J-S49035-19
2021 PA Super 103
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR ROJAS-ROLON, :
:
Appellant : No. 3267 EDA 2018
Appeal from the Judgment of Sentence Entered September 20, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0008005-2017
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 18, 2021
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
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* Former Justice specially assigned to the Superior Court
1 35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.
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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
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2 Appellant neither testified nor presented any witnesses at his jury trial.
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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
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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?
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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
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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
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3 35 P.S. § 780-113(a)(30) provides the following is prohibited:
(30) Except as authorized by this act, the manufacture, delivery,
or possession with intent to manufacture or deliver, a controlled
substance by a person 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.
35 P.S. § 780-113(a)(30). Here, the Commonwealth sought to prove
Appellant delivered the narcotics. Delivery is defined as “the actual,
constructive, or attempted transfer from one person to another of a controlled
substance[.]” 35 PS. § 780–102. “Thus, for a defendant to be liable as a
principal for the delivery of a controlled substance there must be evidence
that he knowingly made an actual, constructive, or attempted transfer of a
controlled substance to another person without the legal authority to do so.”
Commonwealth v. Murphy, 577 Pa. 275,
844 A.2d 1228, 1234 (2004)
(citation omitted).
35 P.S. § 780-113(a)(16) provides the following is prohibited:
(16) Knowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this act,
or a practitioner not registered or licensed by the appropriate
State board, unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a practitioner,
or except as otherwise authorized by this act.
35 P.S. § 780-113(a)(16).
35 P.S. § 780-113(a)(32) provides the following is prohibited:
(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,
(Footnote Continued Next Page)
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Commonwealth v. Katona, 191 A.3d 8, 12 (Pa.Super. 2018) (en banc) (“It
is true that mere presence cannot sustain a finding of possession.”). We also
agree with Appellant that “mere presence” is insufficient to sustain the intent
element for PWID. See Commonwealth v. Murphy,
577 Pa. 275,
844 A.2d
1228 (2004).
However, assuming, arguendo, the Commonwealth failed to prove
Appellant’s actual possession/delivery of the controlled substance and
paraphernalia, we agree with the trial court that the Commonwealth
sufficiently proved Appellant’s constructive possession and delivery thereof.
Thus, the Commonwealth proved Appellant was not “merely present.”
To establish the element of possession, this Court has held that
“[p]ossession can be found by proving actual possession, constructive
possession, or joint constructive possession.” Commonwealth v. Parrish,
191 A.3d 31, 36 (Pa.Super. 2018) (citation omitted).
We have previously determined:
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
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ingesting, inhaling or otherwise introducing into the human body
a controlled substance in violation of this act.
35 P.S. § 780-113(a)(32).
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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
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 (internal citations and quotations omitted).
To find constructive possession, the power and intent to control the
contraband does not need to be exclusive to the appellant. 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. Johnson, 611 Pa. 381,
26 A.3d 1078, 1094
(2011) (internal citation omitted).
Here, viewing the evidence in the light most favorable to the
Commonwealth, as the verdict winner, we agree with the trial court that the
evidence sufficiently establishes Appellant’s constructive possession of the
controlled substance and paraphernalia, which was distributed to the
confidential informant. As the trial court indicated:
In this case, there is considerably more evidence against the
Appellant than his mere presence in the car, and there was
sufficient evidence presented that the Appellant had the power to
control the drugs and the intent to distribute them. When Officer
Breslin met with the confidential informant, who was known to
him and had been previously used for controlled buys by the
Pottstown Borough Police Department, he asked the informant to
make a drug purchase. The confidential informant called a phone
number, which was registered to a female individual with the
same last name as the Appellant and the same address as the
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Appellant. A male picked up the call and spoke with the
confidential informant arranging to meet right away at a nearby
Rite Aid parking lot. After the confidential informant was searched
and found to be free and clear of any drugs, paraphernalia, and
currency, Officer Breslin gave him/her $20.00 of prerecorded
currency to effectuate the drug purchase, and took him/her to the
predetermined meeting spot in the area of the Rite Aid. The
confidential informant entered the Appellant’s red Chevy Cobalt
with $20.00 and came out with no currency and two bags of
narcotics. There is no question that a drug transaction occurred
inside the vehicle that Appellant was driving, which vehicle was
registered to the Appellant, at his address. The address of the
vehicle registration was the same address as the phone number
registration. The officers at the scene saw the confidential
informant speaking with only the Appellant, both inside and
outside of his vehicle.
During the controlled buy, there were four officers
conducting visual surveillance of the area where the transaction
occurred, and the officers were in radio contact with each other
throughout the entire time, which was approximately three
minutes. Between the four officers, there was never a time when
the Appellant was not in view. The only thing not viewed by the
police in this case was the hand to hand transfer of the drugs that
occurred inside Appellant’s vehicle….Although there was a female
in the passenger seat of the car while the drug transaction
occurred, her identity was unknown to the Pottstown Police
Officers who investigated this case and there was no evidence
presented that she was the individual who handed the drugs to
the confidential informant or played any part in the drug
transaction. [N.T., 6/18/18/ at 53, 64, 80-81]. During the course
of the investigation as the information was collected and the
evidence was collected and processed, not one piece of evidence
or information received or reviewed showed that the female in the
vehicle had dealt drugs or provided drugs to the confidential
informant. [Id. at 64, 73, 80-81, 88]. To the contrary, the
information and evidence collected pertaining to this case showed
that it was only the Appellant who was involved in the narcotics
sale. [Id. at 81].
There was abundant circumstantial evidence presented in
this case that could reasonably lead a jury to determine that it
was the Appellant who transferred the drugs to the confidential
informant. There was no evidence presented at trial that the
female passenger in the vehicle was involved in any way with the
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drug transaction. Based on the totality of the circumstances, the
evidence was sufficient to sustain the Appellant’s convictions of
possession of drugs and drug paraphernalia, and possession with
intent to distribute.
Trial Court Opinion, filed 1/11/19, at 8-10.
We agree with the trial court that, when viewed in its totality, the
circumstantial evidence reveals Appellant had the power and intent to control
the drugs, as well as the necessary intent for PWID. Accordingly, we find no
merit to Appellant’s first claim.
In his second issue, Appellant contends his sentence is illegal since the
sentencing court ordered him to pay court costs without first making a
determination regarding his ability to pay. Appellant relies on Pennsylvania
Rule of Criminal Procedure 706(c) for the proposition that a sentencing court
has an affirmative duty to determine whether the payment of costs places a
financial burden on a defendant. Appellants insists the sentencing court
should have considered Appellant’s ability to pay prior to or during the
sentencing hearing when costs were imposed. Appellant requests we vacate
his sentence and remand the matter for a determination of his ability to pay
the court costs.
Initially, we note Appellant’s claim challenges the sentencing court’s
authority to impose costs as part of its sentencing order; therefore, it
implicates the legality of his sentence. See Commonwealth v. Lehman,
201 A.3d 1279, 1283 (Pa.Super. 2019), affirmed,
243 A.3d 7 (Pa. 2020). “Our
standard of review over such questions is de novo and our scope of review is
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plenary.” Commonwealth v. White, 193 A.3d 977, 985 (Pa.Super. 2018)
(citation omitted)).
Recently, an en banc panel of this Court considered the same issue
presented by Appellant and held that “while a trial court has the discretion to
hold an ability-to-pay hearing at sentencing, Rule 706(C) only requires the
court to hold such a hearing when a defendant faces incarceration for failure
to pay court costs previously imposed on him.” Commonwealth v. Lopez,
___ A.3d ___, 2021 PA Super 51,
2021 WL 1096376 at *1 (Pa.Super. filed
Mar. 23, 2021) (en banc). In Lopez, the trial court revoked the defendant’s
probation.
Id. At resentencing, the defendant requested that the trial court
conduct an ability-to-pay hearing prior to imposing court costs.
Id. After the
trial court denied the defendant’s request to hold an ability-to-pay hearing
and imposed mandatory court costs, the defendant appealed.
Id.
On appeal, this Court rejected the defendant’s arguments that Rule
706(C) and related statutes, such as 42 Pa.C.S.A. § 9728(b.2), require the
trial court to conduct an ability-to-pay hearing before imposing court costs.
Id. at *4. Further, the Lopez Court concluded that:
the trial court did not err in denying [the defendant’s] motion for
[an] ability-to-pay hearing. Although the [trial] court had the
discretion to consider that motion at sentencing, it was not
required to do so by Rule 706 because [the defendant] had not
yet been threatened with incarceration as a result of a default.
Should that occur, [the defendant] will be entitled to an ability-to
pay hearing pursuant to Rule 706 at that time.
Id. at *5 (some formatting altered).
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Here, the trial court imposed court costs at sentencing without first
holding an ability-to-pay hearing. Appellant does not argue that he is facing
incarceration for failing to pay previously imposed court costs. Therefore,
pursuant to Lopez, under Rule 706, the trial court could exercise its discretion
to hold an ability-to-pay hearing before imposing court costs as part of
Appellant’s sentence, but it was not required to do so. See Lopez, 2021 WL
1096376 at *4-5. Accordingly, we find no merit to Appellant’s claim.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2021
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