J-S29043-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUAN MELENDEZ-PEREZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1086 EDA 2017

Appeal from the Judgment of Sentence November 2, 2016

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-CR-0000810-2015

BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 1, 2018

Appellant, Juan Melendez-Perez, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Lehigh County, which, sitting as 

finder of fact in his non-jury trial, found him guilty of three counts of 

Possession with Intent to Deliver a Controlled Substance (“PWID”), three 

counts of Possession of a Controlled Substance, and two counts of Criminal 

Use of a Communication Facility.1 Sentenced to an aggregate term six to 12 

years’ incarceration, Appellant raises alternate challenges to the sufficiency

and the weight of the evidence. We affirm.

The trial court aptly sets forth the facts and procedural history as 

follows:

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1 35 Pa.C.S.A. § 780-115(a)(30), § 780-115(a)(16), and 18 Pa.C.S.A. § 7512, 

respectively. 
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In the spring of 2014, members of the Pennsylvania State Police 

(PSP) Vice and Narcotics Unit were conducting a narcotics 

investigation utilizing a confidential informant (CI). The CI 

provided Trooper Douglas Rex with the full name, address, and 

description of a male that was known to the CI to be a heroin and 

cocaine supplier. The CI stated the man’s street name was 

“Ralfy”3 and that he resided at 428 Front Street, Allentown, Lehigh 

County, Pennsylvania. With this information, Rex was able to 

obtain a photograph, which he showed to the CI. The CI 

confirmed that was the individual he knew to be the supplier. The 

photograph was of the defendant [hereinafter “Appellant”], Juan 

Melendez-Perez.

3 The record contains various spellings of this nickname, including 

Rafi, Rafy, Raffy, and Ralfy. Appellant testified he has a tattoo on 

his neck of “Ralfy,” so [this decision] uses that spelling for 

consistency.

On April 11, 2014, at approximately 12:30 p.m., Trooper Rex met 

with the CI. In the trooper’s presence, the CI place[d] a phone 

call to cellular phone number [***-***-****] and arranged the 

purchase of 1⁄2 ounce of cocaine for $650.00. The CI arranged to 

meet the supplier in the area of the Polish Club at 446 North Front 

Street in Allentown. Rex searched the CI’s person and vehicle and 

found no money or contraband. Rex supplied the CI with $650.0 

in prerecorded U.S. Currency and then followed the CI to the 

Polish Club.

Once at the Police Club, Trooper Rex and other PSP troopers set 

up surveillance on the CI’s vehicle. At approximately 1:21 p.m., 

Rex received a text message from the CI indicating that “Ralfy” 

was walking towards the vehicle. Rex observed the Appellant 

approach the passenger side of the CI’s vehicle and make verbal 

contact with the CI. At approximately 2:15 p.m., two Hispanic 

males arrived in an Acura and pulled behind the CI’s vehicle. The 

Appellant walked away from the CI’s vehicle and met briefly with 

the two Hispanic males behind the Acura. Appellant then walked 

back to the CI’s vehicle and made contact with the CI. Appellant

then walked away, and the CI drove away. Troopers maintained 

constant surveillance on the CI’s vehicle until Rex met up with the 

CI. The CI provided Rex with a clear, plastic bag containing a 
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white pow[d]er substance, which subsequently tested positive for 

cocaine.4

4 Lab results from the Pennsylvania State Police showed the 

substance weighed 13.92 grams and tested positive for cocaine.

On May 15, 2014, at approximately 1:10 p.m., Trooper Rex met 

again with the CI. The CI arranged for the purchase of three 

bundles of heroin from Appellant for $80.00 each. Rex searched 

the CI’s person and vehicle and found no contraband; the CI had 

four $1.00 bills on his person, which were secured by Rex.5 Rex 

provided the CI with $240.000 in prerecorded U.S. Currency. At 

approximately 1:20 p.m., in Rex’s presence, the CI placed a phone 

call to [a different cellular phone number than before], and 

thereafter went to the Polish Club at 446 North Front Street. Rex 

and other troopers followed and set up surveillance. At 1:36 p.m., 

Appellant arrived at the Polish Club and entered the front 

passenger seat of the CI’s vehicle. A few minutes later, Appellant 

exited the vehicle and subsequently entered 428 North Front 

Street. The CI drove away and met with Rex. The CI provided 

Rex with three bundles of suspected heroin. Each bundle 

contained 10 white envelopes stamped with a picture of a baseball 

and the words “Home Run,” held together by yellow and red 

rubber bands. The substance later tested positive for heroin.6

5 The bills were returned to the CI following the controlled buy.

6 Lab results from the Pennsylvania State Police showed the 

substance weighed .69 grams and tested positive for heroin.

On July 2, 2014, at approximately 1:15 p.m., Trooper Rex 

contacted the CI again in order to purchase two bundles of heroin 

from Appellant. Rex searched the CI’s person and vehicle and 

found no money and contraband. Rex provided the CI with 

$160.00 in prerecorded U.S. Currency. Based on information 

received by the CI, the location of this buy was arranged for the 

area of 831 North Jordan Street. Rex and other troopers set up 

surveillance in that area. At approximately 1:30 p.m., the CI 

arrived and parked in front of 831 North Jordan Street. A few 
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minutes later, Appellant exited the front door of the residence at 

831 North Jordan Street and approached the front passenger side 

of the CI’s vehicle. Appellant leaned into the CI’s vehicle for a few 

minutes, then walked back into 831 North Jordan Street.

At approximately 1:42 p.m., Appellant again exited 831 North 

Jordan Street, approached the driver’s side of the CI’s vehicle, and 

leaned into the vehicle for about 10 seconds. Appellant then 

walked north on North Jordan Street and the CI drove away. Rex 

met with the CI, and the CI provided Rex with two bundles of 

suspected heroin, each containing 10 individual envelopes 

stamped with purple and red stars, which later tested positive for 

heroin.7

7 Lab results from the Pennsylvania State Police showed the 

substance weighed .71 grams and tested positive for heroin.

At trial, Appellant testified that he [was unfamiliar with one cell 

phone number the CI called to arrange a buy,] and that [the other 

number] was his brother’s cell phone number. He also testified 

that people often confuse him for his brother.

Trial Court Opinion, 6/2/17, at 1-4.

As noted above, the court found Appellant guilty on all counts and 

sentenced him to an aggregate term of imprisonment of 6 to 12 years. 

Appellant filed timely post-sentence motions challenging his verdict as against 

the weight of the evidence and contending his sentence was excessive. The 

trial court denied these motions on February 28, 2017. This timely appeal 

followed.

Appellant presents the following questions for our consideration:

I. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN 

[APPELLANT’S] CONVICTIONS FOR POSSESSION WITH 

INTENT TO DELIVER AND CRIMINAL USE OF 

COMMUNICATION FACILITY?
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II. WAS THE VERDICT AGAINST THE WEIGHT OF ALL THE 

EVIDENCE IN REGARDS TO THE PROOF OF WHETHER OR 

NOT [APPELLANT] WAS PROPERLY CONVICTED OF 

POSSESSION WITH INTENT TO DELIVER AND CRIMINAL 

USE OF COMMUNICATION FACILITY WHEN THE 

COMMONWEALTH FAILED TO HAVE THE CONFIDENTIAL 

INFORMANT TESTIFY ABOUT [APPELLANT’S] 

INVOLVEMENT IN THE ALLEGED OFFENSES?

Appellant’s brief at 10.

Appellant’s first issue on appeal is a challenge to the sufficiency of the 

evidence. Our review of a sufficiency claim is well-settled:

“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.” 

Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d 958, 963 

(2001), cert. denied, 535 U.S. 1101, 122 S.Ct. 2303, 152 

L.Ed.2d 1059 (2002). It [is] incumbent upon the Superior Court 

to consider all of the evidence introduced at the time of trial, and 

apparently believed by the fact finder[.] “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. Watkins, 577 Pa. 194, 843 A.2d 1203, 1211 

(2003).

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

Appellant centers his sufficiency issue claim on the Commonwealth’s 

alleged failure to establish the identity of the man with whom the CI 

transacted on the dates in question. Specifically, because the CI did not testify 

at trial, Appellant argues, the Commonwealth relied solely on circumstantial 
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evidence that was inadequate to prove Appellant was the person who made 

arrangements with the CI by cell phone and later carried out the transactions 

as planned. We disagree.

At trial, PSP Trooper Rex testified that he personally observed the CI 

engage in drug transactions with the same man on four separate occasions, 

three of which formed the basis for the charges at issue, and the trooper was 

“absolutely positive” that man was Appellant. N.T. 8/5/16 at 74-75, 79-82. 

As noted above, Trooper Rex described in detail the procedures he followed in 

commencing the investigation, which included ascertaining from the CI 

Appellant’s name and address, obtaining a photograph of Appellant based on 

such information, and gaining the CI’s confirmation that the photograph 

depicted the man with whom he transacted. During each surveillance, Trooper 

Rex would compare the dealer to the photograph, and he testified he had 

“absolutely no doubt” he was watching Appellant each time. N.T. at 80, 82.

With regard to Appellant’s main point of contention in both this issue 

and the next, we note there is no requirement that the CI testify at trial, or 

that the Commonwealth provide an electronic recording of the transaction. 

See Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super. 2013) (“The 

Commonwealth enjoys a qualified privilege to withhold the identity of a 

confidential source.”) (quotation omitted). Here, an experienced trooper 

specifically trained to make identifications in the field testified with certainty 

that he observed Appellant supply the CI with heroin on four separate 
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controlled buys.2 As such, we find this evidence, along with the totality of 

evidence presented by the Commonwealth, was sufficient for the fact-finder 

to find Appellant guilty of all possession and PWID charges.

With respect to Appellant’s convictions for criminal use of a 

communications facility, he argues he “was never identified as being on the 

phone with the [CI] for any of the three phone calls that led to the three drug 

transactions. The Commonwealth presented no significant evidence that 

directly tied [Appellant] to those phones or to their specific usage during the 

conversations [in question].” Appellant’s brief, at 18. 

Section 7512(a) of the Crimes Code provides in relevant part “[a] person 

commits a felony of the third degree if that person uses a communication 

facility to commit, cause or facilitate the commission or the attempt thereof 

of any crime which constitutes a felony under this title or under the act of April 

14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device 

and Cosmetic Act.” 18 Pa.C.S.A. § 7512(a) (footnote omitted). Thus, to 

sustain a conviction under Section 7512, the Commonwealth must establish 

beyond a reasonable doubt that

Appellants knowingly and intentionally used a communication 

facility; (2) Appellants knowingly, intentionally or recklessly 

facilitated an underlying felony; and (3) the underlying felony 

occurred.... Facilitation has been defined as “any use of a 

communication facility that makes easier the commission of the 

underlying felony.

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2 To the extent Appellant argues that people often confuse him and his 

brother, with whom he claims to share a strong resemblance, this argument 

goes not to the sufficiency of the evidence but to its weight. 
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Commonwealth v. Moss, 852 A.2d 374, 382 (Pa.Super. 2004) (citations 

omitted).

According to the testimony of Trooper Rex, he watched the CI make 

phone calls to arrange two buys, the CI confirmed he had just spoken to 

Appellant to set up the buy, the buy took place between the CI and Appellant 

as planned, and the CI handed the drugs to Trooper Rex afterward. 

Regardless of whether the CI called a cellphone belonging to Appellant or 

someone else, the evidence established that Appellant used the cellphone 

communications to facilitate two buys. Viewing the evidence in a light most 

favorable to the Commonwealth as verdict winner, this evidence sufficed to 

prove each element of Section 7512(a) beyond a reasonable doubt.

In Appellant’s second issue, he argues that guilty verdicts on both 

counts under Section 7512(a) went against the weight of the evidence, as 

authorities neither heard nor spoke to the individual whom the CI called, and 

neither phone number was directly linked to Appellant. Instead, one number 

was unknown and the other belonged to his brother, whom, Appellant testified 

at trial, people often mistook for him.

A motion for a new trial based on a claim that the verdict is 

against the weight of the evidence is addressed to the discretion 

of the trial court. A new trial should not be granted because of a 

mere conflict in the testimony or because the judge on the same 

facts would have arrived at a different conclusion. Rather, the 

role of the trial judge is to determine that notwithstanding all the 

facts, certain facts are so clearly of greater weight that to ignore 

them or to give them equal weight with all the facts is to deny 

justice. It has often been stated that a new trial should be 

awarded when the jury's verdict is so contrary to the evidence as 
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to shock one's sense of justice and the award of a new trial is 

imperative so that right may be given another opportunity to 

prevail.

Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013) (internal 

quotation marks and citations omitted). 

Our Supreme Court has further clarified that 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. Widmar, 744 A.2d 745, 753 (Pa. 2000)] 

(emphasis added).

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:

The 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 the foundation of reason, as opposed to 
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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.

[Id.]

Clay, supra (some internal citations omitted).

In denying Appellant’s post-sentence motion for a new trial based on 

the weight of the evidence, the trial court noted the following:

[Appellant] has not identified exactly what evidence should have 

been afforded greater weight. However, based on his trial 

testimony, it appears [Appellant] takes issue with Trooper Rex’s 

identification of him, and with the fact that the cellphone numbers 

were not specifically linked to him. First, Trooper Rex positively 

identified [Appellant] as the individual that met with the CI on 

three occasions, and I find his testimony to be credible. Second, 

the CI placed phone calls to the cellphone numbers in question 

and arranged for the purchase of specific quantities of narcotics, 

for a specific cost, and at a specific location. Following the calls, 

[Appellant] was the only individual to meet with the CI at the 

specified location, and the CI was provided with the specified 

quantities of narcotics for the specified amount of cash. It can 

certainly be inferred that [Appellant] was the person receiving the 

phone calls.

Trial Court Opinion, at 6.

After careful review of the certified record, we conclude the trial court 

did not abuse its discretion in denying Appellant’s motion for a new trial. The 

trial court, sitting as finder of fact, was free to find Trooper Rex’s testimony

credible and Appellant’s testimony incredible with respect to the issue of the 

supplier’s identity. See Commonwealth v. Sanchez, 34 A.3d 24, 26–27 

(Pa. 2011) (stating, “[t]he finder of fact ... the jury—exclusively weighs the 
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evidence, assesses the credibility of witnesses, and may choose to believe all, 

part, or none of the evidence[ ]”). Under our standard of review, we may not 

substitute our judgment for that of the fact-finder. Commonwealth v. 

Sinnott, 30 A.3d 1105, 1110 (Pa. 2011). Therefore, discerning nothing in 

the verdict that shocks one’s sense of justice, we conclude Appellant’s weight 

of the evidence claim devoid of merit.

Judgment of sentence is affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/1/18