).

'0 The court also explained to Counsel on the record the following:

14
 Exhibit D-1). On September 16, 2014, the jury heard the testimony of

Detective Echevarria, Trooper Martinez, two of the surveillance officers, an

officer on the arrest team and Detective Michael Fedak. After Trooper
,·,
..:,
' Martinez testified, the undersigned read the following limiting instruction:

Members of the jury, you have just heard the testimony of
Trooper Geraldo Martinez. You heard testimony concerning
acts that were alleged to have occurred in Berks County,
Pennsylvania.

The defendant is not charged in this case with those alleged
deliveries, and they are not before you in this case to
determine guilt or innocence. You are free, as with any
witness, to accept or reject, in whole or in part, the testimony
presented to you. The Commonwealth admitted this evidence
from which it asks you to draw an inference that the
defendant had knowledge his acts were part of a conspiracy
through a common scheme, plan, or design. I instruct you
that if you accept this testimony, to only consider it for that
limited purpose.

(N.T. Trial 9/ 16/ 14, at 157).

Detective Fedak testified as an expert in drug trafficking and

distribution. (Id. at 163). Specifically, Detective Fedak testified, inter alia,

about the significance of providing samples of narcotics before the actual

exchange of money as it relates to Appellant's role in the organization, the

I read over the jury instructions for corrupt organizations last evening. The
jury instruction references that the Commonwealth must prove that the
defendant committed two or more crimes that are called acts of
racketeering, and I confirmed with the Commonwealth in the presence of
defense counsel that those two crimes that the Commonwealth -- more
[than] that the Conunonwealth intends to prove complied with that
requirement under corrupt organizations. Neither one of those or any of
those are the alleged offenses that I permitted to be referenced as part of the
404(b) prior bad acts.

(N .T. 9/ 16/14, at I 0).

15
 structure of the organization, as well as the use of cell phones as a

necessity in this type of organization in order for the enterprise to be
t2i:
rn
<, successful. (Id. at 164-73).

Although Appellant did not testify at trial, he denied any knowledge

of a conspiracy or larger organization. His defense, for the most part,

in consisted of the fact that he did not receive any money in exchange for the

samples of narcotics he provided to the undercover detective in

Montgomery County, that he was not present for the larger transaction on

August 31, 2013, and that any drugs he may have sold, he did so to

support his own habit and not as part of a conspiracy.

The jury returned its verdict of guilty on all counts on Wednesday,

September 17, 2014. The court deferred sentencing until such time as the

Adult Probation Department could provide a PPI Evaluation and a Pre-

Sentence Investigation Report.

At sentencing on December 18, 2014, Appellant again denied any

involvement in a conspiracy or an organization. (N.T. Sentencing

12/18/14, at 14-15). As it pertained to Appellant's case in Berks County,

the undersigned explained his reasoning for imposing a consecutive

sentence as follows:

Before imposing sentence, I have considered the presentence
investigation report significantly as well as the PPI report. I
was the trial judge in this case, and I've had the opportunity
to review all the testimony as it was presented. I've also
certainly had the opportunity now to hear [Appellant} by way
of a statement in allocution as well as the well-made
arguments by counsel. So I will enter the following sentence:

16
 * * * *
Significantly -- and I do want to say significantly -- this
sentence will not commence -- will run consecutive to the
sentence that's imposed in Berks County. It's important that
that be made part of the record. It furthers, in my judgment,
the need to differentiate the crimes committed in Berks
County from Montgomery County. It also demonstrates the
nature of this organization being a multi-county organization.

m (Id. at 15-1 7).

Counsel for Appellant and Appellant both filed post-sentence

motions. (Defendant's Counsel's Post-Sentence Motion, filed 12/ 19 / 14;

Defendant's pro se Motion for Post-Sentence Relief, filed 1/23/ 15). At

argument on Friday, March 20, 2015, Counsel argued both motions. (N.T.

Hearing on Defendant's Petition for Post-Sentence Relief 3/20/ 15). The

court denied Appellant's motions by order dated April 3, 2015. On April

17, 2015, Appellant filed a notice of appeal to the Superior Court. The

undersigned directed Appellant to file a concise statement of the errors

complained of on appeal ("Statement") by order dated April 20, 2015.

Appellant filed his Statement on May 7, 2015.

III. ISSUES

Appellant now raises the following issues on appeal:

1. [A-3) The Honorable Court committed an error of law
and/or abuse of discretion when it [sic) [Appellant's] motion at
trial and in Post Sentence Motions for a new trial where the
Commonwealth failed to present sufficient evidence for the
trier of fact to find [Appellant] guilty of the crimes charged.

2. [A-2] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied [Appellant's] motion

17
fl);

::1
at trial and in Post Sentence Motions for a new trial where the
OJ verdict was against the weight and sufficiency of evidence.

3. (A-4] The Honorable Court committed an error of law
and/ or abuse of discretion when it allowed evidence of prior
bad acts committed in Berks County and subject to an open
case alleging evidence of sales of narcotics, common phone
numbers and other evidence that had not been adjudicated on
at the time of trial via the testimony of Trooper Martinez.

4. (A-5] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied post-trial motions
for a new trial based on the evidence allowed under 404[bJ
introduced by Trooper Martinez.

5. (A-6] The Honorable Court committed an error of law
and/ or abuse of discretion when it allowed prior
unadjudicated acts, via testimony of Trooper Martinez, alleged
to have occurred in Berks County where [Appellant] would
have had to waive his 5th Amendment rights and in violation
of Due Process to defend himself in the Montgomery County
case with the case being open in Berks County,

6. [A-1] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied [Appellant's] Post
Sentence Motion for a new Sentence because the sentence
was unduly harsh and excessive.

(Statement, filed May 7, 2015). 11

IV. DISCUSSION

In his first two issues on appeal, Appellant seeks either a judgment

of acquittal or a new trial, contending that the Commonwealth failed to

present sufficient evidence and that the verdict was against the weight of

the evidence. Appellant is mistaken.

The appellate scope and standard of review are long settled:

11
The court has reordered Appellant's issues for ease of disposition. Appellant's original
order of issues presented in his Statement is noted with an [A-*.].

18
.;
I···•
As a general matter, [appellate] review of sufficiency claims
requires that we evaluate the record "in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence." Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d
745, 751 (2000). "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." Commonuseolth. v.
Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005). Nevertheless,
"the Commonwealth need not establish guilt to a
mathematical certainty." Id.; see also [ Aguado, 760 A.2d at
1185] ("[TJhe facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence."). "[W)here no single bit of evidence
will by itself conclusively establish guilt, the verdict will be
sustained where the totality of the evidence supports the
finding of guilt." Commonwealth v. Thomas, 522 Pa. 256, 561
A.2d 699, 704 (1989).

Thus, our Courts have recognized that proof of guilt may be
inferred entirely from evidence of circumstances that attended
the commission of the crime. See Breuier, 876 A.2d at 1032.
"The fact that the evidence establishing a defendant's
participation in a crime is circumstantial does not preclude a
conviction where the evidence coupled with the reasonable
inferences drawn therefrom overcomes the presumption of
innocence." Id. (quoting Commonwealth v. Murphu, 795 A.2d
1025, 1038-39 (Pa.Super.2002)). Nevertheless, "[t]he
requirement of the law [remains} that in order to warrant a
conviction[,] the facts and circumstances proved must be of
such character as to produce a moral certainty of the guilt of
the accused beyond any reasonable doubt." Commonwealth v.
Bybel, 531 Pa. 68, 611 A.2d 188, 189 ( 1992) (quoting
Commonwealth v. New, 354 Pa. 188, 47 A.2d 450, 455
(1946)).

Commonwealth v. Kinard, 95 A.3d 279, 291-92 (Pa.Super. 2014) (en bane)

(quoting Commonwealth v. Barker, 70 A.3d 849, 854 (Pa.Super. 2013) (en

bane)). Accord Commonwealth v. l\llcCurdy, 943 A.2d 299, 301-03

(Pa.Super. 2008) (finding evidence sufficient to support conviction for

19
 corrupt organizations under 18 Pa.C.S.A. § 91 l(b)(3)). Finally, an

appellate court will review the entire trial record, even evidence which is

impermissibly introduced, when evaluating a sufficiency claim.

Commonwealth v. Sanders, 42 A.3d 325, 329 n.1 (Pa.Super. 2012 (citing

Commonwealth v. Reed, 605 Pa. 431, 436, 990 A.2d 1158, 1161 (2010));

accord Commonwealth v. Tejada, 107 A.3d 788, 793 (Pa.Super. 2015)

(citation omitted).

Herein, the Commonwealth charged Appellant with corrupt

organizations, 12 possession of a controlled substance with intent to

deliver, 13 criminal conspiracy to commit possession with intent to deliver a

controlled substance.!" dealing in unlawful proceeds+" and criminal use of

12 Pursuant to 18 Pa.C.S.A. § 91 l(b)(l), the Commonwealth had to prove beyond a
reasonable doubt that Appellant, having received income derived, directly or indirectly,
from a pattern of racketeering activity in which he participated as a principal, did
unlawfully use or invest, directly or indirectly, any part ·of such income, or the proceeds of
such income, in the acquisition of any interest in, or the establishment or operation of any
enterprise.

13
Pursuant to 35 P.S. § 780-113(a)(30), the Commonwealth had to prove beyond a
reasonable doubt that Appellant did deliver or possess with intent to deliver a controlled
substance classified in Schedule I, II, III or IV to wit: Methamphetamine.

14
Pursuant to 18 Pa.C.S.A. § 903(a) and 35 P.S. § 780-l 13(a)(30), the Commonwealth
had to prove beyond a reasonable doubt that Appellant had the intent of promoting or
facilitating the crime of possession with the intent to deliver a controlled substance with
another and agreed- that they or one or more of them would engage in conduct which
constitutes such crime or attempt or solicitation to commit such crime; or agreed to aid
such other person or persons in the planning or commission of such crime or of an attempt
or solicitation to commit such crime. See Commonwealth v. Kinard, 95 A.3d 279, 293
(Pa.Super. 2014) (en bane) (citation omitted); Commonwealth v. Watley, 81 A.3d l08,
115-16 (Pa.Super. 2013) (en bane) (quoting Commonwealth v. Feliciano, 67 A.3d 19, 25-
26) (en bane)).
15
Pursuant to 18 Pa.C.S.A. § 511 I (a)(l ), the Commonwealth had to prove beyond a

20
 communication Iacility.w Regarding the charge of criminal conspiracy in

particular, the Superior Court in Kinard, supra reiterated the following

precepts:

1.,;. "An explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for proof of a
l'