Opinion
J-A28035-17 No. 2720 EDA 2016
01-23-2018
COMMONWEALTH OF PENNSYLVANIA v. FRANCISCO JAVIER LEMUS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 27, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0002052-2014 BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY DUBOW, J.:
Appellant, Francisco Javier Lemus, appeals from the Judgment of Sentence entered by the Chester County Court of Common Pleas following his convictions after a jury trial of, inter alia, numerous counts of Possession of a Controlled Substance With Intent to Deliver ("PWID") and related offenses. After careful review, we affirm.
The trial court summarized some of the facts as follows:
On July 9, 2014, the Commonwealth charged Appellant with 2,443 violations of the Controlled Substance, Drug, Devise and Cosmetic Act and other crimes. Evidence at Appellant's six-day trial established that he was an active and crucial participant in a Chester County cocaine trafficking organization run by his father. Appellant, along with other family members, bought and sold cocaine in 2013 and 2014, with Appellant acting as the organization's chief operating officer when his father returned to Mexico. On April 18, 2016, a jury found him guilty of 51 counts
of possession with intent to deliver cocaine, 49 counts of criminal use of a communication facility, 3 counts of criminal solicitation, and one count each of possession of drug paraphernalia, criminal conspiracy, corrupt organizations, and dealing in proceeds of unlawful activities.Trial Court Opinion, 3/23/17, at 1-2. On July 27, 2016, the trial court sentenced Appellant to an aggregate term of 40 to 80 years' incarceration.
On August 24, 2016, Appellant filed a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents six issues on appeal:
I. Whether the trial judge violated the Due Process Clause of the state and federal Constitutions when he failed to conduct any reasonable investigation into Appellant's complaints of a complete breakdown in the attorney client relationship including the claim that the attorney did not allow him to participate in jury selection?
II. Whether the trial judge violated the Due Process Clause of the state and federal Constitution when he allowed detective Jeremy Rubican, who was qualified as an expert in drug trafficking and controlled substances, to testify in a way that caused the jury to give his testimony a degree of reliability it did not deserve and abdicate its responsibility to make independent determinations of fact and instead, rely on his opinion to a "reasonable professional certainty" that the combination of words and actions of Appellant were consistent with drug trafficking?
III. Whether the trial judge violated the Due Process Clause of the state and federal Constitution when he admitted a picture of Appellant's .380 firearm which was legally possessed and had absolutely no relationship to the crimes charged in the indictment?
IV. Whether the trial judge violated the state Constitution and rule 600 when he denied bail on the theory that no combination of conditions other than imprisonment would reasonabl[y] assure the safety of the community where Appellant's crimes involved
distribution of ounce quantities of cocaine without violence and there was no reasonable basis to reject the request for nominal bail?Appellant's Brief at 2-3 (capitalization omitted).
V. Whether the 40-80 sentence imposed is multiplicitous and violates state and federal case law including but not limited to Apprendi and Alleyne where the sentencing guidelines link the recommended sentence to the weight [of] the drugs distributed?
VI. Whether the sentence imposed is excessive in violation of the fundamental norms underlying the sentencing process?
Issue 1: Appellant's Dissatisfaction with Court-Appointed Counsel
In his first issue, Appellant claims that the trial court erred in failing to inquire about Appellant's complaints about his court-appointed counsel and in failing to appoint new court-appointed counsel based on Appellant's complaints. Appellant's Brief at 8-12. Appellant avers that "[t]he [c]ourt's response was to blow him off." Id. at 9.
Pa.R.Crim.P 122(C) provides that "[a] motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons." Pa.R.Crim.P. 122(C). "To satisfy this standard, a defendant must demonstrate he has an irreconcilable difference with counsel that precludes counsel from representing him." Commonwealth v. Wright , 961 A.2d 119, 134 (Pa. 2008). "The decision whether to appoint new counsel lies within the trial court's sound discretion." Id.
The Honorable James P. MacElree II, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's claim. See Trial Court Opinion, 3/23/17, at 7-8 (describing its efforts to question "Appellant and counsel about the nature of any conflict" and to resolve any issues, and concluding that Appellant never followed its instructions to file a formal motion for change of counsel explaining any unresolved issues and that Appellant never demonstrated "an irreconcilable difference with counsel" as required, including during his belated remarks during jury selection). After a careful review of the parties' arguments and the record, we discern no abuse of discretion or error of law. We affirm on the basis of the trial court's March 23, 2017 Opinion.
Issue 2: Propriety of Expert Testimony
In his second issue, Appellant challenges a detective's expert testimony at trial regarding intercepted cell phone conversations, text messages, surveillance activity, and the translation of coded language used in the drug trafficking world. Appellant's Brief at 12-18. Appellant contends that the detective, in testifying that he held his expert opinions to a "reasonable degree of professional certainty[,]" invaded the province of the jury and that his opinions were improper. Appellant's Brief at 15, 18.
The "[a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Tyson , 119 A.3d 353, 357 (Pa. Super. 2015) (citation and quotation omitted). "Accordingly, a ruling admitting evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous." Commonwealth v. Huggins , 68 A.3d 962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).
With regard to the admission of expert witness testimony, Pennsylvania Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
Pa.R.E. 702.(a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the relevant field.
We have previously held that the "standard for qualifying an expert is a liberal one: the witness need only have a reasonable pretension to specialized knowledge on a subject for which expert testimony is admissible." Commonwealth v. Kinard , 95 A.3d 279, 288 (Pa. Super. 2014) (en banc) (citation omitted). Further, "[t]he witness's expertise may be based on practical, occupational, or other experimental training; it need not have been gained through academic training alone." Id. The Comment to Rule 702 specifically states that "an expert's opinion must be expressed with reasonable certainty." Comment to Pa.R.E. 702.
This Court has previously upheld the admission of expert testimony regarding coded language. See , e.g., Kinard , supra at 288-89 (permitting expert testimony to clarify meaning and intent of oblique and coded language used in drug context); Commonwealth v. Powell , 171 A.3d 294, 307 (Pa. Super. 2017) (upholding admission of expert testimony regarding "coded language associated with street culture.").
Appellant's contention with respect to the language the expert repeated at trial ("reasonable degree of professional certainty") lacks merit. Such familiar language about the degree of the expert's professional certainty is required in expert opinion testimony. See Pa.R.E. 702. In fact, the comment to Rule 702 specifically states that "Pa.R.E. 702 does not change the requirement that an expert's opinion must be expressed with reasonable certainty." Comment to Pa.R.E. 702. After careful review, we conclude the trial court did not abuse its discretion in admitting this expert testimony regarding coded language.
Moreover, we note that the trial court provided jury instructions regarding the expert's testimony, which explained the jury's role in determining the weight and credibility of the expert testimony. N.T. Trial, 4/18/16 (Closing Arguments and Jury Instructions), at 81-83.
Issue 3: Photograph of Appellant's Firearm
In his third issue, Appellant summarily claims that the trial court erred in admitting photographs of a legally-owned .380 firearm in his truck because they were irrelevant, unfairly prejudicial, and inflammatory. Appellant's Brief at 19.
Appellant has not developed this claim sufficiently so as to enable this Court to provide meaningful review. We will not develop Appellant's issue for him. Accordingly, this challenge is waived. See Pa.R.A.P. 2119 (setting forth briefing requirements); Commonwealth v. McDermitt , 66 A.3d 810, 814 (Pa. Super. 2013) ("It is a well settled principle of appellate jurisprudence that undeveloped claims are waived and unreviewable on appeal." (citation omitted)); Commonwealth v. Williams , 732 A.2d 1167, 1175 (Pa. 1999) (recognizing "the unavailability of relief based upon undeveloped claims for which insufficient arguments are presented on appeal").
Even if the claim were not waived, we would conclude it is without merit based on the trial court' analysis. See Trial Court Opinion at 10-11 (concluding that the photographs were not inflammatory, "were relevant to the Commonwealth's theory that the drugs seized from the residence during the execution of the search warrant were possessed with the intent to deliver them, and were properly admitted."). Accordingly, Appellant is not entitled to relief.
See also Commonwealth v. Watley , 81 A.3d 108, 114-15 (Pa. Super. 2013) (observing that the determination of whether a person possesses a drug with intent to deliver is based upon the totality of circumstances, including whether police found firearms and ammunition in close proximity to drugs); In re R.N., 951 A.2d 363, 367 (Pa. Super. 2008) (stating that the presence of a firearm in close proximity to drugs is a relevant factor in establishing PWID).
Issue 4: Denial of Nominal Bail Pursuant to Pa.R.Crim.P. 600
In his fourth issue, Appellant belatedly challenges the trial court's pre-trial refusal to release him on nominal bail after 180 days in custody pursuant to Pa.R.Crim.P. 600(B). Appellant's Brief at 19-21. Appellant claims this decision was erroneous on the merits, interfered with his ability to hire private counsel before trial, and "[i]t was clear that the [c]ourt denied bail as a way of forcing Appellant to enter a guilty plea." Appellant's Brief at 21.
"Generally, a case will be dismissed if at any stage of the judicial process it is rendered moot." Commonwealth v. Sloan , 907 A.2d 460, 465 (Pa. 2006). A defendant is no longer in pre-trial detention where he is now serving a sentence following conviction. Id. at 464-65. A Rule 600(B) claim regarding pre-trial release on nominal bail is "technically moot" once the defendant is serving a sentence following conviction. Id.
Appellant did not immediately appeal the trial court's pre-trial refusal to release him on nominal bail after 180 days in custody pursuant to Pa.R.Crim.P. 600(B). See Pa.R.A.P. 1762(b)(2) ("Release in Criminal Matters"); Pa.R.A.P. 1516(a) (regarding petitions for judicial review of governmental determinations, including bail decisions in criminal matters as authorized in Pa.R.A.P. 1762). Appellant is no longer incarcerated in pre-trial detention; he is now serving a sentence following conviction. Thus, Appellant's claim is moot. Sloan , supra at 468. Issue 5: Apprendi/Alleyne Illegal Sentence Claim
In his fifth issue, Appellant claims that the trial court imposed an illegal sentence because the jury did not make a finding regarding the date of the charged crimes beyond a reasonable doubt. Appellant's Brief at 22-25. Relying on Apprendi v. New Jersey , 530 U.S. 466 (2000), Appellant claims that the trial court impermissibly increased his maximum punishment based on a fact that was not submitted to the jury, i.e., the date of each crime. Appellant's Brief at 25. As a result, Appellant sweepingly proclaims that "under controlling United States Supreme Court precedent, this Honorable Court may sentence for one count of [PWID]; one count of [C]riminal [C]onspiracy; one count of dealing in proceeds of unlawful activity." Appellant's Brief at 26.
Insofar as Appellant's argument implicates the sufficiency of the evidence for failing to prove the date each crime was committed, or the adequacy of the indictment and bill of particulars, such claims are waived because they do not implicate the legality of Appellant's sentence and he did not otherwise raise these issues in his appellate Brief. See , e.g., Pa.R.A.P. 2119(a) ("The argument shall be divided into as many parts as there are questions to be argued[.]").
A challenge to the legality of a sentence is a question of law. Commonwealth v. Wolfe , 106 A.3d 800, 802 (Pa. Super. 2014). Therefore, this Court's standard of review is de novo and the scope of review is plenary. Id. "[C]laims pertaining to the legality of sentence are non-waivable, may be leveled for the first time on appeal, and our jurisdiction need not be invoked in a Pa.R.A.P. 2119(f) statement." Commonwealth v. Foster , 960 A.2d 160, 163 (Pa. Super. 2008) (citation omitted). "In fact, such a claim is not even waived by a party's failure to include it in a Pa.R.A.P. 1925(b) statement." Id. (citation omitted).
In Apprendi , the United States Supreme Court determined that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi , 530 U.S. at 490. In Alleyne , the U.S. Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury and proved beyond a reasonable doubt. Alleyne , 133 S.Ct. at 2162.
We observe that Appellant did not include any discussion of Alleyne in this section of his argument; he only cited Alleyne in the question presented and again in an unrelated claim challenging the discretionary aspects of his sentence. See Appellant's Brief at 21-26.
After careful review, we conclude that Apprendi and Alleyne do not entitle Appellant to relief. The date of the offense does not change the prescribed statutory minimum or maximum sentence. Additionally, there is no indication in the certified record that the trial court imposed a mandatory minimum sentence as part of Appellant's Judgment of Sentence, which could implicate Alleyne. Moreover, even a cursory review of the jury's verdict slip shows that the Commonwealth specified the exact dates of each drug sale, the name of the buyer, and the trial exhibit related to each charge. See Verdict Slip, dated 4/18/16. Accordingly, Appellant's illegal sentencing claims are without merit and he is not entitled to relief.
Appellant does not claim he was sentenced to an illegal mandatory minimum sentence.
Issue 6: Discretionary Aspects of Sentence
In his sixth issue, Appellant avers that his aggregate sentence of 40 to 80 years' incarceration is excessive based on the Federal Sentencing Guidelines. Appellant's Brief at 27-28. This implicates the discretionary aspects of his sentence. See Commonwealth v. Lutes , 793 A.2d 949, 964 (Pa. Super. 2002) (stating that an assertion that a sentence is manifestly excessive challenges the discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentence are not appealable as of right. Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by satisfying a four-part test: "(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.[] § 9781(b)." Id. (citation omitted).
Instantly, Appellant has not satisfied these requirements. Appellant did not properly preserve this issue at sentencing or in a post-sentence motion. In his Brief, Appellant relies on his "Petition for Re-Sentencing" to support his claim that he properly preserved this claim in the lower court. See Appellant's Brief at 27. Our review of Appellant's Petition shows that Appellant never mentioned the Federal Sentencing Guidelines or his general claim of excessiveness in any way. See R.R. at 587-88. Rather, Appellant merely described his sentence and presented his Alleyne claim. R.R. at 587-88. Thus, Appellant has failed to preserve this issue. See Leatherby , supra at 83.
Moreover, we conclude that Appellant has not presented a substantial question that his sentence is inappropriate under the Sentencing Code. The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. Commonwealth v. Bishop , 831 A.2d 656, 660 (Pa. Super. 2003). "In order to establish a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process." Id. "Bald allegations of excessiveness, unaccompanied by a plausible argument that the sentence imposed violated a provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing scheme, are insufficient to raise a substantial question." Commonwealth v. Lee , 876 A.2d 408, 412 (Pa. Super. 2005).
In the instant case, Appellant has failed to raise a substantial question. Appellant failed to include any discussion about whether this issue constitutes a substantial question or otherwise develop this argument. See Appellant's Brief at 27. The substance of Appellant's excessiveness claim, presented entirely in the Pa.R.A.P. 2119(f) Statement, is that his sentence is excessive when compared to the Federal Sentencing Guidelines. See Appellant's Brief at 28. The Federal Sentencing Guidelines are wholly inapplicable and irrelevant to the instant offenses prosecuted in state court in Pennsylvania. See , e.g., 204 Pa. Code § 303.1 et seq. (describing the sentencing guidelines applicable in Pennsylvania). It is clear from our precedent that Appellant has failed to raise a substantial question as to his sentence, and therefore failed to invoke the jurisdiction of this Court. See Lee , supra at 412 (reiterating that a bald allegation of excessiveness does not present a substantial question).
Appellant also repeats his Alleyne claim. See Appellant's Brief at 28. Given our resolution of Appellant's Alleyne claim above, we need not repeat our analysis of that issue. --------
Because Appellant has failed to preserve this issue properly and has failed to present a substantial question, this Court has no jurisdiction to review Appellant's challenge to the discretionary aspects of his sentence.
The parties are instructed to attach a copy of the trial court's March 23, 2017 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/23/18
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