The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FELIPE PETE RODRIGUEZ, III :
:
Appellant : No. 1751 MDA 2017
Appeal from the Judgment of Sentence November 23, 2016
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001767-2015
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 29, 2018
Appellant, Felipe Pete Rodriguez III, appeals from the judgment of
sentence entered on November 23, 2016, following his jury trial convictions
for possessing a controlled substance and possessing prohibited contraband
while confined.1 We affirm.
The facts of the case, as summarized by the trial court, are as follows:
On September 30, 2014, Corporal Daniel Waltz and Captain
Michael Ott conducted a search of Room Number 16 at the
Lebanon County Correctional Facility (“LCCF”). This room housed
approximately fourteen inmates participating in work-release
programs. During the search, four rolled cigarettes, suspected to
contain synthetic marijuana; a lighter; and an egg-shaped
cylinder filled with suspected tobacco were found in [Appellant’s]
locked drawer. The drawer could only be accessed by [Appellant]
and prison staff, because it was secured by a combination lock.
Records show that [Appellant] purchased the combination lock at
the LCCF commissary.
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1 35 P.S. § 780-113(a)(16) and 18 Pa.C.S.A. § 5123(a.2), respectively.
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Forensic Scientist Dana R. Jackson at the Pennsylvania State
Police Harrisburg Regional Laboratory analyzed the contraband
The laboratory analysis concluded that the cigarettes filled with
green vegetable material, weighed a total of 0.97 grams. In
particular, one cigarette with the vegetable material weighed .20
grams, and contained XR11, which is a Schedule I controlled
substance and TJF-2201, a structural analog of the
naphthoylindole class, also a Schedule I controlled substance. No
controlled substances were detected in the egg-shaped vessel
containing brown vegetable material.
As a result of the laboratory findings, the Lebanon County District
Attorney filed [a bill of] [c]riminal [i]nformation, which charged
[Appellant] with the crimes of Contraband and Violation of the
Controlled Substance, Drug, Device, and Cosmetic Act.
Trial Court Opinion, 3/23/17, at 2-3.
On September 14, 2016, a jury found Appellant guilty of the
aforementioned charges. On November 23, 2016, the trial court sentenced
Appellant to 20 to 40 months of incarceration. Appellant filed a post-sentence
motion on November 29, 2016. Following granted extensions and the filing
of briefs in support of post-sentence motions, the trial court denied relief by
opinion and order entered on March 23, 2017. This timely appeal followed.2
On appeal, Appellant presents the following issues for our review:
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2 Appellant filed a notice of appeal on March 28, 2017. On March 30, 2017,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa. R.A.P. 1925(b). Appellant complied
timely on March 31, 2017. On April 19, 2017, the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a), relying upon its earlier opinion entered on
March 23, 2017.
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[1.] Whether [Appellant’s] motion for acquittal should [have]
be[en] granted due to the Commonwealth’s failure to
present sufficient evidence at trial?
[2.] Whether the jury’s verdict was against the weight of the
evidence?
Appellant’s Brief at 4.
Appellant alleges first that the evidence is not sufficient to sustain both
of his convictions. Specifically, Appellant alleges:
[…T]he Commonwealth’s witness presented conflicting stories and
the conflicting stories created reasonable doubt about the
elements of the contraband specifically the possession.
[Appellant] denied he used the lockbox where the contraband was
found, he wasn’t present when the items were found, he plead[ed]
not guilty at the disciplinary board hearing, the item was never
fingerprinted and he denied the possession [to prison authorities].
Additionally, there was no testimony that the lock he purchased
at the commissary was specifically the lock found by the officers
on his “assigned” drawer. Instead, the testimony established that
a common key opened all the locks. Which further supports
[Appellant’s] position that the Commonwealth failed to establish
its burden.
Appellant’s Brief at 10-11 (record citations omitted).
When determining the sufficiency of the evidence, “[t]he applicable
standard of review is whether, viewing all the evidence in the light most
favorable to the Commonwealth as verdict winner, together with all
reasonable inferences favorable to the Commonwealth, a jury could find every
element of the crime beyond a reasonable doubt.” Commonwealth v.
Brown, 648 A.2d 1177, 1180 (Pa. 1994) citing Commonwealth v. Kichline,
361 A.2d 282, 285-286 (Pa. 1976); see also Commonwealth v. Diggs, 949
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A.2d 873, 877 (Pa. 2008). In applying this standard, the reviewing court
must bear in mind that:
the Commonwealth may sustain its burden by means of
wholly circumstantial evidence; the entire trial record should be
evaluated and all evidence received considered, whether or not
the trial court's ruling thereon were correct; and the trier of fact,
while passing upon the credibility of witnesses and the weight of
the proof, is free to believe all, part, or none of the evidence.
Commonwealth v. Hutchinson, 947 A.2d 800, 807 (Pa. Super. 2008)
(citation omitted).
Possessing a controlled substance is defined as “[k]nowingly or
intentionally possessing a controlled or counterfeit substance by a person not
registered under [the Controlled Substances Act.]” 35 P.S. § 780-113(a)(16).
Possessing prohibited contraband while confined is defined as follows: “[a]
prisoner or inmate commits a felony of the second degree if he unlawfully has
in his possession or under his control any controlled substance in violation of
[35 P.S. § 780–113(a)(16) ].” 18 Pa.C.S. § 5123(a.2). “This Court has held
that the intent of the legislature in subsection 5123(a.2) is the prevention of
inmates obtaining any controlled substance in any amount whatsoever; in
other words, the contraband statute seeks absolute abstinence by inmates.”
Commonwealth v. Cornelius, 180 A.3d 1256, 1260 (Pa. Super. 2018)
(internal citation omitted).
We have stated:
[T]he Commonwealth is not required to show actual
physical possession of the drugs. Constructive possession is
sufficient, which is an inference arising from a set of facts
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that possession of the contraband was more likely than not. We
have defined constructive possession as conscious dominion. We
subsequently defined conscious dominion as the power to control
the contraband and the intent to exercise that control. To aid
application, we have held that constructive possession may be
established by the totality of the circumstances.
Commonwealth v. Katona, 2018 WL 2986892, at *3 (Pa. Super. 2018)
(internal citations and quotations omitted).
In this case, Appellant does not present the conflicting testimony in the
light most favorable to the Commonwealth as we are required to do. When
applying the proper standard of review, there was more than sufficient
evidence for a jury to find that Appellant was in constructive possession of
contraband. Corporal Daniel Waltz testified that the contraband was found
alongside legal paperwork bearing Appellant’s name in a lock-box underneath
Appellant’s bed. Trial Court Opinion, 3/23/17, at 9. Ms. Charlene Simaska
testified that Appellant purchased a combination lock which was the same kind
found on Appellant’s lock-box. Id. at 9-10. Captain Michael Ott testified that
Appellant had the opportunity to present his case to the prison Disciplinary
Board, which found him guilty. Id. at 10-11. Viewed in a light most favorable
to the Commonwealth, it is reasonable for the trier of fact to infer that the
contraband was Appellant’s. The evidence presented was sufficient to prove
the elements of both offenses beyond a reasonable doubt.
In his second issue presented, Appellant argues that he is entitled to a
new trial because the verdict was against the weight of the evidence.
Specifically, Appellant asserts that, “the jury should have afforded his
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statements to [prison officials] more weight and credibility.” Appellant’s Brief
at 9.
We adhere to the following standard:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded when
the jury's verdict is so contrary to the evidence as to shock one's
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.
An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of
the evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination
that the verdict is against the weight of
the evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court's
conviction that the verdict was or was not against
the weight of the evidence and that a new trial should
be granted in the interest of justice.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, [our Supreme
Court has] explained:
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The term discretion imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is not
exercised for the purpose of giving effect to the will of
the judge. Discretion must be exercised on the
foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013) (internal
citations and quotations omitted).
In this case, the trial court reasoned that there was ample evidence for
the jury to find Appellant guilty. Trial Court Opinion, 3/23/17, at 13.
Considering the entire record and evidence presented at trial, we find no abuse
of discretion. The aforementioned evidence presented at trial gave the jury a
basis to find Appellant guilty beyond a reasonable doubt and this Court will
not substitute its own judgment for that decision. Moreover, the verdict does
not shock one’s sense of justice. As such, we discern no abuse of discretion
in ruling on Appellant’s weight of the evidence claim. For all of the foregoing
reasons, Appellant is not entitled to relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2018
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