Com. v. Cala Leliebre, N.

J-S04027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NOEL CALA LELIEBRE,
Appellant No. 904 MDA 2014
Appeal from the Judgment of Sentence entered March 21, 2014,
in the Court of Common Pleas of Luzerne County,
Criminal Division, at No(s): CP-40-CR-0000050-2011
BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED MARCH 26, 2015
Noel Cala Laliebre, (“Appellant”), appeals from the judgment of
sentence imposed after a jury convicted him of possession with intent to
deliver a controlled substance, possession of a controlled substance, and
possession of drug paraphernalia.1 We affirm Appellant’s convictions but
remand for re-sentencing for the reasons discussed below.
The charges against Appellant arose after a confidential informant
reported to Detective Darryl Ledger of the Hazleton City Police Department
that a Hispanic male known as “Noel” who lived at 583 Carson Street in
Hazleton, Pennsylvania, was selling large amounts of heroin. Affidavit of
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1
35 P.S. § 780-113(a)(30), (a)(16) and (a)(32).
*Retired Senior Judge assigned to the Superior Court.
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Probable Case, 11/10/10. Detective Ledger arranged for the confidential
informant to make two controlled purchases of heroin from Appellant’s
residence, resulting in Appellant’s arrest. Id. A search of Appellant’s
residence yielded a large amount of unpackaged heroin and 75 baggies of
heroin packaged for sale. Id.
The trial court summarized the procedural history as follows:
On February 17, 2011, an information was filed charging
[Appellant] with [the aforementioned crimes].
***
[Appellant] filed a Motion to Suppress Evidence and
Supplemental Motion to Suppress Evidence. Both Motions were
heard by [the Honorable Tina Polachek Gartley] and were denied
in an Order dated June 28, 2012. Shortly after this case was
reassigned for trial, [the Honorable Michael T. Vough] received a
Motion to Dismiss Pursuant to Rule 600 [filed on January 6,
2014]. This Motion was denied on January 21, 2014 and the
case proceeded to trial. On January 23, 2014, the jury found
[Appellant] guilty ...
Sentencing took place on March 21, 2014, and [Appellant]
received 36 to 120 months on Count 1, possession with intent to
deliver, which was the mandatory minimum pursuant to 18
Pa.C.S.A. Section 7508(a)(7)(ii). Count 2, possession of a
controlled substance, merged. One year probation concurrent to
Count 1 was imposed on Count 3, possession of drug
paraphernalia.
[Appellant] appealed on April 1, 2014 and his Statement of
Matters Complained of on Appeal was filed on April 23, 2014.
Trial Court Opinion, 5/28/14, at 1-2 (unnumbered).
Appellant presents the following issues for our review:
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I. Whether the charges against Appellant should have been
dismissed pursuant to Pa.R.C.P. 600.
II. Whether the Trial Court erred in dismissing Appellant’s
Motion to Suppress Evidence.
Appellant’s Brief at 1.
In his first issue, Appellant argues that the trial court erred in denying
his motion to dismiss the charges against him pursuant to Pa.R.Crim.P. 600.
Rule 600 was designed “to prevent unnecessary prosecutorial delay in
bringing a defendant to trial.” Commonwealth v. Brock, 61 A.3d 1015,
1021 (Pa. 2013). “In evaluating Rule 600 issues, our standard of review of
a trial court’s decision is whether the trial court abused its discretion.”
Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en
banc), appeal denied, 875 A.2d 1073 (Pa. 2005) (citations and internal
quotations omitted). “The proper scope of review … is limited to the
evidence on the record of the Rule 600 evidentiary hearing, and the findings
of the trial court. An appellate court must view the facts in the light most
favorable to the prevailing party.” Id. at 1238-39 (internal citations and
quotation marks omitted). Importantly, a court will grant a motion to
dismiss on Rule 600 grounds only if a defendant has a valid Rule 600 claim
at the time the motion is filed. Id. at 1243.
Rule 600 provides, in pertinent part:
(A) Commencement of Trial; Time for Trial
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(1) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case
to trial, or the defendant tenders a plea of guilty or
nolo contendere.
(2) Trial shall commence within the following time
periods.
(a) Trial in a court case in which a written complaint is
filed against the defendant shall commence within
365 days from the date on which the complaint is
filed.
***
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at
any stage of the proceedings caused by the
Commonwealth when the Commonwealth has failed
to exercise due diligence shall be included in the
computation of the time within which trial must
commence. Any other periods of delay shall be
excluded from the computation.
The Comments to Rule 600(C)(1) explain that “[w]hen the defendant
or the defense has been instrumental in causing the delay, the period of
delay will be excluded from computation of time.” See Pa.R.Crim.P. 600
comment. The comments cite as an example of excludable delay caused by
the defendant “such period of delay at any stage of the proceedings as
results from ... the defendant's attorney or any continuance granted at the
request of the defendant or the defendant's attorney.” Id.
In the present case, Rule 600 required the Commonwealth to bring
Appellant to trial within 365 days of the filing of the criminal complaint. See
Pa.R.Crim.P., Rule 600(A)(2)(a). The complaint was filed on November 24,
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2010, and the mechanical run date was November 24, 2011 — 365 days
after the complaint against Appellant was filed. See Pa.R.Crim.P. 600(A)(3).
Appellant’s trial did not commence until January 22, 2014, which was well
after the expiration of the 365-day period.
Appellant in his brief does not dispute any of the delay in the
commencement of trial, except for the continuances requested by his trial
counsel on May 20, 2013, June 10, 2013, and September 9, 2013.
Appellant’s Brief at 6-7. Appellant argues that although his counsel
requested the continuances, he was not notified of the continuances and did
not consent to them. Accordingly, Appellant argues that delay caused by
those continuances should not be attributed to him, and he is therefore
entitled to Rule 600 relief. Id.
As previously explained, the comments to Rule 600(C)(1) make clear
that in determining the period for commencement of trial, any continuance
granted at the request of the defendant or the defendant's attorney is
considered excludable. Therefore, the continuances requested by
Appellant’s counsel, here, are properly excluded from the Rule 600
calculation. Moreover, Appellant’s claim that trial counsel acted without his
authorization when he requested continuances on May 20, 2013, June 10,
2013, and September 9, 2013 constitutes, in essence, a claim that his trial
counsel’s stewardship of his case was ineffective. In Commonwealth v.
Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior
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holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent
certain circumstances, claims of ineffective assistance of counsel should be
deferred until collateral review under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. § 9541-46. Holmes, 79 A.3d at 576. The specific
circumstances under which ineffectiveness claims may be addressed on
direct appeal are not present in the instant case. Id. at 577-78 (holding
that the trial court may address claim(s) of ineffectiveness where they are
“both meritorious and apparent from the record so that immediate
consideration and relief is warranted,” or where the appellant’s request for
review of “prolix” ineffectiveness claims is “accompanied by a knowing,
voluntary, and express waiver of PCRA review”). Accordingly, Appellant
must raise his ineffectiveness claim alleging that trial counsel filed
continuances without his consent in a PCRA petition.
In his second issue, Appellant argues that the trial court erred in
denying his suppression motion. In reviewing Appellant’s challenge to the
denial of his suppression motion, we recognize:
Our standard of review of a denial of suppression is whether the
record supports the trial court's factual findings and whether the
legal conclusions drawn therefrom are free from error. Our
scope of review is limited; we may consider only the evidence of
the prosecution 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 record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the court erred in reaching its legal conclusions based
upon the facts.
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Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)
(citations omitted). “It is within the suppression court's sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
to their testimony. The suppression court is free to believe all, some or
none of the evidence presented at the suppression hearing.”
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003)
(citations omitted). However, the suppression court's conclusions of law,
which are not binding on an appellate court, are subject to plenary review.
Commonwealth v. Johnson, 969 A.2d 565, 567 (Pa. Super. 2009)
(citations omitted).
Appellant claims that the search warrant for his residence should have
been dismissed for lack of probable cause because the Commonwealth was
unable to corroborate the information provided by the confidential informant
regarding sales of heroin from Appellant’s residence. Appellant’s Brief at 8-
11. Specifically, Appellant argues that the confidential informant was
unreliable, had not previously worked with the Hazleton police, and was a
drug user with a criminal record. Id.
Preliminarily, we note that the certified record on appeal does not
contain the search warrant and affidavit of probable cause. “It is the
obligation of the appellant to make sure that the record forwarded to an
appellate court contains those documents necessary to allow a complete and
judicious assessment of the issues raised on appeal”, and “without these
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documents, we are in no position to review the conclusion reached by the
trial court.” Commonwealth v. Walker, 874 A.2d 667, 677 (Pa. Super.
2005) (finding waiver where defendant challenged the propriety of the
authorization of a search warrant but failed to include in the certified record
the warrant and affidavit of probable cause).
Even absent waiver, the trial court, in its order denying suppression
explained that the information obtained from the confidential informant
regarding sales of heroin from Appellant’s residence was independently
corroborated by two separate controlled purchases of heroin, which provided
the Hazleton police with the requisite probable cause for the issuance of a
search warrant of Appellant’s residence. Trial Court Order, 6/28/12, at 1.
Accordingly, Appellant’s claim that the search warrant was unsupported by
probable cause lacks merit. See Commonwealth v. Dean, 693 A.2d 1360
(Pa. Super. 1997) (where informant told police that the defendant was
selling drugs from his home and in response the police conducted a
controlled buy which corroborated the initial information, a magistrate could
have concluded by a fair probability that drug selling was taking place at
appellant's residence to support issuance of a search warrant) citing
Commonwealth v. Baker, 532 615 A.2d 23 (Pa. 1992) (facts sufficient to
establish probable cause for issuance of search warrant where informant's
information implicating defendant as seller was corroborated by police
officer's first-hand observations when he gave informant money to purchase
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cocaine and saw informant enter residence and return from residence with
cocaine); Commonwealth v. Luton, 672 A.2d 819 (Pa. Super. 1996)
(police-conducted “controlled buy” sufficiently corroborated neighbors'
observations alleging drug operations from defendant's home).
However, because the mandatory minimum sentence which the trial
court applied at Count 1 (possession with intent to deliver), pursuant to 18
Pa.C.S.A. Section 7508(a)(7)(ii) has been held to be unconstitutional, we
remand this case to the trial court for re-sentencing.2 Commonwealth v.
Fennell, 105 A.3d 13 (Pa. Super. 2014) (concluding that § 7508 is facially
unconstitutional); Commonwealth v. Vargas, --- A.3d ----, 2014 WL
7447678 (Pa. Super. 2014); Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc) (applying Alleyne v. United States, 133 S. Ct.
2151 (2013) and its progeny retroactively); Here, sentencing occurred on
March 21, 2014, prior to our express finding on November 21, 2014 in
Fennel that § 7508 is unconstitutional. Therefore, given the retroactivity
ruling in Newman, we are constrained to remand for re-sentencing.
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2
Although Appellant has not raised this issue, “we are empowered, if not
compelled”, to address it sua sponte. Commonwealth v. Donahue, 516
A.2d 373, 374 (Pa. Super. 1986)(citation omitted); see also
Commonwealth v. Wolfe, --- A.3d ----, 2014 WL 7331915,
Pa.Super.,2014 (a challenge to the legality of a sentence can never be
waived and may be raised by the reviewing court sua sponte).
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Convictions affirmed. Judgment of sentence vacated and remanded
for re-sentencing without the application of the mandatory minimum
prescribed in 42 Pa.C.S.A. § 9718. Jurisdiction relinquished.
Judge Strassburger joins in the Memorandum.
Judge Bowes files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/2015
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