J-S46045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAWRENCE CARTAGENA : : Appellant : No. 3236 EDA 2019
Appeal from the Judgment of Sentence Entered October 25, 2019 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001306-2019
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: December 24, 2020
Lawrence Cartagena (“Cartagena”) appeals from the judgment of
sentence imposed following his convictions of two counts of possession with
intent to deliver controlled substances, and one count of possession of drug
paraphernalia.1 We affirm.
The trial court summarized the factual history underlying the instant
appeal as follows:
[O]n Thursday[,] January 31, 2019[,] at approximately 7:30 a.m.[,] members of the Chester Police Department Narcotics Unit were assisting members of the [Drug Enforcement Agency’s (“DEA”)] Wilmington, Delaware regional office in surveillance of [Cartagena,] who was the subject of a Delaware arrest warrant at 2701 Madison Street, Apartment F[-]240, Chester, [Pennsylvania].
____________________________________________
1 35 P.S. § 780-113(a)(30), (32). J-S46045-20
[Cartagena] was arrested after the law enforcement officers entered the apartment door[,] opened by [Nashaly] Velez[]quez- Questell[, Caragena’s girlfriend, (“Velezquez-Questell”)]. [] Velezquez-Questell consented to [a] search [of] the premises. [The s]earch of the premises turned[ ]up the following contraband that was seized, including, $1,091.00 in United State[s] currency, [a] Walmart blender, two cell phones, [a] digital scale, [and 11] bags of heroin[.] After being Mirandized (Miranda v. Arizona, 384 U.S. 436 … (1966)), [Cartagena] confessed [that all of] the contraband was [] his[,] not his girlfriend’s[.]
Trial Court Opinion, 6/15/20, at 2.
Following a jury trial, Cartagena was convicted of the above-mentioned
offenses. The trial court deferred sentencing and ordered a pre-sentence
investigation report. On October 25, 2019, the trial court sentenced
Cartagena to an aggregate term of 90 to 180 months in prison, followed by
12 months of probation. Additionally, the trial court determined that
Cartagena was an eligible offender under the Recidivism Risk Reduction
Incentive Act (“RRRI”)2 and imposed an RRRI minimum sentence of 75
months. Cartagena filed a timely Notice of Appeal and court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
Cartagena now raises the following issues for our review:
1. Whether the [trial c]ourt committed non-waivable error when it failed to determine whether the [RRRI] applies?
2. Whether Pennsylvania Rule of Evidence 404(b) was violated because evidence of prior crimes or wrongdoing that preceded the trial were heard by the jury?
2 See 61 Pa.C.S.A. §§ 4501-4512.
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Brief for Appellant at 6 (issues numbered).
In his first claim, Cartagena claims that his sentence is illegal, because
the trial court failed to make a determination as to Cartagena’s RRRI eligibility
at the time of sentencing. Id. at 10. Cartagena acknowledges that he has
raised this claim for the first time on appeal, but contends that his illegal
sentence claim cannot be waived. Id. Additionally, Cartagena asserts that
he is eligible for RRRI. Id.
A challenge to a court’s failure to impose an RRRI sentence implicates
the legality of the sentence. Commonwealth v. Robinson, 7 A.3d 868, 871
(Pa. Super. 2010). Claims that challenge the legality of the sentence cannot
be waived. Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa. Super. 2014).
“Our scope of review of challenges to the legality of a sentence is plenary, and
the standard of review is de novo.” Commonwealth v. Milhomme, 35 A.3d
1219, 1221 (Pa. Super. 2011).
The RRRI provides that, “[a]t the time of sentencing, the court shall
make a determination whether the defendant is an eligible offender.” 61
Pa.C.S.A. § 4505(a); see also 42 Pa.C.S.A. § 9756(b.1) (wherein the
Sentencing Code states that “[t]he court shall determine if the defendant is
eligible for a recidivism risk reduction incentive minimum sentence under 61
Pa.C.S.[A.] Ch. 45 (relating to recidivism risk reduction incentive).”). Where
the trial court fails to make a statutorily-required and compulsory RRRI
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eligibility determination at sentencing, the defendant’s sentence is illegal.
Robinson, 7 A.3d at 871.
Our review of the record reveals that on October 25, 2019, Cartagena
was sentenced to an aggregate term of 90 to 180 months in prison. See N.T.
(Sentencing Hearing), 10/25/19, at 9-11; see also Order of Sentence,
10/25/19, at 1. In its Sentencing Order, the trial court found Cartagena to be
an eligible offender under the RRRI and imposed an RRRI minimum sentence
of 75 months. See Order of Sentence, 10/25/19, at 1; see also 61 Pa.C.S.A.
§ 4505(c)(2) (providing that an RRRI minimum sentence “shall be equal to
five-sixths of the minimum sentence if the minimum sentence is greater than
three years.”). Because the record reveals that Cartagena was, in fact, found
to be eligible under the RRRI, and the trial court sentenced Cartagena
accordingly, we grant him no relief on this claim.
In his second claim, Cartagena argues that the trial court erred by
admitting evidence of prior crimes or prior bad acts under Pa.R.E. 404(b).
Brief for Appellant at 13. Specifically, Cartagena claims that DEA Agent Trevor
Riccobin (“Agent Riccobin”) and Police Officer Timothy Garron (“Officer
Garron”) should not have been allowed to testify that they were seeking to
arrest Cartagena based upon a Delaware arrest warrant. Id. Cartagena
claims that, in sustaining his objection to testimony about the Delaware arrest
warrant, the trial court did not allow defense counsel the “opportunity to move
for a mistrial or request a curative instruction, and the trial court did not offer
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a curative instruction.” Id. Cartagena asserts that the trial court allowed six
references to his Delaware arrest warrant to be heard by the jury, and that
these references were more prejudicial than probative. Id. at 15. In support
of this contention, Cartagena claims that the jury could have inferred that his
Delaware arrest warrant was drug-related, because the “prosecution team
was made up of law officers from both states and the [DEA,] who specialize
in drug interdiction.” Id.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.
2015) (citation and quotation marks omitted). “An abuse of discretion is not
merely an error of judgment, but is rather the overriding or misapplication of
the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record.” Commonwealth v.
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J-S46045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAWRENCE CARTAGENA : : Appellant : No. 3236 EDA 2019
Appeal from the Judgment of Sentence Entered October 25, 2019 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001306-2019
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: December 24, 2020
Lawrence Cartagena (“Cartagena”) appeals from the judgment of
sentence imposed following his convictions of two counts of possession with
intent to deliver controlled substances, and one count of possession of drug
paraphernalia.1 We affirm.
The trial court summarized the factual history underlying the instant
appeal as follows:
[O]n Thursday[,] January 31, 2019[,] at approximately 7:30 a.m.[,] members of the Chester Police Department Narcotics Unit were assisting members of the [Drug Enforcement Agency’s (“DEA”)] Wilmington, Delaware regional office in surveillance of [Cartagena,] who was the subject of a Delaware arrest warrant at 2701 Madison Street, Apartment F[-]240, Chester, [Pennsylvania].
____________________________________________
1 35 P.S. § 780-113(a)(30), (32). J-S46045-20
[Cartagena] was arrested after the law enforcement officers entered the apartment door[,] opened by [Nashaly] Velez[]quez- Questell[, Caragena’s girlfriend, (“Velezquez-Questell”)]. [] Velezquez-Questell consented to [a] search [of] the premises. [The s]earch of the premises turned[ ]up the following contraband that was seized, including, $1,091.00 in United State[s] currency, [a] Walmart blender, two cell phones, [a] digital scale, [and 11] bags of heroin[.] After being Mirandized (Miranda v. Arizona, 384 U.S. 436 … (1966)), [Cartagena] confessed [that all of] the contraband was [] his[,] not his girlfriend’s[.]
Trial Court Opinion, 6/15/20, at 2.
Following a jury trial, Cartagena was convicted of the above-mentioned
offenses. The trial court deferred sentencing and ordered a pre-sentence
investigation report. On October 25, 2019, the trial court sentenced
Cartagena to an aggregate term of 90 to 180 months in prison, followed by
12 months of probation. Additionally, the trial court determined that
Cartagena was an eligible offender under the Recidivism Risk Reduction
Incentive Act (“RRRI”)2 and imposed an RRRI minimum sentence of 75
months. Cartagena filed a timely Notice of Appeal and court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
Cartagena now raises the following issues for our review:
1. Whether the [trial c]ourt committed non-waivable error when it failed to determine whether the [RRRI] applies?
2. Whether Pennsylvania Rule of Evidence 404(b) was violated because evidence of prior crimes or wrongdoing that preceded the trial were heard by the jury?
2 See 61 Pa.C.S.A. §§ 4501-4512.
-2- J-S46045-20
Brief for Appellant at 6 (issues numbered).
In his first claim, Cartagena claims that his sentence is illegal, because
the trial court failed to make a determination as to Cartagena’s RRRI eligibility
at the time of sentencing. Id. at 10. Cartagena acknowledges that he has
raised this claim for the first time on appeal, but contends that his illegal
sentence claim cannot be waived. Id. Additionally, Cartagena asserts that
he is eligible for RRRI. Id.
A challenge to a court’s failure to impose an RRRI sentence implicates
the legality of the sentence. Commonwealth v. Robinson, 7 A.3d 868, 871
(Pa. Super. 2010). Claims that challenge the legality of the sentence cannot
be waived. Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa. Super. 2014).
“Our scope of review of challenges to the legality of a sentence is plenary, and
the standard of review is de novo.” Commonwealth v. Milhomme, 35 A.3d
1219, 1221 (Pa. Super. 2011).
The RRRI provides that, “[a]t the time of sentencing, the court shall
make a determination whether the defendant is an eligible offender.” 61
Pa.C.S.A. § 4505(a); see also 42 Pa.C.S.A. § 9756(b.1) (wherein the
Sentencing Code states that “[t]he court shall determine if the defendant is
eligible for a recidivism risk reduction incentive minimum sentence under 61
Pa.C.S.[A.] Ch. 45 (relating to recidivism risk reduction incentive).”). Where
the trial court fails to make a statutorily-required and compulsory RRRI
-3- J-S46045-20
eligibility determination at sentencing, the defendant’s sentence is illegal.
Robinson, 7 A.3d at 871.
Our review of the record reveals that on October 25, 2019, Cartagena
was sentenced to an aggregate term of 90 to 180 months in prison. See N.T.
(Sentencing Hearing), 10/25/19, at 9-11; see also Order of Sentence,
10/25/19, at 1. In its Sentencing Order, the trial court found Cartagena to be
an eligible offender under the RRRI and imposed an RRRI minimum sentence
of 75 months. See Order of Sentence, 10/25/19, at 1; see also 61 Pa.C.S.A.
§ 4505(c)(2) (providing that an RRRI minimum sentence “shall be equal to
five-sixths of the minimum sentence if the minimum sentence is greater than
three years.”). Because the record reveals that Cartagena was, in fact, found
to be eligible under the RRRI, and the trial court sentenced Cartagena
accordingly, we grant him no relief on this claim.
In his second claim, Cartagena argues that the trial court erred by
admitting evidence of prior crimes or prior bad acts under Pa.R.E. 404(b).
Brief for Appellant at 13. Specifically, Cartagena claims that DEA Agent Trevor
Riccobin (“Agent Riccobin”) and Police Officer Timothy Garron (“Officer
Garron”) should not have been allowed to testify that they were seeking to
arrest Cartagena based upon a Delaware arrest warrant. Id. Cartagena
claims that, in sustaining his objection to testimony about the Delaware arrest
warrant, the trial court did not allow defense counsel the “opportunity to move
for a mistrial or request a curative instruction, and the trial court did not offer
-4- J-S46045-20
a curative instruction.” Id. Cartagena asserts that the trial court allowed six
references to his Delaware arrest warrant to be heard by the jury, and that
these references were more prejudicial than probative. Id. at 15. In support
of this contention, Cartagena claims that the jury could have inferred that his
Delaware arrest warrant was drug-related, because the “prosecution team
was made up of law officers from both states and the [DEA,] who specialize
in drug interdiction.” Id.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.
2015) (citation and quotation marks omitted). “An abuse of discretion is not
merely an error of judgment, but is rather the overriding or misapplication of
the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record.” Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005)
(citation and quotation marks omitted).
Rule 404 generally prohibits “[e]vidence of a crime, wrong, or other act”
when such evidence is offered to show “that on a particular occasion the
person acted in accordance with the character” shown by that crime, wrong,
or other act. Pa.R.E. 404(b)(1). However, “[t]his evidence may be admissible
for another purpose such as proving motive, opportunity, intent, preparation,
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plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.
404(b)(2).
Instantly, the Commonwealth called both Agent Riccobin and Officer
Garron to testify about the arrest of Cartagena and subsequent search of the
apartment. See N.T. (Jury Trial), 9/11/19, at 29-49, 51-84. On both direct
and cross examination, Agent Riccobin and Officer Garron stated that they
were at the apartment pursuant to a Delaware arrest warrant. Id. at 32, 37,
44, 52-53, 67-68. Cartagena objected to Agent Riccobin’s testimony about
the Delaware arrest warrant during the following exchange:
[Agent Riccobin]: Excuse me. For the stuff related to Delaware-
[Defense Counsel]: You Honor, I’m going to object to this. … This is not related to our case.
***
[Trial Court]: Okay, I’ll sustain that.
N.T. (Jury Trial), 9/11/19, at 67-68.
Our review of the record reveals that defense counsel objected to the
relevance of the Delaware arrest warrant, rather than its inadmissibility as a
prior bad act or wrongdoing under Pa.R.E. 404(b)(2). Indeed, Cartagena did
not object at any other time to testimony regarding the Delaware arrest
warrant. See Trial Court Opinion, 6/15/20, at 14-15; see also N.T. (Jury
Trial), 9/11/19, at 32, 37, 44, 52-53 (wherein Officer Garron and Agent
Riccobin referenced the existence of the Delaware arrest warrant, but
Cartagena did not object). In fact, Cartagena cross-examined Officer Garron
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about the Delaware arrest warrant. See N.T. (Jury Trial), 9/11/19, at 44.
Further, at no point before, during, or after the trial did Cartagena assert that
the above testimony, or any other testimony, was inadmissible as evidence of
prior bad acts. See Commonwealth v. Shamsud-Din, 995 A.2d 1224, 1228
(Pa. Super. 2010) (stating that, “in order for a claim of error to be preserved
for appellate review, a party must make a timely and specific objection before
the trial court at the appropriate stage of the proceedings; the failure to do so
will result in waiver of the issue.”) (emphasis added; citations omitted);
Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the trial court are
waived and cannot be raised for the first time on appeal”). Because Cartagena
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failed to raise a timely, contemporaneous objection, his claim is waived.3, 4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/24/20
3 To the extent that Cartagena claims the trial court did not allow him to request a curative instruction or move for a mistrial, we disagree. Our review of the record reveals that the trial court did not prevent Cartagena from requesting relief; on the contrary, the trial court gave Cartagena several opportunities to request relief. See N.T. (Jury Trial), 9/11/19, at 67-68 (wherein Cartagena’s objection to testimony about the relevance of the Delaware arrest warrant was sustained); see also id. at 165, 186-87 (wherein the trial court gave Cartagena opportunities to request additions to, or to object to, the jury instructions). Thus, Cartagena’s claim that the trial court did not allow him to request a curative instruction or a mistrial is belied by the record.
4 Even if Cartagena had not waived this claim, we would conclude that his claim lacks merit. The references to the Delaware arrest warrant were admitted to explain why the police were at Cartagena’s apartment, rather than to show that Cartagena acted in accordance with a particular character trait. See generally Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006) (explaining that the res gestae exception to Rule 404(b) allows admission of evidence of other crimes when such evidence is relevant to furnish the context or complete the story of the events surrounding the instant crime); Commonwealth v. Dillon, 925 A.2d 131, 139 (Pa. 2007) (stating that res gestae evidence is admissible to explain events surrounding criminal conduct and resulting prosecution so that the case presented to the jury does not appear in a vacuum).
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