Opinion
J. S62021/16 No. 51 MDA 2016
09-26-2016
COMMONWEALTH OF PENNSYLVANIA v. ANGEL NOEL MARTINEZ APPELLANT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 4, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001104-2015 BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J. MEMORANDUM BY DUBOW, J.:
Appellant, Angel Noel Martinez, appeals from the December 4, 2015 Judgment of Sentence entered in the Lancaster County Court of Common Pleas. After careful review, we affirm on the basis of the trial court's Opinion, which found that an eyewitness identification and corroborating testimony from two additional witnesses was sufficient evidence to support the jury's verdict.
The trial court summarized the relevant factual and procedural history as follows.
On July 18, 2014, the Lancaster City Police Selective Enforcement Unit (SEU) conducted an undercover drug operation in Conestoga Pines Park using undercover Officer Richard Mendez. At approximately 8:15 p.m., Officer Mendez arranged to meet an individual by the name of "Bells" at the Park for purposes of buying heroin. Officer Mendez had purchased
narcotics from "Bells" at previous times and locations throughout the City.
Officer Mendez handed "Bells" $60.00 in pre-documented buy money. "Bells" immediately left Officer Mendez's vehicle and approached another group of subjects that were at a vehicle behind Officer Mendez's. Officer Mendez was able to continuously observe "Bells" and the other vehicle from his side view and rear view mirrors, while also turning around in his vehicle. He observed "Bells" approach Appellant and hand Appellant the money that he had just given "Bells". Appellant was seen going into the trunk of the car, reaching inside a backpack, and pulling out a small item.
"Bells" immediately returned to the driver's side of Officer Mendez's vehicle and handed the small item to Officer Mendez, which contained ten glassine bags, each containing a tan powder, which field tested positive for heroin. After some small talk with "Bells", Officer Mendez signaled the surveillance officers that he had a "good deal" and left the area. As a result of subsequent police investigation, "Bells" was identified as Quamell Waiters, and the other black male as Appellant.
As a result of this criminal activity, a criminal complaint was filed and an arrest warrant issued for Appellant on November 17, 2014. Appellant was ultimately arrested on December 20, 2014, and charged with possession with intent to deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30), and criminal conspiracy, 18 Pa. C.S.A. § 903(c).
On September 23, 2015, Appellant's case proceeded to a jury trial. On September 24, 2015, the jury found Appellant guilty of criminal conspiracy and PWID. A pre-sentence investigation was ordered and sentence[ing] was deferred until completion of the pre- sentence investigation report.
On December 4, 2015, Appellant received concurrent sentences of 22 months' to 6 years' incarceration on the charges of PWID and criminal conspiracy, plus fines and costs. Appellant was eligible for a RRRI sentence of 16-1/2 months' incarceration.
On December 8, 2015, Appellant filed a motion to modify sentence.... This post sentence motion was denied by Order of Court on December 9, 2015.
Appellant filed a direct appeal on January 7, 2016, with the Superior Court of Pennsylvania from the judgment of sentence imposed on December 4, 2015. Pursuant to this Court's directive, Appellant furnished a concise statement of errors on appeal[.]Trial Court Opinion, filed 2/23/16, at 1-3.
On appeal, Appellant raises a single issue:
Was the evidence presented by the Commonwealth insufficient to sustain [Appellant's] convictions for delivery of heroin and criminal conspiracy to deliver heroin, where Sergeant Mendez did not have sufficient opportunity to observe and identify the suspect who delivered heroin to Mr. Waiters from over thirty feet away, and his identification was based upon suggestive photographs?Appellant's Brief at 4.
Appellant purports to challenge only the sufficiency of the identification evidence against him. He does not aver that the trial court erred in admitting Officer Mendez's identification testimony. To the extent that Appellant challenges the weight of the evidence in his Brief to this Court, Appellant waived such a claim by failing to raise it in his Pa.R.A.P. 1925(b) Statement. See Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005).
In reviewing the sufficiency of the evidence, our standard of review is as follows:
The standard of review for a challenge to the sufficiency of the evidence is to determine whether, when viewed in a light most favorable to the verdict winner, the evidence at trial and all reasonable inferences therefrom is sufficient for the trier of fact to find that each element of the crimes charged is established beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element beyond a reasonable doubt by means of wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubt raised as to the accused's guilt is to be resolved by the fact-finder. As an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record. Therefore, we will not disturb the verdict 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.Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014) (citations and quotations omitted).
Specifically regarding the issue of identity, our Supreme Court has stated that:
Proof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction. The evidence of identification, however, [need not] be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight. Direct evidence of identity is, of course, not necessary and a defendant may be convicted solely on circumstantial evidence.Commonwealth v. Hickman , 309 A.2d 564, 566 (Pa. 1973) (citations omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned opinion of the trial court, we conclude that there is no merit to Appellant's claim. Accordingly, we affirm on the basis of the trial court's opinion, which (i) notes that "Officer Mendez testified unequivocally" at trial and was "100 percent sure" of his identification of Appellant; and (ii) catalogs the substantial corroborating and circumstantial evidence supporting Officer Mendez's identification of Appellant. See Trial Court Opinion, at 3-8.
The parties are instructed to attach a copy of the trial court's Opinion, dated February 23, 2016, to all future filings.
Judgment of Sentence affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/26/2016
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