J. S52007/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DANILO DeJESUS, : No. 2089 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, June 23, 2015,

in the Court of Common Pleas of Lehigh County

Criminal Division at No. CP-39-CR-0004319-2014

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 03, 2016

Danilo DeJesus appeals from the June 23, 2015 aggregate judgment of 

sentence of 5 years’ and 10 months’ to 20 years’ imprisonment imposed 

after a jury found him guilty of two counts of possession with intent to 

deliver a controlled substance (“PWID”), possession of a controlled 

substance, and criminal conspiracy.1 After careful review, we affirm.

The trial court summarized the relevant facts of this case as follows:

On August 4, 2014, around 11:00 [p.m.], 

members of the Allentown Police Department’s Vice 

and Intelligence Unit were conducting a drug 

investigation in the area of American Parkway and 

Hamilton Street in Allentown, Pennsylvania. A 

confidential informant (CI) advised officers that two 

males in a silver Dodge Magnum were bringing a 

 

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S.A. § 903, respectively.
J. S52007/16

- 2 -

large quantity of heroin into Allentown from 

Philadelphia. The CI provided reliable information on 

previous occasions, which led to numerous arrests. 

The CI provided a description of the two males to 

[Detective Evan] Weaver: One was described as a 

bald Dominican with facial hair named Danny, and 

the other was described as a stocky Hispanic with 

dark hair and facial hair.

Officers observed a silver Dodge Magnum and 

a black Toyota Camry parked next to each other in 

front of a club at the American Parkway plaza. 

These were the only two vehicles in that part of the 

lot. There were several children running back and 

forth between the two vehicles. Across the street at 

a bus terminal, officers observed two males 

matching the descriptions given by the CI. The men, 

later identified as [appellant], and co-defendant 

Josue [Massa] were watching the two vehicles across 

the street and were talking on the phone. Both 

vehicles were registered out of Philadelphia. The 

Magnum was registered to Joseline Coss, [Messa’s] 

wife, and the Camry was registered to co-defendant 

Pablo Maya-Rodriguez and an unidentified female.

[Appellant] and [Massa] walked back across 

the street to the Magnum, and [Massa] entered the 

front passenger side and [appellant] entered the rear 

passenger area. Ms. Coss was in the driver[’s] seat 

of the Magnum and Maya-Rodriguez was in the 

driver’s seat of the Camry. Officers approached the 

vehicles and spoke with the occupants. MayaRodriguez and Coss both signed a consent to search 

form for their respective vehicle[s]. Inside the 

Magnum, officers located a small, black digital scale. 

Inside the trunk of the Camry, officers located a gym 

bag containing approximately 500 grams of heroin 

and approximately 100 grams of cocaine.

Trial court opinion, 9/22/15 at 1-3.

On November 12, 2014, appellant was charged with multiple counts of 

PWID, possession of a controlled substance, and criminal conspiracy in 
J. S52007/16

- 3 -

connection with this incident. Appellant proceeded to a jury trial on May 20, 

2015, and was subsequently found guilty of the aforementioned offenses. 

On May 22, 2015, appellant made an oral motion for a new trial based on 

the weight of the evidence, which was denied by the trial court that same 

day. On June 23, 2015, appellant was sentenced to an aggregate term of 

5 years’ and 10 months’ to 20 years’ imprisonment. Appellant did not file 

any post-sentence motions. This timely appeal followed on July 9, 2015.2

On appeal, appellant raises the following issues for our review:

1. DID THE TRIAL COURT ERR IN FAILING TO 

GRANT [APPELLANT’S] REQUESTED POINT FOR 

CHARGE NUMBER THREE: []EVEN IF THE 

PROSECUTOR HAS MADE NO PROMISES, 

EITHER ON THE PRESENT CASE OR IN OTHER 

PENDING CRIMINAL MATTERS, THE WITNESS 

MAY HOPE FOR FAVORABLE TREATMENT FROM 

THE PROSECUTOR IF THE WITNESS 

PRESENTLY TESTIFIES IN A WAY THAT IS 

HELPFUL TO THE PROSECUTION[?]

2. WAS THE VERDICT AGAINST THE WEIGHT OF 

THE EVIDENCE FOR THE FOLLOWING 

REASONS:

A. TWO VEHICLES WERE INVOLVED IN 

THE ALLEGED CONTROLLED 

SUBSTANCE TRANSFER, NEITHER OF 

WHICH BELONGED TO [APPELLANT] 

WHO WAS MERELY A PASSENGER IN 

ONE OF THEM.

B. THERE WAS NO FORENSIC EVIDENCE 

LINKING [APPELLANT] TO THE 

CONTROLLED SUBSTANCES SUCH AS 

FINGERPRINTS OR DNA EVIDENCE.

 

2 Appellant and the trial court have complied with Pa.R.A.P. 1925.
J. S52007/16

- 4 -

C. THE CONTROLLED SUBSTANCES 

WERE NOT IN PLAIN SIGHT AND 

THERE WAS NO PROOF THAT 

[APPELLANT] EVEN KNEW OF THE 

EXISTENCE OF THEM.

D. A COMMONWEALTH EXPERT WITNESS 

TESTIFIED THAT CELL PHONE 

INFORMATION IS OFTEN EVIDENCE 

OF CONTROLLED SUBSTANCE 

DEALING. NO SUCH INFORMATION 

WAS FOUND IN [APPELLANT’S] CELL 

PHONE.

E. THE EVIDENCE AGAINST [APPELLANT] 

WAS MAINLY ACCOMPLICE 

TESTIMONY[?]

Appellant’s brief at 4-5.

Appellant first argues that the trial court erred in denying his request 

to give the following jury instruction with regard to the testimony of 

Commonwealth witnesses Josue Massa and Pablo Maya-Rodriguez:

Even if the Prosecutor has made no promises, either 

on the present case or in other pending criminal 

matters, the witness may hope for favorable 

treatment from the prosecutor if the witness 

presently testified in a way that is helpful to the 

Prosecution.

Id. at 11.

“In reviewing a challenge to the trial court’s refusal to give a specific 

jury instruction, it is the function of this Court to determine whether the 

record supports the trial court’s decision.” Commonwealth v. 

Buterbaugh, 91 A.3d 1247, 1257 (Pa.Super. 2014), appeal denied, 104 
J. S52007/16

- 5 -

A.3d 1 (Pa. 2014) (citation omitted). “[A] trial court has broad discretion in 

phrasing its instructions, and may choose its own wording so long as the law 

is clearly, adequately, and accurately presented to the jury for its 

consideration.” Commonwealth v. Charleston, 94 A.3d 1012, 1021 

(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation 

omitted). “A jury charge will be deemed erroneous only if the charge as a 

whole is inadequate, not clear or has a tendency to mislead or confuse, 

rather than clarify, a material issue.” Commonwealth v. Sandusky, 77 

A.3d 663, 667 (Pa.Super. 2013).

In the instant matter, the trial court determined that appellant’s 

requested instruction was unnecessary in light of its standard jury 

instructions on accomplice testimony and credibility. (Notes of testimony, 

5/21/15 at 183-184, 208-210.) At the close of the evidence, the trial court 

instructed the jury on accomplice testimony at great length, closely 

mirroring Pennsylvania Suggested Standard Criminal Jury Instruction § 4.01.

When a Commonwealth witness is an 

accomplice, his or her testimony has to be judged by 

special precautionary rules. Experience shows that 

an accomplice, when caught, may often try to place 

the blame falsely on someone else. He or she may 

testify falsely in the hope of obtaining favorable 

treatment, or for some corrupt or wicked motive. On 

the other hand, an accomplice may be a perfectly 

truthful witness. The special rules that I will give 

you are meant to help you distinguish between 

truthful and false accomplice testimony.

In view of the evidence of Pablo 

Maya-Rodriguez and Josue Massa’s criminal 
J. S52007/16

- 6 -

involvement, you must regard them as accomplices 

in the crime charged and apply the special rules to

their testimony. 

These are special rules that apply to 

accomplice testimony: First, you should view the 

testimony of an accomplice with disfavor because it 

comes from a corrupt and polluted source; second, 

you should examine the testimony of an accomplice 

closely and accept it only with care and caution; 

third, you should consider whether the testimony of 

an accomplice is supported, in whole or in part, by 

other evidence.

Accomplice testimony is more dependable if 

supported by independent evidence. However, even 

if there is no independent supporting evidence, you 

may still find the defendant guilty solely on the basis 

of an accomplice’s testimony if, after using the 

special rules I just told you about, you are satisfied 

beyond a reasonable doubt that the accomplice 

testified truthfully and the defendant is guilty. 

Notes of testimony, 5/22/15 at 39-40.

The record further reflects that the trial court also instructed the jury 

on the various factors it should consider when judging the credibility of a 

witness, in accordance with Pennsylvania Suggested Standard Criminal Jury 

Instruction § 4.17. These factors included whether “the witness ha[s] any 

interest in the outcome of the case, bias, prejudice, or other motive that 

might affect his testimony.” (Id. at 44.)

Upon review, we conclude that these instructions provided the jury 

with a sufficient framework to consider any possible motives Massa and 

Pablo Maya-Rodriguez may have had in testifying for the Commonwealth. 

This court has long recognized that “[t]he trial court is not required to give 
J. S52007/16

- 7 -

every charge that is requested by the parties and its refusal to give a 

requested charge does not require reversal unless the appellant was 

prejudiced by that refusal.” Commonwealth v. Brown, 911 A.2d 576, 583

(Pa.Super. 2006) (citation omitted), appeal denied, 920 A.2d 830 (Pa. 

2007). Instantly, the trial court’s instructions clearly and accurately set 

forth the applicable law and were neither misleading nor confusing to the 

jury. Accordingly, appellant’s claim that the trial court erred in failing to 

give his requested charge must fail. 

Appellant next argues the trial court erred in denying his motion 

challenging the weight of the evidence. (Appellant’s brief at 12.) 

Specifically, appellant avers the verdict “shocks one’s sense of justice” for 

the following reasons:

Two vehicles were involved in the alleged controlled 

substance transfer, neither of which belonged to 

[appellant] who was merely a passenger in one of 

them.

There was no forensic evidence linking [appellant] to 

the controlled substances such as fingerprints or 

DNA evidence.

The controlled substances were not in plain sight and 

there was no proof that [appellant] even knew of the 

existence of them.

A Commonwealth expert witness testified that cell 

phone information is often evidence of controlled 

substance dealing. No such information was found in 

[appellant’s] cell phone.

The evidence against [appellant] was mainly 

accomplice testimony.
J. S52007/16

- 8 -

Id. at 4-5, 12-13.

“An allegation that the verdict is against the weight of the evidence is 

addressed to the discretion of the trial court.” Commonwealth v. Galvin, 

985 A.2d 783, 793 (Pa. 2009), cert. denied, 559 U.S. 1051 (2010) (citation 

omitted).

[W]here the trial court has ruled on the weight claim 

below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against 

the weight of the evidence. Rather, appellate review 

is limited to whether the trial court palpably abused 

its discretion in ruling on the weight claim.

Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation 

omitted). 

Because 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 that the 

verdict is against the weight of the evidence. One of 

the least assailable reasons for granting or denying a 

new trial is the lower court’s conviction that the 

verdict was or was not against the weight of the 

evidence and that a new trial should be granted in 

the interest of justice. 

This does not mean that the exercise of discretion by 

the trial court in granting or denying a motion for a 

new trial based on a challenge to the weight of the 

evidence is unfettered. In describing the limits of a 

trial court’s discretion, we have explained[,] [t]he 

term ‘discretion’ imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate 

conclusion within the framework of the law, and is 

not exercised for the purpose of giving effect to the 

will of the judge. Discretion must be exercised on 
J. S52007/16

- 9 -

the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. 

Discretion is abused where the course pursued 

represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or 

where the law is not applied or where the record 

shows that the action is a result of partiality, 

prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and 

emphasis omitted).

Upon review, we discern no abuse of discretion on the part of the trial 

court in rejecting appellant’s weight claim. The record reflects that the jury 

in this case was fully aware of the fact that neither vehicle in this case was 

owned by appellant, and that there was no forensic evidence linking 

appellant to the narcotics found in Maya-Rodriguez’s vehicle. Rather, the 

Commonwealth presented testimony from appellant’s co-conspirators at trial 

to support its theory that the drugs in question belonged to appellant. 

Specifically, Massa testified that he and Maya-Rodriguez met up with 

appellant and agreed to drive him to Allentown to sell narcotics to an 

individual named “Peto.” (Notes of testimony, 5/21/15 at 70-74.) 

Maya-Rodriguez further testified that it was appellant who placed the gym 

bag later found to contain heroin and cocaine in the trunk of his vehicle, and 

this contention was reiterated during the testimony of Detective Weaver. 

(Id. at 20-21, 149.) Appellant, on the contrary, testified that the narcotics 

found by police did not belong to him. (Id. at 191, 193.)
J. S52007/16

- 10 -

It is well settled that “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. Caban, 60 A.3d 120, 

132 (Pa.Super. 2012), appeal denied, 79 A.3d 1097 (Pa. 2013) (citation 

omitted). In the instant matter, the jury evidently found the Commonwealth 

witnesses credible and elected not to believe appellant’s version of the 

events. We are precluded from reweighing the evidence and substituting 

our judgment for that of the fact-finder. Clay, 64 A.3d at 1055. 

Accordingly, appellant’s weight claim must fail.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/3/2016