Com. v. Cespede, J. ( 2019 )

J-A01031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE E. CESPEDE :
:
Appellant : No. 3178 EDA 2016
Appeal from the Judgment of Sentence August 30, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004559-2015
BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 14, 2019
Jose E. Cespede appeals from the judgment of sentence entered
following his jury-trial convictions for possession with intent to deliver a
controlled substance (“PWID”) and conspiracy to commit PWID. Cespede
challenges the trial court’s denial of his motion to suppress and the sufficiency
of the evidence to support the convictions. We affirm.
Cespede was arrested in March 2015 in connection with the manufacture
and distribution of heroin.
The trial court set forth the following factual history:
Multiple credible witnesses testified and direct and
circumstantial physical evidence [was] introduced that
amply demonstrated that . . . Cespede, had been actively
involved as a remorseless high level heroin manufacturer
and trafficker. The sworn testimony introduced from various
Federal Special Agents, state and county police officers
assigned to Homeland Security Investigations, referred to
as “H.[S.I.],” established that a three year investigation,
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coordinated by investigative agencies, had begun in May
2012, focusing on the heroin packaging and transportation
“mills” and organizations operating predominantly by
persons born in the Dominican Republic in Philadelphia area.
This collective investigative intelligence had been largely
based upon surveillances of drug trafficking behaviors
combined with reliable confidential, multi-sourced
information. This concerted investigation led to the related
arrests of multiple persons including [Cespede] on at least
one earlier occasion and the previous confiscation of at least
492 grams of heroin.
On March 3, 2015, two reliable confidential sources led
these same investigators to surveil a dark-skinned male,
nicknamed “Papi,” later identified as Simeon Gonzalez, a
native of the Dominican Republic. Papi had reportedly been
operating numerous heroin packing “mills” at specified
residences (specifically 5440 Rutland Street and 5144
Whitaker Avenue [(“Whitaker House”)] in Philadelphia) with
other males from the Dominican Republic, and using a
brown Honda Accord PA registration HHW-5453 to transport
the narcotics. On that date, H.[S.I.] Special Agents and
others set up observation posts and videotaped the
surveillance of Papi in the surrounding Cheltenham and
Rutland Streets in Philadelphia.
At approximately 10:57 a.m., agents observed Papi exit the
5440 Rutland Street house and enter the targeted brown
Honda Accord. Papi was followed to the corner of Whitaker
and Smylie Streets where he parked the Accord and entered
[the Whitaker House]. After Papi’s entry into the real
property, agents observed a red Honda Sedan stop in front
of [the Whitaker House]. They saw a second Hispanic male,
identified initially as “HM#2,” check the mailbox in front of
the property at [the Whitaker House] and walk inside
through the same door previously used by Papi and others.
Shortly thereafter, HM#2 exited the property and conducted
his own counter-surveillance for law enforcement. After
HM#2 stared at the positioned surveillance units, he walked
quickly toward Harkness Street and appeared to text on his
cell phone while checking parked vehicles on the block. He
then crossed the street on foot before returning to enter
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[the Whitaker House]. Agents realized that HM#2 detected
law enforcement.[1]
Shortly after conducting his counter-surveillance measures,
HM#2 exited [the Whitaker House] carrying at least one
large sporty duffel bag, a baseball bat and glove. He walked
with these items to the front of a gold Chrysler minivan
which had been parked at 5156 Melbus Street (located to
the rear of [the Whitaker House]) and walked away empty-
handed down an alley. During the attempt to view the
activities of HM#2, agents noticed that Papi’s Honda Accord
had also left the area. Agents summoned a certified and
markedly reliable K-9 drug sniffing dog “Spike” and his
handler, Police Officer John Callahan[,] to conduct an
exterior sniff of the minivan. Spike immediately signaled the
presence of the illegal narcotic substances within the van.
As surveillance units were attempting to process the
minivan, the brown Honda Accord that was previously seen
being driven and parked by Papi, returned to the area and
literally interrupted police in the middle of the street. This
vehicle was stopped to prevent flight in the middle of the
street just outside of [the Whitaker House]. Papi, who later
identified himself as Simeon Gonzalez from the Dominican
Republic with a residence in New York, was the driver. Two
additional occupants of the brown Honda were Dalton
Morinta-Abreu who was identified by agents as HM#2, who
had been viewed earlier carrying the subject duffle bags and
conducting counter-surveillance after exiting [the Whitaker
House], and [Cespede] as a rear-passenger who identified
himself as Jose Cespede.
Special Agent Edward Troy, one of the investigators at the
scene, recognized the rear passenger in the brown Honda
Accord as [Cespede] who previously identified himself as
Jose Ernesto Cespede-Gonzalez, a registered Legal
Permanent Resident from the Dominican Republic living in
Wildwood New Jersey, from a preceding arrest involving the
heroin mill operation at 7409 Oxford Avenue in Philadelphia
on February 27, 2[01]4. This Agent also recalled that
____________________________________________
1The agents testified that they suspected that their surveillance was detected,
but did not know whether the individuals suspected law enforcement or a rival
drug gang. N.T., 4/28/16, at 19, 50.
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[Cespede] had been seen during the prior surveillance two
years earlier operating the same Chrysler Minivan that was
now holding the processed heroin filled duffle bags.
The registered owner to the brown Honda Accord was none
of the occupants. The three occupants, including [Cespede]
as rear passenger, were temporarily detained pending the
obtaining of search warrants and further investigation. A
valid consent to search the brown Honda Accord was duly
obtained from the driver Papi. A pat down of the three
individuals in the Honda Accord was conducted for the safety
of the officers.
The keys to the front door of [the Whitaker House] were
retrieved from Dalton Morinta-Abreu’s person. A single
Chrysler key with fob was found on [Cespede’s] person.
Subsequent to the consent to search, agents located and
retrieved three cell phones in the front are[a] of the Accord,
various paperwork for the brown Honda’s repairs and the
sweat shirt that Mr. Abreu had been wearing earlier. A State
of New Jersey Driver’s License with [Cespede’s] photograph
and listing the Wildwood, New Jersey residence was
produced by [Cespede] as identification along with
$1000.00 United States Currency.
In the back seat, next to where [Cespede] had been seated,
an Under Armour back pack was retrieved and later found
to contain the following items: medical paperwork reflecting
liposuction costing $30,000.00 for Jose Cespede as the
patient; a Dominican Republic election card with
[Cespede’s] photograph in the name of Jose Ernesto
Cespede Gonzalez; a PECO bill in the name of Jose Cespede
listing the same Oxford Avenue Philadelphia address where
Cespede had been arrested in connection with heroin
distribution in 2014; the American Insurance Company
receipt for the targeted 2006 Chrysler Minivan placed in the
name for the registered owner Korey Devaughn; flight tags
and receipts in the name of Jose Cespede with Jet Blue
Airways; a child support Order issued to Jose Cespede by
the Superior Court of New Jersey with hearing notice; TD
Bank receipts for Jose Cespede; a key ring and a piece of
cardboard with handwriting listing names and varied dollar
amounts up to $39,0000.00 per person similar to the drug
ledgers writing samples found in the apartment at [the
Whitaker House].
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The key fob that had been removed from [Cespede’s]
person, caused the targeted gold Chrysler minivan lights to
turn on and off upon application. This Chrysler key fob was
later used to click open the minivan after the Search
Warrant for the Chrysler minivan had been obtained.
Inside the backpack positioned next to where [Cespede] had
been seated in the brown Honda Accord was paperwork
reflecting the American Insurance Company receipt for the
targeted 2006 Chrysler Minivan placed in the name for the
registered owner Korey Devaughn.
Separate from the automobile stop, immediately after
Spike, the reliable working detection dog, had reacted to the
minivan other agents obtained Search and Seizure Warrants
Numbers 179642 and 179643. Special Agent Richard
Gramlich was the affiant and the Honorable Bradley Moss as
duly elected Judge of the Municipal Court for the First
Judicial District of Pennsylvania signed and authorized the
searches on March 3, 2015[,] authorizing the search, after
review and approval of the probable cause section of each
warrant. The warranted search was executed upon the
targeted Gold Chrysler Minivan and the real property located
at [the Whitaker House]. Following execution, the two
sporty duffle bags that had been previously observed as
transported and deposited by HM#2, identified as Honda
Accord passenger Dalton Morinta-Abreu, were confiscated
from the subject minivan. Also confiscated from the minivan
were rental receipts in the name of Mark Escobar and bills
for the same listed apartment as the receipt in the name of
[Cespede] as Jose Cespede Gonzalez.
The large sporty duffle bags retrieved from the minivan
contained in excess of 1250 grams of cut heroin in various
forms, along with numerous heroin coated items including:
Scotch whiskey containers, glassine packets; straws; coffee
grinders; platinum tins; ink pads and stamps; metal sifters;
freezer bags and assorted containers commonly used by
drug traffickers to package, weigh, sort, stamp, cook and
cut and distribute heroin. Inside the apartment located at
[the Whitaker House], numerous boxes of similar narcotics
processing items were retrieved along with itemized hand
written ledgers matching the ledgers found in the back pack
containing [Cespede’s] documents. Additionally, eleven
cellular telephones, a Garmin GPS device, bags of
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respiratory masks, additional sporty duffle bags, Samsung
tablet, miscellaneous documents, a metal PA License Plate,
and $4,200.00 were found and confiscated. Because the
atmosphere inside the apartment was so toxic, the air born
substances had been bagged together after protective gear
was provided to law enforcement. No evidence of any
normal residential living quarters was located within the real
property [at the Whitaker House].
All of the physical evidence was collected, field tested,
inventoried and assigned to at least twenty four Property
Receipts and subsequently formally examined by the Police
Chemical Lab and processed. At trial, expert testimony was
introduced concerning the common methods and
instruments used by heroin processing mills and distributors
and the estimated overall street value of the bulk heroin
confiscated in this case was over $412,520,000.00.
Trial Court Opinion, filed June 6, 2018, at 5-10 (“1925(a) Op.”).
The affidavit of probable cause in support of the application for a search
warrant for the minivan stated that an investigation of a heroin mill
organization started on or about May 2012, and that the information from this
investigation caused the officers to identify and target a male known as “Papi”
in 2015. It detailed the surveillance set forth above, including the actions of
the individuals under surveillance, the canine sniff, the stop of the Honda
Accord, and that a key fob found on Cespede activated the minivan.
Cespede filed a motion to suppress the physical evidence, challenging
the car stop, pat-down search, retrieval of the car key and use of the key fob,
and the search warrants.2 After a hearing on the motion to suppress, the trial
court denied the motion.
____________________________________________
2Although the certified record does not contain the motion to suppress, the
hearing on the motion detailed the arguments.
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The case proceeded to a jury trial. The jury found Cespede guilty of
PWID and conspiracy, but acquitted him of use or possession of drug
paraphernalia. On August 30, 2016, the trial court sentenced Cespede to an
aggregate term of ten to 30 years’ incarceration.
Cespede filed a post-sentence motion, which the trial court denied.
Cespede filed a timely notice of appeal.
Cespede raises the following issues:
I. Whether the stop and frisk of [Cespede] violated Article I,
Section 8 of the Pennsylvania Constitution and the Fourth
Amendment of the Constitution of the United States where
the uncontradicted evidence indicates no individualized,
objective basis for the agent to conclude that [Cespede] was
armed and dangerous and whether the evidence derived
from the illegal stop and frisk must be suppressed as fruit
of the poisonous tree?
II. Whether the evidence was sufficient to prove that
[Cespede] actually or constructively possessed with intent
to deliver more than 1000 grams of heroin or conspired with
unidentified persons to do so as charged in counts one and
two of the Information?
III. Whether the evidence was insufficient to prove that
[Cespede] conspired with unidentified persons to possess
with intent to deliver heroin as charged in count two?
Cespede’s Br. at 3-4.
I. The Court Did Not Err in Denying Motion to Suppress.
In his first issue, Cespede challenges the denial of his motion to
suppress. He argues that the police officers lacked an individualized, objective
basis to believe he was armed and dangerous and that an individual’s location,
standing alone, does not provide sufficient grounds for a protective search.
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Cespede claims that “discovery of the key fob was direct fruit of the unlawful
stop and frisk” and that “[p]ressing the key fob was another” constitutional
violation “since it violated what the Commonwealth alleged was [Cespede’s]
possessory interest in the gold minivan and his right to privacy.” Cespede’s
Br. at 21. He further claims the “heroin found in the gold minivan is fruit of
the poisonous tree to the extent the Commonwealth linked the heroin to
[Cespede] through the unlawful searches and seizures leading to discovery of
the key to the vehicle on [Cespede’s] person.” Id.
Our standard of review on appeal of the denial of a motion to suppress
is limited to determining “whether the record supports the suppression court’s
factual findings and the legitimacy of the inferences and legal conclusions
drawn from those findings.” Commonwealth v. Griffin, 24 A.3d 1037, 1041
(Pa.Super. 2011) (quoting Commonwealth v. Lohr, 715 A.2d 459, 461
(Pa.Super. 1998)). If the record supports the factual findings of the trial court,
we reverse “only if there is an error in the legal conclusions drawn from those
factual findings.” Id. (citation omitted).
“[T]he [F]ourth [A]mendment to the United States Constitution as well
as Article I, § 8 of the Pennsylvania Constitution protect citizens from
‘unreasonable searches and seizures.’” Commonwealth v. Simmons, 17
A.3d 399, 402-03 (Pa.Super. 2011) (quoting Commonwealth v. Baer, 654
A.2d 1058, 1059 (Pa.Super. 1994)). A warrantless search or seizure is
unreasonable “unless conducted pursuant to specifically established and well-
delineated exceptions to the warrant requirement.” Id. at 403 (quoting Katz
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v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)).
“One such exception, the Terry[3] ‘stop and frisk,’ permits a police officer to
briefly detain a citizen for investigatory purposes if the officer ‘observes
unusual conduct which leads him to reasonably conclude, in light of his
experience, that criminal activity may be afoot.’” Id. (quoting
Commonwealth v. Fitzpatrick, 666 A.2d 323, 325 (Pa.Super. 1995)).
Further, “‘[w]hen an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or to others’ the officer may conduct a pat down
search ‘to determine whether the person is in fact carrying a weapon.’” Id.
(quoting Terry, 392 U.S. at 24).
Search warrants “may only issue upon probable cause and ‘[t]he issuing
authority, in determining whether probable cause has been established, may
not consider any evidence outside the affidavits.’” Commonwealth v. Leed,
186 A.3d 405, 413 (Pa. 2018) (quoting Pa.R.Crim.P. 203(B)). “Probable cause
exists where the facts and circumstances within the affiant’s knowledge and
of which he has reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that a search
should be conducted.” Id. (quoting Commonwealth v. Johnson, 42 A.3d
1017, 1031 (Pa. 2012)). Further, “[t]he affidavit of probable cause ‘must
provide the magistrate with a substantial basis for determining the existence
____________________________________________
3 Terry v. Ohio, 392 U.S. 1, 24 (1968).
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of probable cause[.]’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 239, 103
S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). In addition, where a search warrant is
based on inaccurate information, we have held that “courts may uphold a
warrant if an independent basis exists to support a finding of probable cause;
however, . . . a court must invalidate a search warrant if the sole basis for
finding probable cause is the material misstatements.” Commonwealth v.
Antoszyk, 985 A.2d 975, 982 (Pa.Super. 2009) (emphasis omitted).
A. Reasonable Suspicion
Following the suppression hearing, the trial court found the officers had
reasonable suspicion to stop the vehicle and to conduct a pat-down search for
the officer’s protection. N.T., 4/28/16, at 90.
We agree. Based on surveillance of the driver of the Honda Accord and
of a house associated with the car and minivan, and the results of a canine
sniff of the minivan, the police officers reasonably suspected the minivan to
contain narcotics. While waiting the approval of a search warrant for the
minivan, the Honda Accord returned. Based on their prior experience, the
officers were concerned that the car’s occupants either knew the police officers
were surveilling them or believed the police officers were a rival drug gang.
This provided reasonable suspicion that the car’s occupants, including
Cespede, were armed and dangerous and justified the protective search.
Cespede relies, in part, on Commonwealth v. Grahame, 7 A.3d 810
(Pa. 2010), and Ybarra v. Illinois, 444 U.S. 85 (1979), for the proposition
that the officers lacked individualized suspicion to search him. In Grahame,
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the Pennsylvania Supreme Court found the police officers lacked reasonable
suspicion to search the defendant’s handbag solely based on her presence in
the residence of another individual who sold illegal drugs outside the
defendant’s presence. 7 A.3d at 817. There, the officer “conducted a
protective search of [the defendant’s] purse based on a generalization that
firearms are commonly found in close proximity to illegal drugs.” Id. In
Ybarra, police officers were executing a search warrant of a tavern based on
probable cause that “Greg” was selling narcotics from the tavern. 444 U.S. at
88. The officers conducted a “cursory search for weapons” of all individual
located in the tavern, including the defendant, who was a tavern patron. Id.
The United States Supreme Court found the search of the defendant was
unconstitutional, noting the police did not recognize the defendant and had no
reason to believe he had committed or was committing any offense, the
defendant made no movements to suggest he was concealing contraband, and
he said nothing of a suspicious nature to the officer. Id. at 91. The court noted
that “a person’s mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable cause to search
that person.” Id.
Here, unlike in Grahame and Ybarra, the protective search was not
based merely on presence or on a generalization that firearms follow drugs.
Rather, the officers were investigating a drug mill involving multiple
individuals in the car and believed that the individuals detected their
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surveillance, and either knew of the officers’ presence or believed the officers
to be a rival drug gang.4
B. Key Fob
Cespede also challenges the officer’s use of the fob, claiming the use
“violated Article I, Section 8 and the Fourth Amendment since it violated what
the Commonwealth alleged was [Cespede’s] possessory interest in the gold
minivan and his right to privacy.” Cespede’s Br. at 21.5
We conclude that we need not reach this issue, as sufficient probable
cause supported the search warrants, and the driver of the Honda Accord
consented to the search of the Honda.
Where a search warrant is based on inaccurate information, “courts may
uphold a warrant if an independent basis exists to support a finding of
probable cause.” Antoszyk, 985 A.2d at 982. In Commonwealth v.
Harvard, we concluded that the use of a key fob found at a robbery scene did
____________________________________________
4 The police officers testified that they conducted the pat-down search of
Cespede before Special Agent Troy recognized Cespede as someone who had
driven the minivan in the past and had previously been arrested in connection
with the investigation. N.T., 4/28/16, at 23, 30. Because the frisk occurred
before Special Agent Troy saw Cespede and the agents do not claim this
recognition was a basis for the search, id. at 49, we also do not rely on it as
a basis to support the protective search.
5 Cespede does not argue on appeal that the officer violated his rights when
the officer retrieved the key from his person. He argues the police officer
lacked reasonable suspicion to conduct a protective search and violated his
rights when the officer used the key fob.
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not constitute a search, but, even if it did constitute a search,6 the “use of the
key fob was immaterial to [the officer’s] ability to obtain the warrant” for the
residence. 64 A.3d 690, 695-96 (Pa.Super. 2013). We noted the officer had
identified the defendant from surveillance videos and his driver’s license
photo, the defendant became a suspect by using a robbery victim’s ATM card,
and the officer confirmed Harvard’s “connection to the vehicle through . . .
observations of [the defendant] using the vehicle.” Id. at 696. The key fob
“provided additional evidence linking [the defendant] to the home invasion,
but it was superfluous for purposes of obtaining the warrant.” Id.
Here, we conclude that, even if the retrieval of the key and use of the
fob constituted violations, no evidence would have been suppressed. The
search of the Honda Accord was based on consent of the driver and the
searches of the minivan and Whitaker House were based on warrants
supported by probable cause.
The trial court found:
[It] reasonably determined that the admission of all physical
evidence confiscated from the targeted brown Honda Accord
and its occupants, the Chrysler Minivan and its contents,
and the real property located at [the Whitaker House], was
completely reasonable. The receipt of credible confidential
____________________________________________
6 In Harvard, this Court found use of a key fob did not constitute a search
requiring a search warrant. 64 A.3d at 695-96. There, police recovered a key
fob from the location of a robbery, and used that fob to activate a vehicle
suspected to be used by the perpetrator of the robbery. Id. at 695. This Court
found use of the key fob did not constitute a search, noting the officer did not
use the fob to gain entry to any concealed portion of the car. Id. at 696.
Rather, the “key fob simply enabled [the officer] to make additional plain view
observations from his lawful vantage point.” Id.
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information combined with the analysis of the reported
ongoing observed activities of all arrested persons within
this case presented ample probable cause to justify the
execution of Search and Seizure Warrants upon the
associated Chrysler minivan and real property located at
[the Whitaker House]. A valid consent to search the Accord
had been duly provided by the driver, “Papi.” Although not
necessary for this Court’s determination, exigent
circumstances also existed that validated the stop of the
Accord in the street outside of the real property at [the
Whitaker House] to prevent harm through flight or
destruction of evidence.
1925(a) at 13. We agree. The evidence obtained was not found as a result of
the stop, frisk, or use of the fob. Rather, the evidence was obtained following
the execution of the search warrants supported by probable cause. Although
the warrant for the minivan mentioned the key fob found on Cespede and that
the fob activated the minivan, this information was superfluous and not a
material portion of the warrant and, if the use of the key fob was removed
from the warrants, the warrants would still be supported by probable cause.
Harvard, 64 A.3d at 696; Antoszyk, 985 A.2d at 982.
II. The Commonwealth Presented Sufficient Evidence to
Support the Convictions.
Cespede next argues the Commonwealth failed to present sufficient
evidence to support the PWID and conspiracy convictions.
When reviewing a sufficiency of the evidence claim, we must determine
whether, when viewed in the light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crime charged is established
beyond a reasonable doubt. See Commonwealth v. Brown, 23 A.3d 544,
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559 (Pa.Super. 2011) (en banc). “The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence.” Id. (quoting Commonwealth v.
Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008)).
Cespede first claims the Commonwealth failed to present sufficient
evidence of PWID. He claims the Commonwealth failed to establish he
possessed any narcotics and failed to establish he knew narcotics were in the
minivan. He notes that the officers saw another individual carrying the bag to
the minivan and the minivan was registered to a third individual.
Cespede next argues the Commonwealth failed to present sufficient
evidence of a conspiracy. He claims the Commonwealth did not establish he
knew he was involved in a conspiracy, as there was no evidence he knew there
was heroin in the minivan and no evidence he was inside the Whitaker House.
He claims the evidence merely shows he was out of the country for a couple
months and asked friends to pay his bills, and that 13 months prior to his
arrest he drove the minivan. He claims this merely establishes association,
not conspiracy.
The trial court set forth the elements of the crimes and the relevant law
and found the Commonwealth presented sufficient evidence to support the
convictions for PWID and conspiracy. 1925(a) Op. at 13-18. It reasoned that
the surveillance, the items found in the bag in the Honda Accord, the evidence
found in the minivan, and the items and paperwork found in the Whitaker
House supported the convictions. We agree with the trial court that the
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evidence was sufficient. After review of the parties’ briefs, the certified record,
and the well-reasoned opinion of the Honorable Anne Marie B. Coyle, we affirm
on the basis of the trial court opinion. 1925(a) Op. at 6-7.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/19
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FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL ]RIAL DIVISION
COMMONWEALTH OF PENNSYLVAltHA ) PHILADELPHIA COUNTY
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CP-51-CR-OOO.t559-20i5Comm. v. cespeoe, Jose E.
Opinion ;
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JOSE E. CESPEDE
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'10. CP-5 l-CR-0004559-2015
FILED
'JUN·-0' 6 2018
�ls/PostTrlal
OPINION Office of Judicial Records
Appellant, Jose Cespede, as the above-named Defendant, seeks review of the Order and
Judgments ofSentence, entered on August 30, 2016 in the above-captioned matter, by this Court,
the Honorable Anne Marie B. Coyle, Judge of the FirstJudicialDistrict, Court of Common Pleas.
The Appellant asserts various errors within his Statement of Matters Complained of on Appeal
Pursuantto Pa. R. P. 1925(b)Jiled
.
onAugust 16, 2017. Appellant's
.
claims were reasserted and
I
rephrased within the Supplemental Statement of Matters Complained of on Appeal Pursuant to Pa.
R. P. l925(b) filed on March 19, 2018 by Appellant's subsequently retained appellate counsel
Cheryl J. Strum, Esquire following the Motion For Leave to File the Supplemental Statement of
Matters Complained Of On Appeal Nunc f!ro Tune.
PROCEDURAL HISTORY
The underlying case, which is the svhject matter of the instant appeal, stems from the arrest
ofJose E. Cespede on March 4, 2015 for his active participation with at least three other men, also
from the Dominican Republic, in the illegal manufacture and distribution of heroin valued on the
.
street in excess of $4,000,000.00 inside land near 5144 Whitaker Avenue,. Philadelphia, PA.
Following his arrest, Appellant was charge'.d with the. felony offenses of Manufacture, Delivery or
Possession With Intent to Manufacture \or Deliver Controlled Substance, 35 §78-113 §§A30,
i
Conspiracy- Manufacture, Delivery or Possession With Intent to Manufacture or Deliver
'
Controlled Substance, 18 P.S. §903,. and Jthe misdemeanor offenses of Knowing and Intentional
Possession of Controlled Substance By PersonNot Registered, 35 P.S. §78-113 §§A16, and Use
'
or Possession ofDrug Paraphernalia, 35 �· S. §78-113 §§A32.
After extensive defense pre-trial delay, on April 28, 2016, a hearing was conducted before
this Court concerning a pre-trial Motion.To Suppress Physical Evidence filed on behalf of the
'
Defendant by his trial counsel Guy ScioI!Ia, Esquire. This Court denied Defendant's Motion To
Suppress on May 9, 2016.
On May l 0, 2016, this Court conducted an evidentiary hearing concerning the Defendant's
Motion in Limine seeking to exclude relevant evidence from a previous surveillance that the
Defendant had been seen two years earlier driving the subject Chrysler minivan, from which the
!
duffle bags of packaged heroin were retrieved in the instant matter. This Court denied Defendant's
Motion in Limine to exclude this relevant nexus data.
Following jury selection, the Commonwealth's case began on May 10, 2016 and ended
!
May 11, 2016 with this Court as the presiding jurist. The defense Motion For Directed Verdict was
'
raised and denied on May 11, 2016. The defense began its introduction of evidence on May 11,
2016 and completed the defense case on May 12, 2016.
On May 12, 2016, closing arguments and jury instructions were given before the jury
retired to begin deliberations. Following this Court's response to jury questions, the jury returned
verdicts of guilty on May 13, 2016 to the felony offenses of Manufacture, Delivery or Possession
With Intent to Manufacture or Delive� Controlled Substance, 35 P.S. §780-113 §§A30,
Conspiracy- Manufacture, Delivery or Possession With Intent to Manufacture or Deliver
2
Controlled Substance, 18 P.S.§903. The j�u)' found the Defendant not guilty of the misdemeanor
offense of Use or Possession of Drug Par�phemaJia, 35 P.S. §780-113 §§A32
.
Immediately following entry of verdicts, Presentence Investigative Reports and Mental
Health Assessments were ordered and a ientencing hearing date was set for July 14, 2016. This
.'
Court granted the defense request for a continuance of the sentencing hearing. On August 30, 2016,
following thorough review of the Presentence Investigative Reports, the sentencing guideline
calculations promulgated by the Pennsylvania Commission of Sentencing and upon hearing
.'
testimonial evidence and oral argument, this Court sentenced Defendant to serve an aggregate term
of state supervised confinement of 10 years to 30 years with permitted calculated credit for time
served and applied rehabilitative conditions, followed by 5 years of state supervised probation.
Specifically; the Order of Sentence: directed the imposition of standard guideline sentences
for each count as follows:
Count 1 : Manufacture, Delivery or Possession With Intent to Manufacture
or Deliver Controlled Substance, 35 P .S. §780-113 §§A30: State supervised
confinement for minimum period of5 years to maximum period of 15 years;
Count 2: 1 Conspiracy- Manufacture, Delivery or Possession With Intent to
Manufacture or Deliver Controlled Substance, 18 P.S. §903: State supervised
confinement for minimum period of 5 years to maximum period of 15 years running
consecutively to the period of confinement imposed in Count 1.
The Order of Sentence reflected that credit for custodial time served was to be applied and
that the Defendant was not statutorily deemed eligible for RRRl or Boot Camp early release
programs. In addition, the Order of Sentence reflected the imposition of payment ofa $50,000.00
fine and rehabilitative requirements of educational or vocational training. The Defendant was
'
directed to use his best efforts to seek and, maintain legitimate employment when paroled and to
3
submit to random testing for illegal drugs pr alcohol and to home and vehicle checks for drugs or
weapons.
'
A timely Motion for Reconsideratfon of Sentence was filed on behalf of the Defendant by
his trial counsel on September 8, 2016. Op September 21,2016, Defendant's trial counsel filed a
'
corresponding Writ of Habeas Corpus.
.·
!1This Court entered an Order denying. Post-Sentence
Motions after a hearing on September 26, �016.
The Defendant's Notice of Appeal �o the Superior Court was filed by subsequently retained
'
appellate counsel Lawrence Anthony Narcisi, III. This Court issued an Order Pursuant to PA.R.P.
1925(b) on October 21, 2016, again on November 7, 2016, and again on August 3, 2017. The
Defendant's Statement ofMatters Complained on Appeal was filed on August 16, 2017;
In his Statement of Matters Complained of on Appeal Pursuant to Pa. R P. 1925(b),
Defendant argues as follows:
1, "The trial court erred by denying the motion to suppress;
2. The trial court erred in granting the motion in limine allowing testimony to be
introduced regarding Appellant operating the gold minivan 33 months prior to
arrest; ,
3. The trial court erred in denying] trial counsel the opportunity to cross exam
regarding the disposition of the co-defendant's case;
4. The verdict was inconsistent and against the evidence to the extent that Appellant
was found not guilty of possessing paraphernalia which was located in the same
duffle bag as the narcotics; and.
5. The aggregate sentence of IO to 30 years state incarceration was unreasonable and
an abuse of discretion." ·
On March 19, 2018, Appellant, by �nd through subsequently hired counsel, Chery J. Sturm,
Esquire, filed a Motion For Leave to File Supplemental Statement of Matters Complained of on
!
Appeal Nunc Pro Tune and the attached a� "Exhibit "D." corresponding Supplemental Statement
'
of Matters Complained of on Appeal citing the need to supplement the previously filed "vague"
Statement of Matters Complained of on Appeal.
4
·--·-----"--·----·-------·--·----·---·-···--·-··--·----'·--·- -····-····-·----···----·--·-···---·--·--·--·-·-·----------·------·--···· · "'--··--'"·-----
The Supplemental Statement essentially repeated the previous claims, i.e; that the trial court
erred by denying the suppression motion originally litigated. The Supplemental Statement also
'
reiterated the argument that the verdicts had not been supported by sufficient evidence; The
l
Supplemental Statement also argues that t�e imposed sentence violated the double jeopardy clause
'
'
of the Fifth Amendment made applicable to the States through the Due Process Clause of the
Fourteenth Amendment because the imposed sentences for the felony offenses of Conspiracy and
Possession With Intent To Distribute Controlled Substance should have merged despite the salient
'
difference in statutory offense elements. j
l
This Court entered an Order on March 23, 2108 granting the Appellant's Motion For Leave to
file Supplemental Statement ofMatters Complained of on Appeal nunc pro tune and permitted the
docketing of the Supplemental Statement as of record.
FACTUAL HISTORY
Multiple credible witnesses testified and direct and circumstantial physical evidence had
been introduced that amply demonstrated jthat the Defendant, Jose E. Cespede, had been actively
involved as a remorseless high level heroin manufacturer and trafficker. The sworn testimony
introduced from various Federal Special! Agents, state and county police officers assigned to
Homeland Security Investigations, referred to as "H.LS.," established that a three year
investigation, coordinated by investigative agencies, had begun in May 2012, focusing on the
heroin packaging and transportatiorrvmills'' and organizations operating predominantly by persons
born in the Dominican Republic in Philadelphia area. This collective investigative intelligence
had been largely based upon surveillances of drug trafficking behaviors combined with reliable
'
confidential, multi-sourced information. 'Jihis concerted investigation led to the related arrests of
5
--------------------------------------------'--------------
multiple persons including Appellant on a� least one earlier occasion and the previous confiscation
of at least 492 grams of heroin.
'
On March 3, 2015, two reliable confidential sources led these same investigators to surveil
a dark-skinned male, nicknamed "Pupi,"l later identified as Simeon Gonzalez, a native of the
'
reportedly
Dominican Republic. Papi had been operating numerous heroin packing "mills" at
specified residences (specifically 5440 Rutland Street and 5144 Whitaker Avenue in Philadelphia)
with other males from the Dominican Republic, and using a brown Honda Accord PA registration
1
HHW-5453 to transport the narcotics. o;n that date, H.I.S. Special Agents and others set up
l
observation posts and videotaped the su7eillance of Papi in the surrounding Cheltenham and
Rutland Streets in Philadelphia.
At approximately 10:57 a.m., agents observed Papi exit the5440 Rutland Street house and
enter the targeted brown Honda Accord. Papi was followed to the corner of Whitaker and Smylie
!
Streets where he parked the Accord and entered a row home located at 5144 Whitaker Street. After
Papi's entry into the real property, agents observed a red Honda sedan stop in front of 5144
Whitaker Avenue. They saw a second Hispanic male, identified initially as "HM#2," check the
mailbox in front of the property at SJ 44 W\hitaker A venue and walk inside through the same door
previously used by Papi and others. Shortly thereafter, HM#2 exited the property and conducted
!
his own counter-surveillance for law enforcement. After HM#2 stared at the positioned
surveillance units, he walked quickly toward Harkness Street and appeared to text on his cell phone
while checking parked vehicles on the block. He then crossed the street on foot before returning
to enter 5144 Whitaker A venue, Agents realized that HM#2 detected law enforcement.
Shortly after conducting his countclr�surveillance measures, HM#2 exited 5144 Whitaker
A venue carrying at least one large sporty lduffel bag, a baseball bat and glove. He walked with
6
these items to the front of a gold Chryslef minivan which had been parked at 5156 Melbus Street
(located to the rear of 5144 Whitaker AJ.enue) and walked away empty-handed down an alley.
9f HM#2, agents noticed that Papi 's Honda Accord had
'
During the attempt to view the activities
!
also left the area. Agents summoned a :certified and markedly reliable K.:.9 drug sniffing dog
'
"Spike" and his handler, Police Officer John Callahan to conduct an exterior sniff ofthe minivan.
Spike immediately signaled the presence �fthe illegal narcotic substances within the van.
As surveillance units were attempting to process the minivan, the brown Honda Accord
'!
that was previously seen being driven ahd parked by Papi, returned to the area and literally
l
interrupted police in the middle of the street, This vehicle was stopped to prevent flight in the
middle of the street just outside of 5144jWhitaker Street. Papi, who later identified himself as
Simeon Gonzalez from the Dominican Republic with a residence in New York, was the driver.
Two additional occupants of the brown Honda were Dalton Morinta-Abreu who was identified by
agents as HM#2, who had been viewed earlier carrying the subject duffle bags and conducting
counter-surveillance after exiting 5144 Whitaker Avenue, and Appellant asarear passenger who
identified himself as Jose Cespede.
Special Agent Edward Troy, one iof the investigators at the scene, recognized the rear
passenger in the brown. Honda Accord as Appellant who previously identified himself as Jose
!
Ernesto Cespede-Gonzalez, a registered Legal Permanent Resident from the Dominican Republic
living in Wildwood New Jersey, from a �receding arrest involving the heroin mill operation at
7409 Oxford Avenue in Philadelphia on February 27, 2 I 04. This Agent also recalled that Appellant
had been seen during the prior surveillance two years earlier operating the same Chrysler Minivan
that was now holding the processed heroin! filled duffle bags,
7
"···-·--·--�--..�··---�-�·-..-·--··-·---·..........�............ "�·--------·�--·- . ------.. ------·-'·-·--- ,,_
The registered owner to the brown Honda Accord was none of the occupants. The three
occupants, including the Defendant as r�ar passenger, were temporarily detained pending the
'
obtaining of search warrants and further irivestigation. A valid consent to search the brown Honda
!
Accord was duly obtained from the driver! Papi. A pat down of the three individuals in the Honda
'
Accord was conducted for the safety of th� officers.
The keys to the front door of5 l 44j Whitaker Avenue were retrieved from Dalton Morinta-
Abreu' s person. A single Chrysler key with fob was found on Appellant's person. Subsequent to
i
the consent to search, agents located and retrieved three cell phones in the front are of the Accord,
various paperwork for the brown Honda's repairs and the sweat shirt that Mr. Abreu had been
wearing earlier. A State of New Jersey Driver's License with the Defendant's photograph and
listing the Wildwood, New Jersey residence was produced by the Defendant as identification along
with $1000.00 United States Currency.
In the back seat, next to where Appellant had been seated, an Under Armour back pack
'
was retrieved arid later found to contain the following items: medical paperwork reflecting
liposuction costing $30,000.00 for Jose Cesepede as the patient; a Dominican Republic election
card with Appellant's photograph in the name of Jose Ernesto Cespede Gonzalez; a PECO bill in
the name of Jose Cespede listing the same Oxford Avenue Philadelphia address where Cespede
!
had been arrested in connection with heroin distribution in 2014; the American Insurance
Company receipt for the targeted 2006 Chrysler Minivan placed in the name for the registered
owner Korey Devaughn; flight tags and receipts in the name of Jose Cespede with Jet Blue
Airways; a child support Order issued to Jose Cespede by the Superior Court of New Jersey with
'
hearing notice; TD Bank receipts for Josb Cespede; a key ring and a piece of cardboard with
8
·---·--·-··----·-----·-··-·--·-------..----------'-------------- --- -·------.. ... ..
, , , , .....
handwriting listing names and varied doll�r amounts up to $39,0000.00 per person similar to the
drug ledgers writing samples found in the apartment at 5144 Whitaker Avenue.
'
The key fob that had been removed from the Defendant's person, caused the targeted gold
l
Chrysler minivan lights to tum on and offhipon application. This Chrysler key fob was later used
'
to click open the minivan after the Searc� Warrant for the Chrysler minivan had been obtained.
Inside the backpack positioned next to where the defendant had been seated in the brown Honda
Accord was paperwork reflecting the American Insurance Company receipt for the targeted 2006
'
Chrysler Minivan placed in the name for the registered owner Korey Devaughn.
Separate from the automobile stop,! immediately after Spike, the reliable working detection
dog, had reacted to the minivan other agents obtained Search and Seizure Warrants Numbers
179642 and 179643. Special Agent
.
Richard
.
Gramlich was the affiant and the Honorable.Bradley
Moss as duly elected Judge of the Municipal Court for the First Judicial District of Pennsylvania
;
signed and authorized the searches on March 3, 2015 authorizing the search, after review and
approval of the probable cause section of each warrant. The warranted search was executed upon
the targeted Gold Chrysler Minivan and [the real property located at 5144 Whitaker Avenue,
Philadelphia. Following execution, the t�o sporty duffle bags that had beenpreviously observed
as transported and deposited by HM#2, identified as Honda Accord passenger Dalton Morinta-
!
Abreu, were confiscated from the subject minivan. Also confiscated from the minivan were rental
receipts in the name of Mark Escobar and jbills for the same listed apartment as the receipt in the
name of Defendant as Jose Cespede Gonzalez.
The large sporty duffle bags retrieved from the minivan contained in excess ofl 250 grams
of cut heroin in various forms, along with numerous heroin coated items including: Scotch whiskey
containers, glassine packets; straws; coffee grinders; platinum tins; ink pads and stamps; metal
9
.. ··--·--··---·--·····-·-----
sifters; freezer bags and assorted containers commonly used by drug traffickers to package, weigh,
sort; stamp, cook and cut and distribute heroin. Inside the apartment located at 5144 Whitaker
'
A venue, numerous boxes of similar narcofics processing items were retrieved along with itemized
!
hand written ledgers matching the ledgers found in the back pack containing the Defendant's
i
'
documents. Additionally) eleven cellular �elephones, a Garmin OPS device, bags of respiratory
masks, additional sporty duffle bags) S�msung tablet, miscellaneous documents, a metal PA
!
License Plate, and $4,200.00 were found and confiscated. Because the atmosphere inside the
'
'
apartment was so toxic, the air born substances had been bagged together after protective gear was
l
provided to law enforcement. No evidence of any normal residential living quarters was located
within the real property 5144 WhitakerA�enue.
All ofthe physical evidence was collected, field tested, inventoried and assigned to at least
twenty four Property Receipts and subsequently
, formally examined by the Police Chemical Lab
and processed. At trial, expert testimony' was introduced concerning the common methods and
instruments used by heroin processing mills and distributors and the estimated overall street value
of the bulk heroin confiscated in this case was over $412,520,000.00.
!
DISCUSSION
I. Appellant's pre-trial Motion to Suppress Physical Evidence was properly
denied.
Within his Supplemental and original Statement of Matters Complained of on Appeal,
Appellant asserted that this Court erred by admitting the physical evidence at trial after denying
the pre-trial Motion to Suppress all confiscated physical evidence filed on behalf of the Defendant
by his trial counsel.
10
-----··------···-----..·--·---
The appellate court's standard of rtview of a denial of a motion to suppress is to determine
whether the record supports the trial court's factual findings and whether the legal conclusions
'
drawn therefrom are free from error. Commonwealth v. Moye, 836 A.2d 973 (Pa. Super. 2003)
quoting. Commonwealth v. McC!ease,- . 750:I A.2d 320, 323 (Pa. Super. 2000). The scope of review
'
is limited; the appellate court may consid¢r "only the evidence of the prosecution and so much of
'
the evidence for the defense as remains uricontradicted when read in the context of the record as a
whole." Id. quoting Commonwealth v. J\.faxon, 798 A.2d 761, 765 {Pa. Super. 2002), Where the
'
record supports the findings of the suppression court, the appellate court is bound by those facts
l
and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Moye, supra., quoting Mctllease, 750 A.2� at 323-24 quotingln the Interest ofD.M,560 Pa. 166,
743 A.2d 422, 424 (1999).
The Fourth Amendment of the United States Constitution provides that government
!
officers shall not violate the right of thei people to be secure from unreasonable searches and
seizures in their persons and effects, U.S. Const. Amend. IV. A person is "seized" within the
meaning of the Fourth Amendment if, in !view of the circumstances surrounding the incident, a
reasonable person would have believed !that he or she was not free to leave. Michigan v.
Chesternut, 486 tr.s. 567, 573 (1988) (hol:cting that no seizure occurred when defendantran upon
seeing police car and officers accelerated to drive alongside him). Factors indicating the
occurrence of a seizure of the person include the threatening presence of several police officers,
display of a weapon, physical contact, aha use of language or a tone of voice indicating that
government officers might compel the !person's compliance with a request 1 Robert L.
Evangelista, Pennsylvania Criminal Trial Guide§ 7.60 (2002) (compiling state and federal cases).
11
Additionally, the Fourth Amendment does not prohibit warrantless searches, but rather
unreasonable searches. The reasonableness of a search depends upon the facts and
'
circumstances of the particular case, considered in the context of established constitutional
principles. Commonwealthv. Cihylik, 3i7 Pa. Super. 221, 486 A.2d 987 (Pa. Super. Ct 1985)
'
citing United States v. Samuels, 374 F.S:upp. 684, 685 {E.D.Pa. 1974).. In Pennsylvania, "the
< •
burden is upon the Commonwealth to pr�ve by a preponderance of the evidence that a search or
seizure did not violate the fourth amendment." Cihylik, citing Commonwealth v. Silo, 480 Pa. 15,
'
21, 3 89 A.2d 62, 65 ( 1978). It is now well-recognized that, in order to challenge successfully a
warrantless search, the challenger must have a legitimate expectation of privacy in the area or
property searched. See Katz v, United States, 389 U.S. 347, 35 J-52, 88 S. Ct. 507, 511, 19 L. Ed. 2d
576 (1967).
This privacy testis twofold: "the expectation must not only be 'actual (subjective),' but also
!
one that 'society is prepared to tecogniz� as reasonable." Commonwealth v. Cihylik, quoting
Commonwealthv. Lowery, 305 Pa. Super, 66, 71, 451 A.2d 245, 247 (1982), quoting.Katz v. United
States, supra. 389 U.S. at 361, 88 S.Ct at! 516 (HARLAN, J., concurring). In Commonwealth v.
!
Sell, 288 Pa. Super. 3 71, 432 A.2d 206 (\198 l), the court stated: The controlling consideration,
therefore, is whether the individual contesting the search and seizure entertains a legitimate
expectation of privacy in the premises or area searched. A legitimate expectation of privacy by
definition means more than a subjective expectation of not being discovered.
When reviewing the denial of a motion to suppress, a reviewing court must determine: (l)
whether the record supports the suppression court's factual findings; and (2) whether the
suppression court drew appropriate infJrences and legal conclusions from those findings.
Commonwealth v. Davis, 979 A.2d 357, j360 (Pa. Super. Ct. 2009) (internal citation omitted).
12
When the record supports the suppression court's factual findings, the reviewing court is bound
· by those facts and may reverse only if th¢ suppression court formulated its legal conclusions in
error. id.
In the instant matter, this Court properly conducted an evidentiary hearing and reasonably
!
<
determined that the admission of al I physical evidence confiscated from the targeted brown Honda
Accord and its occupants, the Chrysler Minivan and its contents, and the real property located at
5144 Whitaker A venue, Philadelphia, P .+,. was completely reasonable. The receipt of credible
i
confidential information combined with the analysis of the reported ongoing observed activities of
aJl arrested persons within this case presented ample probable cause to justify the execution of
Search and Seizure Warrants upon the associated Chrysler minivan and real property located at
i
5144 Whitaker A venue in Philadelphia. A valid consent to search the Accord had been duly
provided by the driver, "Papi." Although! not necessary for this Court's determination, exigent
!
circumstances also existed that validated the stop of the Accord in the street outside of the real
property at 5144 Whitaker A venue to prevent harm through flight or destruction of evidence.
II. Evidence sufficiently supported the Jury verdicts of guilt.
Appellant claimed in his Supplemental and original Statement of Matters Complained of
on Appeal, that the entry of the jury verdicts of guilty to the felony offenses of Manufacture,
Delivery or Possession With Intent to Manufacture or Deliver Controlled Substance, 35 P.S. §78-
113 §§A30, and Conspiracy- ManufacturejDelivery or Possession With Intent to Manufacture or
!
Deliver Controlled Substance, 18 P.S. §903 were not supported by sufficient evidence. In
reviewing the sufficiency of evidence, an appellate court considers "whether the evidence
13
...·--·-········-·-- ------- _,,,;,. ··----·--··-�·-·-·········-----···· . ·······--········
presented at trial was sufficient to establish all elements of the crime beyond a reasonable doubt."
Commonwealth v. Burton, 2 A.3d 598 (P�. Super. Ct. 2010).
'
The appellate court views all of t�e evidence and reasonable inferences there from in a
light most favorable to the Commonwealth as verdict winner. Id. Where there is sufficient
!
evidence to enable the finder of fact to determine every element of the crime has been established
beyond a reasonable doubt, the sufficiency of the evidence claim must fail. Id. The evidence
established at trial need not preclude every possibility of innocence and the fact-finder is free to
1
believe all, part, or none of the evidence presented." Commonwealth v. Feliciano, 2013 Pa. Super
l
117, 67 A.3d 19 quoting Commonwealth v.! Stokes, 2011 Pa. Super 261, 38 A.3d 846, 853-854 (Pa.
'
Super. 2011) (internal citations and quotations omitted). For purposes ofappellate review under
these principles, the entire record is reviewed and all evidence is considered. Commonwealth v.
Trinidad, 96 A.3d 1031, I 038 (Pa. Super. 2014)(quoting
!
Commonwealth v. Emler,. 903 A.2d 1273,
1276-1277 (Pa. Super. 2006)).
Simply stated; in order to sustain a guilty verdict for the offense of Manufacture, Delivery
or Possession With Intent to Manufacture! or Deliver Controlled Substance, pursuant to 35 P.S.
§780-113 §§A30, there must have been proof presented beyond a reasonable doubt that Appellant
had participated in some manner in the: manufacture, delivery, or possession with intent to
manufacture, or deliver controlled substance as enumerated within the Controlled Substance,
Drug, Device, and Cosmetic Act.
As to all applicable elemental sections of this offense, it is undisputed that heroin is one of
the enumerated controlled substances under Schedule I as enumerated within the Controlled
i . . . . .
Substance, Drug, Device, and Cosmetic Act. For a person to be convicted of "Manufacturing"
heroin it must be proven beyond a reasonable doubt that the individual intentionally, knowingly,
14
-------�----------------··-····----·-··-·-·-·.,-····-·--·--··""···--........ _
or recklessly manufactured heroin. Thej term "Manufacture" is defined. as the "production,
preparation, propagation, compounding, conversion or processing of a controlled substance, other
1
drug or device or the packaging or repackaging of such substance or article, or the labeling or
!
relabeling of the commercial container qf such substance or article, but does not include the
<
'
activities of a practitioner who, as an incident to his administration or dispensing such substance
or article in the course of his professionall practice, prepares, compounds, packages or labels" 35
P.S. §780-102(b). Basically, the term manufacture incorporates to any active participation in the
'
creation of heroin as the controlled substance at issue.
To be held responsible for the "Delivery" of the controlled substance is must be proven
that the individual delivered the controlled substance. The term "Deliver" includes the actual;
constructive, attempted transfer of one person to another of a controlled substance. It is well
accepted that a delivery may take place between two persons even though one of them is acting as
!
an agent for the other. 35 P.S. §780-102(b).
The alternate offense element of "Possession With Intent To Deliver" refers to two essential
elements, possession combined with the demonstrated purpose to transfer the controlled substance
to at least one other person. As with all statutory elements, possession and the requisite intent can
be proven with direct or circumstantial evidence. For an individual to possess the controlled
substance, the Individual must have the intent to control and the power to control the controlled
substance. Naturally, the individual must �e aware of the items presence and nature. Two or more
persons may have joint possession of a controlled substance as long as each individual shares the
necessary intent to control the narcotics] In addition, an individual may be found guilty of
possession of an item he does not hold if i� is proven that the defendant was part of a conspiracy
15
--·-------···..--.......-.. ---
and another conspirator knowingly possessed the dru�s and that possession occurred while the
!
conspiracy was in existence and was in fu�herance of the goals of the conspiracy;
1
Before the separate charge of Conspiracy-Manufacture, Delivery-or Possession With Intent
l
to Manufacture or Deliver Controlled Subf tance, pursuant to 18 P.S. §903 can be sustained, proof
.
beyond a reasonable doubt must be introduced that the Defendant agreed and acted in concert with
at least one other person to deal, manufacture, distribute; deliver or possess with intent to deliver
enumerated controlled substances such as heroin. This agreement may be unspoken and may also
.
!
be proven with a form of combined direct and circumstantial evidence presented. Additionally,
l
one of the members of a conspiracy
. .
must [actually do some overt act to facilitate the goal of the
conspiracy.
The cumulative evidence .introduced at the instant trial proved beyond a reasonable doubt
that Appellant
.
had been interrupted from actively participating as a middle to high management
;
Jevel heroin trafficker and from resuming his manufacturing and distribution efforts by law
enforcement. Before Appellant had entered the viewpoint of surveillance officers on the date of
his arrest in this case, his co-conspirators had been detected by law enforcement, utilizing the same
;
brown Honda Accord that was later confiscated and hastily and temporarily transporting and
storing over 1290 grams of processed heroin, along with all of the tools of the trade of heroin,
from the distribution and processing mill jinside 5144 Whitaker Avenue to a Chrysler minivan
parked in a nearby alley to avoid law enforcement detection. Appellant had been relevantly linked
as a driver of the same Chrysler minivan that held the bulk of confiscated heroin in this case two
years earlier during a surveillance of heroin distribution conducted by the same law enforcement
officials.
16
. ···---------·-·-············--··-···· ·-···------�---·-------__;,,_ ·---·
Appellant's individual and collective constructive possession of all of the confiscated
narcotics from inside the minivan and the �eal property located inside 5144 Whitaker A venue was
'
abundantly established by connective threads of evidence. 'fhe Defendant's complicity was
l
introduced when he was observed in the. b1ack seat of the earlier spotted Honda Accord along with
!
'
the originally targeted subject Papi, also known as Simeon Gonzalez, as the driver, and HM#2;
also known as Dalton Morinta-Abreu, as t,he front passenger upon their return to presumably pick
up the million dollar valued heroin and distribution or processing apparatuses from the Chrysler
minivan parked in the back alley.
The contents of the Under Armour back pack that had been removed from where the
Defendant had been singularly seated a� a rear passenger in the stopped specifically linked
Appellant to both the heroin production mill at 5144 Whitaker A venue and the Chrysler minivan
with its contraband cargo. This back packcontained Appellant's identifying information including
!
a Dominican Republic election card with the Defendant's photograph in the name of Jose Ernesto
Cespede Gonzalez; the medical paperwork reflecting liposuction costing in excess of$30,000.00
in the patient name of Jose Cesepede witry the Wildwood residential address; and a PECO bill in
the name of Jose Cespede listing the same Oxford Avenue Philadelphia address where Cespede
had been arrested in connection with earlier heroin distribution ring in 2014 was also recovered.
This previous surveillance included the] observation of Appellant's operation of the subject
Chrysler minivan confiscated in this case. I
Appellant's back pack also contained an American Insurance Company receipt for the
targeted 2006 Chrysler Minivan placed in the name for the registered owner Korey Devaughn;
flighttags and receipts in the name of J ose Cespede with Jet Blue Airways for flights to and from
the Dominican Republic; a child support Order issued to Jose Cespede by the Superior Court of
17
New Jersey with hearing notice; TD Bank.receipts for Jose Cespede; and a key ring. Within the
same back pack, pieces of cardboard with handwriting listing names and varied dollar amounts up
'
to $39,0000.00 per person were recovered that looked remarkably similar to the drug ledgers
writing samples retrieved from the apart111ent at 5144 Whitaker Avenue following the warranted
'
and authorized search and seizure of that property. Also found inside the Chrysler minivan were
rental receipts in the name of Mark Escobar and bills listed for the same apartment as the receipt
in Appellant's name of Jose Cespede Gonzalez,
'!
The key fob that had been removed from Appellant's person was particularly probative of
the Appellant's complicity and intent to! distribute heroin. This key fob opened the Chrysler
minivan vehicle that contained the sports bags of extremely expensive contraband that had been
hurriedly carried and deposited for safe-keeping by his co-conspirator and fellow Honda occupant,
Dalton Malton-Abrue immediately following Abrue's counter-surveillance measures and exit
.
;
from the apartment at 5 I 44 Whitaker Avenue, No other key was found on any other person or
place following this arrest and seizure. It] was a fair inference that this key was in Appellant's
possession because he had claim to the rninivan's contents when he and his co-conspirators had
l
returned to retrieve their product. All 20 A.3d 1215, 1220 (Pa. Super. 2011) (citetion and footnotes omitted). Only if the appeal satisfies
each of these four requirements, will i the substantive merits of the claim be reviewed.
Commonwealth v. Antidormi, 84 A.3d at 759.
!
Absent such efforts, an objectlorr to a discretionary aspect of a sentence is waived."
Commonwealth v. McAfee, 849 A.2d 270, �75 (Pa. Super. 2004}(citations and internal quotations
marks omitted). Appellate review of the
.
sentence
!
imposed begins with the statutory prescription
contained within 42 Pa. C.S.A. § 9781 (b), which directs that an appeal may be granted at the
discretion of the appellate court only where it appears that there is a substantial question that the
sentence imposed is not appropriate under \this chapter.
Appellant does not have a valid claim of excessive sentence without including an additional
and more specifi� violation of the sentencing code. Only when a sentencing claim sets forth the
manner in which either a particular provision of the Sentencing Code or an underlying fundamental
norm of the sentencing process was violat�d, does a claim of excessiveness present a substantial
19
question. Commonwealth v. Mouzon, 8 p A.2d 617, 620 (Pa. 2002). A blanket claim of
excessiveness, with no further allegations, ictoes not create a substantial question. Id.
'
Moreover, within this Commonwealth, the "imposition of a sentence is vested in the
discretion of the sentencing court and will pot be disturbed absent a manifest abuse of discretion."
'
Commonwealth v. Smith, 543 Pa. 566, 67� A.2d 893, 895 (1996). This standard reflects that the
sentencing court is "in the best position t$ determine the proper penalty for a particular offense
!
I
based upon an evaluation of the individual circumstances before it." Commonwealth v. Ward, 524
Pa. 48, 568 A.2d 1242, 1243 (1990). It is loundly recognized that:
"Sentencing is a matter vested in the sound discretion of the sentencing judge, and
a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In
this context, an abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish] bya reference to the record, that the sentencing
court ignored or misapplied the I awl exercised its.judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly unreasonable decision."
Commonwealth v. Antidormi, 84 A.3d 736� 760 (Pa. Super. 2014) (citation omitted). There is no
automatic right to appeal from the discrcltionary aspects of sentencing. Id. at 759. See also
Commonwealth v, Cook, 941 A.2d 7 (Pa. S;uper. 2007).
An allegation that the sentencing court failed to consider certain mitigating factors
generally does not necessarily raise a substantial question. Commonwealth v. McNabb, 819 A.2d
54, 57 (Pa. Super. 2003). Accord Commonwealth v. Wei/or, 731 A.2d 152, 155 (Pa. Super. 1999)
(reiterating allegation that sentencing court "failed to consider" or '•did not adequately consider"
certain factors generally does not raise substantial question). Compare Commonwealth v. Felmlee,
828 A.2d 1105, 1107 (Pa. Super. 2003) (en
. l
bane) (stating substantial question is raised, however,
where appellant alleges sentencing court imposed sentence in aggravated range without adequately
considering mitigating circumstances).
20
. ·-------- ..···· ---·-------------------------'-------------
Consistent with this standard of record review, the appellate court shall have regard for:
"(I) the nature and circumstances of t�e offense and the history and characteristics of the
'
defendant; and .. , (3) the findings upon which the sentence was based." 42 Pa. C.S.A. § 9781 (d)
(1) and (3). This review is based uponjthe premise that When imposing a sentence, a court is
!
'
required to consider the particular circums!tances ofthe offense and the character ofthe defendant."
Commonwealth v. Griffin, 804 A.2d 1, 10 rPa. Super. 2002), appealdenied, 582 Pa. 671, 868 A.2d
1198 (2005), cert. denied,. 545 U.S. 1148,!125
I
S.Ct. 2984, 162 L. Ed. 2d 902 (2005).
' .
"In particular, the court should refer to the defendant's prior criminal record, his age,
personal characteristics and his potential for rehabilitation." Id. Where the sentencing court had
the benefit of a presentence investigation report ("PSI"), we can assume the sentencing court "was
;
aware of relevant information regarding the defendant's character and weighed those
'
considerations along with mitigating statutory factors." Commonwealth v, Devers, 519 Pa. 88,
!
101-02, 546 A.2d 12, 18 ( 1988). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
2005) (stating if sentencing court has benefit of PSI, law expects court was a�are of relevant
information regarding defendant's chara�ter and weighed those considerations along with any
mitigating factors).
Further, where a sentence is withiri the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under] the Sentencing Code. See Commonwealth v. 'Cruz-
Centeno, [] 668 A.2d 536 ([Pa. Super.] 19:95), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
(stating combination of PSI and standard range sentence, absent more, cannot be considered
excessive or unreasonable). Although Pennsylvania's system stands for individualized sentencing,
the court is not required to impose the "miri.imum possible" confinement. Walls, supra at 570, 926
A.2d at 965.
21
···-- ··----·--··---······-----·---- -------
Under 42 Pa.C.S.A. § 9721, the. court has discretion to impose sentences for each convicted
offense consecutively or concurrently and, ordinarily. a challenge to this exercise of discretion
i
does not raise a substantial question. Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
2006). The imposition of consecutive, rather than concurrent, sentences may raise a substantial
!
<
question in only the most extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes iand the length of imprisonment. Id. (holding challenge
to court's imposition of sentence of six (6) �o twenty-three (23) months imprisonment and sentence
'
of one (I) year probation running consecutive, did not present substantial question). Compare
.
Dodge 11, supra (holding imposition oft consecutive sentences totaling 58 Yi to 124 years
imprisonment for thirty-seven (37) counts of theft-related offenses presented a substantial question
because total sentence was essentially Jife sentence for forty-two year-old defendant who
committed non-violent offenses with limited financial impact).
!
To the extent Appellant's discretionary aspects argument focuses on the imposition of
consecutive sentences, well-settled jurisprudence, cited supra, is that a sentencing court has
discretion to impose consecutive sentences, 42 Pa.C.S.A. § 9721, and that the imposition of
1
consecutive sentences may raise a substantial question in only the most extreme circumstances,
.
such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the
length of imprisonment." Lamonda, 52 A�d at 3 72. See also Commonwealth v. Moury, 992 A.2d
162, 171-72 (Pa. Super. 2010).
In his original Statement of Matters To Be Complained Of On Appeal, Appellant
superficially claimed that the aggregate sentence of t O to 30 years state incarceration was
unreasonable and an abuse of discretion.'] Thus, Appellant failed to state a claim that raises a
substantial claim warranting appellate review. His claim was vague and lacked sufficient
22
. ·····-·-·······--··--·····---··--··-·-···------ ------'-·------------··--··········------�---·-· ···········-·--·····---··-·----·-············
specificity beyond expression of general disagreement-with the discretionary aspect of this Court's
!
sentencing authority. The claim foiled tp recognize that the Order of Sentence reflected the
'
imposition of a minimum period of five (5), years state supervised confinement to fifteen (15) years
separately for each of the two criminal offenses for which Appellanthad been found guilty by the
!
'
J
juryrunning consecutively to each other.
Even if a substantial question was presented, the transcribed record of the sentencing
!
hearings conducted on August 30, 2016, and following Appellant's Motion For Reconsideration
l
'
'
of Sentence on September 26, 2016, directly dispelled each claim. At the first sentencing hearing
on August 30, 2018, this Court incorporated and specifically referenced its analysis of all the
sentence data and written memoranda and oral arguments proffered by all parties and including
!
the Presentence Investigative Reports and Mental Health evaluations.
In addition, it was duly recorded that the guidelines for sentencing and resentencing
!
adopted by the Pennsylvania Commission on Sentencing had been duly considered. There was no
discrepancy in its review and this Court provided a proper basis in a statement of reasons for the
imposed sentence. This Court identified onthe record that all significant aspects of the Defendant's
background, his criminal actions, his extensive prior record, his impact on the community and the
i
recommended sentencing guideline calculations had formed the basis for the sentences imposed.
This trial court acknowledged that
. the guidelines
.
promulgated by the Pennsylvania
Commission of Sentencing classified the Offense Gravity Score for each offense as a" 13" and the
Defendant's computed Prior Record Score as a "O*", based upon his computed record score
excluding the diversionary program that he had successfully completed following his previous
'i arrest in the State of New Jersey for possession of heroin. At the outset, and on the record, both
counsel agreed that the guideline sentence range recommended for each offense was for a state
23
term of confinement of sixty (60) months !to seventy-eight (78) months with deviation of plus or
minus twelve (12) months. (N.T., 08/30�2016, p.6). The imposed sixty (60} month minimum
i
period of confinement was at the lowest etjd of the recommended standard range for each offense.
The language of section 9781(c) states, a sentencing court's determination must stand
. !
.
unless the sentence was unreasonable, 42 ra. C.S.A. § 978l(c). A sentence is reasonable when it
includes examination of the public protection, the crime's gravity, and the defendant's
rehabilitative needs, as listed in section 4� of the Pennsylvania Code. 42 Pa. Cons. Stat. Ann. §
'
9721 (West); Walls, 926 A.2d at 964. Additionally when the sentencing court has reviewed a
presentence report, it is presumed that the court has considered the information it contains.
Commonwealth v, Boyer, 856 A.2d 149, 1 �4 (Pa. Super. Ct. 2004) ajj'd 891 A.2d 1265 (Pa. 2006).
Facts can be considered, pursuant to § 9721(b)'s sentencing requirements, even if the facts are
subsumed within the guideline recommendation, Commonwealth v. Sheller, 961 A.2d 187, 192
!
(Pa. Super. Ct. 2008).
This Court succinctly outlined, on the record, its rational for the imposed fair and
reasonable Order of Sentence. This Court explicitly and implicitly touched upon all of the relevant
l
or required sentencing factors, particularlylwhen public safety was stated as a concern. On August
JO, 2016, this Court after hearing all arguments anc testimony presented from both parties, stated
as follows;
"Mr. Cespede, I do find that the verdicts of guilty for Possession With the
Intent to Deliver a controlled substance, that substance being identified for the jury
as heroin, in large quantities, and] conspiracy related to the same had sufficient
evidence supporting teach verdict. i
I find that the appropriate bffense gravity score for each charge is 13. I
accept the fact that your prior record is a zero. I note your prior contact with the
State of New Jersey, relative to theldiversionary program that was granted to you.
Now, as you counsel correctly pointed out sir, you are an individual before
this Court. And that individual, 1 note that you, like many other fo]ks, including
my ancestors, came to this country.Iimrnigrated to this country, and was granted the
24
ability to remain in this country to this land of opportunity. You took that
opportunity to make a profit from I people's pain. Thatis beyond reprehensible in
this Court's eyes. You are not.apersonwho is addicted or even using narcotics as
you pointed out in the presentence] which I have reviewed in detail.
You came to this country with skills. You had a prior architectural
education. You come from a good family, according to you. You were raised by
both parents until their separation. You described your childhood as a good one
with great relationships with your family members. Your father was an
entrepreneur, as you have been. You've not had a legitimate type of employment
in quite some time as noted in our 1presentence report, however, indicated that you,
as an entrepreneur, bought and sold cars and upgraded cars for profit. You sold
drugs for the profit. You participated in the heroin distribution.
Heroin, is in this Court's [mind one of the most insidious narcotics that
destroys lives, family relationships and has a rippling effect throughout this
community. You did this for profit. You didn't have to do this, and you did it
anyway. Based on all the circumstances I heard during the trial I identify you sir
as upper middle management of the heroin trade. Those are aggravating
circumstances that I take into account. I take in to account the aggravating
circumstances of the extremely large amount of narcotics to which you were
brought your cohorts back to the location.because they contained your profit. Greed
is the source of your difficulty, sir J
You have had every opportunity to do otherwise. You chose this. Whenyou
were granted the ability to have the diversionary program for the 39 packets of
heroin that should have been a stoplight for you. It was not, because here you are
not very Jong thereafter. You did not accept responsibility for your actions. That
is not-you don't have a penalty for taking a trial, but you do not have the
mitigating circumstances that present themselves when folks accept responsibility
for their actions.
I, note with some dismay, i that the paperwork that was recovered in this
incident reflected thatindeed you �pent you ill-gotten gains on items for your own
personal upkeep shall we say. I also note the trips that must have cost you a fair bit
to go back and forth to the Dominican Republic. I note the type of vehicles that
were used in this incident as well as the type of vehicle that was used in your prior
arrest. I incorporate into my finding my review of the guidelines, myreview of the
presentence and psychological reports indicating that you are someone who is
intelligent and devoid of mental difficulties. 1 note that you reported that you do
not use narcotics. I have nothing to; indicate otherwise.
All right. I do consider you to be a danger to the community given your
choices in life, As such, to the lcharge of possession with intent to deliver a
coritrolled substance, the sentence of this
Court is that you serve fivelto fifteen years ofstate time incarceration.
To the charge of conspiracy, the sentence of the Court is that your serve five
to fifteen state time incarceration to run consecutively to the possession with intent
to deliver a controlled substance. i
The fine imposed on the possession with intent to deliver is $50,000.00.
Given the fact that this trade of which you were involved in, the distribution of
25
---------'----------------·---------..--------.. --..----·-·----·-..--..-
narcotics valued in excess of a million dollars, hopefully thatwon't be too difficult
for you. .
In addition, I impose the restitution amount as requested, $2, 145.00, for the
drug analysis reports to be completed. And I no other fines on the Conspiracy. All
fines and costs are to be paid during the period of parole.
It is a condition of your parole, if you are granted the ability to remain in
this country, that you are to have random drug and alcohol testing, random home
visits. That you are to seek and maintain legitimate employment and pay your fines
and cost. .. " (See N.T. 08/30/2016, JPages 36-41.)
'
Likewise, pursuantto 42 Pa. C.S.4,. § 978l(d)(l) and (3), this Court was well within its
l
discretionary right to impose the sentences consecutively. The sentencing court's exercise of
'
oppbsed
discretion by imposing consecutive as to concurrent sentences is not viewed as raising a
substantial question that would allow the granting of allowance of appeal in our Commonwealth.
Commonwealth v. Marts, 889 A.2d 608 (P�. Super. 2005).
In the instant matter, individualized consecutive standard sentences upon the Defendant
were imposed only after careful consideration of a11 relevant sentencing factors including the
paramount need for protection of the public, the gravity ofthe offense, and the Defendant's poor
prospect of rehabilitation. Thus, the Defendant has not raised any substantial question that the
consecutive sentences imposed were inapP;ropriate or contrary to a fundamental norm underlying
the sentencing code.
Discretion in Weight of Factors
Additionally, the weight given by t*e Court to the individual relevant sentencing factors is
not a substantial question because this is simply a disagreement about this Court's determination
of facts and the weight of those factors. Again, the sentencing court is given broad discretion in
!
formulating a sentence, with no automatic right of review available. Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa. Super; Ct. 20 l 0). Ah appeal can only be granted if there is a
26
substantial question as to a violation of a specific sentencing code ora fundamental norm, 42 Pa.
l
CS.A.§ 9781; Mouzon, 812 A.2d at 62.7. i
.'
Appellant's claim amounts only t� his mere disagreement with the recorded findings of
fact by this Court. The record demonstrates that this Court's took into consideration all relevant
!
<
mitigating and aggravating factors from thf evidence presented (N. T., 9/30/2016, pp.42-44 ). Thus,
Appellant has failed to present a substanti'l question.
Appellate Review: Applying Stantjard of Abuse in Discretion
'
.
.
Even if the reviewing court finds a substantial question, the sentencing court's
determination can only be overturned for) an abuse of discretion. Commonwealth v Walls, 926
A.2d 957, 961 (Pa. 2007). Such an abuse isjnotjust a mere disagreement.Id. It must be "manifestly
unreasonable, or the result of partiality, pr�judice, bias, or Ht-will." Id. This standard is embodied
in the language of section 9781 (c), which jdictates that when sentencing outside the guidelines, a
!
sentencing court's determination must stand unless the sentence was unreasonable; 42 Pa. C.S.A.
§ 9781(c).
This Court specifically evidenced! its comprehensive understanding of the Appellant's
difficulties through its imposition of the rehabilltative conditions within the Order of Sentence.
These conditions were aimed to prevent future harm. Therefore, Appellant has failed to assert any
colorable claim, as this Court appropriate}y exercised its discretion in sentencing the Appellant
after considering the Appellant's circumstances and characteristics in incredible detail.
Within the Supplemental Statement only, Appellant raised a challenge to the legality ofhis
sentence where he posits that the two offenses for which he was convicted merge for sentencing
purposes. This claim fails because the statutory elements of the two crimes substantially differ,
27
--- . --·------·-----------------------·---- --------'--------------
"A claim that the trial court imposed an illegal sentence by failing to merge sentences is a
question of law," Commonwealth v. One, ?8 A.3d 983, 1020 (Pa. Super. 2014). Accordingly, the
1
Court's standard of review is de novo andlourscope of review is plenary; See Commonwealth v,
Brougher, 978 A.2d 373, 377 (Pa. Super. !009).
!
<
Section 9765 provides in pertinenf part: No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and all of the statutory elements ofone offense
are included in the statutory elements of �he other offense. Where crimes merge for sentencing
i
purposes, the court may sentence the defendant only on the higher graded offense. 42 Pa.C.S.A. §
9765. "Accordingly, merger is appropriate only when two distinct criteria are satisfied: (1) the
crimes arise from a single criminal act; an� (2) all of the statutory elements of one of the offenses
are included within the statutory elements iof the other." Commonwealthv. Raven, 97 A.3d 1244,
1249 (Pa. Super. 2014).
The felony offense of Manufacture, Delivery or Possession With Intent to Manufacture or
§780-113
Deliver Controlled Substance, 35 P.S. §§A30 required proof that the perpetrator
participated either singularly
.
or as .part of� conspiracy in the manufacturing, delivery or attempted
!
delivery or possession with intent to deliver, manufacture or transfer of illegal narcotics. The
'
separate charge of Conspiracy - Manutacture, Delivery or Possession With Intent to Manufacture
or Deliver Controlled Substance, pursuant to 18 P.S. §903 required proof however that that the
offender agreed and acted in concert with �t least one other person to deal, manufacture, distribute,
deliver or possess with intent to deliver enumerated controlled substances such as heroin.
Additionally one of the members of a conspiracy must actually perform some overt act to facilitate
the goal of the conspiracy.
28
''''"'"---------··----·--·---
While the crimes in the instant case arise from the criminal episodes occurring over the
!
course of hours during a: single day, the stanrtory elements of each offense are plainly different, as
i
each crime requires proof of one element that the other did not. See, e.g., Commonwealth v. Walls,
950A.2d 1028, 1030·32 (Pa. Super. 2008)((holding sentences for robbery at Section 370l(a)(l)(ii)
!
<
and aggravate assault at Section 2702(a)(?) arising from same facts do not merge because each
requires proof of an element which the other does not); see also Commonwealth v. Payne, 868
' '
!
A.2d 1257, 1263 (Pa. Super. 2005) (Concluding crimes of aggravated assault and robbery "do not
the�,
merge, for robbery requires proof of which aggravated assault does not, and aggravated
assault as a felony of the first degree requires proof of circumstances manifesting extreme
indifference to the value of human life, w�ich robbery does not.").
ln the instant matter, trial evidence proved beyond a reasonable doubt that Appellant
actively and singularly participated in the heroin manufacturing and distribution business.
!
Evidence also convincingly demonstrated !that Appellant acted in concert with at least two other
persons in the commission of multiple overt acts designed to facilitate the overall goal of the
conspiracy which was to manufacture, deliver or transfer heroin for profit. Dissimilar elements of
! .
each offense were independently and competently sustained. Hence this claim fails.
'
IV. Appellant's previously observed operation of the confiscated Chrysler
'
Minivan was admissible and the disposition of cases concerning co-
conspirators was inadmisJible.
'
Appellant complained within the. initial Statement of Errors that this court should not have
permitted the admission of testimony th�t Appellant had been observed by law enforcement
approximately two years earlier operating the same Chrysler minivan that had contained the
29
confiscated processed heroin and distribution tools on the date of arrest. This testimony was
properly admitted because it provided a direct nexus establishing Appellant's intention to possess
.'
and control the same automobile that was] utilized to hide and transport the illegal contraband at
issue. Clearly this data was probative and not unduly prejudicial particularly since the resulting
!
<
previous arrest of Appellant was not admitted.
Alternatively, Appellant complain9d within the initial Statement of Errors that this court
should have permitted his trial counsel t4 cross-examine one of the arresting law enforcement
.
officers concerning the subsequent disposition of the cases against Appellant's co-conspirators.
This testimony was not permitted because it was not probative of Appellant's complicity and it
was irnpermissibly seeking the introduction
. !
of hearsay evidence from the witness. The trial court
rulings were sound exercises of discretion. Thus, each claim failed for lack of merit.
CONCLUSION
In reviewing the entire record, this! Court finds no harmful, prejudicial, or reversible error.
Accordingly, the judgment of the trial court should be affirmed.
· By the Court,
DATE: ,4 !cut r Anne Marie"]f Coyle,
{
JO
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