Com. v. Torres, M.

J-S32042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MICHAEL TORRES
Appellant No. 2415 EDA 2016
Appeal from the Judgment of Sentence July 22, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0000548-2014
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 17, 2017
Appellant, Michael Torres, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas. His attorney,
John Belli, Esq. (“Counsel”), has filed an Anders1 petition for leave to
withdraw. Appellant’s counsel identifies the following issues on appeal:
whether the suppression court erred by (1) denying Appellant’s motion to
reveal the identity of the confidential informant (“CI”), and (2) denying the
motion to suppress the items found in the van and Appellant’s home; and
whether the evidence was insufficient to sustain Appellant’s drug and
weapons convictions. We grant counsel’s petition to withdraw and affirm.
We glean the facts from the record.
*
Former Justice specially assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967).
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At the suppression hearing, Police Officer Charles Kapusniak testified
for the Commonwealth. Officer Kapusniak testified that on October 3, 2013,
he and his partner Officer Stephen Dmytryk went to investigate following a
complaint “in reference to a Hispanic male that lives at 940 East Russell
Street. The name was Mikey, nickname.” N.T., 7/10/15, at 9-10. “I had a
brief description, and that he was using a white custom van that was parked
in front of that location to store and provide drugs for H and Russell at that
time.” Id. at 10. The van had “a Pennsylvania tag of John George Dan
5667.” Id. at 11. The officer identified Appellant as an individual he saw
when Appellant exited 940 Russell Street. Id.
Officer Kapusniak testified that Appellant “met up with a male . . . who
was later identified as Eduardo Borges.” Id. “Mr. Borges handed
[Appellant] United States currency[,]” and Appellant went to the van. Id.
Appellant leaned inside the van, “shut the door and then he handed small
clear baggies to Mr. Borges.” Id. at 12.
The officers then went to pick up the CI. Id. After searching the CI,
they gave the CI “$40 prerecorded buy money” and took him “back to that
location.” Id. at 13. The officers “set up surveillance in the same spot” and
saw the CI give Appellant the prerecorded buy money. Id. Appellant
“turned and pointed to where Mr. Borges was . . . .” The CI “walked up to
Mr. Borges and had a hand-to-hand transaction.” Id. The CI “immediately”
returned to the officers “and turned over four clear packets contain[ing] an
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off-white chunky substance of alleged crack cocaine and orange tinted
packets containing a green leafy substance of alleged marijuana.” Id. at 14.
The officers returned to the same location on October 8, 2013. Id. at
15. The CI had $40 in prerecorded buy money. Id. The CI gave Mr. Borges
the buy money. Id. He “directed the CI westbound towards 8th Street.”
Id. Mr. Borges walked towards the white van and Appellant “got out of the
driver’s side of the van and handed Mr. Borges the clear bags again.” Id. at
15-16. The CI “turned over to Police Officer Dmytryk two clear packets
containing green leafy substance of alleged marijuana and four blue tinted
packets containing an off-white chunky substance of alleged crack cocaine.”
Id. at 17.
On October 9, 2013, Officer Kapusniak, Officer Dmytryk and “the rest
of the squad” went to the same location. Id. at 18. Officer Kapusniak “had
two search warrants in hand, one for the white van and one for the property
of 940 Russell Street.” Id. “And in [Officer Kapusniak’s] presence, Police
Officer Rhodes . . . stopped Eduardo Borges at H and Russell, the 800 block.
And off his person, he recovered one clear baggie, which contained 30 peach
packets, each containing an off-white chunky substance of alleged crack
cocaine, $180-$189 United States currency.” Id. at 21. “Police Officer Hart,
then directed [sic] to the curb line, where I saw Mr. Borges going, and he
recovered two clear jars containing green leafy substance, and one clear
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capsule . . . which contained an off-white chunky substance of alleged crack
cocaine.” Id. at 22.
Police Officer Dmytryk stopped Appellant and “[r]ecovered from his
person was $2036 of United States currency, one set of keys that worked a
door for 940 Russell and the van, two cell phones and one ID card.” Id.
They then executed a search warrant at 940 Russell Street. Id. Police
Officer Holtz recovered “an additional $910 United States currency, three
photos, and one letter with [Appellant’s] picture and the name of Michael
Torres on the letter” from the second floor rear bedroom. Id.
At the same time, a search warrant “was executed on the white Ford
van with the tag of JGD5667.” Id. “And as soon as Officer Dmytryk open
[sic] the driver’s side door, where I saw [Appellant] lean in, on the floor was
one silver Taurus .44 caliber handgun . . . and that was loaded with five live
rounds.” Id. at 23. Officer Ward, in Officer Kapusniak’s presence,
recovered a 9mm Kruger “loaded with thirteen live rounds.” Id. Inside the
van “[t]here were five clear freezer baggies and one sneaker box which
contained a total of 992 clear and yellow─there were different amounts of
some clear, some yellow. Each of the packets contained a green leafy
substance of alleged marijuana. There were 510 clear packets, 243 peach
packets, and 92 blue packets, all containing an off-white chunky substance
of alleged crack cocaine.” Id. There were also four blue packets containing
white powder cocaine. Id. at 24. “There was one pill bottle with no label
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containing 60 white Percocets. There was another pill bottle with no label
containing 80 blue Xanax.” Id. There was ammunition for various caliber
guns and magazines for semiautomatic weapons. Id. “There was a scale.
There was [sic] new and unused capsules.” Id.
Officer Kapusniak testified that he used the CI ten or fifteen times and
Officer Dmytryk used him for several years. Id. at 25. The CI is still
serving as an informant and has led to other arrests. Id. He testified that
the identity of CIs is not revealed “[b]asically for their safety.” Id. at 8. If
their identity were revealed, the fear is “death” of the CI “[a]nd possibly
their family’s.” Id.
At trial, Officer Kapusniak testified that on October 3, 2013, he and
Officer Dmytryk were investigating complaints about drug dealing in the area
of 940 East Russell Street in Philadelphia. N.T., 5/18/16, at 10-12. They
went to the area in an unmarked vehicle. Id. at 13. Appellant exited 940
East Russell Street and met an individual named Eduardo Borges. Id. Mr.
Borges “handed him an undetermined amount of United States currency.”
Id. Appellant went to a “white custom van. He got to the door of the van.
The van was parked just outside 940 Russell.” Id. He opened the van with
a key and leaned in the driver’s side of the van. Id. at 14. “He exited, shut
the door, and he walked over to Mr. Borges and handed him clear baggies.”
Id. Appellant and Mr. Borges then walked westbound down the street. Id.
at 14, 18. The officers then left the location and picked up the CI. Id. at
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18. They called the CI and told him they needed him “to attempt to make a
purchase in the area of 900 Russell Street.” Id.
They picked up the CI and followed the procedure of searching him to
be sure he did not have any narcotics or United States currency. Id. at 19.
The CI was given prerecorded money. Id. After he was searched, the CI
was taken to the area of 940 Russell Street and instructed to purchase crack
cocaine and marijuana. Id. at 21. The officers “parked in the same
general area” and watched the CI. Id.
The CI approached Appellant and handed him the prerecorded money.
Id. at 22. Appellant pointed the CI toward Mr. Borges. Id. The CI and Mr.
Borges had a hand-to-hand transaction. Id. The CI then “immediately”
returned to the officers. Id. The CI gave the officers “the items that were
purchased.” Id. at 25. There were “two orange-tinted plastic ziplock
packets each containing the marijuana.” Id. at 28. There were “four clear
plastic ziplock packets, each containing an off-white chunky substance of
alleged crack cocaine.” Id.
On October 8, 2013, the officers went back to the same location with
the CI. Id. at 30. The CI approached Mr. Borges and handed him the
prerecorded buy money. Id. Mr. Borges walked toward the van and
Appellant got out of the van. Id. Appellant handed “Mr. Borges clear items
again.” Id. Mr. Borges “has a hand-to-hand transaction with the CI again.”
Id. at 32. The CI was getting ready to leave when Appellant pointed in the
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direction of a female. Id. at 34. The CI went up to her, had a hand-to-hand
transaction, and returned to the officers. Id. The CI gave Officer Kapusniak
“two clear ziplock packets, both containing alleged marijuana, and four blue
tinted ziplock packets, all containing alleged crack cocaine.” Id. at 35.
Officer Kapusniak then “prepared an affidavit for the search warrant
for the van and 940 Russell Street.” Id. at 37.
The property receipts indicated that Officer Kapusniak got $2,036 in
United States currency, two Nokia cell phones, a Pennsylvania driver’s
license, and two keys from Appellant. Id. at 47. One of the keys was for
the van and the other was the key to 940 Russell Street. Id. The search of
the van yielded, inter alia, significant amounts of various drugs, ammunition,
and two hand guns. Id. at 54-58, 123; see supra.
Sergeant Stephen Holts testified that he served a warrant on 940 East
Russell Street. Id. at 125-26. He recovered $910 in United States currency
from the second floor rear bedroom.2 Id. at 127. He also recovered the
following from the second floor rear bedroom: “Three photos of [Appellant],
one Personal Choice ID in the name of [Appellant], one letter addressed to
[Appellant] with the address of 940 East Russell Street.” Id.
2
We note that no prerecorded buy money was found in the bedroom or in
the van. Id. at 81.
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Following a jury trial, Appellant was convicted of the following:
possession with intent to deliver a controlled substance (“PWID”), 3 criminal
conspiracy to commit PWID,4 possession of a firearm prohibited5, carrying a
firearm without a license,6 and carrying a firearm on a public street.7
Appellant was sentenced to seven-and-one-half to twenty years’
imprisonment. This timely appeal followed.
Counsel identifies the following issues in the Anders brief:
1. The Motions Court erred by denying [A]ppellant’s
motion to reveal the identity of the confidential informant
because the Commonwealth failed to establish that
revealing his or her identity would have jeopardized the
safety of the informant.
2. The Motions Court erred by denying [A]ppellant’s
motion to suppress the items found in the van and
[A]ppellant’s home because the police failed to establish
probable cause to believe that items connected to criminal
activity were being stored in either location.
3. The evidence was insufficient to sustain Appellant’s drug
and weapons convictions because the Commonwealth
failed to establish that Appellant actually or constructively
possessed the weapons and drugs located in the van given
that Appellant did not own the van.
3
35 P.S. § 780-113(a)(1).
4
18 Pa.C.S. § 903.
5
18 Pa.C.S. § 6105(a)(1). We note that this charge was not presented to
the jury. The defense stipulated to the evidence and the trial court found
Appellant guilty. N.T., 5/19/16, at 15-16.
6
18 Pa.C.S. § 6106(a)(1).
7
18 Pa.C.S. § 6108.
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Anders Brief at 13, 22, 28.
As a prefatory matter, we review Counsel’s petition to withdraw.
This Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
[Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)].
The brief must:
(1) provide a summary of the procedural history and
facts, with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s reasons for concluding that the
appeal is frivolous; and
(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant
deems worthy of the court[’]s attention in addition to the
points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted). If counsel complies with these requirements, “we
will make a full examination of the proceedings in the lower court and render
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an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”
Id. at 882 n.7 (citation omitted).
Instantly, Counsel provided a factual summary of the case with
citations to the record. Anders Brief at 4-10. Counsel explained the
relevant law and discussed why Appellant’s claims are meritless, and noted
that he found nothing in the record that could arguably support the appeal.
Id. at 12-35. In conclusion, Counsel’s Anders brief stated:
After a thorough review of the record in this matter,
counsel can find no non-frivolous argument that would
support [A]ppellant’s claims that the lower court abused its
discretion in denying [A]ppellant’s motion to suppress. A
copy of this brief has been forwarded to [A]ppellant with
instructions that if he wishes to retain private counsel or
continue pro se, or raise any additional arguments or
points he should promptly communicate with this Court.
Id. at 35. Counsel also provided Appellant with a copy of the Anders brief
and a letter advising Appellant of his rights. Counsel’s Mot. to Withdraw,
12/15/16. In light of the foregoing, we hold Counsel has complied with the
requirements of Santiago. See Orellana, 86 A.3d at 879-80. Appellant
has not filed a pro se or counseled brief. We now examine the record to
determine whether the issues on appeal are wholly frivolous. See id. at 882
n.7.
The first issue raised in the Anders brief is whether the suppression
court erred by denying Appellant’s motion to reveal the identity of the
confidential informant based upon the Commonwealth’s failure to establish
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that doing so would have jeopardized the safety of the informant. Anders
Brief at 13.
Our review is governed by the following principles:
The appellate standard of review of suppression rulings
is well-settled. This Court is bound by those of the
suppression court’s factual findings which find support in
the record, but we are not bound by the court’s
conclusions of law. When the suppression court’s specific
factual findings are unannounced, or there is a gap in the
findings, the appellate court should consider only the
evidence of the prevailing suppression party . . . and the
evidence of the other party . . . that, when read in the
context of the entire record, remains uncontradicted.
Commonwealth v. Millner, 888 A.2d 680, 685 (Pa. 2005) (citations
omitted).8
“Our standard of review of claims that a trial court erred in its
disposition of a request for disclosure of an informant’s identity is confined to
abuse of discretion.” Commonwealth v. Watson, 69 A.3d 605, 607 (Pa.
Super. 2013) (citation omitted). This Court opined:
Under Pennsylvania Rule of Criminal Procedure 573, a trial
court has the discretion to require the Commonwealth to
reveal the names and addresses of all eyewitnesses,
including confidential informants, where a defendant
makes a showing of material need and reasonableness[.]
* * *
The Commonwealth enjoys a qualified privilege to withhold
the identity of a confidential source. In order to overcome
this qualified privilege and obtain disclosure of a
8
We note that the suppression court did not make factual findings on the
record.
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confidential informant’s identity, a defendant must first
establish, pursuant to Rule 573(B)(2)(a)(i), that the
information sought is material to the preparation of the
defense and that the request is reasonable. Only after the
defendant shows that the identity of the confidential
informant is material to the defense is the trial court
required to exercise its discretion to determine whether
the information should be revealed by balancing relevant
factors, which are initially weighted toward the
Commonwealth.
Id. at 607-08 (citations omitted).
“Before an informant’s identity may be revealed, the defendant must
lay an evidentiary basis or foundation that the confidential informant
possesses relevant information that will materially aid the defendant in
presenting his or her defense and that the information is not obtainable from
another source.” Commonwealth v. Hritz, 663 A.2d 775, 780 (Pa. Super.
1995) (citation and emplasis omitted). Furthermore, “the safety of the
confidential informant is a controlling factor in determining whether to reveal
his identity.” Commonwealth v. Bing, 713 A.2d 56, 58 (Pa. 1998).
In the case at bar, the officers set up surveillance and saw Mr. Borges
give Appellant prerecorded buy money. Officer Kapusniak saw Appellant go
to the van and give Mr. Borges small clear baggies. The CI was observed by
the officers making the purchases from Borges. Appellant cannot support a
claim that the information is not obtainable from another source. See Hritz,
663 A.2d at 780. Additionally, the Commonwealth contended the safety of
the CI would be in jeopardy and that the CI is still serving as an informant.
See Bing, 713 A.2d at 58. Thus, we discern no abuse of discretion in the
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trial court’s denial of Appellant’s motion to disclose the CI’s identity and
agree with Counsel that this claim is frivolous. See Watson, 69 A.3d at
607.
Next, the Anders brief raises the issue of whether the suppression
court erred by denying the motion to suppress the items found in the van
and Appellant’s home because the police failed to establish probable cause
to believe that items connected to criminal activity were being stored in
either location. Anders Brief at 22.
In Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010), our
Pennsylvania Supreme Court opined:
Article I, Section 8 and the Fourth Amendment each
require that search warrants be supported by probable
cause. The linch-pin that has been developed to
determine whether it is appropriate to issue a search
warrant is the test of probable cause. 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.
In Illinois v. Gates, [ ] 103 S. Ct. 2317, [ ] (1983), the
United States Supreme Court established the totality of the
circumstances test for determining whether a request for a
search warrant under the Fourth Amendment is supported
by probable cause. In Commonwealth v. Gray, [ ] 503
A.2d 921 ([Pa.] 1986), this Court adopted the totality of
the circumstances test for purposes of making and
reviewing probable cause determinations under Article I,
Section 8. In describing this test, we stated:
Pursuant to the “totality of the circumstances” test
set forth by the United States Supreme Court in
Gates, the task of an issuing authority is simply to
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make a practical, common-sense decision whether,
given all of the circumstances set forth in the
affidavit before him, including the veracity and basis
of knowledge of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be found in a
particular place. . . . It is the duty of a court
reviewing an issuing authority’s probable cause
determination to ensure that the magistrate had a
substantial basis for concluding that probable cause
existed. In so doing, the reviewing court must
accord deference to the issuing authority’s probable
cause determination, and must view the information
offered to establish probable cause in a common-
sense, non-technical manner.
* * *
[Further,] a reviewing court [is] not to conduct a de
novo review of the issuing authority’s probable cause
determination, but [is] simply to determine whether
or not there is substantial evidence in the record
supporting the decision to issue the warrant.
Commonwealth v. Torres, [ ] 764 A.2d 532, 537–38,
540 ([Pa.] 2001).
Id. at 655 (some citations and quotation marks omitted).
In Commonwealth v. Dixon, 997 A.2d 368 (Pa. Super. 2010) (en
banc), this Court
[i]dentif[ied] as factors relevant to a determination of
probable cause the professional experience of a police
officer in interpreting the actions of those who traffic in
controlled substances, an officer’s knowledge of drug-
trafficking activity in a particular neighborhood, and the
movements and manners of the parties to the transaction;
[as well as] the experience of a narcotics officer, which
allowed him to interpret the way a drug trafficker was
acting and to “know in a way a layperson could not that
[the officer] was watching a drug sale.”
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Id. at 380 (citations and footnote omitted).
In the case sub judice, Officer Kapusniak testified that he and his
partner went to investigate a complaint in reference to Appellant who lived
at 940 East Russell Street. Officer Kapusniak had a description of Appellant
and was told he was using a white custom van parked in front of 940 East
Russell Street. On two occasions, the officer observed Appellant take United
States currency from Mr. Borges, after which he went to the van and handed
small clear baggies to Mr. Borges. Officer Kapusniak arranged two
controlled buys through the CI and the informant made two buys from Mr.
Borges. Additionally, the officer testified that he saw Appellant go into 940
East Russell Street.
Considering the evidence presented by the Commonwealth, we discern
no error by the suppression court. See Millner, 888 A.2d at 685. Based on
the totality of the circumstances, there was probable cause for the search
warrant. See Jones, 988 A.2d at 655; Dixon, 997 A.2d at 380. Thus, we
agree with Counsel that this claim is frivolous.
Lastly, the Anders brief raises the issue of whether the evidence was
insufficient to sustain Appellant’s drug and weapons convictions where the
Commonwealth failed to establish that Appellant actually or constructively
possessed the weapons and drugs found in the van given that Appellant did
not own the van. Anders brief at 28. The brief alleges there was
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insufficient evidence to prove beyond a reasonable doubt that he possessed
any of the contraband seized from the residence. Id. at 29.
The standard we apply in reviewing the sufficiency of
evidence is whether, viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for that of the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007) (citation
omitted).
“[P]hysical possession or control” means the knowing
exercise of power over a weapon, which may be proven
through evidence of a direct, physical association between
the defendant and the weapon or evidence of constructive
control. Constructive control, in this setting, an analogue
to constructive possession, entails the ability to exercise a
conscious dominion and the intent to do so.
Commonwealth v. Newman, 99 A.3d 86, 100 (Pa. Super. 2014) (en banc)
(quoting Commonwealth v. Hanson, 82 A.3d 1023, 1036-37 (Pa. 2013)).
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In Commonwealth v. Johnson, 26 A.3d 1078 (Pa. 2011), our
Pennsylvania Supreme Court stated
the tripartite legal requirements for a finding, beyond a
reasonable doubt, that a defendant constructively
possessed an illegal substance, i.e., 1) the defendant’s
ability to exercise a conscious dominion over the illegal
substance; 2) the defendant’s power to control the illegal
substance; and 3) the defendant’s intent to exercise that
control[.]
Id. at 1086. Constructive possession may be established by the totality of
the circumstances. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.
Super. 2013).
At trial, Officer Kapusniak testified that he observed Appellant exit 940
East Russell Street and meet Mr. Borges. Appellant went to the white
custom van and opened the van door with a key. The officer observed
Appellant hand Mr. Borges clear baggies. Weapons were also found in the
van. Officer Holts testified that he recovered photographs of Appellant and a
letter addressed to Appellant at 940 East Russell Street. The circumstantial
evidence, viewed in the light most favorable to the Commonwealth as
verdict winner, was sufficient to prove that Appellant had constructive
possession of the contraband found in the van. See Johnson, 26 A.3d at
1086; Newman, 99 A.3d at 100; Hopkins, 67 A.3d at 820. Accordingly,
we find the evidence was sufficient to sustain Appellant’s drug and weapons
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convictions and agree with Counsel that this claim is frivolous. See
Ratsamy, 934 A.2d at 1236 n.2.
Our independent review of the record reveals no other issues of
arguable merit. See Orellana, 86 A.3d at 882 n.7. Accordingly, we grant
counsel’s petition for leave to withdraw and affirm the judgment of sentence.
Counsel’s petition for leave to withdraw granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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