Opinion
J-S53035-18 No. 128 EDA 2018
11-30-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. KEVIN FELIX RODRIGUEZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 19, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000468-2017 BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Kevin Felix Rodriguez, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his bench trial conviction of conspiracy to possess a controlled substance with intent to deliver—heroin ("PWID"). We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them.
Appellant raises the following issues for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR COUNT 4: CRIMINAL CONSPIRACY TO MANUFACTURE, DELIVER, OR POSSESS WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE?
WHETHER THE SENTENCE ORDERED FOR COUNT 4: CRIMINAL CONSPIRACY TO MANUFACTURE, DELIVER, OR POSSESS WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE IS ILLEGAL IN THAT IT IS THE RESULT OF A MISAPPLICATION OF THE SENTENCING GUIDELINES IN THAT APPELLANT WAS SENTENCED UNDER THE GUIDELINES FOR CONSPIRACY TO [POSSESS WITH INTENT TO DELIVER] HEROIN WHERE SUCH AN OFFENSE DOES NOT APPEAR ON THE BILL OF INFORMATION?(Appellant's Brief at 5).
The Controlled Substance, Drug, Device and Cosmetic Act defines PWID, in relevant part, as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
35 P.S. § 780-113(a)(30). Thus, "[t]o establish the offense of possession of a controlled substance with intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance with the intent to deliver it." Commonwealth v. Perez , 931 A.2d 703, 707-08 (Pa.Super. 2007). The Commonwealth can establish the identity of the controlled substance at trial by circumstantial evidence. Commonwealth v. Rickabaugh , 706 A.2d 826, 844 (Pa.Super. 1997), appeal denied, 558 Pa. 607, 736 A.2d 603 (1999). See also Commonwealth v. Bricker , 882 A.2d 1008, 1015 (Pa.Super. 2005) (holding Commonwealth can establish all elements of PWID by circumstantial evidence). "Factors to consider in determining whether the drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant." Commonwealth v. Kirkland , 831 A.2d 607, 611 (Pa.Super. 2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004).
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(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
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After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Todd D. Eisenberg, we conclude Appellant's first issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of Appellant's sufficiency claim. ( See Trial Court Opinion, filed March 6, 2018, at 7-9) (finding: trial evidence demonstrated police discovered Appellant in front passenger seat of car that he and co-defendant used to travel to site of controlled buy; police recovered from front passenger area of vehicle cellphone Appellant used to plan illegal drug transactions, including heroin sale to confidential informant; police also recovered from front passenger seat area seven bags of cocaine and twenty-five bags of heroin; police found on Appellant's person over $1,000.00 cash; foregoing constituted sufficient evidence to convict Appellant of conspiracy to commit PWID). The record supports the trial court's rationale. Accordingly, as to Appellant's sufficiency claim, we affirm on the basis of the trial court opinion.
In his second issue, Appellant argues that although the Commonwealth charged him with and the trial court convicted him of conspiracy to commit PWID—generally, the court sentenced him for conspiracy to commit PWID—heroin. Appellant contends the trial court determined retroactively at sentencing it had intended at the time of verdict to convict Appellant of conspiracy to commit PWID—heroin. Appellant insists the court imposed upon him an illegal sentence when it applied the offense gravity score ("OGS") associated with conspiracy to commit PWID—heroin, rather than the OGS relating to conspiracy to commit PWID—generally. Appellant concludes this Court should vacate the judgment of sentence as illegal and remand for re-sentencing. We disagree.
"[F]act-driven matters are particularly ill-suited to characterization as implicating 'sentencing illegality,' at least where, as here, the claim depends upon particulars of the conviction." Commonwealth v. Spruill , 622 Pa. 299, 313, 80 A.3d 453, 461-62 (2013) (determining claim of illegal sentence, where Commonwealth charged appellant with first-degree aggravated assault but court convicted and sentenced defendant on second-degree aggravated assault, did not implicate non-waivable illegal sentencing issue, because claim related to offense Commonwealth charged and pursued, rather than some fatal flaw in sentence imposed; stating: "[E]very criminal defense claim on direct appeal, if successful, will result in some effect upon the 'sentence,' since it is the judgment of sentence that is the appealable order. But, that does not convert all claims into sentencing claims, much less into claims that a sentence was 'illegal'"). Failure to object to the validity of a conviction at the time of verdict results in waiver of that claim. Id. at 312-313, 80 A.3d at 461 (stating: "[F]ailure to forward a contemporaneous objection to the court's verdict cannot be excused by resort to an 'illegal sentence' doctrine").
Where a jury convicts the defendant of conspiracy to commit a crime, generally, rather than conspiracy to commit a specific iteration of the underlying offense, and absent clear evidence of the jury's intent, the "verdict must be resolved in favor of the defendant, and may be construed only as a conviction of conspiracy to commit the least serious underlying offense for which the jury could have properly found the defendant to have committed." Commonwealth v. Riley , 811 A.2d 610, 620-21 (Pa.Super. 2002). Where, however, the court delivers a general guilty verdict, but its intent to convict of a more specific offense is evident, the court may impose a sentence based upon the more specific crime. Commonwealth v. Kelly , 78 A.3d 1136, 1146 (Pa.Super. 2013).
Instantly, the Commonwealth charged Appellant with, inter alia, two counts of PWID—heroin, one count of PWID—cocaine, and one count of conspiracy to commit PWID—generally. Following a bench trial on August 1, 2017, the court convicted Appellant of conspiracy to commit PWID without naming a specific substance. Appellant did not object to the verdict.
At sentencing, Appellant objected when the court employed the OGS for conspiracy to commit PWID—heroin, rather than the OGS for conspiracy to commit PWID—generally. In response, the trial court acknowledged its intent to convict Appellant of conspiracy to commit PWID—heroin, although it had inadvertently phrased the verdict as conspiracy to commit PWID. The court then sentenced Appellant for conspiracy to commit PWID—heroin.
To the extent Appellant argues his sentence is illegal because the court applied the OGS for conspiracy to commit PWID—heroin, rather than the OGS for conspiracy to commit PWID—generally, that argument fails. Despite Appellant's attempt to couch his claim as an illegal sentence, Appellant's argument actually goes to the validity of the conviction, not the sentence. See Spruill , supra. Appellant arguably waived his claim, however, because he did not raise it when the court announced its verdict. See id.
Moreover, even if Appellant had properly preserved his second issue, he would not be entitled to relief. In its opinion, the trial court addressed Appellant's claim as follows:
Prior to sentencing, [Appellant's] then counsel...informed the court of his belief that [Appellant] could not be sentenced for criminal conspiracy to possess heroin with the intent to deliver because, in announcing the court's verdict, the [court] had stated only that [it] was finding [Appellant] guilty of conspiracy to possess with intent to deliver, without specifying the drug at issue. The [court] rejected [counsel's] argument.
[Counsel] was correct that the [court] inadvertently
neglected to specify on the record that [Appellant] was being convicted of conspiracy to possess heroin with intent to deliver. Had this been a jury trial, and had a jury failed to identify the specific object of the conspiracy, this would have required the [court] to sentence [Appellant] for conspiracy to commit the least serious underlying offense, as anything else would have required speculation as to the jury's intent. See , e.g., [ Kelly , supra ; Riley , supra ]. The instant case, however, was a bench trial, and the [court] thus in no way had to speculate as the fact finder's intent. Stated simply, it was the [trial court]'s intent to convict [Appellant] of criminal conspiracy to possess heroin with the intent to deliver.(Trial Court Opinion at 10-11) (internal citations to record omitted). We accept the trial court's rationale. Here, the Commonwealth charged Appellant with PWID regarding multiple drugs, including heroin, as well as the related criminal conspiracy count. The evidence at trial proved Appellant conspired with another to sell heroin, and the court's verdict on conspiracy doubtlessly related to the selling of heroin. Therefore, Appellant knew the charges against him, the Commonwealth's burden of proof, the acts involved, how to prepare a defense, and the true meaning of the bench verdict. As the trier of fact, the court was well aware of the intent of its verdict. Given that clear intent, the court was authorized to sentence Appellant consistent with its verdict. Accordingly, we affirm.
In his Rule 1925(b) statement, [Appellant] now also contends that he could not have been sentenced for conspiracy to possess heroin with intent to deliver because the bills of information raised only a general charge of conspiracy to possess with intent to deliver, without identifying the specific drug at issue. ... Throughout the entire case and trial, the Commonwealth was clearly alleging that [Appellant] conspired...to possess heroin with the intent to deliver. [Appellant] expressed no surprise in this allegation at trial, nor could he. [Appellant] cannot now be heard to claim relief on the basis of his conviction and sentencing for an offense he clearly knew the Commonwealth was alleging.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/30/18
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