Commonwealth v. Velazquez

1

COMMONWEALTH OF PENNSYLVANIA v. LUIS VELAZQUEZ Appellant

No. 239 EDA 2024

No. J-S28002-24

Superior Court of Pennsylvania

November 4, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered December 4, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0001131-2022

Benjamin D. Kohler, Esq.

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

MEMORANDUM

STABILE, J.:

Appellant Luis Velazquez, appeals from the judgment of sentence imposed by the Court of Common Pleas of Montgomery County (trial court) on December 4, 2023, made final by the denial of his post-sentence motion on December 11, 2023. He challenges the sufficiency of the evidence to support his convictions of criminal conspiracy, possession of a controlled substance by an inmate and related offenses, as well as the discretionary aspects of his sentence. Upon review, we affirm.

"This case involves a conspiracy among members of the incarcerated population at the Montgomery County Correctional Facility ("MCCF") and their co-conspirators living on the outside." Trial Court Opinion, 2/27/24, at 3. In 2021, Detective Walter Kerr of the Montgomery County Detective Bureau was routinely monitoring co-defendant Mason Hall's telephone calls while he was incarcerated at MCCF on an unrelated charge. N.T., Bench Trial, 8/3/23, at 13-14.

All inmate telephone calls at MCCF are recorded, except for attorney calls, per prison policy to ensure the safety of the prison itself. Id. at 15. At the beginning of such calls, a pre-recorded message advises both the inmate and the person being called that the call is recorded. Id. at 15-16. Detective Kerr was able to access the recorded calls on a web-based system and search for phone calls by inmate name, inmate personal identification number ("PIN"), or phone number called. Id. at 16.

Each MCCF inmate is assigned a PIN, which is entered every time a telephone call is made to a registered phone number. Id. at 17. Around December 2021, while monitoring Hall's calls, Detective Kerr heard a conversation between Hall and Patrick Perna, a co-defendant who resided in Norristown. Id. at 22. Hall and Perna discussed a $450-$500 investment, which "they would be able to double or triple . . . within 21 days." Id. Detective Kerr said that Hall became increasingly upset on the phone and asked about a letter which Perna sent to Hall, but was returned to Perna because it violated MCCF's mail policy. Id. This caught Detective Kerr's attention, and he started listening to additional calls between those individuals, ultimately uncovering a conspiracy to smuggle controlled substances into MCCF through the mail. Id. at 22-23, 25.

Detective Kerr's investigation expanded to include Appellant, who was housed with Hall in a maximum-security section of MCCF. Id. at 25-26.

Detective James Lavin of the Montgomery County Detective Bureau was assigned to assist Detective Kerr. Id. at 114. Detective Lavin listened to telephone calls between Appellant and Latisha Lucas, another co-defendant who resided in Norristown. Id. at 114-15. He opined that the telephone calls involving Appellant, Hall, Perna, and Lucas were part of the planning phase of "having the people on the outside coordinate a meeting so the contraband itself can be acquired" and sent by letter into the prison.^[1] Id. at 116. Specifically, the plan was for Appellant and Hall to have a letter containing contraband sent by Perna into MCCF and earn a profit by selling the contraband to other inmates. Id. at 118-20.

At Hall's direction, Perna sent $450 to Appellant's girlfriend, Lucas, via Cash App. Id. at 47, 61-63. Perna met Lucas, who handed him a piece of "old, stained, kind of like brown" paper. Id. at 49, 77. Perna was instructed to write a letter on the paper and send it to Hall at MCCF. Id. He complied; however, the letter was returned by MCCF because it violated the prison's mail policy. Id. at 50, 83-84.

Based on the information obtained from the prison calls, detectives executed a search warrant on Perna's home. They recovered the contraband letter, as well as a letter written by Hall to Perna explaining the conspiracy in detail. Id. at 126-27. Cocaine, a Schedule II controlled substance, was identified on the contraband letter found in Perna's home. Id.

Additionally, it was discovered that Appellant had previously instructed Lucas to mail him a piece of yellow construction paper that would be delivered to his home. See id., Exhibit C8 (interview of Lucas). When it arrived, Lucas complied with Appellant's additional instruction to have her children draw on the paper and mail it to him at MCCF. Id. at 4. That letter was also returned by MCCF, and Lucas disposed of it. Id. Lucas became aware that the paper was soaked in contraband when Appellant was irritated that the letter did not arrive when he expected it to. Id. at 6, 8-9.

Appellant, Hall, Perna, and Lucas were all charged in connection with the conspiracy. Hall and Perna ultimately pleaded guilty, and Perna testified against Appellant and Lucas, who were tried together during the August 3, 2023, bench trial. Appellant was found guilty of (1) criminal attempt - possession of a controlled substance by an inmate; (2) conspiracy - possession of a controlled substance by an inmate; (3) solicitation - possession of a controlled substance by an inmate; (4) criminal attempt - manufacture, delivery, or possession with intent to manufacture or deliver ("PWID"); (5) conspiracy - PWID; (6) solicitation - PWID; (7) conspiracy - possession of a controlled substance; and (8) solicitation - possession of a controlled substance. He was sentenced to an aggregate prison term of six to 12 years. Appellant filed a post-sentence motion, which was denied. This timely appeal followed. Both the trial court and Appellant have complied with Pa.R.A.P. 1925.

On appeal, Appellant raises two issues for our review:

1. The trial court committed an error of law in finding [Appellant] guilty of the crimes charged based upon the fact that evidence introduced at trial was not legally sufficient to support the verdict because the evidence failed to establish each material element of the crimes charged and the commission thereof by [Appellant] beyond a reasonable doubt; including the charge of Criminal Attempt, Solicitation and Conspiracy. As the evidence introduced at trial did not establish that [Appellant] had the requisite mens rea for the crimes he was convicted.

2. The trial court committed an abuse of discretion by imposing an unduly harsh and excessive sentence when it gave [Appellant] consecutive sentences and failed to properly consider mitigating factors relating to [Appellant's] prior record score.

Appellant's Brief at 6. Appellant first challenges the sufficiency of the evidence. Our standard of review 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 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 trier 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. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en banc) (citations omitted).

"In order to preserve a challenge to the sufficiency of the evidence on appeal, an appellant's Rule 1925(b) statement must state with specificity the element or elements upon which the appellant alleges that the evidence was insufficient." Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015). "Such specificity is of particular importance in cases where, as here, the appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Id.

The sufficiency claim set forth above in Appellant's brief is identical to the issues enumerated in his 1925(b) statement. While Appellant contends that "the evidence failed to establish each material element of the crimes charged," he fails to specify which element or elements have not been sufficiently proven. At best, he suggests that the Commonwealth failed to prove the mens rea element of criminal attempt, solicitation and conspiracy. However, this suggestion is not enough to permit meaningful review; nor did Appellant develop the claims enough to avoid waiver.

Appellant's brief similarly lacks specificity. See Appellant's Brief at 11-13. His entire argument is set forth verbatim:

[Appellant] is entitled to a judgment of acquittal based upon the fact that evidence introduced was not sufficient to support the verdict because the evidence failed to establish each material element of the crimes charged and the commission thereof by [Appellant] beyond a reasonable doubt and the trial court committed an error of law and abuse of discretion in disregarding Appellant's character evidence.

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In order to prove the charges [Appellant] was convicted of

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