J-S29008-13
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CARMEN ROSSI, :
:
Appellant : No. 739 EDA 2012
Appeal from the Judgment of Sentence February 3, 2012,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0001302-2011
BEFORE: DONOHUE, MUNDY and OLSON, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 05, 2014
Carmen Rossi (“Rossi”) appeals from the February 3, 2012 judgment
of sentence entered by the Court of Common Pleas, Philadelphia County,
following his convictions of possession with intent to deliver (“PWID”), 35
P.S. § 780-113(a)(30), possession of a controlled substance, id. at § 780-
113(a)(16), possessing an instrument of crime (“PIC”), 18 Pa.C.S.A. §
907(a), and conspiracy to commit PWID, id. at § 903(c). On August 26,
2014, our Supreme Court vacated a prior memorandum decision and
remanded to this Court for further consideration in light of Commonwealth
v. Castro, 93 A.3d 818 (Pa. 2014). On remand, we affirm the judgment of
sentence.
The trial court summarized the factual history as follows:
On July 27, 2009, Narcotics Officer Michael Spicer
[“Officer Spicer”] received information from an
J-S29008-13
informant about sales of prescription medications
occurring at 2329 Hutchinson Street in Philadelphia
by a man named Carmen. After setting up
surveillance on July 29th, Officer Spicer observed
[Rossi] leaving and then returning to that location, a
rowhouse, several times, and saw [Rossi], while
standing in front of that location, receive an
unknown amount of United States currency and hand
something small to an unknown male individual.
Based upon his experience, the officer believed that
he had witnessed a narcotics transaction. N.T.
2.2.2012 at 65, 72-74.
Following that transaction, [Rossi] went back inside
2329 Hutchinson and Christopher Welch [(‘Welch’)],
his eventual co-defendant, parked nearby and
entered that location as well. Welch, accompanied
by a woman who was later identified as a Ms. Celli,
was holding a multicolored bag. About ten minutes
later, [Rossi] again had a brief interaction with
another male in front of the property, exchanging
United States currency for a small object. The
officer identified this as a narcotics transaction as
well. Twenty minutes after that exchange, at
approximately 5:10 p.m., Welch, Celli, and a Mr.
Bowen walked out of the property together. Welch
and Celli returned to their vehicle and Bowen got
into another vehicle. Welch drove off, and was
followed by Bowen. Officer Spicer notified another
police unit that he was going to follow the vehicles.
Id. at 73-79.
Officer Spicer and other officers apprehended Welch
and Bowen in another Philadelphia neighborhood
shortly thereafter.[FN]2 During his apprehension,
Welch ran into an apartment building where he
dropped the multicolored bag he had been carrying.
Inside the bag, police found 76 Methadose pills, 46
Suboxone pills, another bottle of 60 Suboxone pills,
and two bottles of Oxycodone pills containing 50 and
37 pills. Welch himself was carrying $310 in United
States currency, keys to an apartment in that
building, and a cell phone. During this time,
-2-
J-S29008-13
Sergeant Seaman and Officers Perrotti and Speiser
had taken over surveillance of 2329 Hutchinson. Id.
at 83-86.
After receiving warrants for Welch's apartment and
for 2329 Hutchinson, the police conducted searches
of both locations that evening. At 2329 Hutchinson,
they arrested [Rossi] and found on his person
$4,307 in United States currency and a bottle
containing 84 Percocet pills. In the basement, they
found a safe containing a .9mm Taurus handgun
loaded with seventeen rounds, a pill bottle containing
53 Percocet pills prescribed to Mary Bowen, and a
life insurance policy in [Rossi]'s name. In the
kitchen, police recovered a zip-lock bag containing
145 Oxycontin pills and a bottle containing 93
Hydrocodone pills. From a second floor bedroom,
they recovered 121 Vicodin pills, a zip-lock bag with
195 Percocet pills, and another bottle of Percocet
containing 100 pills. Police also found mail
addressed to [Rossi] and a pocketbook on the first
floor with $765 in United States currency. Id. at 86-
90
At 2401 East York, Welch's apartment, at
approximately 9:45 p.m., police found two fifty-
gallon trash bags; the first contained a large number
of non-narcotic pills. The second contained 18
bottles containing 2,041 Percocet pills, eight bottles
containing 1,205 Vicodin pills, three bottles
containing 219 Oxycontin pills, one bottle containing
240 Tylenol Four pills, fourteen bottles containing
1,309 Methadose pills, 4 bottles containing 2,143
Xanax pills, five bottles containing 255 Adderall pills,
one bottle containing 80 Ritalin pills, [two] bottles
containing 153 Dextroamphetamine pills, one bottle
containing 100 Codeine, three bottles containing 122
Hydromorphine pills, 12 bottles containing 756
Morphine pills, three bottles containing 250 Clonidin
pills, two bottles containing 160 Metadate pills, two
bottles containing 152 Methylphentadine or
Methylphentadate pills, eleven boxes of Fentanyl
patches, two boxes of Daytrana, two pint bottles of
-3-
J-S29008-13
Hydrocodone liquid, one bottle of Methadone liquid,
one pint bottle of Roxicet liquid, and one fluid ounce
of Morphine Sulfate. A safe contained $2,480 in
United States currency; the apartment also
contained paperwork and mail in Welch's name. Id.
at 90-93.
___________
[FN]2
During this surveillance, Officer Spicer saw that
Bowen was wearing a holstered handgun. Id. at 81-
82.
Trial Court Opinion, 5/2/2012, at 3-5.
The Commonwealth filed criminal charges against Rossi, and at the
suppression hearing on February 2, 2012, the Commonwealth offered the
testimony of Officer Spicer, Officer Brian Reynolds, and Officer Jeffrey
Walker. Officer Spicer testified regarding his observations during his
surveillance and searches of 2329 Hutchinson Street and 2401 East York
Street. See N.T., 2/2/2012, at 64-175. Officer Reynolds testified regarding
the contents and recovery of co-defendant Welch’s bag at 2401 East York
Street. See id. at 178-181. Officer Walker testified regarding his
involvement in the apprehension and arrest of Welch. See id. at 181-202.
The trial court denied Rossi’s suppression motion, ruling that the search and
seizure were proper.
At the outset of the bench trial on February 3, 2012, Rossi agreed to
permit the Commonwealth to admit into evidence all relevant, non-hearsay
testimony introduced at the suppression hearing. N.T., 2/3/2012, at 13-14.
-4-
J-S29008-13
The trial court convicted Rossi of the above-referenced crimes and imposed
an aggregate sentence of seven to fourteen years of incarceration. The trial
court denied Rossi’s post-sentence motion, after which Rossi filed a timely
notice of appeal. On appeal, Rossi raises the following issues for our review
and determination:
1. Did the trial court err by denying [Rossi’s] motion to
suppress?
2. Did the trial court commit an abuse of discretion by
denying [Rossi’s] motion for extraordinary relief
and/or arrest of judgment?
Rossi’s Brief at 3.
For his first issue on appeal, Rossi challenges the trial court’s denial of
his motion to suppress the physical evidence against him. The standard of
review of an appeal from a denial of a motion to suppress is as follows:
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.
Commonwealth v. Galendez, 227 A.3d 1042, 1045 (Pa. Super. 2011)
(quoting Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super.
2002) (en banc)).
-5-
J-S29008-13
Rossi argues that the trial court erred in failing to suppress the
physical evidence obtained from his personal residence at 2329 Hutchinson
Street because no probable cause existed to support the issuance of the
search warrant. Rossi’s Brief at 10. To this end, Rossi relies on two prior
decisions of this Court, Commonwealth v. Kline, 335 A.2d 361 (Pa. Super.
1975) and Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985). In
Kline, we reversed a trial court’s denial of a suppression motion after police
obtained a search warrant for the appellant’s residence after observing him
conduct drug sales on the street. In so doing, we ruled that “[p]robable
cause to believe that a man has committed a crime on the street does not
necessarily give rise to probable cause to search his home.” Kline, 335
A.2d at 364. In Way, a case involving similar facts, we followed our
decision in Kline, holding that “the lack of a substantial nexus between the
street crime and the premises to be searched renders the warrant facially
invalid.” Way, 492 A.2d at 1154.
Rossi contends that “the record is utterly devoid of even [a] scintilla of
evidence establishing that [Rossi] had drugs in his residence.” Rossi’s Brief
at 11. Based upon our review of the certified record, we cannot agree.
Officer Spicer’s testimony established that he observed Rossi engage in
narcotics transactions on the street, and that before and after each
transaction he saw Rossi going into and out of 2329 Hutchinson Street. This
fact supports the existence of a nexus between the street crimes and Rossi’s
-6-
J-S29008-13
residence that was lacking in Kline and Way, and makes those cases
inapposite here. In Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011),
our Supreme Court specifically instructed that when drug sales involve
frequent trips into and out of a residence, probable cause exists to search for
drugs in the residence:
[T[he trial court and Superior Court discounted the
common sense import of the fact that after the
controlled buy was arranged, the police observed
Appellee leave his residence in his vehicle, as
precisely described by the CI, drive to a location,
conduct the transaction, and immediately return to
his residence. This fact certainly connected the
illegal transaction to Appellee's residence, in a
common sense, non-technical way, and permitted
the issuing authority to conclude that drugs would
likely be found in the residence. Although the
circumstances of the observed transaction also
potentially pointed to Appellee's vehicle as a storage
location for the drugs, ‘the law does not require that
the information in a warrant affidavit establish with
absolute certainty that the object of the search will
be found at the stated location, nor does it demand
that the affidavit information preclude all possibility
that the sought after article is not secreted in
another location.’ [Commonwealth v. Davis, 595
A.2d 1216, 1222 (Pa. Super. 1991).] Accordingly,
the Superior Court's reasoning that perceived no
connection between the transaction and the
residence was flawed. Under the totality of the
circumstances, which permits a balanced assessment
of the relative weight of all the various indicia of
reliability or unreliability of an informant's tip, there
was a sufficient connection between the residence
and the transaction to corroborate the CI's
information that drugs were stored in the residence,
and to support a determination of probable cause to
search the residence.
-7-
J-S29008-13
Id. at 1291; see also Davis, 595 A.2d at 1221 (“[W]ithin the 48–hour
period preceding the issuance of the search warrant, the confidential
informant witnessed Davis make three drug sales in the William Penn
Project, and, within the same time span, Davis was observed ... going to and
coming from 408 Pancoast Pl.”).
For these reasons, the trial court did not err in refusing to suppress
the physical evidence obtained from the search of Rossi’s residence at 2319
Hutchinson Street. No relief is due on Rossi’s first issue on appeal.
For his second issue on appeal, Rossi argues that the evidence was
insufficient to support his convictions for criminal conspiracy and PIC.
Rossi’s Brief at 16. Our standard of review for a sufficiency of the evidence
claim is well established.
We must determine whether the evidence admitted
at trial, and all reasonable inferences drawn
therefrom, when viewed in a light most favorable to
the Commonwealth as verdict winner, support the
conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to
find every element of the crime has been established
beyond a reasonable doubt, the sufficiency of the
evidence claim must fail.
The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is
free to believe all, part, or none of the evidence
presented. It is not within the province of this Court
to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The
Commonwealth's burden may be met by wholly
circumstantial evidence and any doubt about the
defendant's guilt is to be resolved by the fact finder
-8-
J-S29008-13
unless the evidence is so weak and inconclusive that,
as a matter of law, no probability of fact can be
drawn from the combined circumstances.
Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (citation
omitted).
Rossi first challenges the sufficiency of the evidence to support his
conspiracy conviction. The Pennsylvania Crimes Code defines conspiracy as
follows:
§ 903. Criminal Conspiracy
(a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to commit
a crime if with the intent of promoting or facilitating
its commission he:
(1) agrees with such other person or
persons that they or one or more of them
will engage in conduct which constitutes
such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or
persons in the planning or commission of
such crime or of an attempt or solicitation
to commit such crime.
18 Pa.C.S.A § 903(a). Thus, “‘[t]o sustain a conviction for criminal
conspiracy, the Commonwealth must establish the defendant: (1) entered
into an agreement to commit or aid in an unlawful act with another person
or persons; (2) with a shared criminal intent; and (3) an overt act was done
in furtherance of the conspiracy.’” Commonwealth v. Feliciano, 67 A.3d
19, 25-26 (Pa. Super. 2013) (en banc) (quoting Commonwealth v.
-9-
J-S29008-13
Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011)). “‘This overt act need not
be committed by the defendant; it need only be committed by a co-
conspirator.’” Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super.
2006) (citation omitted). The conspiracy can be proven by circumstantial
evidence, such that “[t]he conduct of the parties and the circumstances
surrounding such conduct may create a ‘web of evidence’ linking the accused
to the alleged conspiracy beyond a reasonable doubt.” Commonwealth v.
Perez, 931 A.2d 703, 708 (Pa. Super. 2007). Furthermore, “[t]he
conspiratorial agreement ‘can be inferred from a variety of circumstances,
including but not limited to, the relation between the parties, knowledge of
and participation in the crime, and the circumstances and conduct of the
parties surrounding the criminal episode.’” Feliciano, 67 A.3d at 26.
Rossi contends that the Commonwealth failed to introduce evidence
that showed Rossi entered into an agreement to possess drugs or committed
any act in furtherance of the conspiracy. Rossi’s Brief at 18. Rossi claims
that the record contains no evidence demonstrating “that [he] and his
alleged co-conspirators spoke or interacted with one another at any time.”
Id. at 19. Rossi argues that any inference from Welch entering and leaving
Rossi’s residence is insufficient because it is based on speculation. Id. at
20. Furthermore, Rossi asserts that “there was no evidence presented that
[he] and Welch or any other person were working in concert pursuant to a
joint plan.” Id. Rossi discounts the evidence that showed he and Welch
- 10 -
J-S29008-13
were both in possession of similar prescription drugs, stating that all
prescription drugs are of pharmaceutical origin and come in no other form.
Id. According to Rossi, “[a]ll th[e] evidence showed was that Welch entered
[Rossi’s] residence and that [Welch] emerged [30 minutes] later carrying
the same bag he carried into [Rossi’s] residence.” Id.
We must disagree. Our deferential standard of review requires this
Court to view the evidence in the light most favorable to the Commonwealth
as the verdict winner. Stokes, 38 A.3d at 853. Applying this standard
here, we must conclude that the Commonwealth’s evidence was sufficient to
permit the fact-finder to reasonably infer a conspiratorial agreement
between Rossi and Welch to distribute prescription drugs. Officer Spicer
observed Welch and Ms. Celli enter 2329 Hutchinson Street with a
multicolored bag and remain in the residence for about 30 minutes. Id. at
73, 75-76. During that time, Rossi exited his residence and engaged in a
narcotics transaction in front of 2329 Hutchinson. Id. at 75-76. Thereafter,
Rossi, Welch, Ms. Celli and Bowen exited Rossi’s residence. Id. at 75-76.
Welch and Ms. Celli returned to the gold vehicle with the multicolored bag,
and Bowen got in a burgundy vehicle. Id. at 75-76, 83-84. Bowen followed
Welch to York and Cedar Streets, which was located in close proximity to
Welch’s apartment. Id. at 78-80, 83-84.
The police soon thereafter discovered that Welch’s multicolored bag
contained a large quantity of prescription drugs. Id. at 84-86. After Officer
- 11 -
J-S29008-13
Spicer obtained search and seizure warrants, the police searched Rossi’s
residence and Welch’s apartment. Id. at 86, 90. Critically, the police
recovered, inter alia, numerous Oxycontin, Vicodin, and Percocet, from both
locations. Id. at 87-88, 90-93. From this evidence, the fact-finder could
reasonably infer that Welch obtained prescription drugs from his apartment
to supply Rossi with the prescription drugs found at Rossi’s residence.
Rossi next challenges the sufficiency of the evidence to support his
conviction for PIC. To be convicted of PIC, the Commonwealth must prove
that the defendant “possesses any instrument of crime with intent to employ
it criminally.” 18 Pa.C.S.A. § 907(a). Section 907(d) defines an instrument
of crime as “[a]nything used for criminal purposes and possessed by the
actor under circumstances not manifestly appropriate for lawful uses it may
have.” 18 Pa.C.S.A. § 907(d). Possession may be constructive:
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an
inference arising from a set of facts that possession
of the contraband was more likely than not. We
have defined constructive possession as ‘conscious
dominion.’ We subsequently defined ‘conscious
dominion’ as ‘the power to control the contraband
and the intent to exercise that control.’ To aid
application, we have held that constructive
possession may be established by the totality of the
circumstances.
Commonwealth v. Walker, 874 A.2d 667, 677-78 (Pa. Super. 2005)
(citation omitted).
- 12 -
J-S29008-13
Rossi points out that the gun was found inside a safe with a bottle of
pills prescribed to Mary Bowen, and contends that “because the gun was not
easily accessed and was never used or brandished[,] the conclusion that it
was an instrument of crime was error because of the absence of proof that
appellant had the requisite intent to make out the crime.” Rossi’s Brief at
21. Even if not easily accessible, used, or brandished, however, Rossi does
not deny either his ability to access the gun or his knowledge of the gun’s
existence. Here, the police discovered the gun, a bottle of Percocet, and a
life insurance policy in Rossi’s name in a safe located in the basement of
Rossi’s residence. N.T., 2/2/2012, at 87. Percocet pills were also found in
Rossi’s bedroom on the second floor of his residence. Id. at 87-88. Thus,
the finder of fact could reasonably have concluded that the gun was located
near the same type of drugs found in Rossi’s bedroom and that Rossi could
access the gun at will, given that the safe also housed a life insurance policy
in his name. Because we must view this evidence in the light most favorable
to the Commonwealth as the verdict winner, we conclude that the evidence
presented by the Commonwealth was sufficient to show that Rossi
constructively possessed the gun in connection with the prescription drugs in
his residence.1
1
We admonish the Commonwealth for citing this Court’s decision in
Commonwealth v. Grahame, 947 A.2d 762, 764 (Pa. Super. 2008) for the
validity of the proposition that guns and drugs go hand in hand.
Commonwealth’s Brief at 10. In Grahame, this Court upheld a protective
- 13 -
J-S29008-13
For these reasons, no relief is due on Rossi’s second issue on appeal.
Finally, during the pendency of this direct appeal, Rossi filed with this
Court a motion pursuant to Rule 720 of the Pennsylvania Rules of Criminal
Procedure requesting a remand to the trial court for a new trial or an
evidentiary hearing based on after-discovered evidence. Rossi’s motion cites
to a December 7, 2012 newspaper article in The Philadelphia Inquirer
discussing the transfer of certain members of the Philadelphia police
department, including Officer Spicer, to lower level positions because the
Philadelphia District Attorney’s Office had determined that the credibility of
the officers had been severely damaged by recent events (including
complaints of false arrest, filing fraudulent reports, and the use of excessive
force).
weapons search of a guest’s purse while the guest was in a house being
searched by police. Id. In so doing, we noted that “drugs and guns
frequently go hand in hand.” Id.
The decision by this Court in Grahame, however, was subsequently
reversed by our Supreme Court in Commonwealth v. Grahame, 607 Pa.
389, 7 A.3d 810 (2010). Therein, the Supreme Court reiterated that “courts
cannot abandon the totality-of-the-circumstances test and rely exclusively
upon the preconceived notion that certain types of criminals regularly carry
weapons.” Id. at 399, 7 A.3d at 816. In reversing this Court, the Supreme
Court pointed out that the Officer admitted that she “conducted a protective
search of Appellant's purse based on a generalization that firearms are
commonly found in close proximity to illegal drugs” and in the absence of
“facts that supported an objectively reasonable belief that Appellant was
armed and dangerous, the Superior Court's decision cannot be sustained.”
Id. at 401, 7 A.3d at 817. Thus, the Commonwealth’s reliance on this
Court’s decision in Grahame was unquestionably misplaced.
- 14 -
J-S29008-13
In its recent decision in Castro, our Supreme Court ruled that when a
motion for a new trial based on after-discovered evidence is filed with this
Court, a remand for an evidentiary hearing is appropriate only if said motion
references the potential evidence that would be relied upon to support the
request, including the “actual testimony, physical evidence, documentation
or other type of evidence” demonstrating allegations of police wrongdoing.
Id. at 827. In this regard, the Supreme Court emphasized that the mere
citation to a newspaper article “’pointing to’ allegations that if true have the
potential to aid [the appellant’s] cause” is, without more, insufficient to
support a Rule 720 motion. Id. at 828.
Here Rossi’s Rule 720 motion cites to the above-referenced newspaper
article but does not articulate what evidence he would present at the
evidentiary hearing on remand. Accordingly, in accordance with Castro,
Rossi’s motion must be denied.2
Judgment of sentence affirmed. Motion to remand for evidentiary
hearing is denied.
2
Our denial of Rossi’s motion does not preclude him from seeking
appropriate relief on these grounds pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-46.
- 15 -
J-S29008-13
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2014
- 16 -