Com. v. Melendez, F. ( 2021 )


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  • J-S56026-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    FERDINAND MELENDEZ                         :
    :
    Appellant               :   No. 503 EDA 2020
    Appeal from the Judgment of Sentence Entered January 10, 2020,
    in the Court of Common Pleas of Philadelphia County,
    Criminal Division at No(s): CP-51-CR-0003664-2019.
    BEFORE:       BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J. *
    MEMORANDUM BY KUNSELMAN, J.:                         FILED: MARCH 19, 2021
    Ferdinand Melendez appeals from the judgment of sentence imposing
    three to six years’ incarceration and two years of probation, after convictions
    on various firearms and drug-trafficking charges.1 Melendez claims the police
    unreasonably searched him. He also believes there was insufficient proof that
    he (1) entered a conspiracy and (2) intended to distribute drugs. We disagree
    and affirm.
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    The trial court found Melendez guilty of person prohibited from possessing a
    firearm, 18 Pa.C.S.A. § 6105(a)(1); possessing a firearm without a license,
    18 Pa.C.S.A. § 6106(a)(1); possessing a firearm on the streets of Philadelphia,
    18 Pa.C.S.A. § 6108; possession with intent to deliver, 35 P.S. § 780-
    113(a)(30); criminal conspiracy, 18 Pa.C.S.A. § 903; and possession of a
    controlled substance, 35 P.S. § 780-113(a)(16). The trial court acquitted
    Melendez of possessing an instrument of crime, 18 Pa.C.S.A. § 907(a).
    J-S56026-20
    On the morning of February 23, 2019, Melendez rode shotgun in an SUV
    through the streets of Philadelphia. Stashed in his pants were two bundles of
    heroin, holding 28 individual packets, and a .45 caliber, loaded handgun. Five
    more heroin bundles, each with 14 individual packets, were hidden in the glove
    compartment. All the heroin bundles had clear packets with blue inserts. The
    driver of the SUV, Mitchell Ramirez, had several jars of marijuana on him.
    Around 7:45 a.m., Ramirez stopped their SUV behind another car and
    honked. The other car drove to the next intersection. Again, Ramirez pulled
    behind the car and honked, and, again, the car drove to the next intersection.
    At this third intersection, Ramirez honked and pulled along the side the car.
    He gestured for the other driver to lower his window. The driver did so.
    Ramirez said “they had samples,” but they could not currently give him any
    due to a nearby police car. N.T., 9/16/19, at 7. Ramirez told the other driver
    to follow them, so the driver did. Eventually, the SUV stopped, and the other
    driver got in the back seat of the SUV.
    Melendez kept “looking around and looking back at” the new occupant.
    Id. at 8.
    He also looked “in the side-view mirror.”
    Id. at 14.
    Thus, Melendez
    seemed to be serving as Ramirez’s lookout and/or bodyguard. See
    id. at 15.
    Ramirez gave their guest three complimentary packets of heroin and asked
    for his phone number to use for future transactions. The guest, however, was
    an undercover member of the Philadelphia Police Department’s narcotics unit,
    Officer Timothy Bogan.
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    Suddenly, police surrounded the SUV and arrested the two occupants.
    Subsequent searches uncovered Melendez’s firearm and all of the aforesaid
    contraband. Melendez moved to suppress the firearm and heroin that the
    police found on his person. The court of common pleas denied that motion,
    and the case proceeded to a non-jury trial. The court convicted and sentenced
    Melendez as described above; this timely appeal followed.
    Melendez raises the following issues for our review:
    1.    Did not the [trial] court err in [refusing] to suppress
    the physical evidence as fruit of an unlawful frisk and
    unlawful arrest . . . ?
    2.    Did not the [trial] court err in finding [Melendez] guilty
    of criminal conspiracy where the evidence was
    insufficient to prove beyond a reasonable doubt that
    [he] had agreed to sell narcotics with his alleged co-
    conspirator . . . ?
    3.    Did not the [trial] court err in finding [Melendez] guilty
    of possession with intent to deliver where the
    evidence was insufficient to prove beyond a
    reasonable doubt that [he] (1) constructively
    possessed the narcotics recovered from the glove
    compartment . . . and (2) possessed the narcotics
    recovered from his person with intent to deliver?
    Melendez’s Brief at 4. We address the first issue and then consolidate the
    second and third issues for ease of disposition.
    For his first issue, Melendez challenges the denial of his motion to
    suppress the handgun and the 28 packets of heroin that the police discovered
    on his person, under the Fourth Amendment to the Constitution of the United
    States and Article I, § 8 of the Constitution of the Commonwealth of
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    Pennsylvania.2 Melendez claims the police lacked both a reasonable suspicion
    to perform a Terry frisk3 and probable cause to arrest him. Thus, he views
    the physical evidence seized from him as “fruit of the poisonous tree.”4
    The Commonwealth suggests we not concern ourselves with the first
    half of Melendez’s argument regarding the Terry frisk, because the officers’
    actions were permissible as a search incident to a lawful arrest.           See
    Commonwealth’s Brief at 7. We agree with the Commonwealth and limit our
    analysis to whether police had probable cause to arrest Melendez.
    When reviewing a lower court’s denial of a motion to suppress, our scope
    of review is confined to “the suppression record . . . .” In re L.J., 
    79 A.3d 1073
    , 1085 (Pa. 2013).          Furthermore, we ask only “whether the factual
    findings are supported by [that] record and whether the legal conclusions
    drawn from those facts are correct.” Commonwealth v. Brown, 
    64 A.3d 1101
    , 1104 (Pa. Super. 2013) (citations omitted) (internal quotation marks
    ____________________________________________
    2
    The Fourth Amendment provides, “The right of the people to be secure in
    their persons, houses, papers, and effects, against unreasonable searches and
    seizures, shall not be violated . . . .” U.S. Const. amd. IV. Likewise, the state
    constitution guarantees that “people shall be secure in their persons, houses,
    papers and possessions from unreasonable searches and seizures . . . .” Pa.
    Const. art. I, § 8. Although he bases his argument on both provisions,
    Melendez does not claim any heightened protection under the state charter.
    As a result, we need not perform a separate analysis under Commonwealth
    v. Edmunds, 
    586 A.2d 887
    (Pa. 1991).
    3
    See Terry v. Ohio, 
    392 U.S. 1
    (1968). The suppression upheld the search
    and seizure as the result of a Terry frisk. See Trial Court Opinion, 7/2/20, at
    4-6.
    4
    See Nardone v. United States, 
    308 U.S. 338
    (1939).
    -4-
    J-S56026-20
    omitted). The Commonwealth prevailed at the suppression hearing; thus, we
    “consider only the evidence of the [Commonwealth] and so much of the
    evidence for the defense as remains uncontradicted when read in the context
    of the entire record.”
    Id. Because the police
    obtained no search warrant, we
    review the suppression court’s legal conclusions “de novo.”        Ornelas v.
    United States, 
    517 U.S. 690
    , 699, (1996).
    “A person is in custody when he is physically denied his freedom of
    action in any significant way or is placed in a situation in which he reasonably
    believes that his freedom of action or movement is restricted by the
    interrogation.”   Commonwealth v. Yandamuri, 
    159 A.3d 503
    , 518 (Pa.
    2017). Melendez and the Commonwealth agree that the officers who removed
    Melendez from the SUV arrested him. See Melendez’s Brief at 21. However,
    they disagree on whether the officers had probable cause to make that arrest.
    Probable cause exists if “the facts and circumstances which are within
    the knowledge of the officer at the time of the arrest, and of which he has
    reasonably trustworthy information, are sufficient to warrant a man of
    reasonable caution in the belief that the suspect has committed or is
    committing a crime.” Commonwealth v. Thompson, 
    985 A.2d 928
    , 931
    (Pa. 2009). We do not ask whether the officers’ beliefs were “correct or more
    likely true than false.” Texas v. Brown, 
    460 U.S. 730
    , 742, (1983). Instead,
    the constitutional question is whether, given the totality of the circumstances,
    there was a “probability, and not a prima facie showing, of criminal activity.”
    Illinois v. Gates, 
    462 U.S. 213
    , 235, (1983).
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    J-S56026-20
    By the time that the back-up officers surrounded the SUV, there was
    ample probable cause to arrest Melendez for drug-dealing crimes and
    conspiracy to commit drug-dealing crimes with Ramirez. When the SUV first
    approached Officer Bogan’s unmarked vehicle, Ramirez solicited the deal using
    plural pronouns, which meant him and Melendez, who was in the car with
    Ramirez. The suppression court found that Ramirez said, “We had samples.”
    Trial Court Opinion, 7/2/20, at 7 (emphasis added). Moreover, he told Officer
    Bogan to “follow us.” N.T., 9/16/19, at 13 (emphasis added).
    Melendez repeatedly attempts to impugn the credibility of Officer Bogan
    on appeal, by indicating that his use of plural and singular pronouns shifted.
    See Melendez’s Brief at 6, 8, 22, 26. However, our standard of review for a
    witness’s credibility is no review; the finder of fact has absolute discretion to
    assess credibility.     “It is within the suppression court’s sole province as
    factfinder to pass on the credibility of witnesses and the weight to be given
    their testimony.”     Commonwealth v. Gallagher, 
    896 A.2d 583
    , 585 (Pa.
    Super. 2006). As such, Melendez’s attempt to revise the facts in this Court
    fails. From the start of this illicit transaction, the circumstances indicated to
    any person of reasonable caution that criminal activity was ongoing and that
    it involved Ramirez and Melendez, jointly.
    Additional probable cause as to Melendez arose once Officer Bogan got
    in the SUV. Ramirez asked Officer Bogan which drug he would like to sample,
    while Melendez kept watch. Melendez continually glanced at Officer Bogan in
    the back seat; at their surroundings; and into the side, rear-view mirror. This
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    conduct was consistent with someone keeping a lookout for the police or other
    sources of trouble.
    Even so, Melendez criticizes Officer Bogan for failing to explain how he
    inferred that Melendez was serving as a lookout. See Melendez’s Brief at 22.
    This is no real gap in the Commonwealth’s evidence. Police training is not
    needed to tell when someone is looking around for signs of trouble; the officer
    and the suppression court could reasonably draw that inference based on a
    rudimentary understanding of human behavior. It was apparent to anyone of
    reasonable caution that Melendez was probably aiding and abetting the drug
    deal by keeping watch for Ramirez, so Ramirez could devote his full attention
    to their potentially new customer.
    Based on the facts as the suppression court found them, probable cause
    existed for the police to arrest Melendez by the time they did so. Thus, the
    officers’ ensuing searches of his person were lawful police actions incident to
    that arrest. “The search incident to arrest exception allows arresting officers,
    in order to prevent the arrestee from obtaining a weapon or destroying
    evidence, to search both the person arrested and the area within his
    immediate control.” Commonwealth v. Simonson, 
    148 A.3d 792
    , 799 (Pa.
    Super. 2016) (some punctuation omitted). Therefore, police constitutionally
    found and seized the handgun and packets of heroin from Melendez’s person.
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    J-S56026-20
    The suppression court’s decision not to suppress that physical evidence
    was correct.5
    Melendez’s second and third issues challenge the sufficiency of the
    Commonwealth’s evidence against him regarding his convictions for the
    crimes of possession with intent to deliver (“PWID”) and conspiracy.      The
    learned Judge Donna M. Woelpper of the Court of Common Pleas of
    Philadelphia County fully disposed of these claims in her 1925(a) Opinion.
    With respect to the PWID charge, she opined as follows:
    [When a court reviews a sufficiency claim,] all evidence is
    viewed in the light most favorable to the verdict winner to
    determine whether “there is sufficient evidence to enable
    the factfinder to find every element of the crime beyond a
    reasonable doubt.” Commonwealth v. Antidormi, 
    84 A.3d 736
    , 756 (Pa. Super. 2014) (citation omitted). The
    Commonwealth may meet its burden “by means of wholly
    circumstantial evidence.”
    Id. Finally, the reviewing
    court
    “may not weigh the evidence and substitute its judgment
    for the factfinder.”
    Id. To sustain a
    conviction for PWID, the Commonwealth
    must prove “the manufacture, delivery, or possession with
    intent to manufacture or deliver, a controlled substance by
    a person not registered under this act.” 35 P.S. § 780-
    113(a)(30).    Because [Melendez] was not in physical
    possession of the narcotics recovered from the glove
    compartment of the car, the Commonwealth [needed] to
    establish that [Melendez] had constructive possession.
    Commonwealth v. Hopkins, 
    67 A.3d 817
    , 820 (Pa. Super.
    2013). In order to prove constructive possession, the
    Commonwealth must show that the defendant had
    ____________________________________________
    5
    The suppression court upheld the search and seizure of that evidence under
    
    Terry, supra
    , but we may affirm the suppression court’s order “on any valid
    basis appearing of record.” In Interest of N.B., 
    187 A.3d 941
    , 945 (Pa.
    Super. 2018).
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    “conscious     dominion”      over      the     contraband.
    Commonwealth v. Brown, 
    48 A.3d 426
    , 430 (Pa. Super.
    2012) (quoting Commonwealth v. Parker, 
    847 A.2d 745
    ,
    750 (Pa. Super. 2004)). In other words, the defendant must
    have “the power to control the contraband and the intent to
    exercise that control.”
    Id. The “intent to
    maintain a
    conscious dominion may be inferred from the totality of the
    circumstances.” Commonwealth v. Johnson, 
    26 A.3d 1078
    , 1094 (Pa. 2011) (citation omitted). In addition,
    “constructive possession may be found in one or more
    actors where the item in issue is in an area of joint control
    and equal access.”
    Id. (citation and brackets
    omitted).
    The intent to deliver element “may be inferred from
    possession of a large quantity of controlled substances. It
    follows that possession of a small amount of a controlled
    substance supports the conclusion that there is an absence
    of intent to deliver.” Commonwealth v. Roberts, 
    133 A.3d 759
    , 768 (Pa. Super. 2016) (citation omitted). If the
    quantity of the controlled substance is not determinative,
    the court may consider other factors:
    Other factors to consider when determining whether a
    defendant intended to deliver a controlled substance
    include the manner in which the controlled substance
    was packaged, the behavior of the defendant, the
    presence of drug paraphernalia, and the sums of cash
    found in possession of the defendant. The final factor
    to be considered is expert testimony. Expert opinion
    testimony is admissible concerning whether the facts
    surrounding the possession of controlled substances
    are consistent with an intent to deliver rather than
    with an intent to possess it for personal use.
    Id. (citation omitted). Here,
    [Melendez] was the front-seat passenger in the
    vehicle in which the narcotics were recovered. Although it
    was the driver who reached forward out of Officer Bogan’s
    view and handed the three packets of heroin to him,
    [Melendez] was present during the transaction and served
    as the lookout. Lastly, during their initial interaction, the
    driver said to Officer Bogan, “We have samples.” This
    evidence is sufficient to support a finding that [Melendez]
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    J-S56026-20
    constructively possessed the narcotics recovered from the
    vehicle.
    As for the intent to deliver, [Melendez] possessed two
    bundles containing 28 packets of heroin in his pants. The
    heroin recovered from [his] person and the vehicle’s glove
    compartment were both contained in clear packets with blue
    inserts. As stated above, [Melendez] played the role of
    lookout during the transaction. Finally, [he possessed] a
    loaded handgun at the time of the transaction and his
    subsequent arrest. See Commonwealth v. Ratsamy, 
    934 A.2d 1233
    , 1238 (Pa. 2007) (mentioning as a relevant factor
    the defendant’s possession of a loaded handgun). Overall,
    this evidence was sufficient to establish that the heroin
    recovered from [Melendez’s] person was intended for
    distribution and delivery.
    Trial Court Opinion, 7/2/20, at 7-8 (some punctuation omitted).
    Regarding the criminal conspiracy charge, the trial court stated:
    [Melendez’s] final issue challenges the sufficiency of
    the evidence underlying his conviction for criminal
    conspiracy. He claims that the evidence failed to establish
    (1) the existence of an agreement between [him] and the
    driver; and (2) that [he] committed an overt act in
    furtherance of the alleged conspiracy.
    “To sustain a conviction for criminal conspiracy, the
    Commonwealth must establish that the defendant (1)
    entered an agreement to commit or aid in an unlawful act
    with another person or persons, (2) with a shared criminal
    intent and, (3) an overt act was done in furtherance of the
    conspiracy.” Commonwealth v. Rios, 
    684 A.2d 1025
    ,
    1030 (Pa. 1996), see also 18 Pa.C.S.A. § 903. “This overt
    act need not be committed by the defendant; it need only
    be committed by a co-conspirator.” Commonwealth v.
    Hennigan, 
    753 A.2d 245
    , 253 (Pa. Super. 2000) (citation
    omitted).
    As it is often not possible to prove an explicit or formal
    agreement between a defendant and his co-conspirator, the
    agreement may be established by circumstantial evidence,
    including the relationship between the parties, the conduct
    or circumstances of the parties, as well as the overt acts of
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    J-S56026-20
    co-conspirators. Commonwealth v. Le, 
    208 A.3d 960
    ,
    969 (Pa. 2019) (citation omitted). “Mere association with
    the perpetrators, mere presence at the scene, or mere
    knowledge of the crime is insufficient.” Commonwealth v.
    Murphy, 
    844 A.2d 1228
    , 1238 (Pa. 2004) (citation
    omitted). However, these factors “may furnish a web of
    evidence linking an accused to an alleged conspiracy beyond
    a reasonable doubt when viewed in conjunction with each
    other and in the context in which they occurred.”
    Commonwealth v. Swerdlow, 
    636 A.2d 1173
    , 1177 (Pa.
    Super. 1994) (citation omitted).
    Here, as previously stated, [Melendez] was seated in
    the front, passenger seat beside the driver. He was present
    when the driver summoned Officer Bogan by honking his car
    horn three times, informed Officer Bogan that they had
    samples, and throughout the entirety of the transaction.
    [Melendez] served as the lookout, shifting his gaze from side
    to side, looking back at Officer Bogan, and in the side-view
    mirror. Finally, the driver committed several overt acts
    including honking the car horn, inviting Officer Bogan into
    the car, handing three packets of heroin to Officer Bogan,
    and exchanging telephone numbers. Viewing the facts in
    the light most favorable to the Commonwealth as verdict
    winner, the evidence was sufficient to establish the
    elements of conspiracy.
    Id. at 8-9
    (some punctuation omitted).
    We adopt this well-reasoned analysis as our own and dismiss Melendez’s
    two sufficiency-of-the-evidence claims as meritless.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/19/21
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