J-S07007-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ORLANDO CEPEDA, JR. : : Appellant : No. 133 MDA 2023
Appeal from the Judgment of Sentence Entered December 1, 2022 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000267-2021
BEFORE: LAZARUS, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, P.J.: FILED JUNE 06, 2024
Orlando Cepeda, Jr., appeals from the judgment of sentence, entered in
the Court of Common Pleas of Snyder County, following his convictions of one
count each of possession with intent to deliver (PWID) – methamphetamine,1
conspiracy,2 and criminal use of a communication facility (CUCF).3 After
review, we affirm.
The instant case arose from the Forty-Fifth Statewide Investigating
Grand Jury. See Order Accepting Presentment Number 17, 4/19/21, at 1.
Pertaining to Cepeda, the Grand Jury Presentment alleged that he was part of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S.A. § 903.
3 Id. at § 7512(a). J-S07007-24
a larger methamphetamine distribution network in Snyder, Union, and
Northumberland Counties. Ultimately, through its investigation, the
Commonwealth determined that Cepeda was the primary methamphetamine
supplier, and that Russell Kinslow was the “front.” We provide the following
factual summary beginning with the inception of the investigation.
In 2018, Monica Strocko was under supervision by Snyder County
Probation. Strocko attended a routine office visit, where Snyder County
Probation found immense amounts of information relating to drug activity on
Strocko’s phone including, but not limited to, pictures of drugs, pictures of
money, and times and dates of transactions. As a result, Snyder County
Probation contacted the Snyder County Police Department, who assigned
Detective Douglas Bickhart to investigate.
Detective Bickhart, based upon the evidence uncovered by Snyder
County Probation from Strocko’s phone, sought and received a sealed search
warrant for Strocko’s cell phone. Detective Bickhart downloaded the contents
of the phone. As Detective Bickhart reviewed the contents of the phone, it
became apparent that Kinslow was involved in much of the methamphetamine
activity detailed. Detective Bickhart was familiar with Kinslow’s name at the
time because word of mouth in the community indicated that Kinslow was
dealing methamphetamine.
Detective Bickhart began officially investigating Kinslow and contacted
the Pennsylvania State Police (PSP) for assistance. PSP assigned Trooper
Brett Herbst who, at the time, was the head of the Vice Unit for the PSP in
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Montoursville. Detective Bickhart requested PSP to provide any information
they had on Kinslow that would further his investigation.
Trooper Herbst agreed to assist Detective Bickhart and they agreed that
Detective Bickhart would take the lead in investigating Kinslow and, as the
investigation progressed, Cepeda. Trooper Herbst relayed to Detective
Bickhart that PSP had an open investigation into Kinslow because Kinslow had
made multiple deliveries of methamphetamines to a confidential informant
(CI) in a controlled buy. Trooper Herbst oversaw the CI, “Jadrick Haines,” for
several controlled drug transactions. Trooper Herbst was also utilizing his CI
to investigate Samala Wilson as a person of interest in the PSP’s investigation
into Kinslow.
During one of the controlled buys, Trooper Herbst set up surveillance
of the Harbor Freight store. The CI entered the Harbor Freight store with
Wilson. Wilson and the CI waited until Kinslow arrived. Kinslow provided
methamphetamine to Wilson who, in turn, provided methamphetamine to the
CI. In the second controlled buy, at a garage outside of Freeburg where
Kinslow owned garage space, the same CI went to the garage and met Wilson.
Wilson entered the garage, weighed out the methamphetamine Kinslow had
provided, and sold the methamphetamine to the CI.
Trooper Ryan Kelley, another Trooper involved in PSP’s investigation
into Kinslow, oversaw a different CI, “C.J.,” for several controlled drug
transactions. After Trooper Kelley’s CI made two successful controlled
purchases, Trooper Kelley set up surveillance at Freedom Towing, a business
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located in Lewisburg. Trooper Kelley and his CI arranged to purchase two
ounces of methamphetamine from Kinslow in exchange for $1,500.00. The
CI entered Freedom Towing with the approved funds, purchased the
methamphetamine from Kinslow, and provided the drugs to Trooper Kelley.
As a result of the above-described controlled buys and the ensuing
investigation, Detective Bickhart became aware of an individual named “O,”
who was later identified as Cepeda. Several witnesses used in the
investigations into Kinslow identified Cepeda as Kinslow’s methamphetamine
supplier. In particular, Detective Bickhart identified Wilson, Felicia Buck,
Jamie Aughenbaugh, and Uriah Fausey as individuals who identified Cepeda
as Kinslow’s supplier. Wilson, Buck, Aughenbaugh, and Fausey each, on
separate occasions, traveled with Kinslow to purchase methamphetamine
from Cepeda. Later in the investigation, Aughenbaugh, Buck, and Fausey
identified Cepeda in photo arrays.
Fausey met Cepeda, for the first time, in the late summer of 2018.
Fausey was using methamphetamines with his friend and Cepeda’s cousin,
“Chino.” Fausey and Chino went to Laughter’s, a bar in Sunbury, where they
met with Cepeda. No drugs were exchanged at this time. However, Fausey
met with Cepeda a second time, when Fausey and Cepeda exchanged
marijuana for methamphetamine. Fausey met Cepeda for a third time in
Freeburg to pay off Aughenbaugh’s “debt” because Aughenbaugh was using
more methamphetamine than she could afford and owed Cepeda $400.00.
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Fausey met Cepeda for a fourth time with Kinslow. Fausey and Kinslow
drove together towards Reading, where Kinslow dropped Fausey off at a diner.
During the drive, Kinslow indicated that he was going to procure three ounces
of methamphetamine from Cepeda. Kinslow returned to the diner
approximately 20 minutes later with three eightballs, or three ounces, of
methamphetamine.
Aughenbaugh, at the time a heavy user of methamphetamine, went to
her friend, Richie Whipple’s, house several times a week to use
methamphetamine. Cepeda made multiple appearances at Whipple’s house
to sell methamphetamine to Whipple and Chino. Aughenbaugh never saw
Cepeda directly supply methamphetamine to Whipple; however, Whipple did
not have meth at his house until Cepeda stopped by. See N.T. Jury Trial (Day
2), 11/1/22, at 13 (Aughenbaugh testifying “[Whipple] would have to wait for
[Cepeda] to get there to bring meth. Never saw it, like, hand-to-hand
transactions. There was another room [they would use] for a lot of things,
[and Cepeda] would come to supply Chino[.]”); id. at 14 (“there would be [no
methamphetamine], they would be empty, and then when [Cepeda] would
arrive, there would be stuff”); id. (Aughenbaugh testifying that Whipple
repeatedly stated he was unable to provide methamphetamine until Cepeda
came by). After Cepeda left Whipple’s house, Aughenbaugh would buy
methamphetamine from Whipple. See id. at 19 (Aughenbaugh testifying she
would purchase “eightballs” from Whipple).
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Aughenbaugh was also familiar with Kinslow and either purchased or
was gifted methamphetamine from Kinslow on several occasions.
Aughenbaugh testified that she traveled with Kinslow on multiple occasions to
see Cepeda when Kinslow needed to acquire methamphetamine.
Aughenbaugh and Kinslow traveled to Reading three times to acquire
On one of these trips, Cepeda ordered Kinslow to bring Aughenbaugh to
a meeting, at which time Cepeda confronted Aughenbaugh, who he believed
was snitching on him. Upon arrival, Cepeda entered the backseat of the
vehicle and told Aughenbaugh that “if [Cepeda] found out that I was snitching
on him that my body would be down the Susquehanna River.” Id. at 37.
On a subsequent trip, Kinslow, with Aughenbaugh in tow, parked in a
parking lot and Cepeda entered the vehicle. At this point, Aughenbaugh was
in the backseat of the vehicle and covered with a blanket because Cepeda did
not want Kinslow to associate with Aughenbaugh.4 Cepeda, who
Aughenbaugh identified by his voice at this time, had a brief discussion with
Kinslow. See id. at 27-30 (Aughenbaugh testifying she knew it was Cepeda
by his voice but could not recall specific discussion topic). Afterwards, Cepeda
exited the vehicle, and Kinslow revealed that he now had methamphetamine.
Aughenbaugh and Kinslow used approximately an ounce of methamphetamine
to get high. ____________________________________________
4 As mentioned above, Cepeda believed that Aughenbaugh was an informant
for the police. See id. at 26-28, 36-38.
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Aughenbaugh also knew an individual by the name of Nate Posten, who
was a friend and fellow user of methamphetamine. In the summer of 2018,
Aughenbaugh would frequently spend time with Posten to use
methamphetamine together. Posten purchased his methamphetamine from
Chino in the summer of 2018. During this time, Chino obtained his
methamphetamine supply from Cepeda.
Wilson,5 who was a heavy drug user and dealer, also testified against
Cepeda. Wilson used heroin for eight years before being introduced to
methamphetamine. Wilson began acquiring methamphetamine from Kinslow.
Wilson and Kinslow entered into an arrangement whereby Wilson would sell
methamphetamine for Kinslow in exchange for a small amount of
methamphetamine for Wilson’s personal use. Kinslow provided Wilson with
methamphetamines once or twice a week. At the beginning of their
arrangement, Kinslow provided only an eightball to Wilson. However, as the
arrangement went on and sales improved, Kinslow began providing Wilson
with an ounce of methamphetamine twice a week. As Wilson became more
enmeshed in the methamphetamine network, Kinslow informed her that he
received his methamphetamine supplies from “O,” whom he later identified as
Cepeda. Wilson and Kinslow discussed “O” as the source of the
5 As a result of her involvement, summarized throughout this memorandum,
Wilson was charged and convicted in relation to the methamphetamine operation and was placed in a halfway house. While in the halfway house, Wilson met with Detective Bickhart and agreed to assist in his investigation.
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methamphetamine multiple times and, eventually, Wilson began making trips
to see “O” with Kinslow.
Wilson agreed to go on these trips with Kinslow because, in return,
Kinslow gave her more methamphetamine for personal use. During these
trips, Wilson did not see any drugs change hands. However, Wilson counted
the money for Kinslow, and was able to identify “O” as Cepeda. See id. at
63-65 (Wilson testifying Kinslow was bad with money and requested Wilson
to count money for him); see also id. (Wilson testifying that she saw Cepeda
talk to Kinslow); see also id. at 63-65, 70-71 (Wilson testifying, on several
occasions, Kinslow and Cepeda FaceTimed her so she could count money
virtually). Wilson and Kinslow made six trips to see “O” together. “O”
provided Kinslow with increasing amounts of methamphetamine, which began
with a few ounces and escalated to a pound-and-a-half of methamphetamine.
See id. at 73-75.
At some point, Wilson and Kinslow stopped traveling to see “O”
together.6 However, Kinslow suddenly resumed the trips, and forced Wilson7
to travel to a new location with him. Kinslow and Wilson drove to Sunbury,
6 Wilson testified that she stopped going with Kinslow because she was trying
to stop using and selling methamphetamine. See id. at 88.
7 Wilson testified that, rather suddenly, Kinslow broke into her apartment and
stole her belongings. See id. at 83-84. Kinslow refused to return Wilson’s belongings until Wilson agreed to attend additional visits to see “O” with Kinslow. See id.
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where they met with “O,” who was in another vehicle. Kinslow passed a large
sum of money to “O,” who then provided Kinslow with methamphetamine.
Buck,8 a methamphetamine user like Wilson, purchased two ounces of
methamphetamine from Kinslow every week. During their transactions,
Kinslow told Buck several times that Cepeda was the supplier. Buck sold some
of the purchased methamphetamine and used the remaining amount for
herself. The amounts sold and used varied based on Buck’s ability to sell
methamphetamine weighed against Buck’s need to use the methamphetamine
herself.
At some point in 2018, Kinslow began taking Buck on his trips to get
more methamphetamine from Cepeda. Kinslow and Buck traveled to the
Econo Lodge in Shamokin Dam and met Cepeda in one of the hotel rooms.
Kinslow and Cepeda conducted methamphetamine transactions, in front of
Buck, in the hotel room.
On September 27, 2021, the Commonwealth filed a Criminal
Information charging Cepeda with the above-mentioned offenses. After
numerous continuances, Cepeda filed a speedy trial motion, pursuant to
Pa.R.Crim.P. 600, which the trial court denied. Ultimately, after additional
continuances, the trial court scheduled trial for October 31, 2022. On October
28, 2022, three days before trial, Cepeda filed a motion in limine, in which he ____________________________________________
8 During Trooper Herbst’s investigation, a CI purchased methamphetamine from Buck. See id. at 145-48. As a result, Buck was arrested and charged. While Buck was incarcerated for those charges, she agreed to assist Detective Bickhart in his investigation. See id. at 158.
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sought to preclude all witnesses from testifying about any hearsay statements
that may be attributed to Kinslow. See Motion in Limine, 10/28/22, at 1-2.
The trial court heard arguments on the motion on October 31, 2022, prior to
the commencement of trial. The trial court denied the motion and concluded
that Cepeda’s motion was too vague, as it did not specify which witnesses or
which statements he sought to preclude. See N.T. Jury Trial (Day 1),
10/31/22, at 3-6. The trial court denied the motion in limine on the additional
basis that the statements were likely admissible under the co-conspirator
hearsay exception. See id. at 9-11 (citing Commonwealth v. Feliciano, 67
A.3d 19, 27-28 (Pa. Super. 2013) and Pa.R.E. 803(25)(E)). The trial court
further instructed Cepeda that, due to the vagueness of his motion in limine,
he would need to make specific hearsay objections during trial when the
alleged hearsay statements arose. See N.T. Jury Trial (Day 1), 10/31/22, at
9-11.
Cepeda proceeded to a three-day jury trial lasting from October 31
through November 2, 2022, after which the jury found Cepeda guilty of the
above-mentioned offenses. The trial court deferred sentencing and ordered
the preparation of a pre-sentence investigation report.
On December 1, 2022, the trial court conducted a sentencing hearing.
The trial court sentenced Cepeda to consecutive sentences of 7½ to 20 years’
incarceration for PWID, 5 to 10 years’ incarceration for conspiracy, and 1½ to
5 years’ incarceration for CUCF, resulting in an aggregate sentence of 14 to
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35 years’ incarceration. The trial court credited Cepeda for 331 days of time
served.
Cepeda filed a timely post-sentence motion,9 which the trial court denied
on December 28, 2022. Cepeda filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Cepeda now raises the following claims for our review:
[1.] Did the [trial] court err in denying [Cepeda’s] motion in limine and in-trial objections to preclude witnesses from testifying to alleged statements made by non-testifying, alleged co- conspirators of [Cepeda] as the statements did not fall under the co-conspirator exception to the hearsay rule?
[2.] Did the [trial] court abuse its discretion in sentencing [Cepeda] to an aggregate [14 to 35] years[’ incarceration] as it applied the wrong standard range to the sentencing guidelines?
[3.] Did the [trial] court abuse its discretion in denying [Cepeda’s] motion for a new trial as the verdicts were against the weight of the evidence?
Brief for Appellant, at 5.
In his first claim, Cepeda argues that the trial court erred in denying his
motion in limine to preclude witnesses from testifying to statements, allegedly
made by Kinslow and Whipple, under the co-conspirator exception to the
9 The 10th day to file a timely post-sentence motion was December 11, 2022,
a Sunday and, accordingly, Cepeda had until December 12, 2022, to file a timely post-sentence motion. See 1 Pa.C.S.A. § 1908 (“[w]henever the last day of any such time period shall fall on a Saturday or Sunday . . . such day shall be omitted from the computation.”); see also Pa.R.Crim.P. 720(A)(1) (“a written post-sentence motion shall be filed no later than 10 days after imposition of sentence”). Therefore, Cepeda’s post-sentence motion, filed on December 12, 2022, was timely filed.
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hearsay rule. See id. at 18-19. In particular, Cepeda claims that Fausey,
Aughenbaugh, Wilson, and Buck were all improperly permitted to testify to
hearsay statements from Kinslow and Whipple. Id. at 18-20.
As a preliminary matter, we conclude that Cepeda has waived these
challenges. First, Cepeda did not include a challenge to any alleged
statements attributed to Whipple in his Rule 1925(b) concise statement of
errors complained of on appeal, or in the underlying motion in limine. See
Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the statement . . . are
waived”); see also Motion in Limine, 10/28/22, at 1-2 (challenging Kinslow’s
purported hearsay statement); Pa.R.A.P. 302(a) (“Issues not raised in the trial
court are waived and cannot be raised for the first time on appeal.”).
Furthermore, Cepeda does not cite to where in the record the hearsay
statements were admitted, or where he preserved objections to them. See
Pa.R.A.P. 2119(c) (providing appellant’s argument shall include “reference[s]
to the place in the record where the matter referred to appears”); see also
Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (“It is
not this Court’s responsibility to comb through the record seeking the factual
underpinnings of an appellant’s claim.”). This case involved a three-day jury
trial with multiple witnesses and several exhibits, yet Cepeda’s two-page
argument is silent as to where he made the alleged objections preserving his
claim. See Brief for Appellant, at 18-20. Accordingly, any challenge regarding
Whipple’s alleged statements has been waived.
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Second, regarding Cepeda’s challenge to the alleged statements of
Kinslow, we conclude Cepeda has waived this claim on two separate grounds.
First, throughout his two-page argument on this claim, Cepeda fails to cite to
where in the record the hearsay statements were admitted, or where he
objected. See Pa.R.A.P. 2119(c); Samuels, supra. Consequently, this claim
is waived.
Second, this claim is also waived because Cepeda failed to properly
preserve it before the trial court. Prior to trial, Cepeda filed a motion in limine
to preclude all witnesses from testifying as to any hearsay statements from
Kinslow. See Motion in Limine, 10/28/22, at 1-2. The trial court ultimately
denied this motion because it was unable, at the time, to adequately assess
whether the testimony should be limited where the motion failed to specify
which witnesses and hearsay statements were at issue. See N.T. Jury Trial
(Day 1), 10/31/22, at 4-11.10 Consequently, under our case law, Cepeda was
required to preserve the objections initially raised by his motion in limine
throughout the trial with timely and specific objections. See Commonwealth
v. McGriff, 160 A.3d 863, 866 (Pa. Super. 2017) (“Consistent with . . . Pa.R.E.
103(a)[, pertaining to preserving claims of error,] a motion in limine may
preserve an objection for appeal without any need to renew the objection at
10 After making its ruling, the trial court informed Cepeda that he would be
permitted to raise these objections at the appropriate time(s) throughout trial with more specificity. See id. As noted supra, the trial court also suggested that the statements may be admissible under the co-conspirator hearsay exception. See id.; see also Pa.R.E. 803(25)(E).
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trial, but only if the trial court clearly and definitively rules on the
motion.”) (emphasis added, quotation omitted). Here, the trial court denied
Cepeda’s motion in limine because it lacked the required specificity. See N.T.
Jury Trial (Day 1), 10/31/22, at 4-11. Thus, Cepeda was required to make
timely and specific objections throughout trial, and was further required to
properly preserve those objections for appellate review. See McGriff, supra.
Cepeda failed to raise those objections in his Rule 1925(b) statement, instead
choosing to challenge the trial court’s denial of his motion in limine. See
McGriff, supra; see also Pa.R.A.P. 1925(b)(4)(vii). Accordingly, any
challenge regarding Kinslow’s alleged statements has been waived.
In his second claim, Cepeda argues that the trial court abused its
discretion in sentencing him to an aggregate term of 14 to 35 years’
incarceration by incorrectly calculating his offense gravity score (OGS). See
Brief for Appellant, at 21-24. Cepeda’s claim challenges the discretionary
aspects of his sentence, from which there is no automatic right to appeal. See
Commonwealth v. Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016) (claim
that court applied incorrect OGS implicates discretionary aspects of
sentencing). Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Cepeda has filed a timely notice of appeal, a post-sentence motion
preserving the claim, and properly included a Rule 2119(f) statement in his
brief. We also conclude that Cepeda has satisfied the fourth requirement, as
an allegation that the trial court inappropriately calculated the OGS raises a
substantial question. See Sunealitis, 153 A.3d at 421 (citing
Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa. Super. 1998)). Thus,
we may address the merits of Cepeda’s claim.
Our standard of review for a claim challenging the trial court’s OGS
calculation is a matter of statutory interpretation, which raises a question of
law. See Sunealitis, 153 A.3d at 421 (citing Commonwealth v. Johnson,
125 A.3d 822 (Pa. Super. 2015)). Accordingly, we apply a de novo standard
of review. See Sunealitis, 153 A.3d at 421.
We previously explained, in Commonwealth v. Spenny, 128 A.3d 234
(Pa. Super. 2015), that
When sentencing a criminal defendant convicted of a felony and/or misdemeanor, the trial court must consider, inter alia, the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing ([]Sentencing Commission[]). 42 Pa.C.S.A. § 9721(b); 204 Pa.Code 303.1(a). To determine the guideline sentence for each conviction, the trial court must establish the [OGS] and . . . the defendant’s prior record score. 204 Pa.Code § 303.2(a).
Id. at 242.
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Instantly, Cepeda contends that there was no factual basis to support
the trial court’s conclusion that the methamphetamine weighed between 100
and 1000 grams. See Brief for Appellant, at 22. Cepeda asserts that the
Commonwealth presented proof that Cepeda possessed, distributed, and
conspired to distribute approximately 43 grams of methamphetamine. Id.
Cepeda posits that the additional 89 grams of methamphetamine, referenced
by the trial court, cannot be attributed to Cepeda because that
methamphetamine was acquired through controlled purchases from Kinslow,
not Cepeda, and the purchases were not in furtherance of any conspiracy
between Kinslow and Cepeda. See id. Cepeda argues that Kinslow had other
suppliers and, consequently, the Commonwealth did not, and could not, prove
that all the methamphetamine came from Cepeda. See id. at 23-24. We
disagree.
Cepeda does not dispute that his prior record score was properly
calculated as five. At issue is the trial court’s calculation of the OGS for PWID
as eleven. See Brief for Appellant, at 21-24. As noted supra, the trial court
determined that Cepeda possessed between 100 and 1000 grams of
methamphetamine by relying on its interpretation of the Commonwealth’s
evidence. Additionally, the trial court considered the aggregate weight of the
methamphetamine, presented at trial, that the PSP seized throughout their
investigation. See Trial Court Opinion, 9/11/23, at 2-4 (unpaginated).
The trial court provided the following explanation in its opinion:
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Throughout the trial, the lay witnesses involved in the drug transactions involving [Cepeda] testified to multiple trips to purchase methamphetamines from [him]. While the lay witnesses did not testify to precise weights they testified to ounces, grams, and balls.
In addition, law enforcement testified as to weights that were purchased from [Cepeda’s] co-conspirator, Kinslow, that had actual weights. Trooper [] Kelly testified that one controlled buy from [Kinslow] involve[d] an amount of [] 46.7 grams [of methamphetamine]. Trooper [] Herbst testified to one controlled buy from [Kinslow] of [] 14.3 grams [of methamphetamine]. In addition, Detective [] Bickhart testified that [in two controlled buys] from [Kinslow], [the aggregate weights were] 29 grams [of methamphetamine]. Based on law enforcement’s testimony, 89 grams of methamphetamine could be traced from [Kinslow] directly to [Cepeda]. That[,] coupled with the testimony of the lay witnesses regarding the amounts of methamphetamine purchased from [Cepeda] over a course of time, it is clear that well in excess of [] 100 grams of methamphetamine were sold by [Cepeda].
Trial Court Opinion, 9/11/23, at 2-4 (unpaginated).
Furthermore, we observe that one ounce is equivalent to 28 grams. See
www.metric-conversions.org (last visited May 9, 2024); see also N.T. Jury
Trial (Day 1), 10/31/22, at 70 (Detective Bickhart testifying one ounce is
approximately 28 grams). Wilson testified that she purchased one or two
ounces, or 28 to 56 grams, of methamphetamine every week from Kinslow,
who was supplied by Cepeda. See N.T. Jury Trial (Day 2), 11/1/22, at 60-61.
Therefore, the trial court merely had to attribute any of Wilson’s purchases to
Cepeda in order to break the 100-gram threshold for an OGS of 11. It is clear
from the quoted portion of the trial court’s opinion that it attributed at least
one of Wilson’s purchases to Cepeda and, consequently, determined that
Cepeda’s offense had an OGS of 11. See Trial Court Opinion, 9/11/23, at 2-
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4 (unpaginated). We conclude that the trial court did not err in calculating
Cepeda’s OGS as eleven and we agree with the trial court’s findings and
determinations. Accordingly, Cepeda is not entitled to relief on this claim.
In his third claim, Cepeda argues that the verdicts were against the
weight of the evidence and shock the conscience. See Brief for Appellant, at
24-25. Cepeda asserts that no drugs were located in his home, and he had
no drugs on his person when he was arrested. See id. Cepeda claims that
the only evidence linking him to the conspiracy was the testimony of alleged
co-conspirators, all of whom had methamphetamine habits and “impressive
crimen falsi records.” Id. at 25-26.
Our standard of review is well-settled. “Appellate review of a weight
claim is a review of the [trial court’s] exercise of discretion, not of the
underlying question of whether the verdict is against the weight of
the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)
(emphasis added, citation omitted). Where 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[.]” Id. (citing
Commonwealth v. Farquharson, 354 A.2d 545 (Pa. 1976)). A challenge to
the weight of the evidence is one of the least assailable reasons for granting
or denying a new trial. See Widmer, supra.
Nevertheless, a trial court’s exercise of discretion is not unfettered. See
id. The “propriety of the exercise of discretion in such an instance may be
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assessed by the appellate process when it is apparent that there was an abuse
of that discretion.” Id. Moreover, 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. Britton, 134
A.3d 83, 86 (Pa. Super. 2016).
In its opinion, the trial court concluded that the Commonwealth’s
witnesses were credible, and that the jury believed the evidence presented by
the Commonwealth. See Trial Court Opinion, 9/11/23, at 6 (unpaginated).
Further, the trial court noted that the jury was free to believe all, part, or none
of the evidence and concluded that the jury’s belief in the Commonwealth’s
evidence did not shock the conscience. See id. After reviewing the record,
we conclude that the trial court did not abuse its discretion in denying
Cepeda’s weight claim and, accordingly, he is entitled to no relief. See
Widmer, supra.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 06/06/2024
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