Com. v. Vializ, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MIGUEL ENRIQUE VIALIZ :
:
Appellant : No. 2040 MDA 2019
Appeal from the Judgment of Sentence Entered November 4, 2019
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001072-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 15, 2020
Miguel Vializ appeals from the judgment of sentence, entered on
November 4, 2019, of an aggregate term of 4½ to 10 years’ imprisonment, in
the Court of Common Pleas of Lancaster County, following his nonjury
conviction of one count each of possession with intent to deliver (“PWID”)
fentanyl, PWID cocaine, PWID marijuana, possession of drug paraphernalia,
and tampering with physical evidence.1 On appeal, Vializ challenges the denial
of his motion to suppress and the discretionary aspects of his sentence. After
review, we affirm.
Due to the limited scope of Vializ’s issues on appeal, we need only
summarize the history of this case. In late December 2018 and January 2019,
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1 35 P.S. §§ 780-113(a)(30), (16), (32), and 18 Pa.C.S.A. § 4910(1),
respectively.
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three members of the Lancaster County Drug Task Force received information
from three confidential informants (“CI”), that Vializ was dealing drugs from
his apartment in Lititz, Pennsylvania.
Following an independent investigation, members of the Lancaster
County Drug Task Force obtained a warrant and searched Vializ’s apartment
on January 25, 2019, recovering 470 bags containing fentanyl, 8.8 grams of
cocaine, 80.8 grams of marijuana, U.S. currency and drug paraphernalia. The
next day, the Commonwealth filed charges against Vializ.
Vializ filed an omnibus pretrial motion, seeking to suppress the seized
items. A hearing took place on August 12, 2019, following the trial court’s
denial of the motion to suppress, the court held a nonjury trial and found Vializ
guilty of all charges.
Following receipt of a pre-sentence investigation report (“PSI”), on
November 4, 2019, the trial court sentenced Vializ. On November 13, 2019,
Vializ filed a motion to modify his sentence. The trial court denied the motion
and this timely appeal followed.2
In his first issue, Vializ contends the trial court erred in denying his
motion to suppress because “the search warrant was so lacking in probable
cause so as to render the issuance of the warrant manifestly unreasonable.”
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2On January 3, 2020, in response to the trial court’s order, Vializ filed a timely
concise statements of errors complained of on appeal. See Pa.R.A.P. 1925(b).
On January 30, 2020, the trial court issued an opinion. See Pa.R.A.P.
1925(a).
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Vializ’s Brief, at 8-10. Specifically, Vializ alleges only one of the three CIs had
previously provided information leading to a conviction and the information in
the warrant was stale. See id. Our analysis is guided by the following legal
principles:
When reviewing a challenge to a trial court’s denial of a suppression
motion, our standard of review 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 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. Delvalle, 74 A.3d 1081, 1084 (Pa. Super. 2013).
The legal principles applicable to the instant case are well
established. Before an issuing authority may issue a
constitutionally valid search warrant he or she must be furnished
with information sufficient to persuade a reasonable person that
probable cause exists to conduct a search. The requisite probable
cause must exist at the time the warrant is issued and be based
on facts closely related in time to the date of issuance.
Commonwealth v. Jones, 484 A.2d 1383, 1387 (Pa. 1984) (citations
omitted).
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Further, “[i]n determining whether a search warrant is supported by
probable cause, appellate review is confined to the four corners of the
affidavit.” Commonwealth v. Galvin, 985 A.2d 783, 785 (Pa. 2009).
Importantly, “[t]he issuing authority, in determining whether probable cause
has been established, may not consider any evidence outside of the
affidavits.” Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003)
(citation omitted).
In part, Vializ contends that the information contained in the search
warrant application was too old, or “stale,” to be reliable. Settled Pennsylvania
law establishes stale information cannot provide probable cause in support of
a warrant. Commonwealth v. Gomolekoff, 910 A.2d 710, 713 (Pa. Super.
2006). In particular:
[A]ge of the information supporting a warrant application is a
factor in determining probable cause. If too old, the information
is stale, and probable cause may no longer exist. Age alone,
however, does not determine staleness. The determination of
probable cause is not merely an exercise in counting the days or
even months between the facts relied on and the issuance of the
warrant. Rather, we must also examine the nature of the crime
and the type of evidence.
Commonwealth v. Janda, 14 A.3d 147, 158–59 (Pa. Super. 2011).
Vializ combines his staleness argument with an allegation that the CIs
whose tips formed part of the basis for the search warrant application were
not established as sufficiently reliable. “A determination of probable cause
based upon information received from a confidential informant depends upon
the informant’s reliability and basis of knowledge viewed in a common sense,
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non-technical manner.” Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa.
2011). “An informant’s tip may constitute probable cause where police
independently corroborate the tip, or where the informant has provided
accurate information of criminal activity in the past, or where the informant
himself participated in the criminal activity.” Id. “Under the totality-of-the-
circumstances approach, there is no talismanic recitation of a particular phrase
with respect to ‘reliability’ or ‘basis of knowledge’ that will either be required
or will suffice to conclusively establish, or conclusively disaffirm, the existence
of probable cause.” Id., at 1292.
The affiant in this matter was Detective Yevgeniy Kertsman, of the
Lancaster County Drug Task Force. After setting forth his training and
experience, as well as relevant information about drug dealers and the
business of drug dealing, the affidavit of probable cause stated, in relevant
part:
3. That during the month of January 2019, your Affiant had a
conversation with a confidential informant (CI#1), who has
expressed his/her knowledge of controlled substances, to
specifically include the sale of heroin, its pricing, packaging, and
terminology. During this meeting, CI#1 stated that he/she was
familiar with an individual whom he/she knew as a Puerto Rican
male in his late 20’s, about 5’5” and 200 lbs who lives at 16 W
Lemon Street in Lititz, PA. This male drives a gray Acura that is
usually parked to the rear of the residence. The CI#1 knew this
to be true because he/she had purchased heroin from this male
as recent[ly] as end of December 2018 on at least two occasions.
Every time the CI#1 would go to the rear of 16 W Lemon Street
residence and enter through the door in the back of the apartment
building. The CI#1 described only two doors at the rear and that
he/she would enter the door on the right.
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4. That during the month of January 2019, Detective Troy
Deshong of the Lancaster County Drug Task Force, met with a
confidential informant (CI#2) who has expressed his/her
knowledge of controlled substances, to specifically include the sale
of heroin, its pricing, packaging, and terminology. During this
meeting, CI#2 stated that he/she was familiar with an individual
whom he/she knew as Miguel Vializ, also known as “Chino.” He is
a Hispanic male in his late 20’s, who lives at 16 W Lemon Street
in Lititz, who is in the business of selling heroin from his
apartment. CI#2 knew this to be true because he/she had
purchased heroin from Miguel Vializ also known as “Chino” on
numerous occasions.
5. That your Affiant searched the name Miguel Vializ, in the J-
Net database. During my search I located a photograph of a
subject by the name of Miguel Enrique Vializ, DOB: 8/23/1991.
This male matched the description provided by CI#1.
6. That during the month of January 2019, your Affiant showed
CI#1 a PA J-Net photograph of Miguel Enrique Vializ. CI#1
positively identified Miguel Enrique Vializ as the person he/she
knows is in the business of selling heroin as mentioned in
paragraph #3.
7. That during the same month of 2019, Detective Deshong
also showed a PA J-Net photograph of Miguel Enrique Vializ DOB:
8/23/1991 to the CI#2, who also identified him as “Chino” who
has sold him heroin on previous occasions from 16 W Lemon St,
Lititz, PA.
8. That during the month January 2019, Detective Adam
Weber of the Lancaster County Drug Task Force spoke with a
reliable confidential informant (CI#3) who has led to at least one
(1) seizure and conviction for felony violations of the PA Controlled
Substance, Drug, Device and Cosmetic Act. CI#3 has
demonstrated his/her knowledge of controlled substances, to
specifically include cocaine, its packaging, pricing, and
terminology. CI#3 related that he/she has personal knowledge of
a Hispanic male, who is in his late 20's and who resides at 16 W
Lemon St in Lititz, PA. CI#3 stated that this male is in the business
of selling large quantities of cocaine from 16 W Lemon St, Lititz
Pa residence. CI#3 knew this information to be true because
he/she had purchased a quantity of cocaine from this Hispanic
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male at 16 W Lemon Street Lititz residence as recent as the first
week of January 2019.
9. That during the week of January 20th of 2018, your Affiant
conducted surveillance of 16 W Lemon Street, Lititz, PA. In the
course of surveillance, your Affiant observed and positively
identified Miguel Enrique Vializ, DOB: 8/23/1991, enter 16 W
Lemon Street, apartment # 2 residence (door in the apartment
building on the right as described by CI#l in paragraph 3). Your
Affiant also observed Vializ enter and exit a gray in color Acura TL
sedan bearing Pennsylvania registration KPJ-7567. Upon check of
this registration through PennDot your Affiant discovered that this
vehicle is registered to Miguel Enrique Vializ with a registered
address of 16 W Lemon Street, Apt #2, Lititz, PA.
10. Moreover, your Affiant observed short-term foot traffic into
16 W Lemon St, Apt #2 residence. During said surveillance your
Affiant observed numerous individuals go to Vializ’s apartment,
spend a minute or less and then depart the area. Your Affiant also
observed a gray Ford 4-door sedan, bearing Pennsylvania
registration KSN3529, park in the 1st block of W Lemon Street
with one Hispanic male occupant. After appearing to be texting
on his cellular phone the male exited his vehicle and proceed[ed]
into Vializ’s apartment; a minute later this male left the area.
These short term meetings are consistent with drug trafficking.
11. That during the month of January 2019 your affiant ran a
criminal history check on Miguel Enrique Vializ. DOB:
08/23/1991. This check showed that Vializ pleaded guilty to two
counts of felony (Possession with Intent to Deliver) violations of
the PA Controlled Substance, Drug, Device and Cosmetic Act on
01/20/2015.
12. That on 23 January 2019 at approximately 0330 hours, your
Affiant and Detective Deshong with the Lancaster County Drug
Task Force went to 16 W Lemon Street, Lititz, PA. At this time,
there was trash placed on the side of the apartment building
adjacent to Pine Ln. This is a regular location where trash truck
picks up the trash and no other location is used by the trash truck
for this apartment building. Your Affiant conducted a trash pull of
three (3) black in color trash bags of abandoned trash. Upon
executing a search of the trash, your Affiant found the following
items; one (1) clear plastic corner cut/tom sandwich bag
containing white powder residue, one (1) clear plastic zip-lock
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style sandwich bag with white powder residue, three (3) cut or
torn tops of a zip-lock style plastic bags, one (1) blue in color,
unused glassine sleeve that is commonly used to contain heroin,
two (2) automotive repair bills (Acura) with Miguel Vializ (dated
1/12/19), Blue Ridge cable contract in the name of Evealisa Lopez
and address of 16 W Lemon St, Apt 2, Lititz, PA.
13. That on 23 January 2019, your Affiant performed a field test
on a portion of the white powder residue from the clear plastic
corner cut/tom sandwich bag located in the trash and a positive
result was obtained for the presence of cocaine.
14. That in my training and experience sellers of cocaine often
keep larger quantities of cocaine in sandwich bags and then put a
quantity of the drugs in the corner of plastic bag, twist and tear
or cut the corner off of the bag and then tie the open end to
package the drug for sales. Let it also be noted that no personal
use drug paraphernalia was found such as snorting straws or
hypodermic needles. Moreover, upon checking Miguel Vializ’s
Facebook account which is under the name of “Lele El Duro,” your
Affiant discovered that Vializ has numerous photographs of a
female named, Evealisa Lopez along with a child. This is the name
that was discovered on the Blue Ridge cable bill in paragraph #
12.
15. Based on the aforementioned facts and circumstances, and
your Affiant’s experience in over 200 drug related cases, as a lead
detective, as an assisting detective and as an undercover
detective making controlled buys of cocaine and heroin, your
Affiant believes that Miguel Enrique Vializ is in business of selling
cocaine and heroin from 16 W Lemon St, Apartment #2, Lititz, PA.
Affidavit of Probable Cause, 1/26/19, at unnumbered pages 3-4.
As noted above, Vializ claims, without elaboration or citation to relevant
legal authority, the affidavit fails because only one of the CIs had “any indicia
of reliability.” Vializ’s Brief, at 9. He contends the information was stale. Id.
He maintains the affidavit does not “provide any information to establish that
either [of the other] informant[s’] hearsay information is trustworthy.” Id.
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Lastly, he argues the affidavit does not sufficiently tie the drug paraphernalia
to Vializ’s apartment, and does not provide a specific date on which the police
observed the short-term foot traffic. Id. at 10.
Our review of the certified record leads us to agree with the suppression
court: the affidavit, as a whole, provided the magistrate with sufficient
information to conclude there was a reasonable probability evidence of
criminal activity, drug use, would be found at 16 W. Lemon Street, Lititz, PA.
First, while two of the CIs had not provided information in the past this
is only one factor to consider in making a determination of reliability. See
Commonwealth v. Manuel, 194 A.3d 1076, 1081 (Pa. Super. 2018) (en
banc). All three CIs were able to describe or identify Vializ as the person that
had sold them drugs within the past month, and all three provided the same,
correct location of his apartment, each’s information corroborating the others.
This Court has held:
[w]hen two independent informants both supply the same
information about a particular crime to the police, each source
tends inherently to bolster the reliability of the other. Although
the information supplied by one questionable source may be
insufficient, the probability is extremely small that a second
independent source would supply identical information if it were
not probably accurate. Such corroboration by independent sources
produces the necessary reliability to establish probable cause.
Commonwealth v. Dukeman, 917 A.2d 338, 342 (Pa. Super. 2007) (citation
omitted).
Moreover, the third CI had provided reliable information in the past,
which led to not just an arrest but a felony conviction. That CI’s information
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in and of itself was sufficient to provide probable cause. See Clark, 28 A.3d
at 1288.
Lastly, the police conducted an independent investigation which
determined Vializ had a prior criminal history of drug dealing and confirmed
that his place of residence and vehicle matched the information given by the
CIs. They conducted surveillance during the same week they requested the
search warrant and observed activities consistent with drug dealing. Lastly,
they pulled trash, and in the bag which contained documents addressed to
Vializ and his girlfriend, they found paraphernalia consistent with drug dealing,
including bags with cocaine residue, but no paraphernalia consistent with
personal use.
Under the totality of the circumstances, we conclude, based on the
above-mentioned facts presented within the four corners of the Affidavit, the
issuing magistrate had a substantial basis for determining probable cause
existed Vializ was trafficking drugs from his residence. Accordingly, the trial
court properly denied his motion to suppress. Vializ’s first issue does not merit
relief.
In his second and final issue, Vializ challenges the discretionary aspects
of his sentence. Specifically, he claims the sentence is harsh and excessive
and the trial court failed to consider mitigating factors. See Vializ’s Brief, at
10. We disagree.
The principles that guide our review are as follows:
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Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. An appellant must satisfy a four-part test
to invoke this Court’s jurisdiction when challenging the
discretionary aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal;
(2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
****
A substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the sentencing
process. At a minimum, the Rule 2119(f) statement must
articulate what particular provision of the code is violated, what
fundamental norms the sentence violates, and the manner in
which it violates that norm.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations
omitted).
Here, Vializ preserved his claim by filing a motion to modify sentence
and included a Pa.R.A.P. 2119(f) statement in his brief. He complains his
sentence was harsh and excessive and the trial court failed to consider
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mitigating circumstances. These claims, taken together, have been found to
raise a substantial question. See Commonwealth v. Dodge, 77 A.3d 1263,
1272 (Pa. Super. 2013).
However, the substance of the claims is frivolous. Here, the trial court
had the benefit of a PSI. “Where pre-sentence reports exist, we shall continue
to presume that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988). Further, Vializ’s sentence was in the standard range of the
sentencing guidelines. Where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as presumptively reasonable
under the Sentencing Code. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa. Super. 2010). Under the circumstances of this case, we cannot conclude
the imposition of concurrent standard range sentences constitutes an
unreasonable sentence. Hence, Vializ’s challenge to the discretionary aspects
of his sentence is frivolous.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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