Commonwealth v. Serrano

61 A.3d 279, 2013 Pa. Super. 19, 2013 WL 617051, 2013 Pa. Super. LEXIS 66
CourtSuperior Court of Pennsylvania
DecidedFebruary 4, 2013
StatusPublished
Cited by71 cases

This text of 61 A.3d 279 (Commonwealth v. Serrano) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Serrano, 61 A.3d 279, 2013 Pa. Super. 19, 2013 WL 617051, 2013 Pa. Super. LEXIS 66 (Pa. Ct. App. 2013).

Opinion

OPINION BY

ALLEN, J.:

Michael Serrano (“Appellant”) appeals from the judgment of sentence imposed after he was found guilty of delivery of a controlled substance (cocaine), possession of a controlled substance with intent to deliver/delivery (heroin), criminal conspiracy to possess with intent to deliver and/or deliver cocaine and heroin, and criminal [282]*282use of a communications facility.1 We vacate in part and affirm in part.

The pertinent facts may be summarized as follows: Between September 2009 and April 2010, law enforcement officers from the City of Altoona Police Department and the Pennsylvania Office of the Attorney General conducted multiple controlled purchases of cocaine from an individual named Marisa Moser. In conducting these transactions, the law enforcement officers utilized a confidential informant and/or undercover officers to purchase the cocaine. N.T, 10/24/11, at 41-209; N.T., 10/25/11, at 9-39. Ms. Moser obtained the cocaine from Gene Carter, which she then unwittingly supplied to the confidential informant or the undercover police officers. Id. Mr. Carter was repeatedly observed by police officers at the location of the cocaine transactions involving Ms. Moser. Id.

In May 2010, based on their surveillance of Mr. Carter and Ms. Moser, the City of Altoona Police Department and the Pennsylvania Office of the Attorney General sought to intercept Mr. Carter’s telephone communications. On May 10, 2010, this Court entered an order permitting electronic surveillance. N.T., 10/25/11, at 110-112. Electronic surveillance commenced on May 11, 2010 until May 21, 2010, during which law enforcement officials recorded telephone conversations where Appellant was heard conducting transactions for the sale of heroin to Mr. Carter. Id. at 110-156.

On November 10, 2010, Appellant was charged by grand jury presentment. Appellant was subsequently arrested. A criminal information was filed against Appellant on February 2, 2011, charging him as follows:

Count 1: Delivery of a controlled substance: That [Appellant] did unlawfully, willfully and feloniously deliver a controlled substance; that is, on May 12, 2010, in Philadelphia Pennsylvania, [Appellant] ... did feloniously deliver heroin.
Count 2: Possession with intent to deliver a controlled substance: That [Appellant] did unlawfully, willfully and feloniously possess with intent to deliver a controlled substance; that is, between, on or about April 2010 and May 21, 2010, in Philadelphia, Pennsylvania, [Appellant] ... did possess with intent to deliver heroin.
Count 3: Criminal Conspiracy: That [Appellant] did agree with one or more other persons that they ... would engage in conduct which constitutes a crime ...; that is, between on or about April 2010 and July 2010 in Philadelphia, Pennsylvania, [Appellant] did conspire and agree with Gene Carter and others that they ... would engage in conduct constituting the crime of possession with intent to deliver a controlled substance in Blair County, Pennsylvania, and in pursuance of such conspiracy one or more overt acts were committed.
Count 4: Criminal Use of a Communication Facility: [Appellant] did use a communication facility to commit ... delivery of a controlled substance ...; that is between the approximate dates of May 11, 2010 and May 21, 2010, [Appellant] did use a telephone to facilitate the delivery of controlled substances in Philadelphia and Blair County, Pennsylvania....

Criminal Information, 2/2/11, at 1-2 (emphasis added).

On February 10, 2011, the Commonwealth filed a notice pursuant to Pa.R.Crim.P. 582, informing Appellant that he [283]*283would be tried with Mr. Carter.2 On August 16, 2011, Appellant filed a pre-trial motion to have his case severed from Mr. Carter’s. The Honorable Elizabeth A. Doyle of the Blair County Court of Common Pleas conducted a hearing on Appellant’s motion on August 22, 2011. On August 26, 2011, Judge Doyle entered an order denying Appellant’s severance motion.

On October 24, 2011, a jury trial commenced in the Court of Common Pleas of Blair County before The Honorable Thomas G. Peoples, Jr. At the conclusion of trial on October 27, 2011, after Appellant’s counsel made his closing statements, and prior to the issuance of jury instructions, the Commonwealth made an oral motion to amend the pre-printed verdict slip pertaining to Appellant. N.T., 10/27/11, at 145-148. Specifically, the Commonwealth explained that Count 1 on the verdict slip incorrectly stated that Appellant was charged with delivery of cocaine rather than heroin. Id. Additionally, the Commonwealth sought to amend the verdict slip at Count 3 to have it include crimes committed in Blair County (in addition to Philadelphia, Cehtre, and Cambria counties, as listed on the verdict slip). Appellant’s counsel objected. The trial court denied the Commonwealth’s motion. Id.

On October 27, 2011, the jury entered the following guilty verdicts against Appellant:

Count 1: Delivery of a Controlled Substance, namely cocaine, a schedule II controlled substance, on or about May 12, 2010, within Philadelphia County for distribution in Blair County, Pennsylvania.
Count 2: Possession With Intent to Deliver a Controlled Substance/Delivery of a Controlled Substance, namely heroin, a schedule I controlled substance, between or about April, 2010 and May 21, 2010, within Philadelphia County for distribution in Blair County-
Count 3: On the charge of Criminal Conspiracy with Gene Carter and others (to Possess With Intent to Deliver and/or Deliver a Controlled Substance, namely cocaine and heroin), between April 2010 and July 2010, within Philadelphia, Centre and Cam-bria Counties, Pennsylvania.
Count 4: Criminal Use of a Communications Facility, between May 11, 2010 and May 21, 2010.

Verdict Slip, 10/27/11, at 1-2.

Appellant filed a motion for judgment of acquittal notwithstanding the verdict on December 6, 2011. In his motion for acquittal, Appellant argued that his case should have been severed from Mr. Carter’s, and that the verdicts at Count 1 and Count 3 were against the weight of the evidence because- the Commonwealth presented no evidence or testimony that Appellant engaged in any cocaine transactions. Accordingly, Appellant requested the trial court enter a verdict of not guilty at Counts 1 and 3, or in the alternative, grant him a new trial. The trial court denied Appellant’s motion on December 22, 2011.

On March 15, 2012, the trial court sentenced Appellant to ten to thirty years of imprisonment on the charge of delivery of cocaine, a consecutive ten to thirty years for possession with intent to deliver/deliv[284]*284ery of heroin, a consecutive seven and one-half to fifteen years for criminal conspiracy (cocaine and heroin), and a consecutive three and one-half to seven years for criminal use of a communications facility. No post-sentence motions were filed.

Appellant filed a notice of appeal on April 13, 2012. The trial court did not direct Appellant to comply with Pa.R.A.P. 1925.

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Bluebook (online)
61 A.3d 279, 2013 Pa. Super. 19, 2013 WL 617051, 2013 Pa. Super. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-serrano-pasuperct-2013.