Commonwealth v. Rojas-Rolon

• Decision Date: 18 May 2021
• Docket Number: No. 3267 EDA 2018,3267 EDA 2018
• Citation: 256 A.3d 432
• Parties: COMMONWEALTH of Pennsylvania v. Victor ROJAS-ROLON, Appellant
• Court: Pennsylvania Superior Court

256 A.3d 432

COMMONWEALTH of Pennsylvania

v.Victor ROJAS-ROLON, Appellant

No. 3267 EDA 2018

Superior Court of Pennsylvania.

Submitted September 3, 2019

Filed May 18, 2021

Lee B. Awbrey, Public Defender, Norristown, for appellant.

Carol A. Sweeney, Public Defender, Norristown, for appellant.

James F. Beradinelli, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Kevin R. Steele, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Stanley J. Konoval, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Victor Rojas-Rolon appeals from the judgment of sentence entered in the Court of Common Pleas of Montgomery County following his conviction by a jury on the charges of delivery or possession with the intent to deliver a controlled substance (PWID), possession of a controlled substance, and possession of drug paraphernalia.¹ After a careful review, we affirm.

The relevant facts and procedural history are as follows: On October 27, 2017, Appellant was arrested and charged with various drug-related offenses. Appellant filed a counseled motion to compel disclosure of a confidential informant, as well as a counseled motion to suppress the physical evidence seized by the police. After a hearing, the trial court denied both motions, and on June 18, 2018, Appellant proceeded to a jury trial, at which the Commonwealth presented the testimony of Police Officer Michael Breslin, Corporal Brian Weitzel, Sergeant Edward Kropp, and Police Officer Andrew Licwinko.² The trial court has accurately summarized the testimony presented at trial as follows.

[O]n June 28, 2017, Officer Michael Breslin and Andrew Licwinko, of the Pottstown Borough Police Department, met with a confidential informant to [set up a controlled] purchase [of] heroin from the Appellant. [N.T., 6/18/18, at 29]. The confidential informant made a phone call to the phone number [610-***-****], and a male answered the call. [Id. at 29-30]. The officers [were able to] clearly [hear] the entire conversation between the confidential informant and the male on the other end of the line, who arranged to meet immediately at the Rite Aid in Pottstown[.] The purpose of the meeting was for the informant to purchase two bags of heroin for $20.00. [Id. at 31].

After the phone call, the officers checked the phone number in their LexisNexis database and found that the number belonged to Jenny Rojas, an individual with the same last name as the Appellant, and that the phone number was registered to the Appellant's address. [Id. at 30]. As per police policy when a controlled buy is to occur, Officer Breslin searched the confidential informant to be sure he/she was free and clear of any drugs, paraphernalia, and currency, which [in this case] he/she was. [Id. at 31-32]. Officers Breslin and Licwinko then gave the informant $20.00 of prerecorded currency, and they drove him/her to the area of the Rite Aid. [Id. at 32].

Corporal Brian Weitzel and Sergeant Edward Kropp, of the Pottstown Borough Police Department, were also stationed in the area of the Rite Aid in separate undercover vehicles so that the confidential informant could be viewed during the entire time that the controlled buy occurred. [Id. at 32, 34-35]. When Officer Breslin arrived in the area just south of the Rite Aid in the area of South Evansburg Square, the confidential informant exited the vehicle and walked north on Evans Street to the side parking lot of the Rite Aid. [Id. at 35-36]. Officer Breslin observed the confidential informant exit the vehicle and walk toward the Rite Aid, and then Corporal Weitzel picked up surveillance of the informant before Officer Breslin lost sight of him/her. [Id. at 35-36, 69-70]. Officer Breslin then continued traveling north on Evans Street, then went west on High Street, at which time he saw the confidential informant walk toward and get into the Appellant's red Chevy Cobalt in the Rite Aid parking lot. [Id. at 36, 39]. Appellant owned the Chevy Cobalt and was driving the vehicle. [Id. at 38-39]. There was a female passenger, who was unknown to the officers, in the passenger seat. [Id. at 38-39, 53]. Corporal Weitzel also saw the confidential informant enter the Appellant's vehicle, specifically at the rear driver's seat. [Id. at 70-71]. Corporal Weitzel observed the confidential informant speaking with the Appellant inside the vehicle. [Id. at 73, 75-76]. Approximately one minute later, the Appellant drove to the other side of the Rite Aid parking lot, whereupon the confidential informant exited the vehicle, and continued speaking with the Appellant when he/she stepped out of the vehicle. [Id. at 37, 72-73]. The confidential informant was not observed at any time speaking with the female passenger in the vehicle. [Id. at 75-76].

Officer Breslin then received a call on his police radio from one of the other officers on surveillance that the transaction between the Appellant and the confidential informant was complete, and Officer Breslin picked up surveillance of the informant as he/she walked to the predetermined pick-up location on South Evans Street. [Id. at 36-37]. The confidential informant entered Officer Breslin's vehicle, which was an undercover police car, and turned over two yellow baggies of suspected heroin to the officers. [Id. at 38]. The informant was searched once again and found to be free and clear of any drugs, paraphernalia, or currency. [Id. ]. The suspected drugs were properly tagged and stored, and then sent to National Medical Services lab for testing, which confirmed that the drugs were fentanyl and methamphetamine. [Id. at 41-42].

The four officers at the scene were in constant radio communication with each other during the entire time of the controlled buy and until the confidential informant was back in Officer Breslin's vehicle. [Id. at 36, 74]. Following the transaction, Sergeant Kropp, in plain clothes and in an undercover police vehicle, observed the Appellant exit the Rite Aid parking lot in his red Chevy Cobalt and confirmed his identity when he followed him out of the parking lot and pulled up next to him at a traffic light. [Id. at 79-80]. The time that elapsed from when the phone call was made to the Appellant to the time that the confidential informant was picked up by Officer Breslin was seven (7) minutes. [Id. at 37]. A period of approximately four months elapsed between the time of the drug transaction and the Appellant's arrest in order to protect the identity of the confidential informant. [Id. at 57-58].

Trial Court Opinion, filed 1/11/19, at 2-5.

At the conclusion of the testimony, the jury convicted Appellant of the offenses indicated supra , and on September 20, 2018, the trial court imposed an aggregate sentence of two years to four years in prison, to be followed by two years of probation. The trial court also ordered Appellant to pay court costs within the first twelve months of release from custody. N.T., 9/20/18, at 28.

Appellant filed a timely, counseled post-sentence motion, which the trial court denied, and this timely, counseled appeal followed. The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the trial court filed a responsive Pa.R.A.P. 1925(a) opinion.

On appeal, Appellant sets forth the following issues (verbatim):

1. Was evidence that [Appellant] was merely present in a car with a Confidential Informant and another unidentified person during an alleged drug transaction sufficient to convict him of Possession with Intent to Deliver, possession of a controlled substance, and possession of paraphernalia where there was no evidence of actual possession and no testifying witness saw the transaction?

2. Did the sentencing court err in imposing costs at sentencing on an indigent defendant without making a determination regarding his ability to pay?

Appellant's Brief at vi.

In his first issue, Appellant contends the evidence was insufficient to sustain his convictions. Specifically, Appellant avers the Commonwealth failed to prove the necessary elements of possession (as to all three convictions) or intent (as to PWID). In this regard, Appellant contends the evidence reveals he was merely present in the vehicle where the confidential informant purchased the controlled substances, and "[it] is uncontested...that a second person was in the car with access and opportunity to deal drugs to the [confidential informant]." Id. at 6.

Whether the evidence was sufficient to sustain the charge presents a question of law. Commonwealth v. Toritto , 67 A.3d 29 (Pa.Super. 2013) (en banc ). Our standard of review is de novo , and our scope of review is plenary. Commonwealth v. Walls , 144 A.3d 926 (Pa.Super. 2016). In conducting our inquiry, we examine:

whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict-winner, [is] sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact-finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of the evidence, the fact-finder is free to believe all, part or none of the evidence. For purposes of our review under these principles, we must review the entire record and consider all of the evidence introduced.

Commonwealth v. Trinidad , 96 A.3d 1031, 1038 (Pa.Super. 2014) (quotation omitted).

Initially, we agree with Appellant that possession is an element of his crimes³ and mere presence cannot sustain a finding of possession. See ...