J-S60018-19

*Retired Senior Judge assigned to the Superior Court

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

DAVID ARTURO NUNEZ CISNEROS

Appellant No. 623 MDA 2019

Appeal from the Judgment of Sentence entered February 28, 2019

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0003719-2018

BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED JANUARY 21, 2020

Appellant, David Arturo Nunez Cisneros, appeals from the judgment of 

sentence entered on February 28, 2019 in the Court of Common Pleas of York 

County after a jury convicted him of delivering heroin. 35 P.S. § 780-

113(a)(30). Appellant contends the evidence was insufficient to support the 

verdict. Alternatively, he claims the verdict was against the weight of the 

evidence. Upon review, we affirm.

A review of the record reveals that police officers from the City of York 

conducted a drug “buy/walk” on March 28, 2018 outside a residence located 
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at 832 West Locust Street in York.1 Using a confidential informant (“CI”)2to 

execute the buy, officers were stationed at locations designed to keep the CI 

in view at all times. One of the officers observed Appellant and the CI interact

in front of the residence. However, construction equipment prevented the 

officer from seeing the hands of the two men during their brief interaction. 

Appellant then went back into the residence and the CI returned to the 

unmarked vehicle in which he had been transported to the scene. The CI, 

who had been searched prior to the buy/walk, turned over heroin to the 

officer.

At trial, the Commonwealth offered two witnesses. They were Detective 

Glatfelter, who searched the CI and drove him to the scene, and Sergeant 

Irvin, who observed the CI’s interaction with Appellant. The CI did not testify 

and the trial court delivered a “missing witness” jury instruction at the request 

of the defense. Appellant did not testify and the defense did not present any 

witnesses in its case. 

Following deliberations, the jury found Appellant guilty of delivering 

heroin. On February 28, 2019, the trial court imposed a sentence of one and 

____________________________________________

1 A “buy/walk” is an investigation method in which either a confidential 

informant or a police officer uses recorded money to purchase narcotics while 

under surveillance. Notes of Testimony (“N.T.”), Trial, 1/24/19, at 97-98. 

2 At trial, the CI was not identified by name. However, testimony established 

that the CI was a male. N.T., Trial, 1/24/19, at 101-02. Therefore, when 

referring to the CI in this Memorandum, we shall use “he” and “him.”
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a half to three years’ incarceration. Appellant filed a post-sentence motion 

challenging the weight of the evidence. The trial court denied the motion on 

March 29, 2019. This timely appeal followed. Both Appellant and the trial 

court complied with Pa.R.A.P. 1925. 

Appellant asks us to consider two issues in this appeal, both of which he 

frames as statements rather than questions, as follows:

1. The evidence was insufficient beyond a reasonable doubt to 

convict Appellant of Delivery of Drugs. Even taking the 

evidence in [the] light most favorable to the Commonwealth, 

the search of the [CI] prior to and after a “buy-walk” situation 

failed to demonstrate the CI did not already have or did not 

obtain drugs from another source. Moreover, the observations 

of the “buy-walk” between the [CI] and Appellant failed to 

demonstrate that [an] actual drug transaction occurred 

between the two.

2. The trial court erred in denying Appellant’s request for a new 

trial. The weight of evidence did not prove Appellant delivered 

heroin to a [CI] during a “buy-walk” because (1) the testimony 

of the search of the [CI] before and after the “buy-walk” did 

not demonstrate the informant did already not have or did not 

obtain drugs from another source, and (2) the testimony of the 

“buy-walk” between the informant and Appellant failed to 

demonstrate that an actual drug transaction occurred between 

the two. 

Appellant’s Brief at 5. 

In his first issue, Appellant challenges the sufficiency of evidence. Our 

standard of review for a sufficiency challenge is as follows: 

When reviewing the sufficiency of the evidence, an appellate court 

must determine whether the evidence, and all reasonable 

inferences deducible from that, viewed in the light most favorable 

to the Commonwealth as verdict winner, are sufficient to establish

all of the elements of the offense beyond a reasonable doubt. It 

[is] incumbent upon the Superior Court to consider all of the 
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evidence introduced at the time of trial, and apparently believed 

by the fact finder, including the expert’s testimony. In applying 

this standard, [the reviewing court must] bear in mind that: the 

Commonwealth may sustain its burden by means of wholly 

circumstantial evidence; the entire trial record should be 

evaluated and all evidence received considered, whether or not 

the trial court’s ruling thereon were correct; and the trier of fact, 

while passing upon the credibility of witnesses and the weight of 

the proof, is free to believe all, part, or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007) (internal 

citations and quotations omitted; second alteration in original). “Because 

evidentiary sufficiency is a question of law, our standard of review is de novo 

and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 

119, 126 (Pa. 2013) (citation omitted).

Appellant focuses his sufficiency challenge on specific aspects of the 

officers’ actions and testimony. With respect to Detective Glatfelter, for 

example, he complains that the detective offered testimony explaining his 

general procedure in conducting the search of a CI, rather than what he did 

specifically in his search of the CI in this case, and questions the detective’s 

failure to check the CI’s underwear. However, as the detective explained, he 

conducts approximately 500 controlled buys in a year—some with CIs and 

some without—and he employs a certain routine depending on how the CI 

presents, e.g., whether he is wearing a hat, in which case he checks the hat 

band, and whether his clothes are bulky, in which case he pats down the 

clothing. N.T., Trial, 1/24/19, at 104. And, while he has seen drugs hidden 

in underwear, he does not generally search areas that cannot be easily 
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accessed. As the detective noted, the CI is under surveillance and the officers 

can see what the CI is doing. Id. at 103. “We’re not going to search 

somebody, do a cavity search where they may have to walk down the street 

and dig into their rectum to pull out drugs to later try to pass off as what they 

bought.” Id. 

With respect to Sergeant Irvin, Appellant complains that the detective 

did not witness an actual hand-to-hand transaction, i.e., the delivery of the 

controlled substance, because his view of the CI’s and Appellant’s hands was 

blocked by construction equipment. However, from his vantage point 

approximately twenty feet away, the sergeant did observe the CI and 

Appellant engage in a brief interaction lasting five to ten seconds at a distance 

of one foot to a foot and a half. Id. at 146-47. He was able to see that their 

arms were moving and that they were looking down at their hands. Id. at 

147. Importantly, testimony established that this interaction was the only 

interaction in which the CI was engaged from the time he left Detective 

Glatfelter’s car until he returned to it. Id. at 147. 

It is well established that “the Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt by means of 

wholly circumstantial evidence.” Commonwealth v. Ellison, 213 A.3d 312, 

319 n. 2 (Pa. Super. 2019) (quoting Commonwealth v. Roberts, 133 A.3d 

759, 767 (Pa. Super. 2016)). Viewing the evidence in a light most favorable 

to the Commonwealth as the verdict winner, we conclude there was sufficient 
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evidence for the jury to conclude that Appellant delivered heroin without 

authority to do so in violation of 35 P.S. § 780-113(a)(30). Appellant’s 

sufficiency challenge fails.

In his second issue, Appellant asserts that the verdict was against the 

weight of the evidence, a claim he preserved for review by raising it in a postsentence motion.3

 As our Supreme Court has instructed:

An appellate court’s standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review

applied by the trial court:

Appellate review of a weight claim is a review of the exercise 

of discretion, not of the underlying question of whether the 

verdict is against the weight of the evidence. 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting Widmer, 

744 A.2d at 753 (internal citations omitted) (emphasis in original)). 

In its Rule 1925(a) opinion, the trial court commented:

When examining the evidence presented at trial, there was 

sufficient evidence for a jury to find [Appellant] guilty beyond a 

reasonable doubt. The CI was under constant surveillance during 

____________________________________________

3 We note that “[a] motion for new trial on the grounds that the verdict is 

contrary to the weight of the evidence, concedes that there is sufficient 

evidence to sustain the verdict.” Commonwealth v. Widmer, 744 A.2d 745, 

751 (Pa. 2000). 
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the buy-walk and did not interact with any person other than 

[Appellant]. Detective Glatfelter searched the CI immediately 

before the buy and no drugs were found on the CI. The CI was 

also searched upon returning to the vehicle and, other than the 

heroin turned over to Glatfelter as a result of the buy, no drugs 

were found as a result of that search of the CI. 

Rule 1925(a) Opinion, 6/27/19, at 8.

Further, following argument on Appellant’s post-sentence motion, the 

trial court announced:

Essentially what this comes down to in this trial is a credibility 

determination. The – because the defense did some effective 

cross examination there, the jury could have chosen to find that 

the officers’ memory was faulty and that they were going to 

choose not to find that there was an adequate search, but they 

didn’t.

The evidence in the case was not so strong that that was the only 

conclusion, however. It doesn’t rise to the level that, as the 

defense argues, that there was a serious miscarriage of justice or 

that there was only one conclusion that there could have been –

that there was an inadequate search. 

[E]ven in her own argument right now, [] the defense counsel 

invoked the key word, credibility. It’s a credibility determination. 

That’s up to the jury. The judge does not replace their view of 

credibility for that of the jury. 

Under the rule cited by the defense, if it does rise to the level that 

these is a serious miscarriage of justice, in other words, if there is 

a verdict against the weight of the evidence, the court can 

intervene. The court doesn’t find that the verdict was against the 

weight of the evidence.

N.T., Post-Sentence Motion, 3/29/19, at 8-9 (some capitalization omitted).

Having given due consideration to the findings and reasons advanced 

by the trial court, we discern no abuse of discretion in the trial court’s denial 
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of Appellant’s motion for a new trial based on weight of the evidence. 

Therefore, Appellant’s second issue fails.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/2020