Opinion
J-S58032-17 No. 324 MDA 2017
10-11-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JORGE MORALES-GASPARINI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 21, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003144-2014 BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Jorge Morales-Gasparini, appeals from the judgment of sentence entered in the Berks County Court of Common Pleas, following his bench trial convictions for four (4) counts each of delivery of a controlled substance, possession with intent to distribute ("PWID"), and possession of a controlled substance, three (3) counts of corrupt organizations, and one (1) count each of criminal use of a communication facility and dealing in proceeds of unlawful activities. We affirm.
35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. §§ 911(b)(2), 7512(a), 5111(a)(1), respectively. --------
The relevant facts and procedural history of this case are as follows. In May through June 2014, a team from the Berks County District Attorney's office surveilled a group of individuals, which included Appellant, who were suspected of selling narcotics. During surveillance, the team discovered Appellant provided transportation to and from drug transactions, answered the organization's phone to facilitate drug transactions, took instructions from superiors, and was present when customers arrived to purchase drugs. Appellant also discussed financial terms with customers and arranged for adjusted transactions based on the customers' finances. Appellant was arrested and charged with thirty-two (32) counts related to his participation in the narcotics organization.
On February 20, 2015, Appellant signed a written waiver of a jury trial and the court conducted an oral colloquy on the record. The court thoroughly explained the jury selection process and Appellant's right to a jury trial during the colloquy. When asked if Appellant wanted a jury trial or judge trial, Appellant responded, "judge trial." After a bench trial on April 24, 2015, the court convicted Appellant of four (4) counts each of delivery of a controlled substance, PWID, and possession of a controlled substance, three (3) counts of corrupt organizations, and one (1) count each of criminal use of a communication facility and dealing in proceeds of unlawful activities. The court sentenced Appellant to an aggregate term of thirteen (13) to thirty (30) years' imprisonment on May 21, 2015.
On May 27, 2015, Appellant filed a pro se motion for removal of counsel and a pro se post-sentence motion, which challenged the weight of the evidence. The court entered an order permitting counsel to withdraw on May 29, 2015, and appointed new counsel on June 16, 2015. Appellant filed an amended post-sentence motion on August 13, 2015, which challenged the mandatory fine imposed for dealing in proceeds of unlawful activities, and the validity of his jury trial waiver. On September 9, 2015, the court granted in part Appellant's post-sentence motion regarding the mandatory fine, but denied in part the remaining issues in his post-sentence motion. Appellant timely filed a notice of appeal on October 6, 2015, and that same day, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on October 23, 2015.
On March 9, 2016, this Court dismissed Appellant's appeal for failure to file a brief. Appellant filed a pro se petition under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546 ("PCRA") on May 16, 2016, seeking reinstatement of his direct appeal rights nunc pro tunc. On May 19, 2016, the PCRA court appointed counsel, and on January 24, 2017, the PCRA court granted PCRA relief and reinstated Appellant's direct appeal rights nunc pro tunc. Appellant timely filed a notice of appeal nunc pro tunc on February 22, 2017. On March 1, 2017, the court ordered Appellant to file a Rule 1925(b) statement, which Appellant timely filed on March 21, 2017.
Appellant raises the following issues for our review:
WHETHER THE CONSECUTIVE SENTENCES WERE MANIFESTLY EXCESSIVE, UNREASONABLE, IN VIOLATION
OF THE SENTENCING CODE, AND INSUFFICIENT REASONS FOR THE SENTENCE APPEAR OF RECORD?
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTIONS AT COUNTS 1, 2, AND 3: CORRUPT ORGANIZATIONS, WHERE THERE WAS NO EVIDENCE THAT APPELLANT, THOUGH AN ADDICT, WAS ALSO AN ORGANIZER, CONTROLLING PARTICIPANT, AND/OR INTERESTED PARTY IN ANY PATTERN OF RACKETEERING OR CORRUPT ORGANIZATION AS REQUIRED BY 18 PA.C.S.A. § 911?
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTION AT COUNT 5: DEALING IN UNLAWFUL PROCEEDS, WHERE THERE WAS NO EVIDENCE THAT APPELLANT, AN ADDICT, RECEIVED MONEY AND/OR PARTICIPATED IN A FINANCIAL TRANSACTION AS DEFINED IN 18 PA.C.S.A. § 5111?
WHETHER THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH A KNOWING AND INTELLIGENT WAIVER OF APPELLANT'S RIGHT TO A JURY TRIAL ON APRIL 24, 2015[,] WHERE NO WRITTEN COLLOQUY OR WAIVER WAS PLACED ON THE RECORD ON APRIL 24, 2015[?] RATHER, A COLLOQUY WAIVING APPELLANT'S RIGHT TO A JURY TRIAL WAS CONDUCTED, IMPROPERLY, ON FEBRUARY 20, 2015, TWO MONTHS BEFORE HIS BENCH TRIAL ON APRIL 24, 2015, WITH THIS COLLOQUY BEING STALE AND IRRELEVANT AT THE TIME OF APPELLANT'S BENCH TRIAL ON APRIL 24, 2015[.]
WHETHER APPELLANT'S BENCH TRIAL CONDUCTED [ON] APRIL 24, 2015, WAS IN ERROR AS THERE WAS NO KNOWING AND INTELLIGENT WAIVER OF A JURY TRIAL PLACED ON THE RECORD AT THE TIME OF THE BENCH TRIAL[,] WHERE THE WRITTEN "WAIVER OF JURY TRIAL" FORM FILED ON FEBRUARY 20, 2015, DOES NOT MEET THE REQUIREMENTS OF [PA.R.CRIM.P. 620] AND THE TRIAL COURT MADE NO EFFORT AT THE TIME OF THE BENCH TRIAL TO CONDUCT A TIMELY, CONTEMPORARY KNOWING AND INTELLIGENT WAIVER COLLOQUY?
WHETHER THE BENCH TRIAL WAS CONDUCTED WITHOUT A KNOWING AND INTELLIGENT WAIVER TO SHOW THAT
APPELLANT WAS OF A SOUND MIND AND KNOWINGLY AGREED TO WAIVE HIS RIGHT TO A JURY TRIAL ON APRIL 24, 2015?(Appellant's Brief at 5-6).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:
[W]e conduct a [four-part] analysis to determine: (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.A. § 9781(b).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted); Commonwealth v. Mann , 820 A.2d 788 (Pa.Super. 2003) (stating issues that challenge discretionary aspects of sentencing are generally waived if they are not raised during sentencing proceedings or in post-sentence motion).
A challenge to the sufficiency of the evidence implicates the following legal principles:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).
Pennsylvania Rule of Criminal Procedure 620 governs a defendant's waiver of his right to a jury trial and provides:
Rule 620. Waiver of Jury TrialPa.R.Crim.P. 620.
In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant's attorney as a witness.
[A] voluntary waiver of a trial by jury will be found to be knowing and intelligent when the on-record colloquy indicates that the defendant knew the essential ingredients of a jury trial which are necessary to understand the significance of the right being waived. These essential ingredients are the requirements that the jury be chosen from members of the community (a jury of one's peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.Commonwealth v. O'Donnell , 559 Pa. 320, 337, 740 A.2d 198, 207-08 (1999).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Scott D. Keller, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed April 4, 2017, at 4-10) (finding: (1) Appellant failed to raise challenge to discretionary aspects of sentencing in his post-sentence motion or amended post-sentence motion; specifically, Appellant's post-sentence motions do not question court's imposition of consecutive sentence; Appellant has waived his challenge to discretionary aspects of sentence; (2-3) testimony at trial established Appellant involved himself as vital member of drug trafficking organization whose purpose was to profit in drug trade; Appellant provided transportation to and from drug transactions and answered organization's phone to facilitate drug transactions; Appellant took instructions from superiors in organization; Appellant was present when purchasers arrived to complete transactions; Appellant did not have control of organization, but he had direct impact on daily business of organization and participated in organization's affairs; Commonwealth presented sufficient evidence to support Appellant's convictions for corrupt organizations; further, Appellant discussed financial terms with drug customers and arranged for adjusted transactions based on customers' finances; Appellant accounted for completed drug transactions and financial terms of transactions to superiors; Commonwealth presented sufficient evidence to support Appellant's conviction for dealing in proceeds of unlawful activities; (4-6) court orally conducted on-the-record colloquy for jury trial waiver on February 20, 2015; court explained to Appellant his right to jury trial, jury selection process, Appellant's participation in jury selection, and requirement of unanimous verdict; court enumerated Appellant's charges and instructed Commonwealth to explain maximum penalties for and elements of each offense; Appellant affirmatively responded when asked by court if he understood charges and maximum penalties; Appellant stated he wished for "judge trial"; Appellant confirmed he was not forced or threatened to waive his right to jury trial and indicated he had previously consulted with counsel; Appellant signed written jury trial waiver form on same day as oral colloquy; court informed Appellant of "essential ingredients" of jury trial before Appellant waived his right to jury trial; Appellant knowingly and intelligently waived his right to jury trial; Appellant appeared and was represented by counsel at bench trial; court would have addressed request if counsel had indicated desire for jury trial; there is no authority for Appellant's proposition that waiver conducted prior to date of bench trial renders waiver stale, therefore, Appellant's claims are meritless). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/11/2017
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