J-S05002-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DENI MATEO : : Appellant : No. 2769 EDA 2023
Appeal from the Judgment of Sentence Entered September 25, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000792-2022
BEFORE: BOWES, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED MARCH 6, 2025
Deni Mateo appeals from the aggregate judgment of sentence of
seventy-eight to one hundred and fifty-six months of incarceration imposed
following his convictions for possession with intent to deliver (“PWID”),
conspiracy to do the same, and possession of a controlled substance. We
affirm.
By way of background, on December 3, 2021, Appellant agreed to give
his associate, Regino Reyes, a ride to meet what turned out to be an
undercover agent, later identified as Corporal Javier Garcia, to orchestrate a
sale of a large quantity of fentanyl. The three men met at a Denny’s
restaurant in Philadelphia to solidify the deal. Corporal Michael Trupp and
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* Former Justice specially assigned to the Superior Court. J-S05002-25
other officers were conducting surveillance in a nearby parking lot and were
on standby to execute arrests on Corporal Garcia’s signal.
Although all prior negotiations had been between Reyes and Corporal
Garcia, the undercover officer primarily interacted with Appellant in the
restaurant and recorded the conversation. Corporal Garcia informed the men
that he had cash for six kilograms of fentanyl at $35,000 per kilogram. Reyes
stated that they could only complete a transaction for two kilograms, but
Appellant claimed that he could obtain four more kilograms from New York
the following day. They agreed on two kilograms for the time being. The
associates, however, wanted to ensure that Corporal Garcia had the funds, so
they traveled to his hotel in the undercover officer’s car.
Upon arrival in the hotel parking lot, Corporal Garcia refused to take
Appellant and Reyes to his room without proof of the drugs. As a tan SUV
appeared on scene, Reyes announced that the “material” had arrived and a
woman, later identified as Eskalyn Canela, stepped out with a bag. See N.T.
Jury Trial, 5/3/23, at 190. Appellant also stated to Corporal Garcia that he
and Reyes “don’t work alone.” Id. The corporal continued to maintain that
he did not feel comfortable with multiple people in his hotel room, so Appellant
and Reyes decided that Canela would instead accompany Corporal Garcia to
count his money.
Once inside the lobby, the officer asked Canela to see the contents of
her bag. When he saw what appeared to be two compressed powder bricks
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of fentanyl, he signaled to Corporal Trupp and all parties were arrested,
including the undercover agent to maintain his security. The two bricks were
later confirmed to be floral fentanyl, a controlled substance. Id. at 65-71.
The Commonwealth charged Appellant with the aforementioned
offenses. Appellant proceeded to a joint jury trial with co-defendant Canela
after the court denied his motion to sever, which he unsuccessfully renewed
before testimony began.1 The Commonwealth presented Corporal Trupp and
Corporal Garcia, who detailed the above facts. Additionally, it played the audio
and video recordings taken on Corporal Garcia’s cellphone. 2
The Commonwealth also presented Trooper Sergio Colon, an expert in
manufacturing, packaging, and delivery of controlled substances, to inform
the jury on drug trafficking, the roles of individuals in a trafficking enterprise,
and the packaging of narcotics. Appellant’s counsel raised multiple objections
throughout the expert’s testimony arguing that he was testifying as to the
element of possession, whereas his area of expertise lay in manufacturing,
packaging, and distribution. See N.T. Jury Trial, 5/4/23, at 135-36, 138-39,
1 Reyes entered into a negotiated guilty plea prior to trial.
2 Although these exhibits were shown to the jury and admitted into evidence,
they were not included in the certified record. Nevertheless, to the extent that the parties reference them, we may review the transcript of the audio recording in the reproduced record since the parties do not contest its accuracy. See Pa.R.A.P. 1921, Note (“[W]here the accuracy of a pertinent document is undisputed, the Court [may] consider that document if it was in the [r]eproduced [r]ecord, even though it was not in the record that had been transmitted to the Court.”).
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141-51. The court overruled these objections, and the Commonwealth
ultimately asked Trooper Colon “based on the facts of this case specifically,
do you have an opinion as to [Appellant]’s involvement?” Id. at 151. The
expert responded, “I believe that [Appellant] was responsible for orchestrating
the procurement and receipt of the narcotics which was agreed upon.” Id. at
151. Appellant’s counsel objected once more, stating that the words
“procurement and receipt” implied possession, and requested a mistrial or a
curative jury instruction. Id. at 151-57. The court denied the motion and
instead instructed the jury that the expert’s opinion “is not to be regarded by
you as evidence of any possessory offense.” Id. at 157.
Appellant testified in his defense, generally denying his involvement in
the transaction and his knowledge therewith. See N.T. Jury Trial, 5/5/23, at
11, 15. Although Appellant did not call Reyes, Canela did, and he stated that
neither Appellant nor Canela had anything to do with the deal. See N.T. Jury
Trial, 5/4/23, at 245-46.
The jury convicted Appellant of all charged offenses, and the trial court
sentenced him to the aforementioned term of imprisonment. This timely
appeal followed. Both Appellant and the trial court complied with the
requirements of Pa.R.A.P. 1925. Appellant raises the following issues for our
determination, which we have reordered:
I. Did the trial court abuse its discretion by denying Appellant’s motion for judgement [sic] of acquittal, following the Commonwealth’s case-in-chief?
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II. Did the trial court err by denying Appellant’s motions to sever his trial from his co-defendant’s trial?
III. Did the trial court err by permitting Trooper Sergio Colon, an expert in the field of manufacturing, packaging[,] and delivery of controlled substances, to offer opinion testimony concerning Appellant’s intent, stating that Appellant was “responsible for orchestrating the procurement and receipt of the narcotics which was agreed upon...”, without providing a basis for the opinion?
IV. Did the trial court abuse its discretion by permitting the attorney for the Commonwealth, during his closing remarks, to make purely speculative and overly prejudicial statement [sic] that Appellant worked for a “rich person in New York,” an argument not based on any facts in the trial; make overly prejudicial commentary on Appellant’s consciousness of guilt inferred from his testimony, misstate trial testimony, and make comments concerning his own ethics?
Appellant’s brief at 3-4 (capitalization altered).
We begin with the principles governing Appellant’s first challenge, which
hinges on the sufficiency of the evidence to sustain his convictions for PWID
and conspiracy to do the same.
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 a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the 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 a defendant’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 actually received must be considered. Finally, the finder of fact while passing upon the
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credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Gaspard, 323 A.3d 1276, 1278-79 (Pa.Super. 2024)
(cleaned up).
To sustain a conviction for conspiracy, the Commonwealth must prove
that a defendant: “(1) entered into an agreement to commit or aid in an
unlawful act with another person or persons, (2) with a shared criminal intent
and (3) an overt act was done in furtherance of the conspiracy.”
Commonwealth v. Roche, 153 A.3d 1063, 1071 (Pa.Super. 2017). The
overt act can be committed by any co-conspirator. Id.
The offense of PWID is defined as follows:
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). Hence, a PWID conviction requires proof of “both
the possession of the controlled substance and the intent to deliver the
controlled substance.” Commonwealth v. Bernard, 218 A.3d 935, 943
(Pa.Super. 2019) (cleaned up).
Where the defendant was not found in physical possession of the
contraband, he may nonetheless be liable for PWID through conspiracy
liability. See Commonwealth v. Bowens, 265 A.3d 730, 741 (Pa.Super.
2021) (en banc) (“[S]uccessful proof of a conspiracy makes each co-
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conspirator fully liable for all of the drugs recovered, without the necessity of
proving [actual or] constructive possession.” (cleaned up)). In examining
whether the Commonwealth established the element of intent to deliver, “we
must examine the facts and circumstances surrounding the possession.”
Bernard, 218 A.3d at 943.
Appellant contends that the Commonwealth did not meet its burden
where “at best, [it] proved that Appellant was involved in a conversation with
Reyes and [Corporal] Garcia.” See Appellant’s brief at 22. He claims that the
corporal’s testimony was vague, as he referred to both Appellant and Reyes
together when recounting their conversations and interactions, and did not
distinguish between the two men. Id. at 22-23. Moreover, he argues that
the Commonwealth presented no evidence that Appellant “ever had the two
kilo[gram]s of fentanyl on his person” or that he exercised “dominion or
control” over the drugs. Id. at 23.
We disagree. The testimony of Corporal Garcia, which was corroborated
by Corporal Trupp, was sufficient to convict Appellant of PWID and conspiracy.
Corporal Garcia explained that he met with Appellant and Reyes to discuss
obtaining a large quantity of fentanyl at a Denny’s, and Appellant took charge
of the conversation once inside the restaurant. See N.T. Jury Trial, 5/3/23,
at 180-85, 194-95. Further, the corporal attested that Appellant claimed he
could obtain an extra four kilograms from New York if the officer wanted more
than the currently-available two kilograms. Id. at 186, 222. Corporal Garcia
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recounted that, once the parties arrived at the hotel, Appellant told him that
he and Reyes do not work alone as Canela arrived on scene carrying two
wrapped, one-kilogram bricks of fentanyl in a bag. Id. at 190. He lastly
explained that Appellant and Reyes directed Canela to count his money to
finalize the deal. Id. at 191-92. Although Appellant did not touch the drugs,
the evidence was nevertheless sufficient to prove that he actively participated
in the operation to possess and deliver a large quantity of fentanyl to Corporal
Garcia. See Bowens, 265 A.3d at 743 (holding that the appellant was “just
as culpable for [his co-conspirator’s] possession of the drugs . . . as [the co-
conspirator] himself”). Accordingly, the evidence was sufficient to support
Appellant’s convictions for PWID and conspiracy.
We move to Appellant’s final three issues, all of which we review for an
abuse of the trial court’s discretion. See Commonwealth v. Kurtz, 294 A.3d
509, 531 (Pa.Super. 2023) (holding that a trial court’s denial of a motion to
sever is reviewed for an abuse of discretion); Commonwealth v. May, 271
A.3d 475, 479 (Pa.Super. 2022) (“We review a trial court’s decision to admit
or exclude expert opinion testimony under an abuse of discretion standard.”);
Commonwealth v. Jones, 191 A.3d 830, 835 (Pa.Super. 2018) (“[I]n
reviewing a claim of improper prosecutorial comments, our standard of review
is whether the trial court abused its discretion.” (cleaned up)). This Court only
concludes that a trial court has abused its discretion where “it misapplies the
law, or its exercise of judgment is manifestly unreasonable[,] or the result of
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partiality, prejudice, bias[,] or ill-will.” Commonwealth v. Nabried, 327
A.3d 315, 321 (Pa.Super. 2024).
Appellant first challenges the trial court’s decision to try his and Canela’s
cases together. In this vein, Rule 582 of the Rules of Criminal Procedure
provides, in pertinent part:
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
(2) Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.
Pa.R.Crim.P. 582. Rule 583, on the other hand, states that “[t]he court may
order separate trials of offenses or defendants, or provide other appropriate
relief, if it appears that any party may be prejudiced by offenses or defendants
being tried together.” Pa.R.Crim.P. 583. Additionally, this Court has noted
that “there is a universal preference for a joint trial of co-conspirators.”
Commonwealth v. Cole, 167 A.3d 49, 57 (Pa.Super. 2017).
Appellant argues that his co-defendant, Canela, sought to introduce
prejudicial evidence against him. See Appellant’s brief at 25. Specifically, he
contends that Reyes testified to exculpate Canela, and that he “could not
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question Reyes as to Appellant’s culpability while Reyes [wa]s testifying, which
could confuse the jury” and “have the prejudicial effect of inferring Appellant’s
guilt.” Id. at 25-26. Although “Reyes ultimately testified that Appellant was
not aware of, or part of [the] transaction,” Appellant nevertheless contends
that he was prejudiced because he was not able to question Reyes. Id. at 26
(some articles omitted).
In its 1925(a) opinion, the trial court defended its decision not to sever
the trials. It stated that the charges against Appellant and Canela “arose from
the same course of events, evidence, and testimony.” Trial Court Opinion,
4/17/24, at 20. It also determined that the joint trials “served the interests
of justice by enabling more accurate assessment[s] of relative culpability.”
Id. The court further noted that Reyes’s testimony actually aided Appellant’s
defense, as he attested that both Canela and Appellant “did not have anything
to do with the intention to sell drugs and conspiracy.” Id. at 21.
We discern no abuse of discretion. Both Appellant and Canela
participated in the same conspiracy with Reyes to deliver two kilograms of
fentanyl to Corporal Garcia, and thus the “offenses charged [were] based on
the same act or transaction.” Pa.R.Crim.P. 582(1)(b); see also Cole, 167
A.3d at 57. Additionally, Appellant chose not to cross-examine Reyes at trial,
and only asserts, without further explanation, that questioning him would
have confused the jury and led them to infer Appellant’s guilt. Nevertheless,
it is plain that Appellant suffered no prejudice from Reyes’s testimony since
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he favorably declared that Appellant did not have any knowledge of the
transaction. See N.T. Jury Trial, 5/4/23, at 246-47. As Appellant avers no
other possibility of prejudice or confusion, and we see none, this argument
affords no relief.
Appellant next contests the trial court’s decision to allow opinion
testimony from expert witness Trooper Colon. Rule 702 governs testimony
by expert witnesses and states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant field.
Pa.R.E. 702. Rule 703 also provides, in relevant part: “An expert may base
an opinion on facts or data in the case that the expert has been made aware
of or personally observed.” Pa.R.E. 703. Further, Rules 704 and 705 state,
respectively, that “[a]n opinion is not objectionable just because it embraces
an ultimate issue,” and “[t]he expert must state the facts or data on which
the opinion is based.” Pa.R.E. 704, 705. The weight to be afforded to an
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expert’s testimony “is for the factfinder.” Commonwealth v. Jones, 240
A.3d 881, 890 (Pa. 2020).
Appellant contests Trooper Colon’s statement that he believed that
Appellant orchestrated the transaction for two kilograms of fentanyl. See N.T.
Jury Trial, 5/4/23, at 151; Appellant’s brief at 19. He contends that Trooper
Colon’s testimony was unduly prejudicial in that “it prompted the [j]ury to
accept Trooper Colon’s opinion regarding [an] ultimate [issue] of fact”
concerning Appellant’s possession of the fentanyl “rather than assessing the
fact witness testimony and evidence.” Appellant’s brief at 20. 3
The court concluded that “based upon Trooper Colon’s training and
experience, and the facts of the case, he was permitted to offer expert opinion
testimony as to [the] extent of [Appellant]’s involvement in the distribution of
fentanyl.” Trial Court Opinion, 4/17/24, at 23. Moreover, it highlighted that
the expert formed this opinion based on his review of the case, and that the
court issued a limiting instruction to the jury that it may not consider the
expert’s testimony as to possession. Id. at 23-24.
3 To the extent Appellant argues that the expert’s testimony was improper for
other reasons, these assertions have been waived, as Appellant’s objections only challenged the expert opining as to the element of possession. See Commonwealth v. Spone, 305 A.3d 602, 608 (Pa.Super. 2023) (stating that Pa.R.A.P. 302(a) requires “that trial judges must be given an opportunity to correct errors at the time they are made. . . . [Thus,] a party must make a timely and specific objection at trial in order to preserve an issue for appellate review.”); N.T. Jury Trial, 5/4/23, at 135-36, 138-39, 141-51.
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The trial court’s analysis is apt. Trooper Colon’s testimony was not
objectionable solely because it embraced a pertinent issue. See Pa.R.E. 704.
The court also issued Appellant’s requested limiting instruction after the expert
gave his opinion as to Appellant’s involvement, directing the jury not to
consider the expert’s opinion as to possession, and Appellant did not object.
See N.T. Jury Trial, 5/4/23, at 157; Commonwealth v. Cole, 167 A.3d 49,
77 (Pa.Super. 2017) (noting that “the jury is presumed to have followed the
court’s instructions[,]” and that an appellant’s “failure to object to the
instruction indicated his satisfaction with the instruction”). Thus, this
argument lacks merit.
Appellant’s final matter takes issue with some of the Commonwealth’s
statements during closing arguments. The following legal precepts guide our
analysis of this question:
With specific reference to a claim of prosecutorial misconduct in a closing statement, it is well settled that any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Our review of a prosecutor’s comment and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial. Thus, it is well settled that statements made by the prosecutor to the jury during closing argument will not form the basis for granting a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict. The appellate courts have recognized that not every unwise remark by an attorney amounts to misconduct or warrants the grant of a new trial. Additionally, like the defense, the prosecution is accorded reasonable latitude, may employ oratorical flair in arguing its version of the case to the jury, and may advance arguments supported by the evidence
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or use inferences that can reasonably be derived therefrom. Moreover, the prosecutor is permitted to fairly respond to points made in the defense’s closing, and therefore, a proper examination of a prosecutor’s comments in closing requires review of the arguments advanced by the defense in summation.
Commonwealth v. Jones, 191 A.3d 830, 835-36 (Pa.Super. 2018) (cleaned
up).
Appellant maintains that the ensuing statements inflamed the emotions
of the jury, referenced matters that were not in evidence, and were not
properly in response to trial counsel’s arguments:
Ladies and gentlemen, no one’s family is on trial here. We all feel bad. I mean that’s terrible. But isn’t it a little bit slight [sic] of hand when someone’s on trial and I’m asking questions about the facts in this case and someone starts telling me repeatedly about some suffering in the family? Again, I feel bad -- I respect the family is here. I appreciate both families for being here. It’s important. It’s great that they have good family support. But the answers that you are hearing, the lack of response to any -- we couldn’t even agree probably that the sky was blue. That’s not someone who’s confused. That’s someone who -- you saw he was asking you to look at me, look at me because he was begging for mercy. That’s the conscience of a guilty man.
....
How can I stand in front of you as a person who tries to be ethical and tell you right now that guy is so guilty.
. . . [T]here is one really important part of this case that I want to acknowledge. It’s a shame that the people who actually make this stuff are not in court today. It sucks. But that’s part of the system. That’s the risk people take. I’m not here to offer arguments that these are criminal masterminds making this drug. It’s a shame. There’s probably some rich person in New York that probably [Appellant] works for who’s like, oh, man, my -- . . . . And he’s there and unfortunately these people are here. I
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acknowledge that. But that’s the system. This is the system we live in. Everyone got a fair trial. And that’s the risk that you take when you enter this business.
My colleague, [Appellant’s counsel], and I wrote this down[,] specifically asked you if someone you love sat there and was looking at the evidence in this trial is that enough to convict. How would you feel? He actually asked that twice, his question not mine. Based on that I submit to you a question. If your loved one bought some of that drug, how would you feel?
Appellant’s brief at 27-29 (quoting N.T. Jury Trial, 5/5/23, at 128, 140, 144-
45, 147).
The trial court concluded that “when [the] Commonwealth’s statements
are reviewed in the full context in which [they] were made . . .[,] the
Commonwealth did neither deliberately attempt to destroy the objectivity of
the jury, nor create bias and hostility toward [Appellant].” Trial Court Opinion,
4/17/24, at 33. Rather, it determined that the Commonwealth was fairly
responding “to attacks on the credibility of the Commonwealth’s case.” Id. at
34.
The trial court did not abuse its discretion. Appellant, in his closing
argument, stated that his family was present throughout the trial, that the
police did “shoddy” work, and asked the jurors to consider how they would
feel “if someone you love were facing the same evidence.” See N.T. Jury
Trial, 5/5/23, at 117, 119, 122. The Commonwealth thus fairly rebutted these
sentiments. It also drew a reasonable inference from the evidence when it
posited that Appellant may have procured the fentanyl from someone in New
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York where Appellant stated to Corporal Garcia that he could acquire four extra
kilograms from New York. Jones, 191 A.3d at 835-36. Therefore, this
argument is meritless.
Overall, the Commonwealth presented sufficient evidence for the jury
to convict Appellant of PWID and conspiracy, and the trial court did not abuse
its discretion in rejecting Appellant’s requests to sever his trial from Canela,
allowing opinion testimony from the expert witness, and determining that the
Commonwealth did not make improper statements during closing arguments.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Date: 3/6/2025
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