Com. v. Donafrio, C. ( 2023 )

J-S14042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER JOHN DONAFRIO :
:
Appellant : No. 1279 WDA 2022
Appeal from the Judgment of Sentence Entered May 24, 2022
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000758-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: May 18, 2023
Christopher John Donafrio (Donafrio) appeals from the judgment of
sentence of 6½ to 15 years’ imprisonment imposed by the Court of Common
Pleas of Lawrence County (trial court) after a jury convicted him of possession
with intent to deliver (PWID), simple possession and drug paraphernalia.1 On
appeal, he challenges the sufficiency and weight of the evidence for his
convictions and the trial court’s denial of his motion to suppress. We affirm.
I.
On September 26, 2020, at around 12:30 p.m., two officers from the
Shenango Township Police Department were dispatched for a reported
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (16) and (32).
J-S14042-23
domestic disturbance at Room 111 of the El Dorado Motel in New Castle.
According to the hotel manager who called 911, a man and a woman were
going in and out of the room multiple times and arguing with each other. The
hotel manager also reported that the room was registered to a female named
Heather Fullwood (Fullwood).
When they arrived at the motel, the officers saw Donafrio walk out of
Room 111. The officers walked over to him and explained why they were
there. Donafrio gave the officers his identification and told them that he had
been in the room with Fullwood, his longtime girlfriend. Donafrio also told
them that they had been fighting and that there was drug paraphernalia in
the room and that he wanted to leave. The officers then went and talked to
Fullwood in the room’s doorway. She told the officers that she and Donafrio
were arguing because he constantly cheats on her. She also told them that
she wanted to leave but Donafrio had her car keys and cell phone. The officers
went back and told Donafrio what Fullwood wanted. He responded that he
wanted his items out of the room. The officers returned and told Fullwood
what Donafrio wanted. Fullwood told them that she did not know where the
items were but that they could come in and search for them.
Upon entering the room, the officers saw that the room was in disarray.
While searching for Donafrio’s items, the officers saw several items of drug
paraphernalia—hypodermic needles, glass vials with residue, clear plastic
baggies and a scale. When the officers found a clear plastic baggie containing
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a large amount of suspected cocaine, the officers stopped the search so that
they could get a search warrant. After obtaining the warrant, police searched
the room and found, among other things, a baggie containing .94 grams of
heroin, fentanyl and tramadol. The police also found multiple units of Narcan,
as well as male and female clothing and a prescription pill bottle with the name
partially written as “Christopher J.”2
Donafrio and Fullwood were placed under arrest and searched, as
Donafrio was found to have had on him two cell phones and Fullwood’s wallet.
Donafrio and Fullwood were then taken to the police station. While Fullwood
was waiting in an interview room, an officer saw her unbutton her pants and
reach into her crotch area. As a result, the officer called for a female officer
to conduct a strip search of Fullwood. During that search, the officer saw a
baggie in Fullwood’s underwear. Fullwood removed the baggie and gave it to
the officer, at which point the officer stopped searching Fullwood. Drug testing
later revealed that the baggie contained 3.86 grams of heroin, fentanyl and
tramadol.
While at the station, Donafrio complained that he was having a panic
attack. EMS personnel responded and determined that he needed to go to
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2The officers also towed Donafrio and Fullwood’s car and searched it after
obtaining a search warrant based on a canine search. Inside the car, the
police found a digital scale, a locked safe and clear plastic baggies containing
smaller amounts of suspected drugs.
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the hospital along with Fullwood, who appeared under the influence of drugs.
Both Donafrio and Fullwood were taken to the hospital and evaluated before
being discharged a few hours later. Once they were done, two officers drove
them back in a police cruiser. Fullwood was seated behind the driver while
Donafrio was in the rear passenger seat, and both had their hands cuffed in
front of them. As soon as they left, the officer driving noticed in the rearview
mirror that Fullwood was leaning toward Donafrio with their heads almost
touching and that they were seated very close to each other. The officer also
saw that there was a lot of movement. When they arrived back at the police
station, the officer in the passenger seat took Donafrio into the station while
the officer driving took Fullwood. As he opened the rear driver door, the officer
saw two bags of suspected drugs—one on the floor at Fullwood’s feet and the
other between her and the door. The officer also saw that Fullwood’s pants
were completely open with her button undone and the zipper all the way down.
The two bags of suspected narcotics were determined to contain 26.92 and
9.8 grams of heroin, fentanyl and tramadol.
That same day, Detective Richard Ryhal was called to the police station
to interview Donafrio, who waived his Miranda rights.3 At first, Donafrio
stated that he did not know what the substances were that the police found.
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3 See generally Miranda v. Arizona, 384 U.S. 436 (1966) (an accused
subject to custodial interrogation must be advised of the constitutional right
to remain silent and the right to a lawyer).
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An hour later, however, Donafrio told the detective that he had been “fronted”
the drugs and that he owed $2,400 for the controlled substances that had
been found.
Before trial, Donafrio filed a petition for writ of habeas corpus, claiming
that the Commonwealth lacked sufficient evidence to establish a prima facie
case for its charges. After his petition was denied, Donafrio filed a motion to
suppress the controlled substances seized and his statements to the police,
asserting that the police illegally arrested him when they first arrived at the
motel and questioned him without giving him his Miranda rights. The trial
court held a hearing on the suppression motion in June 2021 and denied the
motion a few months later in September 2021.
Donafrio eventually proceeded to trial in March 2022. At trial, the
Commonwealth qualified Detective Ryhal as an expert in narcotics
investigations. As the trial court summarized his testimony:
Detective Ryhal explained daily usage for heroin or fentanyl
would be approximately half of a gram to a gram and a half. He
indicated individuals frequently both sell and use drugs on a daily
basis to help maintain their addiction. Individuals who are in
possession of drugs as a user typically have smaller amounts, low
amounts of cash and items used to ingest the drugs. Items like
syringes, straws, spoons, lighters, Q-tips and cotton balls are used
to ingest heroin and fentanyl. Detective Ryhal then explained law
enforcement look to the totality of the circumstances to determine
whether to charge an individual with possession with intent to
deliver and they consider the following factors: “where the
individuals may be located at, the amount, obviously, other things
as far as what type of currency they have, the denominations of
the currency, multiple cellular phones, things of that such.” They
also factor in whether there are weighing scales and packaging
materials such as baggies or paper folds.
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Detective Ryhal explained cutting agents are substances
added to controlled substances used to add weight or to dilute the
potency of those drugs. On many occasions, powder substances
are used as cutting agents such as over the counter medications,
sleeping medications and sugar. According to Detective Ryhal, a
cutting agent is a sign of possession with intent to deliver as drug
users will often just ingest a smaller dosage as opposed to adding
a cutting agent to the controlled substances. He also explained
the presence of Narcan may indicate possession with intent to
deliver as heroin and fentanyl can be absorbed through the skin
and those trafficking substances of that nature keep Narcan
present in case they accidentally overdose during the packaging
process. In some instances, drug dealers will allow the person
purchasing the drugs to sample them to determine the potency of
the substance, so they keep Narcan present in the event that
person overdoses.
***
Moreover, Detective Ryhal opined those substances
recovered during the investigation, which did not test positive for
the presence of controlled substances, were cutting agents due to
the manner in which they were packaged. Resultantly, it was
Detective Ryhal’s opinion the amount of controlled substances
present along with the presence of cutting agents indicated the
controlled substances were being packaged for selling.
Additionally, there were a large number of plastic baggies
throughout Room 111, there were five cell phones present with
two cell phones discovered in Donafrio's possession, there were a
large number of syringes, spoons and straws, multiple scales,
multiple units of Narcan, which, according to Detective Ryhal,
indicated Donafrio possessed controlled substances with the intent
to deliver. Detective Ryhal also considered that Room 111 was
registered to Ms. Fullwood and the controlled substances
discovered on the floor of Corporal Lough’s vehicle were located
where she was seated when making his determination. However,
he explained drug dealers commonly have females transport
controlled substances as there are fewer female police officers to
search them, the male is commonly the subject of the
investigation by law enforcement and females are more readily
able to conceal the controlled substances.
Trial Court Opinion (TCO), 7-9 (footnote omitted; cleaned up).
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At the end of trial, the jury trial found Donafrio guilty of the above
offenses. In finding him guilty of PWID, the jury determined that (1) the
controlled substances possessed were heroin, fentanyl and tramadol, and (2)
the total weight of the controlled substances was 41 grams. At sentencing,
Donafrio’s standard range guidelines for PWID were 72 – 90 months based on
him having a prior record score of five and the offense gravity score (OGS)
being 11 because he possessed over ten but less than 50 grams of a controlled
substance containing fentanyl.4 Based on this calculation, the trial court
imposed a standard range guideline sentence of 6½ to 15 years’ imprisonment
for PWID.5 After his post-sentence motion was denied, Donafrio filed this
timely appeal.
II.
In his first issue, Donafrio challenges the sufficiency of the evidence for
his PWID and drug paraphernalia convictions.6 The offenses of PWID and
possession of drug paraphernalia are defined by statute as follows:
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4 See 204 Pa. Code § 303.15 (offense listing; 7th ed., amend. 5).
5As for Donafrio’s other convictions, the trial court merged simple possession
with PWID and imposed a concurrent sentence for drug paraphernalia.
6 Our standard of review for a sufficiency challenge is well-settled.
The standard we apply in reviewing the sufficiency of the evidence
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
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(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
***
(30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or deliver, a
controlled substance not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
***
(32) The use of, or possession with intent to use, drug
paraphernalia for the purpose of planting, propagating,
cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packing, repacking, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the human body
a controlled substance in violation of this act.
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a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for a fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding [Donafrio’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 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. Williams, 255 A.3d 565, 578-79 (Pa. Super. 2021)
(citation omitted).
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35 P.S. §§ 780-113(a)(30), (32).
To establish the offense of PWID, the Commonwealth must prove
beyond a reasonable doubt that the Donafrio possessed a controlled substance
with intent to deliver. See Commonwealth v. Jones, 874 A.2d 108, 121
(Pa. Super. 2005). “[A]ll of the facts and circumstances surrounding the
possession are relevant and the elements of the crime may be established by
circumstantial evidence.” Commonwealth v. Little, 879 A.2d 293, 297 (Pa.
Super. 2005).
Possession can be established “by proving actual possession,
constructive possession, or joint constructive possession.” Commonwealth
v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted).
“Constructive possession is an inference arising from a set of facts that
possession of the contraband was more likely than not.” Commonwealth v.
McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citation omitted).
This Court has explained:
Where a defendant is not in actual possession of the prohibited
items, the Commonwealth must establish that the defendant had
constructive possession to support the conviction. Constructive
possession is a legal fiction, a pragmatic construct to deal with the
realities of criminal law enforcement. We have defined
constructive possession as conscious dominion, meaning that the
defendant has the power to control the contraband and the intent
to exercise that control. To aid application, we have held that
constructive possession may be established by the totality of the
circumstances.
It is well established that, as with any other element of a crime,
constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must establish
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facts from which the trier of fact can reasonably infer that the
defendant exercised dominion and control over the contraband at
issue.
Parrish, 191 A.3d at 36-37 (citations omitted and formatting altered).
“[T]he power and intent to control the contraband does not need to be
exclusive to the defendant. Our Supreme Court has recognized that
‘constructive possession may be found in one or more actors where the item
in issue is in an area of joint control and equal access.’ ” Commonwealth v.
Rojas-Rolon, 256 A.3d 432, 438 (Pa. Super. 2021) (citation omitted). This
Court, however, has stated that “knowledge of the existence and location of
the contraband is a necessary prerequisite to proving the defendant’s intent
to control, and, thus, his constructive possession.” Commonwealth v.
Wright, 255 A.3d 542, 553 (Pa. Super. 2021) (citations omitted).
Under the trial court’s special interrogatories for PWID, the jury
convicted Donafrio of PWID of 41 total grams of heroin, fentanyl and tramadol.
The 41 grams were found in three locations: (1) inside the motel room (.94
grams), (2) on Fullwood (3.86 grams), or (3) in the backseat of the police
cruiser (two baggies totaling 36.76 grams). As discussed, the OGS for PWID
was calculated based on Donafrio possessing at least ten grams of “fentanyl
and its derivatives and analogues.” Thus, even if we found there was
insufficient evidence that he constructively possessed the drugs found in the
motel room or on Fullwood, we would not disturb his PWID conviction unless
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there was insufficient evidence that he constructively possessed the 36.76
grams found in the backseat of the police cruiser.7
Addressing the drugs in the backseat, Donafrio asserts that the only
reasonable inference is that Fullwood had the bags on her the entire time she
was at the hospital and then tried to remove them when she was in the
backseat of the cruiser. Even if he knew about the drugs, Donafrio argues,
he had no ability to exercise any control over those items because he was
handcuffed and strapped into the rear passenger side of the police cruiser.
He, thus, contends that the Commonwealth’s theory of joint or constructive
possession was based solely on his relationship with Fullwood.
At trial, the Commonwealth called both the officer who drove the cruiser,
Corporal David Lough, and the officer in the passenger seat, Officer Vincent
Buonpane. First, Corporal Lough testified that he checked the backseat when
he first got to the station and did not find anything in it before he went to go
pick up Donafrio and Fullwood at the hospital. See Notes of Jury Trial (N.T.),
3/15/22, at 125. When asked what he saw while driving Donofrio and
Fullwood back to the police station, Corpora Lough answered that he
“observed Miss Fullwood leaning way over toward Mr. Donafrio. Their heads
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7 See, e.g., Commonwealth v. Risoldi, 238 A.3d 434, 456 (Pa. Super.
2020) (affirming defendant’s conviction for theft by deception in a 2.75 million
dollar insurance fraud scheme where there was insufficient evidence for part
of the conviction but the jury’s verdict encompassed other items not
challenged by defendant).
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were almost touching. That’s how close they were.” Id. at 126. Corporal
Lough continued:
Well, I mean, she was leaning way over like into his part of the
seat area. Like I said, it’s not a big back-seat area. There’s not
a lot of room, but, I mean, she was like leaning way over that
their heads were almost touching, and there was a lot of
movement that I was able to witness that. That’s what caught my
attention was her moving around a lot.
Id. at 127. Officer Buonpane gave a similar account, testifying that when he
turned around in the cruiser to see what was going on, he saw that Donafrio
and Fullwood were “within a few inches of each other at that point, maybe had
even been in contact with each other.” Id. at 116.
Second, at trial, the Commonwealth qualified Detective Ryhal as an
expert in narcotics investigations. See N.T., 3/16/22, at 25. As part of its
examination, the Commonwealth asked Detective Ryhal the following:
Q: Now, you’re familiar with the evidence in this case and where
the narcotics were located?
A: Yes.
Q: The hotel room, Miss Fullwood, and the back of the cruiser on
Miss Fullwood’s side of the vehicle?
A: Yes.
Q: What else are you taking into account between the parties?
A: It was my understanding that Mr. Donafrio and Miss Fullwood
were a couple at the time, and what will usually be done as well
with trafficking or transporting illegal narcotics or concealing
them, they will -- a drug dealer will most likely have a female
carry it because a female is less likely to be searched. There’s
less female police officers and the male is usually the subject of
the investigation. And also, females can more readily or easily
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conceal items than a male could, and all -- and the items that
were located in the vehicle all tie back to the motel room based
on the digital weigh scales, the packaging materials, the usage of
the syringes and all that.
Q: And in conjunction with the statements made by Mr. Donafrio
himself?
A: Yes, absolutely.
Id. 51-52.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we find that there was sufficient evidence for the jury to
find that Donofrio constructively possessed the two bags of drugs found in the
backseat after he and Fullwood were brought back to the police station. First,
as Detective Ryhal’s testimony highlights, the jury was not required to view
the evidence recovered in the backseat in a vacuum. Instead, the jury was
free to consider the totality of the circumstances through all the evidence of
the investigation leading to that point. As the trial court summarized this
evidence as it relates to Donafrio’s challenge:
It is apparent the Commonwealth presented sufficient evidence
for the jury to determine Donafrio was in constructive possession
of the controlled substances. First, he was observed exiting Room
111 and was seen frequently entering and exiting that room
leading up to the domestic disturbance. In fact, Donafrio had
possessions still inside of Room 111 when Officer Tressler and
Officer Hill arrived. Donafrio was also aware of the drug
paraphernalia present in Room 111 based upon his statement to
the police officers. In addition, the execution of the search
warrant revealed the presence of male and female clothing in
Room 111 and a prescription pill bottle for “Christopher J.” In
regards to the controlled substances discovered in Corporal
Lough’s vehicle, Ms. Fullwood was strip searched prior to being
transported to the hospital and controlled substances were seized
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from her person at that time. When Donafrio and Ms. Fullwood
were being transported in Corporal Lough’s vehicle, they moved
closer to each other with their heads almost touching. Ms.
Fullwood was observed with her pants unbuttoned and there were
two baggies of controlled substances discovered on the floor
where she was seated. Both individuals were handcuffed in front
of them, so they would have been able to pass items back and
forth to each other and Donafrio also as not strip searched prior
to being transported to the hospital. Donafrio also admitted to
Detective Ryhal he owed $2,400.00 for the controlled substances
seized by police officers. The Commonwealth presented ample
evidence Donafrio could have exercised dominion or control over
the controlled substances and drug paraphernalia seized during
this investigation.
TCO at 18-19 (cleaned up).
We agree with the analysis but would add that whether Donafrio or
Fullwood had the drugs on them when they entered the police cruiser is not
determinative of our inquiry. Based on all the evidence, the jury could
conclude either that Donafrio had the drugs and tried to pass them to Fullwood
or that Fullwood had the drugs and Donafrio moved closer to help her discard
them or pass them to him. Under either scenario, the jury did not need to
ignore the officers’ testimony that Donafrio and Fullwood moved closer
together and that there was a lot of movement while they were seated next
to each other. From this evidence, the jury could infer that Donafrio—who
later admitted that all the drugs were fronted to him—constructively
possessed the drugs found on the floor, that is, he had conscious dominion
over the baggies because he had the power to control the contraband and the
intent to exercise that control. See Parrish, supra. Thus, viewing the
evidence in the light most favorable to the Commonwealth, we find there was
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sufficient evidence that Donafrio constructively possessed the 36.76 grams of
heroin, fentanyl and tramadol found in the backseat of the police cruiser. In
so finding, we need not address the sufficiency of the evidence for the
remaining drugs seized.
Finally, we also find that there was sufficient evidence for the jury to
convict Donafrio of constructively possessing the drug paraphernalia found in
the motel room. Multiple persons may constructively possess contraband if it
is found in an area of joint control and equal access. Id. In Commonwealth
v. Murdick, 507 A.2d 1212 (Pa. 1986), the defendant was convicted of PWID
for drugs found in the bedroom he shared with his wife. After we reversed his
convictions, our Supreme Court found that this type of possession could be
established if multiple actors exercise dominion over the area. Id. at 1214.
The Court reinstated his convictions for possession and PWID, concluding that
“even absent a marital relationship[,] constructive possession may be found
in either or both actors if contraband is found in an area of joint control and
equal access.” Id.; see also Commonwealth v. Macolino, 469 A.2d 132,
134-35 (Pa. 1983).
Like Murdick, the jury could conclude that Donafrio and Fullwood had
equal access to the motel room and the drug paraphernalia found in it. The
hotel manager reported that a man and a woman—presumably Donafrio and
Fullwood—were going in and out of the room. When the police arrived,
Donafrio admitted to the police that he was just in the motel room and that
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there was drug paraphernalia in it. The Commonwealth also presented
evidence that Donafrio’s belongings—including a pill bottle with his name on
it—were inside the room, thus raising the inference that he was staying in the
room with Fullwood even though it was registered in her name. Under these
circumstances, which included Donafrio’s eventual admission to being fronted
the drugs, the jury had sufficient evidence to convict for possession of drug
paraphernalia.
III.
Donafrio next challenges the weight of the evidence for the jury’s
verdict.8 In his argument, Donafrio notes that the Commonwealth never
checked if the cell phones and digital scales seized were operational. Donafrio
also notes that Detective Ryhal admitted that there were several items found—
such as lighters, spoons and syringes—indicating personal use over a period
of time. Donafrio further faults Detective Ryhal for assuming that he jointly
possessed the controlled substances even though he never actually possessed
them. Indeed, Donafrio contends, there was no evidence that he delivered a
controlled substance to anyone or discussed doing so with Fullwood.
Accordingly, he asserts the jury’s verdict is against the weight of the evidence
and that he should receive a new trial.
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8Donafrio preserved this challenge by including it in his post-sentence motion.
See Pa.R.Crim.P. 607(A)(3).
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After review, we find no relief due.9 As the trial court summarized in
rejecting this claim,
Donafrio conceded he was in Room 111 and was viewed leaving
the same. He also acknowledged to Detective Ryhal he owed
$2,400.00 for the controlled substances seized by the police
officers. The police officers provided credible testimony as it
pertains to their observations previously set forth in this Opinion
and Detective Ryhal’s expert testimony credibly explained his
rationale for opining Donafrio was guilty of possessing the
controlled substances with the intent to deliver. There is nothing
in the testimony and evidence presented at trial which would
entitle Donafrio to a new trial. Hence, the jury’s verdict was not
against the weight of the evidence and there are no adequate
grounds to disturb the jury’s verdict in this case.
Id. at 20-21 (cleaned up).
We agree with this analysis and find that Donafrio cannot overcome the
high standard for overturning a jury’s verdict based on the weight of the
evidence. To recap, the Commonwealth presented evidence that Donafrio had
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9 Our standard of review for a weight of the evidence claim is as follows:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the [trial] court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014) (citation
omitted).
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been in and out of a motel room registered to his longtime girlfriend and
containing his belongings. Inside that motel room, the police found not only
all kinds of drug paraphernalia, but also .97 grams of heroin, fentanyl and
tramadol. Later, when his girlfriend was searched, the police found another
3.86 grams of heroin, fentanyl and tramadol, along with expert testimony
explaining that drug dealers often have female companions conceal drugs
because they are less likely to be searched. Then, when Donafrio was being
transported with his girlfriend, police saw them close together and moving,
following which the police found 36.76 grams of heroin, fentanyl and tramadol
in the backseat. Finally, after all the evidence had been seized, Donafrio
admitted to police that he had been fronted the drugs for an amount that,
according to the Commonwealth’s expert, was within the range for the street
value of the weight of the drugs. See N.T., 3/16/22, at 50 (Detective Ryhal
testifying that 41 grams for the controlled substances found could be between
$2,000-$4,500). Taken all together, we find no error in the trial court, which
heard all the evidence, denying Donafrio’s motion for a new trial based on the
weight of the evidence.
IV.
For his final two claims, Donafrio contends that the trial court erred in
denying his motion to suppress the evidence seized and his statements to the
police. While the trial court issued an opinion explaining its reasoning for
denying suppression, Donafrio never requested a transcript of the suppression
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hearing, nor has one been filed in the certified record. As a result, in his brief,
he attempts to rely on the testimony from the pretrial hearing on the habeas
petition for the facts supporting his suppression argument. However,
well-settled Pennsylvania law makes clear an appellate court is
limited to considering only the materials in the certified record
when resolving an issue. Where the appellant has not made the
transcript of the proceedings at issue a part of the certified record,
we have said:
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any
transcript necessary to permit resolution of the issues raised
on appeal. Pa.R.A.P. 1911(a).... When the appellant ... fails
to conform to the requirements of Rule 1911, any claims that
cannot be resolved in the absence of the necessary transcript
or transcripts must be deemed waived for the purpose of
appellate review.
Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014) (internal
citations omitted).
Under these circumstances, we are unable to review Donafrio’s claims
without the transcript, particularly his second claim in which claims that his
statement to Detective Ryhal was involuntary.10 In that claim, he faults the
trial judge who heard the motion for not making factual findings on the issue
____________________________________________
10 Donafrio’s first suppression claim is meritless on its face. In his claim, he
contends that the police illegally seized the evidence because there was
insufficient justification for his detainment when the police first arrived at the
motel. However, as discussed, the police found the drugs and paraphernalia
in the motel room after Fullwood, the room’s registered guest, gave consent
to the police search for items that Donafrio requested. See Commonwealth
v. Reid, 811 A.2d 530, 542 (Pa. 2002). (“A search warrant is not required,
however, where a person with the proper authority unequivocally and
specifically consents to the search.”).
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at the time that he issued his denial of the suppression motion. However, in
the absence of a transcript of the hearing, we are unable to evaluate whether
the Commonwealth presented sufficient evidence showing that Donafrio
voluntarily waived Miranda rights in electing to give a statement to Detective
Ryhal. As explained, “[w]hen the appellant ... fails to conform to the
requirements of Rule 1911, any claims that cannot be resolved in the absence
of the necessary transcript or transcripts must be deemed waived for the
purpose of appellate review.” Id. “We are limited to considering only those
facts which have been duly certified in the record on appeal.”
Commonwealth v. Osellanie, 597 A.2d 130, 131 (Pa. Super. 1991). “[I]t
is not the responsibility of this [C]ourt to obtain a copy of [a] transcript for
the purposes of reviewing the client’s claims.” Id. at 132. For these reasons,
since we cannot review this issue without reference to the transcript of the
suppression hearing, our review is hampered and we must deem the issue
waived.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2023
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