Commonwealth v. Rivera

COMMONWEALTH OF PENNSYLVANIA v. ANTONIO JUAN RIVERA Appellant

J-A22001-20

No. 2018 MDA 2019

SUPERIOR COURT OF PENNSYLVANIA

OCTOBER 5, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered August 2, 2019

In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003002-2018

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:

Antonio Juan Rivera (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of criminal conspiracy (to commit possession with intent to deliver a controlled substance).¹ We affirm.

The trial court summarized the facts and procedural history as follows:

In April 2018, Detective Michael Vance [(Detective Vance)] of the Lancaster County Drug Task Force received information from a confidential informant ("CI") about a large-scale movement of heroin from New York and New Jersey to Lancaster County. The CI explained that on April 29, 2018, a woman, Xiomara Figueroa [(Figueroa)], would be driving to New Jersey to pick up a large quantity of heroin. The CI informed Detective Vance of the make, model, color, and [license] plate number of the vehicle [Figueroa] would be driving. Although Detective Vance was told the date of the trip, he did not know the route or time of the trip[;] surveillance cars were placed at multiple locations along the most logical routes to and from New Jersey.

On April 30, 2018 at around 2:00 [a.m.], Detective Vance spotted the wanted vehicle with two occupants stopped at a gas station in Berks County. By pure coincidence, Ms. Figueroa and her sister, Kiomara Figueroa [(Kiomara)], had stopped to grab something to eat at the exact same intersection that Detective Vance himself had chosen for his surveillance. Detective Vance [eventually conducted a stop and investigatory detention of the vehicle.] ... Vance's partner, Detective Anthony Lombardo, used K-9 Officer Bear to sniff the vehicle[,] which revealed a positive hit. Detective Vance proceeded to search the vehicle and found a white bag in the back seat of the car[,] which contained 5,000 bags of heroin [mixed with fentanyl]. Ms. Figueroa and [Kiomara] were then taken back to the police station for questioning.

During the interview, Ms. Figueroa stated she was traveling back from New Jersey after "picking up something" for [Appellant]. [Appellant] ... sent Ms. Figueroa to New Jersey in a rental car. The car was rented by [Appellant's] girlfriend, Haydee Gomez. [Appellant's] cousin, Genol Torres [(Torres),] also known as "Bossy," brought the car to Ms. Figueroa. Detective Vance knew [] Torres as a drug dealer because the Lancaster Drug Task Force had previously participated in the prosecution of [] Torres for drug dealing prior to the incident at hand.

Ms. Figueroa received the address of the New Jersey destination through a text message from [Appellant,] and she was instructed to return the car to the Turkey Hill in Landisville. Ms. Figueroa said she was not free to diverge from her given travel path and had received strict instructions from [Appellant] to maintain her speed, not smoke in the car, or do anything else that would cause suspicion on her trip. [Appellant] kept tabs on her through multiple text messages and phone calls throughout the trip.

As part of this arrangement, Ms. Figueroa was also given spending money for the trip in the amount of $200 to $300. She was told there was a black bag in the glove box and that it was to be exchanged for a white bag in New Jersey. As was the usual arrangement, once she arrived at the address in New Jersey, a man unfamiliar to Ms. Figueroa came out to the vehicle, grabbed the black bag in the glove box and placed a white bag in the backseat of the vehicle. Ms. Figueroa did not know the contents of the bag, but she had a suspicion it was drugs. As the field testand subsequent lab report showed, the white bag contained approximately 120 grams of heroin and fentanyl.

As the traffic stop was taking place, Ms. Figueroa texted [Appellant] to let him know she had been pulled over in the rental car. After "back to back to back to back" text messages from [Appellant], he eventually called her while she was being interviewed by Detective Vance at the police station. Detective Vance had Ms. Figueroa answer the phone call from [Appellant]. [Appellant] asked Ms. Figueroa, "Did they grab everything?" to which Ms. Figueroa responded, "Everything." At which point [Appellant] hung up abruptly.

At the time of these events, [Appellant] was on federal parole for conspiracy to defraud the United States government by selling, importing or manufacturing defaced firearms. On May 2, 2018, [Appellant] was visited by Federal Parole Agent Damien Mscisz [(Agent Mscisz)] at [Appellant's] home in Landisville. During this visit, Agent Mscisz observed a number of [cellular] phones with [Appellant,] and [Appellant] confirmed they were all his. At Agent Mscisz's request, [Appellant] unlocked one phone [that] was on his person and handed it to Agent Mscisz. Agent Mscisz looked through the phone and noted seeing "owe sheets" in the phone's "Notes" application.^[FN] Another Agent aiding in the visit brought to Agent Mscisz's attention a large amount of cash, which prompted Agent Mscisz to contact the Drug Task Force and Detective Vance.

^[FN] IOU or owe sheets are a ledger between drug dealers to track debts.

As a result of the information gathered about [Appellant], [he] was arrested and ... charged with [] one count of possession with intent to deliver a controlled substance [(PWID)]; and [] one count of conspiracy to [commit PWID]. Attorney Michael Marinaro [(defense counsel)] entered his appearance on June 8, 2018, the date of [Appellant's] arraignment. ...

On September 19, 2018, [Appellant] filed an omnibus pre-trial motion [(OPT Motion),] alleging [claims not pertinent to the instant appeal.... On February 11, 2019, a hearing was held on the [OPT] Motion[; the trial court granted relief on Appellant's suppression of evidence claim, and] denied all other claims. A trial date was then scheduled for May 22, 2019.

Prior to the trial, both parties submitted additional motions. On May 10, 2019, [Appellant] filed a pro se Rule 600 Motion [] (hereinafter "Rule 600 Motion"). The motion alleged [that Appellant] was being denied his right to a speedy trial. [Defense counsel] never submitted a formal Rule 600 motion on behalf of [Appellant,] and no action was taken on [the Rule 600] Motion prior to trial.

On May 17, 2019, the Commonwealth filed a notice of intent under Rule of Evidence 404(b) [(Rule 404(b) Motion)], which outlined their proposed evidence [regarding Appellant's] prior bad acts as it related to the history of the case. Immediately preceding voir dire, [the trial court] ruled on the Motion and granted it only insofar as to allow Ms. Figueroa to testify that she had [previously] made similar transactions like the one at issue.

The trial commenced as scheduled on May 22, 2019. During its case in chief, the Commonwealth presented two expert witnesses. Detective Vance was qualified without objection as an expert in the packaging and distribution of heroin in Lancaster County to testify about this specific investigation. Detective Adam Weber [(Detective Weber)] was qualified, also without objection, as an expert in drug packaging and distribution in Lancaster County to testify about the methods used when performing drug investigations in general. Part of Detective Vance's testimony was to educate the jury about his familiarity with [Appellant] and others involved in the drug trade related to [] Torres. Detective Weber's testimony was [offered] to educate the jury on what constructive possession could look like in these drug transactions. The parties also made several stipulations, one of which was that the State Police lab report determined that the narcotics found in Ms. Figueroa's car was approximately 120 grams of heroin with fentanyl [(hereinafter, "the weight stipulation")].

After a three-day trial,² the jury began its deliberations. On the verdict slip, the [PWID] count contained a range of weights that [Appellant] could be found guilty of possessing. Theconspiracy charge did not list out those weight options. Ultimately, [Appellant] was found not guilty of the [PWID] charge but guilty of conspiracy.

Trial Court Opinion, 3/12/20, at 1-6 (unnumbered) (some citations, footnotes and capitalization omitted; one footnote added).

On August 2, 2019, the trial court sentenced Appellant to serve 6 to 30 years in prison. Appellant filed a timely post-sentence motion, which was eventually denied by operation of law. Pa.R.Crim.P. 720(B)(3). Appellant then timely filed a notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant presents six issues for our review:

1. Whether the court abused its discretion by allowing Detective Vance to testify that [Appellant] was a drug associate of [] Torres?

2. Whether the court abused its discretion by precluding [Appellant] from offering testimony from [] Torres[,] which was both exculpatory and contrary to evidence presented by the Commonwealth[,] thereby depriving [Appellant] of due process and the right to present a complete defense?

3. Whether the court should have addressed the merits of [Appellant's] speedy trial motion because trial commenced after the mechanical run date?

4. Whether the court abused its discretion by permitting the Commonwealth to offer prior bad acts evidence?

5. Whether the court erroneously permitted the Commonwealth's narcotics expert to opine that [Appellant] constructively possessed the heroin at issue?

6. Whether the court abused its discretion by assigning an [offense gravity score] of 11 to the conspiracy charge because [Appellant] was acquitted of PWID and the verdict sheet didnot allow for the jury to find any quantity of controlled substance in connection with the

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