Commonwealth v. Delmonico

251 A.3d 829

COMMONWEALTH of Pennsylvania

v.Mark Andrew DELMONICO, Appellant

No. 1080 MDA 2020

Superior Court of Pennsylvania.

Submitted April 8, 2021

Filed May 4, 2021

Allan L. Sodomsky, Reading, for appellant.

Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellee.

Pamela L. Van Fossen, Assistant District Attorney, for Commonwealth, appellee.

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Mark Andrew Delmonico, appeals from the judgment of sentence entered in the Court of Common Pleas of Berks County following his conviction by a jury on the charges of delivery of a controlled substance, possession with the intent to deliver a controlled substance, possession of a controlled substance, possession of drug paraphernalia, and criminal conspiracy.¹ Appellant contends the jury's verdict is against the weight of the evidence, and the trial court erred in requiring the prospective jurors to wear masks and socially distance during voir dire .

After a careful review, we find no merit to Appellant's weight of the evidence claim. Further, we find the masking and social distancing of the prospective jurors did not interfere with the sole purpose of voir dire : the "empaneling of a competent, fair, impartial, and unprejudiced jury capable of following the instructions of the trial court." Commonwealth v. Knight , ––– Pa. ––––, 241 A.3d 620, 640 (2020) (quotation omitted). Accordingly, we affirm.

The trial court has set forth the relevant facts and procedural history as follows:

Appellant was charged [with various drug and conspiracy offenses]. Appellant filed an omnibus pretrial motion on October 16, 2019, which was thereafter denied. The case was thereafter scheduled for trial during the trial term beginning [on] March 11, 2020. Due to circumstances surrounding the health restrictions and public safety orders, the matter was continued for trail [sic ] during the trial term beginning on July 1, 2020. On June 25, 2020, Appellant filed a Habeas Corpus/Motion to Review Motion to Dismiss. The motion was denied on June 27, 2020. The matter proceeded to trial on July 8, 2020.

On the day of the trial, prior to voir dire , Defense Counsel placed on the record her objection to the potential jurors wearing masks because she was "concerned about [her] ability to be able to gauge the jury's reaction to certain things." Notes of Testimony of July 8-9, 2020, Jury Trial "Trial N.T.", at 3. Th[e] [trial] court overruled Defense Counsel's objection. Id. at 4.

At trial, the Commonwealth first called Christopher Zukowsky ("Trooper Zukowsky"), a thirteen-year veteran with the PSP assigned to the Drug Law Enforcement Division Northeast Strike Force of the Bureau of Criminal Investigation ("Northeast Strike Force").⁶Id. at 71. Trooper Zukowsky testified that, on July 17, 2018, the C.I.⁷ met with Trooper Zukowsky and other officers of the Northeast Strike Force at a prearranged location in Hamburg, Berks County, during which the officers searched the C.I.’s person and vehicle to ensure that the C.I. was not in possession of any contraband, including illegal drugs, firearms, or uncontrolled currency, of which none were found. [Id. at] 73-74, 81-82.

⁶ Trooper Zukowsky described the Northeast Strike Force as essentially an undercover unit similar to a vice unit operating across twelve counties in the northeast that investigates strictly drug and firearm crimes. [Id. at] 71-72. Trooper Zukowsky further testified that while Berks County is within the area assigned to the Southeast Strike Force based out of Norristown and Philadelphia, it is not unusual for the Northeast Strike Force Team to perform operations in Berks County or to assist the Southeast Strike Team therein. [Id. at] 72.

⁷ Trooper Zukowsky testified that the C.I. was an individual facing charges in Lehigh County, who expressed an interest in cooperating with law enforcement regarding his supplier. [Id. at] 74-75.

The C.I. indicated that he would be purchasing methamphetamine from an individual named West, but the C.I. understood that West was being supplied through a larger scale dealer. Id. at 83. The troopers then provided the C.I. with $1,000 in recorded currency [for] the controlled buy. Id. The C.I. then drove his vehicle to West's residence while troopers maintained surveillance on the vehicle. Id. at 84. Once at West's residence, the C.I. learned that West did not possess any methamphetamine and West relayed to the C.I. that they needed to go pick the drugs up. Id. at 85.

The C.I., West, and West's girlfriend, Wyatt, then traveled in the C.I.’s vehicle to Appellant's residence at [****] Eisenhauer Boulevard, whereupon West exit[ed] the vehicle and enter[ed] Appellant's residence. Id. The C.I. and Wyatt then proceed[ed] to a nearby Turkey Hill gas station. Id. at 86. Shortly thereafter, a white Ford F-250 pickup truck operated by Appellant with West as a passenger arrive[d] at the Turkey Hill. Id. at 87. West and Appellant briefly entered the Turkey Hill store, and upon reemerging, Appellant approached the passenger-side window of the C.I.’s vehicle. Id. at 88. At the request of West and Wyatt, the C.I. stopped at a restaurant and both West and Wyatt exited the vehicle. Id. The C.I. then returned to the prearranged meeting location in Hamburg, where he voluntarily relinquished a clear plastic bag containing approximately one ounce of methamphetamine. Id. at 88-89. The C.I. and his vehicle were again searched and no other contraband was found, nor was any portion of the $1,000 previously provided to the C.I. found. Id. at 89-90. Trooper Zukowsky confirmed that surveillance of the C.I. was maintained throughout the events described and there appeared no opportunity for the C.I. to obtain the recovered drugs other than through the controlled buy. Id. at 90.

Trooper Zukowsky then testified that, on July 23, 2018, he again met with the C.I. at the prearranged location in Hamburg. Id. at 91. The C.I. and his vehicle were searched, during which no contraband, currency, or weapons were found, and he was provided with $1,000 in recorded currency to conduct a controlled buy of methamphetamine. Id. at 93. The C.I. traveled under surveillance to West's residence where he picked up West and a small dog, and [he] proceeded to Appellant's residence. Id. While Trooper Zukowsky did not personally observe what occurred at Appellant's residence, he testified that the C.I. returned to the prearranged location and relinquished another ounce of methamphetamine, which was wrapped in a yellow and white money wrapper. Id. at 94.

On cross-examination, Trooper Zukowsky explained that the C.I. and West met through their job as landscapers and West was identified as an individual with access to a source for illegal narcotics. Id. at 107. Furthermore, while the controlled buys were occurring, West had no knowledge of the PSP investigation, or his involvement in the investigation. Id. at 107-08. Trooper Zukowsky admitted that West and Wyatt were not searched prior to entering the C.I.’s vehicle and that he had no personal knowledge as to whether either possessed contraband at that time. Id. at 108-09. However, Trooper Zukowsky posited that if either West or Wyatt had provided the drugs, then it would be inconsistent with the conversations between West and the C.I. and with the actions of both in traveling to Appellant's residence in order to obtain the methamphetamine. Id. Trooper Zukowsky also admitted that he did not directly observe any of the activity that occurred in Appellant's residence, and that he did not witness any actual transaction between West and Appellant. Id. at 112-13.

Francis Carito ("Trooper Carito"), who has been a trooper with the PSP since 2011, testified that on July 17, 2018, he was assisting his partner, Trooper Zukowsky, in handling the C.I. during the investigation. Id. at 122. Trooper Carito helped search the C.I.’s vehicle prior to the controlled buy and he found no controlled substances, weapons, or currency during the search. Id. at 123. Trooper Carito also participate[d] in the surveillance of the C.I. traveling in his vehicle. Id. at 123-24. Trooper Carito further testified that he observed the C.I. pick up two individuals in Shoemakersville, and that he later saw Appellant approach the C.I.’s vehicle as it was parked in the Turkey Hill parking lot. Id. at 124-25. Trooper Carito continued to assist Trooper Zukowsky on the C.I.’s return to the prearranged meeting location, whereupon the C.I. provided the clear plastic baggy containing the methamphetamine[,] and [he] subsequent[ly] search[ed] the C.I. and his vehicle. Id. at 126-27.

On July 23, 2018, Trooper Carito again participated in the controlled buy with Trooper Zukowsky and the same C.I. Id. at 128. Trooper Carito again participated in the search of the C.I. and his vehicle, during which no illegal weapons, contraband, or currency were found. Id. at 128-29. Similarly, Trooper Carito joined in the subsequent surveillance of the C.I., who picked up a male with a dog. Id. at 130. Upon completion of the controlled buy, and the return of the C.I. to the prearranged location, Trooper Carito again assisted in the search of the C.I. and his vehicle whereupon no contraband or currency was discovered, other than the purchased methamphetamine that the C.I. surrendered. Id. at 130-32.

Corporal Javier Garcia ("Corporal Garcia"), a seventeen-year veteran of the PSP and a member of the Southeast Strike Force, testified that on July 17, 2018, as he was part of the surveillance detail, he observed Appellant park and exit his pickup truck in his driveway on Eisenhauer Drive. Id. at 136-37. Corporal Garcia then saw Appellant meet up with a man in front of the house and the two entered the residence. Id. at 137. Approximately ten minutes later, both men exit[ed] the residence, [got] into the pickup truck, and [drove] to the Turkey Hill. Id. at 138-39. Corporal Garcia indicated that he

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