Com. v. Ortiz, A. ( 2016 )

J-S46038-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANGEL ORTIZ, :
:
Appellant : No. 2208 EDA 2014
Appeal from the Judgment of Sentence May 5, 2011
in the Court of Common Pleas of Philadelphia County
Criminal Division, at No(s): CP-51-CR-0013131-2009
BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 25, 2016
Angel Ortiz (Appellant) appeals nunc pro tunc from the judgment of
sentence imposed following his conviction for purchasing/receiving a
controlled substance from an unauthorized person, 35 P.S.
§ 780-113(a)(19). Upon review, we affirm.
On May 5, 2011, following a waiver trial, Appellant was convicted of
the aforementioned offense. Notably for purposes of this appeal, Appellant
was found not guilty of possession of a controlled substance, 35 P.S.
§ 780-113(a)(16). The matter immediately proceeded to sentencing, and
the trial court sentenced Appellant to a three-year term of probation.
Appellant filed a notice of appeal on June 6, 2011, but on August 1,
2011, this Court dismissed the appeal for Appellant’s failure to file a
docketing statement pursuant to Pa.R.A.P. 3517. Appellant subsequently
*Retired Senior Judge assigned to the Superior Court.
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sought and received reinstatement of his appellate rights nunc pro tunc.
This appeal followed.
Appellant presents the following issue for our consideration: “Is the
evidence insufficient as a matter of law to convict Appellant of any aspect of
[purchasing/receiving a controlled substance from an unauthorized person]
when the trial court determined that Appellant was not in possession of a
controlled substance?” Appellant’s Brief at 4.
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to
the Commonwealth as verdict-winner, are 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)
(citation omitted).
Section 780-113(a)(19) of The Controlled Substance, Drug, Device
and Cosmetic Act provides:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
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(19) The intentional purchase or knowing receipt in
commerce by any person of any controlled
substance, other drug or device from any person not
authorized by law to sell, distribute, dispense or
otherwise deal in such controlled substance, other
drug or device.
35 P.S. § 780-113(a)(19).
At trial, the Commonwealth presented the testimony of Police Officers
Mark Wolf and Mark Bates. Officer Wolf testified that on April 14, 2008, he
was working in the area of the 100 block of Wishart Street in Philadelphia
investigating the illegal sales of narcotics. N.T., 5/5/2011, at 9-10. He
observed Jonathan Nunez (Nunez) yelling, “Wet, wet, wet,” which is a street
term for PCP. Id. at 10-11. Officer Wolf then observed an unidentified male
approach Nunez. Id. at 11. The unidentified male had a very brief
conversation and handed money to Nunez. Id. At that point, Nunez walked
over to a valve that was embedded into the sidewalk, reached into the valve,
pulled out a clear plastic baggie, took out an object or objects, and handed
them to the unidentified male, who then left the area. Id.
Officer Wolf further testified that several minutes later, Appellant
approached Nunez. Id. at 11-12. Appellant and Nunez also had a brief
conversation, and Officer Wolf observed Appellant hand Nunez money. Id.
at 12. Nunez again went to the valve, retrieved the clear plastic baggie,
took out an object or objects, and handed them to Appellant. Id. Officer
Wolf called back-up officers, who stopped Appellant “seconds” later. Id.
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Officer Bates testified that he was working back-up to Officer Wolf on
the day in question and that he and his sergeant, Sergeant Dutch, were in
uniform on bikes. Id. at 22. As a result of information they received, they
went to the area of A and Wishart Streets, where Appellant was arrested by
Sergeant Dutch in Officer Bates’s presence. Id. Recovered from Appellant’s
hand “was one clear jar with a red lid, containing a dark vegetable matter,
alleged PCP.”1 Id. at 22, 24. Officer Bates testified that he also stopped
Nunez, and Nunez directed him to the vent in the ground where Officer
Bates “recovered a clear baggie with 14 additional glass jars. … [containing]
alleged PCP.” Id. at 23. Officer Bates also recovered fifteen dollars from
Nunez. Id.
This evidence, viewed in the light most favorable to the
Commonwealth, is sufficient to establish that Appellant purchased/received a
controlled substance from an unauthorized person. In arguing to the
contrary, Appellant suggests that the evidence is insufficient as a matter of
law because possession of the controlled substance is an element of the
crime for which he was convicted, and the trial court acquitted Appellant of
possession of a controlled substance, thereby determining that he was not in
possession of a controlled substance. Appellant’s Brief at 8, 10-11. We
disagree.
1
The parties do not dispute that the controlled substance at issue is PCP.
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A plain reading of the statutory language defining purchase/receipt of
a controlled substance from an unauthorized person reveals that possession
is not an element of the crime, and Appellant cites no authority in support of
his contention to the contrary. Thus, we agree with the Commonwealth that
“possession of the drugs is not an element of the crime for which he was
convicted, and was not required to prove [Appellant’s] guilt.”
Commonwealth’s Brief at 6.
Moreover, even if possession of the controlled substance were required
to convict Appellant, he would still not be entitled to relief. First, the
evidence as discussed above is sufficient to establish that Appellant
possessed the PCP at issue. Second, with respect to his acquittal on the
possession charge, we observe that “[i]t is well-settled that inconsistent
verdicts are permissible in Pennsylvania” and that “this Court will not disturb
guilty verdicts on the basis of apparent inconsistencies as long as there is
sufficient evidence to support the verdict.”2 Moreover, “[a]n acquittal cannot
2
Appellant relies upon Commonwealth v. Magliocco, 883 A.2d 479 (Pa.
2005), to argue that the general rule permitting inconsistent verdicts is
inapplicable in the present context. Appellant’s Brief at 9-11. In
Magliocco, our Supreme Court held that Magliocco’s conviction for ethnic
intimidation could not stand because he was acquitted of terroristic threats,
which was a predicate offense to ethnic intimidation at the time of his
conviction. Id. at 493. We note that our Supreme Court has “reject[ed]
any notion that Magliocco[] … represent[ed an] exception[] to the long-
standing principles that juries may issue inconsistent verdicts and that
reviewing courts may not draw factual inferences in relation to the evidence
from a jury’s decision to acquit a defendant of a certain offense.”
Commonwealth v. Moore, 103 A.3d 1240, 1249 (Pa. 2014). The Moore
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be interpreted as a specific finding in relation to some of the evidence.”
Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015) (internal
quotation marks and citation omitted). As we have already concluded that,
even assuming arguendo that possession was a required element, there is
sufficient evidence to support Appellant’s conviction, Appellant’s acquittal on
the possession offense is of no moment.3
Appellant has failed to establish that he is entitled to relief.
Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Court emphasized that Magliocco’s holding “was grounded in the
delineation of the elements of ethnic intimidation set forth in the text of that
statute” and that “[i]t was the fact of the jury’s acquittal—not any factual
inference drawn from the acquittal—and the statutory elements that drove
[its] discussion.” Id. at 1248 (internal quotation marks omitted). As the
general rules pertaining to inconsistent verdicts apply herein, and possession
of a controlled substance is not a predicate offense to purchase
purchase/receipt of a controlled substance from an unauthorized person,
Magliocco affords Appellant no relief.
3
Finally, with respect to Appellant’s acquittal, we observe that the rationale
for the rule permitting inconsistent verdicts “rests in the jury’s sole
prerogative to decide that conviction on some counts will provide sufficient
punishment to acquit on the remaining counts. [A]llowing inconsistent
verdicts in criminal trials runs the risk that an occasional conviction may
have been the result of compromise. But the advantage of leaving the jury
free to exercise its historic power of lenity has been correctly thought to
outweigh that danger.” Commonwealth v. Glendening, 396 A.2d 793,
795 (Pa. Super. 1979). As this matter involved a waiver trial, we also note
that “[p]ursuant to Pa.R.Crim.P. [620], judges have the same powers as
juries when a jury trial is waived. Accordingly, a judge, in a non-jury trial,
has the power to render inconsistent verdicts.” Commownealth v. Cook,
865 A.2d 869, 877 (Pa. Super. 2004).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2016
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