Com. v. Morales-Castro, A.

J-A30013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY M. MORALES-CASTRO,
Appellant No. 2110 EDA 2013
Appeal from the Judgment of Sentence May 30, 2013
in the Court of Common Pleas of Lehigh County
Criminal Division at No.: CP-39-CR-0002781-2012
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY M. MORALES-CASTRO,
Appellant No. 2111 EDA 2013
Appeal from the Judgment of Sentence May 30, 2013
in the Court of Common Pleas of Lehigh County
Criminal Division at No.: CP-39-CR-0005565-2012
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 17, 2015
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A30013-14
In this consolidated appeal,1 Appellant, Anthony Morales-Castro,
appeals from the judgment of sentence imposed at case number 2781/2012
for his jury conviction of possession with intent to deliver a controlled
substance (PWID), possession of a controlled substance, and possession of
drug paraphernalia;2 and from the judgment of sentence imposed at case
number 5565/2012 for his jury conviction of delivery of a controlled
substance, PWID, possession of a controlled substance, and criminal use of a
communication facility.3 Although we affirm Appellant’s convictions, we are
constrained to vacate his judgment of sentence and remand for
resentencing.
The trial court aptly set forth the relevant factual background in its
June 20, 2013 opinion:
. . . [T]he evidence [at trial] established that on April 27, 2012,
Detective Jorge Medero of the Allentown Police Department Vice
and Intelligence Unit, along with other agents, were conducting
an investigation of [Appellant]. On this date, Detective Medero
met with a confidential informant, Oscar York, in order to
instruct [him] to arrange for a controlled purchase of cocaine
from [Appellant]. Via telephone communications that were
____________________________________________
1
On December 28, 2012, the trial court consolidated the cases for trial.
(See Notice of Joinder, 12/28/12). This Court consolidated Appellant’s
appeals sua sponte on March 21, 2014. (See Per Curiam Order, 3/21/14, at
1).
2
35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
3
35 P.S. §§ 780-113(a)(30), (a)(30), and (a)(16); and 18 Pa.C.S.A. §
7512(a), respectively.
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recorded with [Appellant], the confidential informant made
arrangements to purchase 100 grams of cocaine from [him].
Prior to the effectuation of the controlled purchase,
Detective Medero, Detective Jeffrey Taylor of the Drug
Enforcement Administration Task Force of the Lehigh County
District Attorney’s Office and Detective Kyle Hough of the
Allentown Police Department Vice and [Intelligence] Unit
searched the confidential informant’s vehicle for contraband or
currency, as well as the confidential informant himself. No
contraband or currency was located. Additionally, audio and
video equipment were installed in the back seat of the vehicle to
record the transaction.[4] . . . Three Thousand Nine Hundred
($3,900.00) Dollars in United States currency in recorded bills
was provided to the confidential informant. The confidential
informant drove to [Appellant’s] residence located at 734
Genesee Street, Allentown, Lehigh County, Pennsylvania. At this
time, the confidential informant picked up [Appellant,] and
[conducted the controlled buy of the cocaine, which he placed in
the vehicle’s center console, and] drove him to First Class Cuts
Barber Shop . . . in Allentown . . . .[a] After the controlled buy
was effectuated, the confidential informant returned to the pre-
arranged location to meet with Detective Medero. During this
entire process, the confidential informant was under constant
surveillance by law enforcement personnel . . . with the aid of an
airplane and numerous unmarked police vehicles.
[a]
Detective Michael Mish of the Bethlehem Police
Department, assigned to the [Drug Enforcement
Agency (DEA)] local field office, conducted
surveillance of the barber shop [and] [h]e observed
[Appellant] exit the passenger side of the vehicle . . .
.
At the pre-arranged location, the confidential informant
moved the white plastic bag containing cocaine from the center
console to the passenger seat of the vehicle so that it could be
collected by Detective Medero. . . . [T]he subject vehicle and the
confidential informant were searched again. Other than the
____________________________________________
4
At trial, in addition to hearing and viewing the audio and video recordings,
the jury was provided transcripts of same.
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cocaine in the white plastic bag, no other contraband or currency
was located.
Subsequently, on May 21, 2012, agents conducting
surveillance of [Appellant] observed him depart from [his
residence at] 734 Genesee Street . . . in a vehicle that he drove
to and parked at 810 Whittier Drive, Allentown. [Appellant] later
was observed by agents and officers, including Detective . . .
Hough . . . , operating a green Chevrolet Tahoe and driving it
back to [his residence]. [Appellant] then traveled to the Bronx,
New York and ultimately returned to the Lehigh Valley later that
day. On the return trip, [Appellant] was stopped [in Salisbury
Township] for motor vehicle violations which included failure to
utilize proper turn signals and exceeding maximum speed limits
at approximately 5:50 P.M. . . .[b] Specifically, a marked police
cruiser was in place by the Daisy Hill Market to effectuate the
traffic stop on I-78 in the City of Allentown. However,
[Appellant] unexpectedly exited I-78 into Hellertown via Route
412 and used back roads. The officers and agents were able to
keep track of [Appellant’s] location because[,] via [o]rder dated
5/11/12, a mobile tracking device had been placed on the
vehicle.
[b]
Detective Hough observed the multiple motor
vehicle violations during his mobile surveillance of
[Appellant]. However, he was unable to effectuate
the traffic stop because he was in an unmarked unit.
Detective . . . Taylor . . . made contact with [Appellant]
shortly after the traffic stop was initiated . . . in Fountain Hill.
[Appellant] was the sole occupant of the vehicle. [Although not
in custody or under arrest, Appellant] was verbally
Mirandized[5] by Detective Taylor and [he] indicated that he
understood his Miranda rights and did not have any questions.
[Appellant] agreed to speak with the officers. In response to
questions posed by Detective Taylor, [Appellant] stated that he
was returning from Newark, New Jersey, and that he lived with
his parents at 810 Whittier Drive. He also stated that he had
nothing illegal in his vehicle and gave verbal [and written]
consent to search the . . . Chevrolet Tahoe. . . .[c]
____________________________________________
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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[c]
A Pennsylvania State Police canine was called to
the scene to conduct a sniff search of the exterior of
[Appellant’s vehicle]. The canine gave a positive
alert for the presence of the odor of controlled
substance[s].
Despite being given both verbal and written consent, law
enforcement personnel made the tactical decision to obtain a
search warrant for the Chevrolet Tahoe. At approximately 8:30
P.M. or 9:00 P.M., a search of the vehicle was subsequently
performed . . . pursuant to the search warrant that was granted.
. . . [Appellant] was informed that the law enforcement
personnel would seek a search warrant for his residence.
A search warrant for the residence located at 734 Genesee
Street was subsequently applied for and granted. The search of
the premises commenced at approximately 11:01 P.M., after the
search warrant was obtained. . . . Detective Taylor again spoke
with [Appellant] after he was transported to 734 Genesee Street
during the execution of the search warrant on the residence. . . .
[T]hey found approximately a kilo brick of cocaine (970 grams)
in the wood pellet stove, a clear bag containing cocaine in the
bedroom closet on a shelf, and a handgun magazine on the
bedroom window ledge. . . .
A Bursa .40 caliber semi-automatic handgun with a
magazine with thirteen (13) rounds of ammunition was later
located between the sheets and the mattress in [Appellant’s]
bedroom. . . . [Appellant] was arrested immediately after the
contraband was located and transported to the Allentown Police
Headquarters at approximately 11:33 P.M.
(Trial Court Opinion, 6/20/13, at 4-10) (record citations and most footnotes
omitted).
The jury trial in this matter commenced on April 29, 2013. Before
trial, Appellant filed pre-trial motions that sought, inter alia, to suppress
evidence obtained pursuant to the search of his home, to sever the trials, to
recuse the trial judge, and to lower his bail. The court denied the motions
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on November 8, 2012, and on May 1, 2013, the jury convicted Appellant of
the previously stated charges. On May 30, 2013, the court sentenced him in
case number 2781/2012 to a mandatory minimum sentence of not less than
seven nor more than ten years on the PWID conviction, and to a consecutive
minimum mandatory sentence of not less than seven nor more than ten
years’ imprisonment at case number 5565/2012 on the delivery of a
controlled substance charge.6 (See N.T. Sentencing, 5/30/13, at 5, 8-10).
Appellant filed post-sentence motions, which the court denied on June 20,
2013. Appellant timely appealed on July 18, 2013.7
Appellant raises eight questions for this Court’s review:
1. Whether the trial court erred in [c]ase [n]o. 2781-2012 by
failing to suppress evidence obtained during the search of
[Appellant’s] home requiring him to either be acquitted or
granted a new trial?
____________________________________________
6
At case number 2781/2012, the charge of possession of a controlled
substance merged with the PWID conviction for sentencing purposes; and
the court sentenced Appellant to a concurrent term of not less than six nor
more than twelve months on the possession of drug paraphernalia
conviction. (See N.T. Sentencing, 5/30/13, at 8). At case number
5565/2012, the PWID and possession of a controlled substance convictions
merged, and the court imposed a concurrent sentence of not less than six
nor more than twelve months’ imprisonment on the criminal use of a
communication facility conviction. (See id. at 9).
7
Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on August 14, 2013. See Pa.R.A.P. 1925(b). On August 26,
2013, the court filed a Rule 1925(a) opinion in which it relied on the reasons
stated in its June 20, 2013 opinion and order denying Appellant’s post-
sentence motions. See Pa.R.A.P. 1925(a).
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2. Whether the trial court erred in [c]ase [n]o. 5565-2012 by
either failing to suppress the cocaine obtained during the
“controlled buy” or alternatively failing to grant the motion for
acquittal due to reasonable doubt?
3. Whether the trial court erred in providing the jury with a
summary transcript of the audio purportedly reflecting the
contents of the conversation that occurred inside the confidential
informant’s vehicle?
4. Whether the trial court improperly joined these cases
requiring that separate new trials be granted to [Appellant]?
5. Whether the trial court imposed an illegal sentence when it
sentenced [Appellant] to two mandatory minimum sentences of
seven years?
6. Whether the trial court abused its discretion by considering
non-record materials when it imposed consecutive rather than
concurrent sentences?
7. Whether the trial judge should have recused herself from
the matter after engaging in contact with the [d]istrict [a]ttorney
in the case on January 23, 2013 in the absence of either
[Appellant] or [Appellant’s] attorney with [the] case that led to
an [o]rder of [c]ourt being entered?
8. Whether the trial court erred in raising [Appellant’s] bail in
[c]ase [n]o. 2781-2012 case [sic] as such act violated the
Pennsylvania Rule of Criminal Procedure and was excessive and
effectively denied [Appellant] his right to bail?
(Appellant’s Brief, at 5-6).
In Appellant’s first issue, he maintains that the trial court abused its
discretion in failing to suppress evidence the police recovered pursuant to a
search of his home, as fruit of the poisonous tree. (See id. at 25).
Appellant offers five arguments in support of this issue: (1) his stop and
detention by police was unlawful because “Allentown Police stopped [his]
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vehicle in Salsbury [sic] Township” without jurisdiction, (id.); (2) “[t]here
was no basis for the stop other than [Appellant] was under investigation for
drug activity,” (id. at 30-31); (3) they “detained [him] in the back of
several different police cars over a period of more than [five] hours.” (id. at
31);” (4) “[t]he police entered and commenced the search of [Appellant’s]
home before they had a warrant,” (id. at 32); and (5) “[e]vidence used to
obtain the search warrant of the home was insufficient and stale.” (Id. at
33). Appellant’s first issue is waived in part.
Preliminarily, a review of the record reveals that Appellant failed to
raise his first claim with the trial court or to include it in his otherwise
thorough, six-page Rule 1925(b) statement. (See Appellant’s Brief, at 25;
Rule 1925(b) Statement, 8/14/13, at 1-6). Therefore, this argument is
waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth
v. Hill, 16 A.3d 484, 494 (Pa. 2011); Commonwealth v. Johnson, 51
A.3d 237, 247 (Pa. Super. 2012) (en banc), appeal denied, 63 A.3d 1245(Pa. 2013).
Appellant also failed to raise argument two about reasonable suspicion
justifying his stop with the trial court. Therefore, we deem this issue
waived.8
____________________________________________
8
Moreover, we observe that the police stopped Appellant on the basis of
motor vehicle violations. (See N.T. Trial, 4/29/13, at 120). Therefore, they
had reasonable suspicion to stop him. See Commonwealth v. Hilliar, 943
(Footnote Continued Next Page)
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Additionally, Appellant’s fifth argument is waived for violation of Rule
302(a). The record reveals that, in the trial court, Appellant maintained that
“the information used to obtain the search warrant was factually deficient
and/or inaccurate,” because the co-affiant, Detective Hough, inaccurately
stated that none of his prior search warrants had been suppressed.9
(Omnibus Pre-Trial Motion Case No. 2781/2012, 8/31/12, at 5 ¶28; N.T.
Hearing, 10/17/12, at 9, 11). However, here, Appellant claims that
information contained in the application for the search warrant was factually
deficient and stale because the only illegal activity it contained was
information regarding the drug sale to the confidential informant. (See
Appellant’s Brief, at 33-34). Therefore, Appellant’s fifth argument is waived
pursuant to Rule 302(a). See Pa.R.A.P. 302(a).10
_______________________
(Footnote Continued)
A.2d 984, 990 (Pa. Super. 2008), appeal denied, 956 A.2d 432 (Pa. 2008)
(“Pursuant to 75 Pa.C.S.[A.] § 6308(b), a police officer may stop a vehicle
anytime the officer possesses reasonable suspicion of a motor vehicle
violation.”). In fact, as discussed infra, based on the information law
enforcement obtained in their surveillance of Appellant, they had probable
cause to custodially detain or arrest him at the time that they stopped him.
9
In another case, the trial court had granted a motion to suppress a search
warrant in which Detective Hough was an affiant. (See N.T. Hearing,
10/17/12, at 61). However, as Detective Hough explained, this Court
concluded that the suppression was improper and reversed the trial court’s
decision. (See id.).
10
Moreover, Appellant’s argument is disingenuous where the application for
the search warrant contained more information than that about the illegal
sale of narcotics to the informant. (See Affidavit of Probable Cause,
5/21/12, at unnumbered pages 1-6). In fact, our independent review
(Footnote Continued Next Page)
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We now turn to the merits of Appellant’s remaining arguments in
support of his first issue, that the trial court abused its discretion in denying
his motion to suppress evidence obtained pursuant to the search of his
home. (See Appellant’s Brief, at 25-34). Specifically, we review whether
the trial court should have suppressed evidence obtained in the search of
Appellant’s home because officers kept him in police vehicles for over five
hours, and they commenced the search before obtaining the warrant to do
so. (See id. at 31-32).
Our standard of review of the denial of a motion to
suppress is well-settled:
Our standard of review in addressing a
challenge to the denial of a suppression motion is
limited to determining whether the suppression
court’s factual findings are supported by the record
and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth
prevailed before the suppression court, we may
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 record as a whole. Where the suppression
court’s factual findings are supported by the record,
we are bound by these findings and may reverse
only if the court’s legal conclusions are erroneous.
Where, as here, the appeal of the determination of
the suppression court turns on allegations of legal
error, the suppression court’s legal conclusions are
_______________________
(Footnote Continued)
reveals that the application for the search warrant established probable
cause. See Commonwealth v. Bartee, 868 A.2d 1218, 1220-21 (Pa.
Super. 2005) (“the standard for evaluating whether probable cause exists
for a search warrant to be issued is the totality of the circumstances.”)
(citation omitted).
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not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Commonwealth v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013), appeal
denied, 83 A.3d 415 (Pa. 2013) (citation omitted).
Appellant claims that he was arrested illegally when the officers
detained him in a police car for over five hours while conducting further
investigation. (See Appellant’s Brief, at 31-32). We disagree.
It is well-settled jurisprudence that:
A primary purpose of both the Fourth Amendment [of the U.S.
Constitution] and Article I, Section 8 [of the Pennsylvania
Constitution] is to protect citizens from unreasonable searches
and seizures. . . . [The Pennsylvania Supreme] Court has noted
that there are three basic categories of interactions between
citizens and the police. The first category, a mere encounter or
request for information, does not need to be supported by any
level of suspicion, and does not carry any official compulsion to
stop or respond. The second category, an investigative
detention, derives from Terry v. Ohio[, 392 U.S. 1 (1968),] and
its progeny: such a detention is lawful if supported by
reasonable suspicion because, although it subjects a suspect to a
stop and a period of detention, it does not involve such coercive
conditions as to constitute the functional equivalent of an arrest.
The final category, the arrest or custodial detention, must be
supported by probable cause.
Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003) (quotation marks and
some citations omitted).
The key difference between an investigative and a
custodial detention is that the latter involves such coercive
conditions as to constitute the functional equivalent of an arrest.
The court considers the totality of the
circumstances to determine if an encounter is
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investigatory or custodial, but the following factors
are specifically considered: the basis for the
detention; the duration; the location; whether the
suspect was transported against his will, how far,
and why; whether restraints were used; the show,
threat or use of force; and the methods of
investigation used to confirm or dispel suspicions.
An arrest or “custodial detention” must be supported by
probable cause:
Probable cause is made out when 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 [person] of reasonable caution in the belief
that the suspect has committed or is committing a
crime. The question we ask is not whether the
officer’s belief was correct or more likely true than
false. Rather, we require only a probability, and
not a prima facie showing, of criminal activity. In
determining whether probable cause exists, we apply
a totality of the circumstances test.
Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa. Super. 2011),
appeal denied, 49 A.3d 442 (Pa. 2012) (citations and quotation marks
omitted; emphasis in original).
A delay for reasonable investigation does not violate due
process. The prosecution is under no constitutional duty to file
charges as soon as it obtains evidence of a defendant’s guilt. To
prove a violation of due process, a defendant must show not
only that he was prejudiced by the delay, but also that the
Commonwealth’s action in causing or allowing the delay was
“fundamentally unfair.”
Commonwealth v. Grazier, 570 A.2d 1054, 1057 (Pa. Super. 1990)
(citations omitted).
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Here, on April 27, 2012, as part of an ongoing, major drug
investigation, police observed Appellant engaged in a felony drug transaction
in which he sold a confidential informant 100 grams of cocaine for
$3,900.00. (See N.T. Trial, 4/30/13, at 73-74, 128-29, 132, 175). A few
weeks later, on May, 21, 2012, law enforcement tracked Appellant going to
the Bronx, New York, in a Chevy Tahoe that the DEA had informed them was
adapted for narcotics sales, and returning to Pennsylvania shortly thereafter,
behavior indicative of illegal drug trafficking. (See id. at 18; see also
Affidavit of Probable Cause, 5/21/12, at unnumbered page 4 ¶ 10). The
police also had information from the confidential informant about Appellant
dealing illegal narcotics in the area. (See Affidavit of Probable Cause,
5/21/12, at unnumbered page 4 ¶ 9). Upon stopping Appellant, he stated
that he was coming from Newark, New Jersey, and that his residence was
810 Whittier Drive, neither of which was true. (See N.T. Trial, 4/29/13, at
62). Based on the officers’ observations, and information obtained from
other, reliable sources, police had probable cause to custodially detain or
arrest Appellant. See Goldsborough, supra at 306; see also
Commonwealth v. Zook, 615 A.2d 1, 6 (Pa. 1992), cert. denied, 507 U.S.
974 (1993) (observing that police may arrest defendant without warrant
where they have probable cause to believe that defendant has committed a
felony). Moreover, Appellant fails to show that the delay between the time
of the traffic stop and the arrest was “fundamentally unfair.” Grazier,
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supra at 1057 (concluding that nearly seven year delay in filing charges in
order to continue investigation was not fundamentally unfair).
Therefore, based on the foregoing, the police had probable cause to
custodially detain or arrest Appellant as of April 27, 2012 when they
observed him conduct an illegal cocaine sale. See Goldsborough, supra at
306. Hence, based on that observation of the felony, and the additional
facts and circumstances within the officers’ knowledge, they properly
custodially detained Appellant on May 21, 2012 for approximately five hours
before formally arresting him. See Colson, supra at 817; see also
Grazier, supra at 1057. Accordingly, the trial court did not err when it
denied Appellant’s motion to suppress the evidence seized during the search
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2. Whether the trial court erred in [c]ase [n]o. 5565-2012 by
either failing to suppress the cocaine obtained during the
“controlled buy” or alternatively failing to grant the motion for
acquittal due to reasonable doubt?
3. Whether the trial court erred in providing the jury with a
summary transcript of the audio purportedly reflecting the
contents of the conversation that occurred inside the confidential
informant’s vehicle?
4. Whether the trial court improperly joined these cases
requiring that separate new trials be granted to [Appellant]?
5. Whether the trial court imposed an illegal sentence when it
sentenced [Appellant] to two mandatory minimum sentences of
seven years?
6. Whether the trial court abused its discretion by considering
non-record materials when it imposed consecutive rather than
concurrent sentences?
7. Whether the trial judge should have recused herself from
the matter after engaging in contact with the [d]istrict [a]ttorney
in the case on January 23, 2013 in the absence of either
[Appellant] or [Appellant’s] attorney with [the] case that led to
an [o]rder of [c]ourt being entered?
8. Whether the trial court erred in raising [Appellant’s] bail in
[c]ase [n]o. 2781-2012 case [sic] as such act violated the
Pennsylvania Rule of Criminal Procedure and was excessive and
effectively denied [Appellant] his right to bail?
(Appellant’s Brief, at 5-6).
In Appellant’s first issue, he maintains that the trial court abused its
discretion in failing to suppress evidence the police recovered pursuant to a
search of his home, as fruit of the poisonous tree. (See id. at 25).
Appellant offers five arguments in support of this issue: (1) his stop and
detention by police was unlawful because “Allentown Police stopped [his]
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vehicle in Salsbury [sic] Township” without jurisdiction, (id.); (2) “[t]here
was no basis for the stop other than [Appellant] was under investigation for
drug activity,” (id. at 30-31); (3) they “detained [him] in the back of
several different police cars over a period of more than [five] hours.” (id. at
31);” (4) “[t]he police entered and commenced the search of [Appellant’s]
home before they had a warrant,” (id. at 32); and (5) “[e]vidence used to
obtain the search warrant of the home was insufficient and stale.” (Id. at
33). Appellant’s first issue is waived in part.
Preliminarily, a review of the record reveals that Appellant failed to
raise his first claim with the trial court or to include it in his otherwise
thorough, six-page Rule 1925(b) statement. (See Appellant’s Brief, at 25;
Rule 1925(b) Statement, 8/14/13, at 1-6). Therefore, this argument is
waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth
v. Hill, 16 A.3d 484, 494 (Pa. 2011); Commonwealth v. Johnson, 51
A.3d 237, 247 (Pa. Super. 2012) (en banc), appeal denied, 63 A.3d 1245(Pa. 2013).
Appellant also failed to raise argument two about reasonable suspicion
justifying his stop with the trial court. Therefore, we deem this issue
waived.8
____________________________________________
8
Moreover, we observe that the police stopped Appellant on the basis of
motor vehicle violations. (See N.T. Trial, 4/29/13, at 120). Therefore, they
had reasonable suspicion to stop him. See Commonwealth v. Hilliar, 943
(Footnote Continued Next Page)
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Additionally, Appellant’s fifth argument is waived for violation of Rule
302(a). The record reveals that, in the trial court, Appellant maintained that
“the information used to obtain the search warrant was factually deficient
and/or inaccurate,” because the co-affiant, Detective Hough, inaccurately
stated that none of his prior search warrants had been suppressed.9
(Omnibus Pre-Trial Motion Case No. 2781/2012, 8/31/12, at 5 ¶28; N.T.
Hearing, 10/17/12, at 9, 11). However, here, Appellant claims that
information contained in the application for the search warrant was factually
deficient and stale because the only illegal activity it contained was
information regarding the drug sale to the confidential informant. (See
Appellant’s Brief, at 33-34). Therefore, Appellant’s fifth argument is waived
pursuant to Rule 302(a). See Pa.R.A.P. 302(a).10
_______________________
(Footnote Continued)
A.2d 984, 990 (Pa. Super. 2008), appeal denied, 956 A.2d 432 (Pa. 2008)
(“Pursuant to 75 Pa.C.S.[A.] § 6308(b), a police officer may stop a vehicle
anytime the officer possesses reasonable suspicion of a motor vehicle
violation.”). In fact, as discussed infra, based on the information law
enforcement obtained in their surveillance of Appellant, they had probable
cause to custodially detain or arrest him at the time that they stopped him.
9
In another case, the trial court had granted a motion to suppress a search
warrant in which Detective Hough was an affiant. (See N.T. Hearing,
10/17/12, at 61). However, as Detective Hough explained, this Court
concluded that the suppression was improper and reversed the trial court’s
decision. (See id.).
10
Moreover, Appellant’s argument is disingenuous where the application for
the search warrant contained more information than that about the illegal
sale of narcotics to the informant. (See Affidavit of Probable Cause,
5/21/12, at unnumbered pages 1-6). In fact, our independent review
(Footnote Continued Next Page)
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We now turn to the merits of Appellant’s remaining arguments in
support of his first issue, that the trial court abused its discretion in denying
his motion to suppress evidence obtained pursuant to the search of his
home. (See Appellant’s Brief, at 25-34). Specifically, we review whether
the trial court should have suppressed evidence obtained in the search of
Appellant’s home because officers kept him in police vehicles for over five
hours, and they commenced the search before obtaining the warrant to do
so. (See id. at 31-32).
Our standard of review of the denial of a motion to
suppress is well-settled:
Our standard of review in addressing a
challenge to the denial of a suppression motion is
limited to determining whether the suppression
court’s factual findings are supported by the record
and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth
prevailed before the suppression court, we may
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 record as a whole. Where the suppression
court’s factual findings are supported by the record,
we are bound by these findings and may reverse
only if the court’s legal conclusions are erroneous.
Where, as here, the appeal of the determination of
the suppression court turns on allegations of legal
error, the suppression court’s legal conclusions are
_______________________
(Footnote Continued)
reveals that the application for the search warrant established probable
cause. See Commonwealth v. Bartee, 868 A.2d 1218, 1220-21 (Pa.
Super. 2005) (“the standard for evaluating whether probable cause exists
for a search warrant to be issued is the totality of the circumstances.”)
(citation omitted).
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not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Commonwealth v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013), appeal
denied, 83 A.3d 415 (Pa. 2013) (citation omitted).
Appellant claims that he was arrested illegally when the officers
detained him in a police car for over five hours while conducting further
investigation. (See Appellant’s Brief, at 31-32). We disagree.
It is well-settled jurisprudence that:
A primary purpose of both the Fourth Amendment [of the U.S.
Constitution] and Article I, Section 8 [of the Pennsylvania
Constitution] is to protect citizens from unreasonable searches
and seizures. . . . [The Pennsylvania Supreme] Court has noted
that there are three basic categories of interactions between
citizens and the police. The first category, a mere encounter or
request for information, does not need to be supported by any
level of suspicion, and does not carry any official compulsion to
stop or respond. The second category, an investigative
detention, derives from Terry v. Ohio[, 392 U.S. 1 (1968),] and
its progeny: such a detention is lawful if supported by
reasonable suspicion because, although it subjects a suspect to a
stop and a period of detention, it does not involve such coercive
conditions as to constitute the functional equivalent of an arrest.
The final category, the arrest or custodial detention, must be
supported by probable cause.
Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003) (quotation marks and
some citations omitted).
The key difference between an investigative and a
custodial detention is that the latter involves such coercive
conditions as to constitute the functional equivalent of an arrest.
The court considers the totality of the
circumstances to determine if an encounter is
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investigatory or custodial, but the following factors
are specifically considered: the basis for the
detention; the duration; the location; whether the
suspect was transported against his will, how far,
and why; whether restraints were used; the show,
threat or use of force; and the methods of
investigation used to confirm or dispel suspicions.
An arrest or “custodial detention” must be supported by
probable cause:
Probable cause is made out when 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 [person] of reasonable caution in the belief
that the suspect has committed or is committing a
crime. The question we ask is not whether the
officer’s belief was correct or more likely true than
false. Rather, we require only a probability, and
not a prima facie showing, of criminal activity. In
determining whether probable cause exists, we apply
a totality of the circumstances test.
Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa. Super. 2011),
appeal denied, 49 A.3d 442 (Pa. 2012) (citations and quotation marks
omitted; emphasis in original).
A delay for reasonable investigation does not violate due
process. The prosecution is under no constitutional duty to file
charges as soon as it obtains evidence of a defendant’s guilt. To
prove a violation of due process, a defendant must show not
only that he was prejudiced by the delay, but also that the
Commonwealth’s action in causing or allowing the delay was
“fundamentally unfair.”
Commonwealth v. Grazier, 570 A.2d 1054, 1057 (Pa. Super. 1990)
(citations omitted).
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Here, on April 27, 2012, as part of an ongoing, major drug
investigation, police observed Appellant engaged in a felony drug transaction
in which he sold a confidential informant 100 grams of cocaine for
$3,900.00. (See N.T. Trial, 4/30/13, at 73-74, 128-29, 132, 175). A few
weeks later, on May, 21, 2012, law enforcement tracked Appellant going to
the Bronx, New York, in a Chevy Tahoe that the DEA had informed them was
adapted for narcotics sales, and returning to Pennsylvania shortly thereafter,
behavior indicative of illegal drug trafficking. (See id. at 18; see also
Affidavit of Probable Cause, 5/21/12, at unnumbered page 4 ¶ 10). The
police also had information from the confidential informant about Appellant
dealing illegal narcotics in the area. (See Affidavit of Probable Cause,
5/21/12, at unnumbered page 4 ¶ 9). Upon stopping Appellant, he stated
that he was coming from Newark, New Jersey, and that his residence was
810 Whittier Drive, neither of which was true. (See N.T. Trial, 4/29/13, at
62). Based on the officers’ observations, and information obtained from
other, reliable sources, police had probable cause to custodially detain or
arrest Appellant. See Goldsborough, supra at 306; see also
Commonwealth v. Zook, 615 A.2d 1, 6 (Pa. 1992), cert. denied, 507 U.S.
974 (1993) (observing that police may arrest defendant without warrant
where they have probable cause to believe that defendant has committed a
felony). Moreover, Appellant fails to show that the delay between the time
of the traffic stop and the arrest was “fundamentally unfair.” Grazier,
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supra at 1057 (concluding that nearly seven year delay in filing charges in
order to continue investigation was not fundamentally unfair).
Therefore, based on the foregoing, the police had probable cause to
custodially detain or arrest Appellant as of April 27, 2012 when they
observed him conduct an illegal cocaine sale. See Goldsborough, supra at
306. Hence, based on that observation of the felony, and the additional
facts and circumstances within the officers’ knowledge, they properly
custodially detained Appellant on May 21, 2012 for approximately five hours
before formally arresting him. See Colson, supra at 817; see also
Grazier, supra at 1057. Accordingly, the trial court did not err when it
denied Appellant’s motion to suppress the evidence seized during the search
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of his home on the basis of the alleged illegal arrest. See Potts, supra at
1280.11
Appellant also argues that the court erred in denying his motion to
suppress where police entered his home and conducted a search before they
obtained a warrant to do so. (See Appellant’s Brief, at 32-33). This
argument is belied by the record, which reflects that police applied for a
____________________________________________
11
Appellant’s reliance on Commonwealth v. Melendez, 676 A.2d 226 (Pa.
1996), and Commonwealth v. Lovette, 450 A.2d 975 (Pa. 1982), cert.
denied, 459 U.S. 1178 (1983), is not legally persuasive. (See Appellant’s
Brief, at 29-32). In Melendez, police were conducting surveillance on
Melendez and her residence for suspected drug activity. See Melendez,
supra at 227. While the officers were waiting for a search warrant, they
stopped Melendez in her vehicle after she had left her home, searched her
purse, and transported her back to her residence. See id. Our Supreme
Court concluded that the police lacked probable cause to arrest or stop and
search Melendez merely because she was a suspect in a felony investigation
where she was not engaged in any activity at the time she was stopped that
would cause a reasonable person to believe that she was then engaged in
criminal conduct. See id. at 228-30. Here, under the totality of the
circumstances, police had probable cause to custodially detain and arrest
Appellant. Therefore, Melendez is inapposite.
In Lovette, police were investigating a reported burglary and
observed muddy footprints at the scene. See Lovette, supra at 976.
Nearby, police saw Lovette with muddy shoes. See id. Police stopped
Lovette, found a ring and silver dime on his companion, and transported him
and the other individuals back to the scene of the burglary. On appeal, our
Supreme Court determined that the transporting of Lovette constituted an
arrest, which was not supported by probable cause. See id. at 981. Here,
under the totality of the circumstances and the evidence then-available to
the police, including the positive response of the canine to the presence of
cocaine, the observation of Appellant delivering cocaine to the confidential
informant a few weeks prior, and their own training and experience, the
police had probable cause to conduct a custodial detention/arrest.
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search warrant of Appellant’s residence at 10:35 P.M., at which time
Magisterial District Justice Robert C. Halel approved the warrant. (See
Application for Search Warrant and Authorization, 5/21/12, at 1). The police
entered Appellant’s home at approximately 11:01 P.M. after receiving the
warrant (See N.T. Hearing, 10/17/12, at 52). Therefore, Appellant’s
argument in this regard is wholly without merit, and his first issue fails.
In Appellant’s second issue, he argues that “[t]he trial court erred in
failing to dismiss the charges relating to [c]ase [number] 5565-2012.”
(Appellant’s Brief, at 34).12 Specifically, he maintains that “[t]he handling of
the drug evidence by [the confidential informant] tainted the case against
[him,]” and therefore, “[r]easonable doubt exists as to [his] guilt for case
5565-2012.” (Id. at 34-35). We disagree.
Preliminarily, we observe that, although Appellant fails to argue it as
such, the allegation regarding a gap in the chain of custody challenges the
weight of the evidence to support his conviction.13 See Commonwealth v.
____________________________________________
12
We note that Appellant’s brief does not include a “[s]tatement of place of
raising or preservation of [this] issue[].” Pa.R.A.P. 2117(c), 2119(e).
However, because we located Appellant’s motion for arrest of judgment in
his post-sentence motions, we will not deem this issue waived. See
Commonwealth v. Fransen, 42 A.3d 1100, 1107 n.11 (Pa. Super. 2012),
appeal denied, 76 A.3d 538 (Pa. 2013) (declining to find issue waived in
spite of appellant’s failure to comply with Pa.R.A.P. 2119 where Court could
discern argument).
13
Appellant raised this issue in his post-sentence motion, thus preserving it
for our review, and the trial court found that the claim, no matter how
(Footnote Continued Next Page)
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Copenhefer, 719 A.2d 242, 256 (Pa. 1998), cert. denied, 528 U.S. 830(1999).
Our standard of review of a challenge to the weight of the evidence is
well-settled:
A verdict is not contrary to the weight of the
evidence because of a conflict in testimony or
because the reviewing court on the same facts might
have arrived at a different conclusion than the fact[-
]finder. Rather, a new trial is warranted only when
the jury’s verdict is so contrary to the evidence that
it shocks one’s sense of justice and the award of a
new trial is imperative so that right may be given
another opportunity to prevail. Where, as here, the
judge who presided at trial ruled on the weight claim
below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against
the weight of the evidence. Rather, appellate review
is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
One of the least assailable reasons for granting or denying
a new trial is the lower court’s determination that the verdict
was or was not against the weight of the evidence and that new
process was or was not dictated by the interests of justice.
Thus, only where the facts and inferences disclose a palpable
abuse of discretion will the denial of a motion for a new trial
based on the weight of the evidence be upset on appeal.
Commonwealth v. Morales, 91 A.3d 80, 91-92 (Pa. 2014) (citations
omitted; emphasis in original).
In this case, Appellant has not argued or demonstrated that the trial
court palpably abused its discretion when it denied his motion for a new trial
_______________________
(Footnote Continued)
addressed, failed. (See Post-Sentence Motion, 6/10/13, at 2 ¶ 6(b), 4 ¶¶
11, 12; see also Trial Ct. Op., 6/20/13, at 5-6, 10-11, 22-24).
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defendant an opportunity to present necessary additional
evidence and shall determine, by a preponderance of the
evidence, if this section is applicable.
18 Pa.C.S.A. § 7508(a)(3)(iii), (a.1), (b).
As recently observed by this Court:
. . . [O]ur en banc opinion in Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) and the
panel decision in Commonwealth v. Valentine, 101 A.3d 801(Pa. Super. 2014) mandate that we hold 18 Pa.C.S.A. § 7508
unconstitutional in its entirety. Thus, a mandatory minimum
sentence imposed under this statute is illegal. Specifically, . . .
18 Pa.C.S.A. § 7508 is structured in the same manner as the
statutes that were at issue in Newman and Valentine—and, as
was true with the statutes at issue in Newman and Valentine,
one particular subsection of 18 Pa.C.S.A. § 7508 is clearly
unconstitutional under Alleyne v. United States, --- U.S. ----,
133 S.Ct. 2151 (2013). See 18 Pa.C.S.A. § 7508(b). In
particular, Section 7508(b) contains the following
unconstitutional burdens and procedures: it declares that the
substantive, “aggravating facts” contained in Section 7508(a)
are “not . . . an element of the crime;” it declares that notice of
either the “aggravating facts” or of the applicability of the
mandatory minimum sentencing statute is “not . . . required
prior to conviction;” it declares that the applicability of the
mandatory minimum statute “shall be determined at
sentencing;” it declares that the Commonwealth need only prove
the “aggravating facts” by a preponderance of the evidence;
and, it declares that a judge—and not a jury—is to act as the
fact-finder for purposes of determining the “aggravated facts.”
18 Pa.C.S.A. § 7508(b). Alleyne rendered all of these burdens
and procedures unconstitutional.
The Court in [Commonwealth v.] Fennell[,2014 WL
6505791, at *1-8 (Pa. Super. filed Nov. 21 2014),] concluded
that, pursuant to Newman and Valentine, the unconstitutional
portion of 18 Pa.C.S.A. § 7508 is unseverable from the
remainder of the statute. Thus, even though Fennell stipulated
to the weight of the heroin at issue, the Fennell Court held that
the trial court erred in imposing the mandatory minimum
sentence as Section 7508 is unconstitutional in its entirety.
Hence, as the Appellant in the case sub judice was sentenced to
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a mandatory minimum under Section 7508, which has been
deemed unconstitutional, we must vacate Appellant’s judgment
of sentence and remand for resentencing, without consideration
of the mandatory minimum sentence.
Commonwealth v. Vargas, 2014 WL 7447678, at *17 (Pa. Super. filed
Dec. 31, 2014) (en banc) (footnotes and some case citations omitted).
Likewise here, Appellant was sentenced to the mandatory minimum
term pursuant to section 7508. (See N.T. Sentencing, 5/30/13, at 5, 8-9).
Accordingly, we must conclude that Appellant’s sentence is illegal 15 and we
therefore vacate his judgment of sentence and remand for re-sentencing,
“without consideration of the mandatory minimum sentence.”16 Vargas,
supra at *17.
In Appellant’s sixth issue, he claims that the court abused its
discretion in imposing consecutive, rather than concurrent, sentences. (See
Appellant’s Brief, at 48-50). However, we decline to reach the merits of this
____________________________________________
15
We do not reach the ground for Appellant’s illegal sentencing claim,
namely that the mandatory minimum sentences of seven to ten years were
illegal because he had no prior convictions. (See Appellant’s Brief, at 45-
47). Preliminarily, Appellant admits that he bases his argument on a
dissenting opinion, which is not binding precedent. (See id. at 45 n.7).
Moreover, this argument is moot where we have vacated the judgment of
sentence because section 7508 is “unconstitutional in its entirety.” Vargas,
supra at *17.
16
The Commonwealth “acknowledges this Court’s holding in Newman and
does not oppose a remand for resentencing.” (Commonwealth’s Brief, at
44).
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discretionary sentencing issue because it is moot where the judgment of
sentence has been vacated and the case remanded for re-sentencing.
In his seventh issue, Appellant claims that “[t]he trial judge should
have recused herself from the case[]” because “the record . . . establish[es]
clear[,] ex parte, non-permissible, contact between the trial court and the
District Attorney regarding a critical piece of evidence in this case[.]” (Id. at
50, 52). This issue does not merit relief.
Our standard of review of a trial court’s determination not
to recuse from hearing a case is exceptionally deferential. We
recognize that our trial judges are honorable, fair and
competent, and although we employ an abuse of discretion
standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially.
The party who asserts that a trial judge should recuse
bears the burden of setting forth specific evidence of bias,
prejudice, or unfairness. Furthermore, a decision by the trial
court against whom the plea of prejudice is made will not be
disturbed absent an abuse of discretion.
Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009)
(citations and quotation marks omitted).
Here, the trial court issued a protective order which provided:
“defense counsel may not provide copies of any audio, audio/video
recordings or transcripts in [this] matter to [Appellant] or anyone else.
However, [d]efense [c]ounsel may discuss the contents of these items with
[Appellant] subject to the above limitations.” (Order, 1/24/13, at 1). The
purpose of the order was “only to not make copies for [Appellant] to get
word out in the prison. So other than that, you can do with it as you
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choose.” (N.T. Hearing, 2/27/13, at 10-11). Appellant claims that this order
was entered ex parte, requiring recusal. (See Appellant’s Brief, at 50-52);
(see also N.T. Hearing, 2/27/13, at 5-13). We disagree that the trial court
abused its discretion in denying the motion for recusal on this basis.
First, Appellant merely states that the trial judge should have recused
herself because she entered the protective order ex parte without allowing
him the opportunity to argue against it. (See Appellant’s Brief, at 50-52).
However, he has provided absolutely no “specific evidence of bias, prejudice,
or unfairness.” Harris, supra at 391-92; (see also Appellant’s Brief, at 50-
52). In fact, an independent review of the transcript reveals that the trial
court forswore any improper ex parte communication, and stated that the
protective order was required, in part because “there is an overriding
interest, and that would be the safety of the informant.” (N.T. Hearing,
2/27/13, at 12; see id. at 13).17
Based on the foregoing, and, “recognizing that the judge [her]self is
best qualified to gauge [her] ability to preside impartially[,]” Harris, supra
at 392, we conclude that the trial court did not abuse its considerable
____________________________________________
17
Appellant claims that the court signed the order based on an incorrect
recollection that he had agreed to it. (See Appellant’s Brief, at 50-52).
However, Appellant fails to argue that this faulty recollection rose to the
level of abuse of discretion requiring recusal. See Harris, supra at 391-92;
(see also Appellant’s Brief, at 50-52).
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discretion in denying Appellant’s motion for recusal. See id. at 391-92.
Appellant’s seventh claim does not merit relief.
In his eighth issue, Appellant maintains that “the trial court erred
when it increased [his] bail from $100,000.00 to $250,000.00[]” because
the increase “violated Rule 529 of the Rules of Criminal Procedure” and “was
excessive” in violation of the Eighth Amendment of the United States
Constitution and Article I, Section 13 of the Pennsylvania Constitution.
(Appellant’s Brief, at 52, 54; see id. at 56).
Appellant’s issue raises questions of law, therefore our “scope of
review is plenary and [our] standard of review is limited to determining
whether the trial court committed legal error.” Commonwealth v.
McDonough, 96 A.3d 1067, 1070 n.9 (Pa. Super. 2014) (citation omitted).
Pennsylvania Rule of Criminal Procedure 529 provides, in pertinent
part, that:
(C) The existing bail order may be modified by a judge of the
court of common pleas:
(1) at any time prior to verdict upon motion of counsel for
either party with notice to opposing counsel and after a hearing
on the motion; or
(2) at trial or at a pretrial hearing in open court on the
record when all parties are present.
Pa.R.Crim.P. 529(C).
Additionally: “The Eighth Amendment to the Federal Constitution
states, “[e]xcessive bail shall not be required . . . .” U.S. Const. amend. viii.
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. . . [T]he Eighth Amendment’s protection against excessive . . .
punishments flows from the basic precept of justice that punishment for [a]
crime should be graduated and proportioned to [the] offense.”
Commonwealth v. Thompson, 2014 WL 6948150, at *15 (filed Dec. 10,
2014) (citation and internal quotation marks omitted). Similarly, the
Pennsylvania Constitution provides, in relevant part, that “[e]xcessive bail
shall not be required. . . .” Pa. Const. art. I, § 13.
Here, on August 27, 2012, the trial court held a hearing on Appellant’s
motion to establish compliance with his bail conditions at which all parties
were present.18 After the hearing, “based on the seizure of more than a
kilogram of cocaine from [Appellant’s] residence, along with a loaded
firearm[,]” the court raised Appellant’s bail from $100,000.00 to
$250,000.00. (Trial Ct. Op., 3/13/13, at 12; see also Order, 8/27/12).
Based on the foregoing, we discern no trial court error. The trial court
raised the bail amount “in open court on the record, when all parties were
present,” Pa.R.Crim. 529(C), and the amount of bail was not “excessive,”
but instead was “proportioned to [the] offense.” U.S. Const. amend. viii; Pa.
____________________________________________
18
A term of the order setting bail was that Appellant provide proof that any
money for a bond was not the result of illegal activity. (See Order,
6/21/12).
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Const. Art. I, § 13; Thompson, supra at *15 (citation omitted).
Appellant’s eighth issue is frivolous19 and does not merit relief.
Therefore, to summarize our conclusions, we vacate and remand for
re-sentencing based on illegality of sentence, deem the discretionary aspects
of sentence challenge moot, and affirm the trial court on all of Appellants’
remaining claims.
All convictions affirmed. Judgment of sentence vacated and case
remanded for re-sentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2015
____________________________________________
19
Appellant maintains that the hearing on his motion was not a pre-trial
hearing because it did not concern an omnibus pre-trial or suppression
motion. (See Appellant’s Brief, at 54). We disagree. See, e.g.,
Commonwealth v. Morales, 91 A.3d 80, 95 (Pa. 2014) (identifying
hearing on motions in limine as “pre-trial hearing”). Appellant concedes that
the Rules of Criminal Procedure do not define “pre-trial hearing.”
(Appellant’s Brief, at 54); see also Pa.R.Crim.P. 103. Therefore, giving the
term the effect of its most common usage, see Commonwealth v. Levy,
83 A.3d 457, 463 (Pa. Super. 2013), a pre-trial hearing necessarily is a
hearing that occurs before trial. Appellant’s argument to the contrary is
frivolous.
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