J-E01004-14
2014 PA Super 289
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE VARGAS,
Appellant No. 1415 EDA 2012
Appeal from the Judgment of Sentence of February 6, 2012
In the Court of Common Pleas of Bucks County
Criminal Division Docket No: CP-09-CR-0001895-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
PANELLA, DONOHUE, ALLEN, LAZARUS, MUNDY, OLSON, JJ.
OPINION BY OLSON, J.: FILED DECEMBER 31, 2014
Appellant, Jose Vargas, appeals from the judgment of sentence
entered on February 6, 2012, as made final by the denial of Appellant’s post-
sentence motion on April 13, 2012. Although we affirm Appellant’s
convictions, we must vacate Appellant’s judgment of sentence and remand
for resentencing.
The trial court has provided us with a thorough and well-written
summary of the underlying facts. As the trial court explained:1
1
Within the trial court’s opinion, the trial court summarized the evidence
that was introduced at the June 6, 2011 pre-trial suppression hearing. We
note that there were slight differences between the evidence that was
(Footnote Continued Next Page)
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On November 3, 2010, at approximately 10:00 p.m.,
Officers David Clee and Matthew Tobie of the Bensalem
Township Police Department were patrolling the Route 1
corridor in Bensalem. [N.T. Trial, 10/17/11, at 9]. The
Route 1 corridor is considered a high-crime area, [and has
an] extensive history of arrests for offenses including
narcotics, robberies, prostitution[,] and other crimes at the
various hotels in the region. [Id. at 12].
In the course of their regular patrol, the [o]fficers pulled
[their marked patrol car] into the parking lot of the Sunrise
Inn on Route 1. . . . Officer Clee is specifically assigned to
patrol the Route 1 corridor. As such, he is personally
familiar with the crime that takes place in the area and has
made numerous arrests along the corridor, including arrests
at the Sunrise Inn. [Id. at 12]. Upon pulling into the
parking lot, the [o]fficers noticed a car with darkly tinted
windows parked in the parking lot. Officer Clee immediately
recognized that the tint was a violation of [75 Pa.C.S.A.
§ 4524(e)(1)2]. [Id. at 15-16].
As they approached the car, a Chevrolet Impala, Officer
Clee saw movement inside the vehicle[,] which he described
as someone moving from the front passenger’s side of the
vehicle to the driver’s side. [Id. at 15. Officer Clee decided
to investigate the vehicle. Id.] . . .
[Officer Clee] parked his patrol car[, exited his vehicle, and
approached the Chevrolet Impala. Id. at 15-16]. Officer
Clee then . . . began to question the driver. As [Officer Clee
was questioning the driver,] Officer Clee observed a
_______________________
(Footnote Continued)
introduced at trial and the evidence that was introduced during the
suppression hearing. Therefore, within this memorandum, we have
conformed the factual recitation to the evidence that was introduced during
the October 17, 2011 trial.
2
75 Pa.C.S.A. § 4524(e)(1) declares: “[n]o person shall drive any motor
vehicle with any sun screening device or other material which does not
permit a person to see or view the inside of the vehicle through the
windshield, side wing or side window of the vehicle.” 75 Pa.C.S.A.
§ 4524(e)(1).
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baseball cap sitting on the rear floor of the car. Inside the
baseball cap were several pieces of jewelry. From his
experience, Officer Clee recognized that a baseball cap full
of jewelry left in a safe place means the owner of the
jewelry anticipated one of two things: [that] he was about
to engage in a fight[] or that[,] as a drug dealer[,] he had a
fear of being robbed. [Id. at 18-19].
The occupant of the vehicle [was] later identified as Melvin
Torres [from Camden, New Jersey. During their
conversation, Torres] informed Officer Clee that he was not
the owner of the vehicle. [Id. at 14-16]. Officer Clee
questioned Torres in an attempt to ascertain the location of
the vehicle’s owner[] and to determine [Torres’] connection
to the hotel. Despite being questioned only about the
ownership of the vehicle, Torres appeared [“extremely
nervous”] and was evasive in his responses. . . . Id. at 16-
17].
After repeated questioning, Torres eventually told Officer
Clee that the vehicle’s owner . . . was in Room 161 of the
hotel. [Id. at 17]. . . . After Torres informed [Officer Clee]
that the owner of the [Chevrolet] Impala was in Room 161,
an individual opened the door to [Room 161] from within,
locked eyes with Officer Clee[,] and[, when Officer Clee
began to walk towards the room, the individual] quickly
closed the door. [Id. at 20]. While Officer Tobie remained
with Torres, . . . Officer Clee approached Room 161[,
“knocked on the door several times[,] and then made an
announcement outside that [he] was the police and [he]
was inquiring about the owner or operator of the Chevrolet
Impala that was occupied in the parking lot.” Id.]
Approximately [45] seconds passed before the door was
opened by a person later identified as . . . [Francisco]
Saldana. [Id. at 21].
Standing outside the room, Officer Clee observed [Saldana,]
Appellant[,] and [an individual who was later identified as
Raymer Carrasco] standing just inside the doorway. [Id.]
Officer Clee requested that each of the men produce
identification. [Officer Clee] noted that all three [men] were
from Camden, New Jersey. [Id. at 27]. None of the men
identified themselves as the owner of the [Chevrolet]
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Impala, and none would claim responsibility for renting the
hotel room. [Id. at 21-22]. . . .
From the doorway, Officer Clee looked around the room[
and observed “a Tupperware container, two trash bags, and
[] a black, . . . wheeled Tupperware container. Additionally,
the trash can was . . . full of items, and just between the
trash can and the wall was a small apple baggie.” 3 Id. at
23]. . . .
Acting on the belief, based on his experience, that there
might be other people [in the rear bathroom], and the fact
that the presence of the [a]pple bag[] indicated there might
be illegal activity occurring inside the hotel room, Officer
Clee entered the room [and] walk[ed] through the room[
towards the rear] hotel bathroom. [Id. at 26]. . . . As he
crossed the room, Officer Clee . . . observed at least one
portable lamp sticking out of a Tupperware container, in
addition to another Tupperware container and a large trash
bag. As he passed the trash bag, [Officer Clee] identified
more [a]pple bag[s]. Id. at 50. . . . [Further, Officer Clee
observed a trail of small rubber bands on the floor, with the
trail leading to the toilet, and then “two or three small
rubber[] bands in the toilet.” Id. at 26-27. Officer Clee
also noticed that the window in the bathroom was open, but
that the window was “extremely small, so [the officer] knew
that [none] of the three people standing at the door could
have got out of it.” Id. at 27]. . . .
Based on his observations, Officer Clee made the decision to
detain all four suspects: the individual from the [Chevrolet]
Impala and the three men from the hotel room. Once the
men were secured, the[ men] were searched[] and Raymer
Carrasco was found to be in possession of [heroin. The
heroin in Carrasco’s possession was packaged in “clear
plastic baggies wrapped in small rubber[] bands” and was
later determined to weigh 0.22 grams. Id. at 68; Berks
County Crime Laboratory Report, dated 11/23/10, at 1].
3
During the suppression hearing, Officer Clee testified that an “apple bag” is
a larger plastic bag that “normally contains 500 [] baggies” within it. N.T.
Suppression, 6/6/11, at 24.
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[A search of Appellant’s person revealed that Appellant
possessed car keys to a Honda vehicle; the police
discovered this Honda vehicle parked next to the Chevrolet
Impala in the Sunrise Inn lot. N.T. Trial, 10/17/11, at 29.
Further, when questioned as to whether Appellant had any
money on his person when he was searched, Officer Clee
testified: “I don’t recall any money being recovered in this
case.” Id. at 49-50.]
Officer Clee then applied for a search warrant for the hotel
room, the [Chevrolet] Impala[,] and [the] Honda
[automobile that was parked next to the Chevrolet Impala
(and to which Appellant possessed the keys)]. The four
suspects were transported to the police station and the
room was secured until a search warrant was obtained.
[Id. at 30].
Once the search warrant was obtained, all the evidence
located in the hotel room was brought back to the police
station to be inventoried. Inside the containers and
garbage bag located in the hotel room, police found [six
coffee] grinders [that were used to grind heroin], [coffee
filters that were used in the heroin-grinding process,] three
lamps, thousands of glassine baggies, several digital scales,
rubber stamps, wax paper[s that were stamped with brand-
insignia and that are ordinarily used to bag heroin], and
other items of drug paraphernalia. [Id. at 43-49]. All of
the grinders[, filters,] and scales tested positive for residue
of heroin or cocaine. [Id.; see also Bucks County Crime
Laboratory Report, dated 12/13/10, at 1. Moreover, e]mpty
condom[s] . . . were found in the hotel trash can. [N.T.
Trial, 10/17/11, at 47]. [None of the four individuals were
the named renter of the hotel room; none of the four
individuals possessed any “luggage or overnight bags.” Id.
at 21-22, 31, and 50].
The cars were [] transported to the [police] station so [that]
they could be searched. The officers located a concealed
compartment in the dashboard of the [Chevrolet] Impala
that contained a .40-caliber handgun and [377.73 grams of
uncut heroin, some of which was packaged in rubber
condoms “for transportation in a human body.” Id. at 32-
35; see also Bucks County Crime Laboratory Report, dated
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11/23/10, at 1. Officer Clee testified that the heroin-filled
condoms were “extremely similar” to the empty condoms
that were found in the hotel room trash can. N.T. Trial,
10/17/11, at 47. In like fashion, Commonwealth expert,
Detective Timothy Carroll, also testified that the heroin-
filled condoms found in the Chevrolet Impala were “very
similar, if not identical” to the “used empty condom[s]” that
were found in the hotel room. Id. at 90-91. Further, within
the Chevrolet Impala, the police discovered an “owe sheet”4
in the vehicle’s trunk, as well as an additional ledger that
was sitting on the vehicle’s front seat. Id. at 36]. . . .
[Saldana] was identified as the person responsible for the
[Chevrolet] Impala. [Id. at 22]. Although no illegal
substances or contraband of any sort were found in the
Honda [to which Appellant possessed the keys], when
Officer Clee introduced his trained narcotics dog to the
[Honda, the dog] alerted to the presence of an illegal
substance. [Id. at 28-30]. The K-9 also alerted to the
presence of an illegal substance in the [Chevrolet] Impala,
which was consistent with the findings of the search. [Id.]
On November 4, 2010, Appellant was charged with [a
number of crimes, including possession of a controlled
substance with the intent to deliver (hereinafter “PWID”),
possession of a controlled substance, possession of drug
paraphernalia, and criminal conspiracy.]
Trial Court Opinion, 7/10/12, at 1-6 (internal citations omitted).
On August 18, 2011, Commonwealth provided Appellant with notice
that, in the event Appellant was convicted of PWID, the Commonwealth
intended to seek the five-year mandatory minimum sentence under 18
Pa.C.S.A. § 7508(a)(7)(iii), because “the aggregate weight of the compound
4
Officer Clee testified that “[a]n owe sheet is a record that someone is
owing them money for anything. These sheets, specifically the items
recovered in the trunk of the vehicle, appear to be daily amounts that people
are making off a corner for ounces and grams of something.” N.T. Trial,
10/17/11, at 60.
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or mixture containing the heroin [was] 50 grams or greater.” 18 Pa.C.S.A.
§ 7508(a)(7)(iii).
On October 17, 2011, Appellant proceeded to a bench trial, where the
Commonwealth presented the above-summarized evidence. Moreover,
during trial, Appellant stipulated to the authenticity and accuracy of a Bucks
County Crime Laboratory report, which declared that the substance in Mr.
Saldana’s vehicle was heroin and that the heroin in Mr. Saldana’s vehicle
weighed 377.73 grams.5 N.T. Trial, 10/17/11, at 39-41; Bucks County
Crime Laboratory Report, dated 11/23/10, at 1.
During trial, the Commonwealth presented the testimony of Detective
Timothy Carroll, whom the trial court accepted as an expert in the field of
narcotics trafficking. Detective Carroll testified that – based upon his
training, education, and experience, and upon the evidence of the case – all
of the heroin in this case was possessed with the intent to deliver. N.T.
Trial, 10/17/11, at 87. Indeed, Detective Carroll testified that the operation
in the hotel room constituted a “mobile heroin mill,” where the defendants
cut raw heroin and proceeded to weigh and package the cut heroin into the
small wax baggies. Id. at 87-88. As Detective Carroll testified:
This is a matter, your Honor, really of a portable or mobile
heroin mill. This heroin was possessed with the intent to
5
Appellant also stipulated to the chain of custody regarding all of the items
that were tested by the Bucks County Crime Laboratory. N.T. Trial,
10/17/11, at 39-40.
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package into these wax paper bags. It’s also obvious that
some of it had been packaged and probably had left the
room prior to that. The pellets are evidence of the actual
raw heroin that was brought to the room. There is mannitol
present, which would be used as cut to adulterate the
heroin before it’s packaged in those small blue wax baggies,
and there’s presence of actual new unstamped bags as well
as stamped bags that are packaged and unpackaged and
there’s the presence of the actual stamps and heat sealers.
There is a plethora of evidence, really . . . that shows this is
really a heroin mill.
N.T. Trial, 10/17/11, at 87-88.
Detective Carroll testified that, judging from the paraphernalia and
residue that was discovered in the hotel room, the defendants had probably
cut and packaged “thousands of bags of heroin” before the police arrived;
the detective testified that the bags of cut heroin had then “left the [hotel]
room” for ultimate sale “at the street level.” Id. at 87, 89, and 90.
With respect to the remaining 377.73 grams of raw, uncut heroin that
was discovered in Mr. Saldana’s vehicle, Detective Carroll testified:
A gram of heroin is usually broken down into about 35 of
these heroin packets. Those heroin packets retail for about
$10[.00] a piece. Of course, they discount by quantity; if
you buy a bundle you pay maybe 60 percent on the dollar.
I believe there were 376[6] grams [of uncut heroin left]. If
you do the math, you’re talking about 13,000 baggies that
6
As noted above, Appellant stipulated to the authenticity and accuracy of
the Bucks County Crime Laboratory report, which declared that the
substance in Mr. Saldana’s vehicle was heroin and that the heroin weighed
377.73 grams. N.T. Trial, 10/17/11, at 39-41. Appellant also stipulated to
the chain of custody regarding the items that were tested. Id. at 39-40.
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possibly could have been produced here in this mill from
what was left, what was discovered by the police, not
counting the cut and not counting what was apparently
already packaged.
Id. at 92.
Detective Carroll testified that the approximate street value of the
seized heroin was “well over a hundred thousand dollars.” Id.
During trial, the Commonwealth also introduced a surveillance video of
the hotel parking lot, which was recorded on November 3, 2010. N.T. Trial,
10/17/11, at 41-42. As the video showed, at 10:03 p.m. on the night in
question, Mr. Saldana drove his Chevrolet Impala into Sunrise Inn parking
lot.7 See N.T. Suppression Hearing, 6/6/11, at 13.8 After parking his
vehicle, Mr. Saldana exited the car carrying nothing, and walked empty-
handed towards Room 161. Id. at 13-14. Mr. Saldana then knocked on the
door to Room 161, and someone from inside Room 161 opened the door to
allow Mr. Saldana entry into the hotel room. Id. Approximately one minute
later, Officers Clee and Tobie drove their patrol car into the Sunrise Inn
parking lot, and the above-summarized events transpired. Id. at 14-18.
7
The surveillance video began at 10:00 p.m. and ended two hours later, at
12:00 a.m.
8
During Appellant’s trial, the parties stipulated to the admissibility of the
surveillance video. N.T. Trial, 10/17/11, at 41-42. The parties also agreed
that the surveillance video admitted at trial was “the same video” the trial
court viewed during the June 6, 2011 suppression hearing. Id. at 42.
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The trial court found Appellant guilty of PWID, possession of a
controlled substance, possession of drug paraphernalia, and criminal
conspiracy.9 Id. at 111. On February 6, 2012, the trial court sentenced
Appellant to serve the mandatory minimum sentence of five to ten years in
prison for PWID, in accordance with 18 Pa.C.S.A. § 7508(a)(7)(iii).10 N.T.
Sentencing, 2/6/12, at 32.
On February 16, 2012, Appellant filed a timely post-sentence motion.
Following a hearing, the trial court denied Appellant’s motion and Appellant
filed a timely notice of appeal to this Court.
Within Appellant’s initial brief on appeal, Appellant claimed that the
evidence was insufficient to support his convictions and that the trial court
erred when it sentenced him to serve the mandatory minimum term under
18 Pa.C.S.A. § 7508(a)(7)(iii). Over the dissent of the Honorable Mary Jane
Bowes, a three-judge panel of this Court initially concluded that the evidence
was insufficient to sustain Appellant’s convictions. Commonwealth v.
Vargas, 1415 EDA 2012 (Pa. Super. filed July 8, 2013) (unpublished
memorandum) (withdrawn) at 15-19. According to the panel majority, the
Commonwealth had not proven that Appellant constructively possessed the
9
35 P.S. § 780-113(a)(30), (16), and (32), and 18 Pa.C.S.A. §§ 903(a),
respectively.
10
The trial court also sentenced Appellant to serve a concurrent term of ten
years’ probation for the conspiracy conviction.
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contraband in either the hotel room or Mr. Saldana’s vehicle. The panel
majority also held that the Commonwealth had failed to prove that Appellant
conspired to commit any crime. Rather, the panel majority held, the
Commonwealth had merely proven Appellant’s “presence in the hotel room”
and Appellant’s “shared access to [the] drug-packaging paraphernalia” in the
hotel room. Id. at 19.
In her comprehensive and well-written dissent, Judge Bowes argued
that, in reaching its decision, the panel majority had disregarded our
standard of review, taken a myopic view of the Commonwealth’s evidence,
failed to draw all reasonable inferences from the evidence in favor of the
Commonwealth as the verdict winner, and re-weighed the evidence in
Appellant’s favor. As Judge Bowes wrote:
This is not a case where the evidence is so weak and
inconclusive that no probability of fact can be drawn from
the combined circumstances. . . . Here, viewing the
evidence in a light most favorable to the Commonwealth,
thereby giving it the benefit of the reasonable inferences
derived therefrom, the pertinent proof is sufficient to
establish the aforementioned crimes. Appellant was inside
a [hotel] room with two other individuals while a third
person remained outside in a Chevy Impala with a New
Jersey license plate. The person in the Impala had
indicated to police that the owner of the car was in the
[hotel] room where police located Appellant. Police secured
a search warrant for the [hotel] room and found four bags
of heroin on another individual who was in the hotel room
with Appellant. Also, police observed a large [Ziploc] bag
that ordinarily contains smaller [Ziploc] bags, which one
officer described as being used almost exclusively for the
packaging of narcotics. Rubber bands, frequently used in
packaging drugs, were found floating in the toilet, which
appeared to have been flushed just before police arrived.
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Drug sniffing dogs performed a sniff on the outside of both
Appellant’s car and the Impala, which belonged to Francisco
Saldana, one of the men who was inside the [hotel] room
with Appellant. The dog alerted on both cars. Police then
obtained a search warrant for the vehicles. Inside Mr.
Saldana’s car, police found a bag containing over 370 grams
of heroin and a loaded .40 caliber semi-automatic pistol.
These items were located in a secret compartment in the
vehicle. Part of the drugs found in Mr. Saldana’s vehicle
were packaged in balloon and condom-like wrappers. . . .
Inside the hotel room, an industrial-sized trash bag and
large blue plastic containers were seized. The bag and
containers as well as a trash can in the room contained
numerous items used to package heroin, including rubber
stamps, wax paper, digital scales, empty condom wrappers
similar if not identical to those used to package the drugs in
Mr. Saldana’s car, thousands of one-inch-by-one-inch
[Ziploc] bags, grinders, and lamps. The trash bag and
plastic containers were on the floor of the [hotel] room and
were not hidden. Six grinders and two scales tested
positive[] for either cocaine or heroin residue. Additional
packaging in the room tested positive[] for heroin residue.
A surveillance video of Mr. Saldana entering the [hotel]
room showed that he had arrived at the hotel shortly before
[the] police and had entered the [hotel] room without any
of the plastic containers or trash bag. No luggage or bags
were located in Appellant’s vehicle. Expert testimony was
introduced that the materials recovered indicated a mobile
heroin packaging mill.
Only by setting aside our standard of review can this
evidence be viewed as Appellant merely being present while
others were packaging heroin for purposes of distribution.
Commonwealth v. Vargas, 1415 EDA 2012 (Pa. Super. filed July 8, 2013)
(unpublished memorandum) (Bowes, J., dissenting) (withdrawn) at 2-4.
The Commonwealth filed an application for reargument and, on
September 13, 2013, this Court granted the Commonwealth’s application.
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We thus withdrew the prior panel decision and listed the case for en banc
consideration. Order, 9/13/13, at 1. Appellant now raises the following
claims to this Court:
[1.] Where the evidence at trial established only that
[Appellant] was merely present in a hotel room where drug-
packaging paraphernalia was recovered, was the evidence
sufficient to sustain the verdict[]?
[2.] Did the [trial court] err by imposing the mandatory
minimum [sentence] under [18 Pa.C.S.A. § 7508] where
the controlled substance in question was not in the actual or
constructive possession of [Appellant]?
Appellant’s Brief at 5.
Appellant first claims that the evidence was insufficient to support his
convictions. Appellant’s claim is based entirely upon his contention that the
evidence “only showed [] Appellant’s mere presence in [the] hotel room.”
Appellant’s Brief at 8. According to Appellant, since “the Commonwealth’s
evidence established nothing more [than] presence alone in conjunction with
access to the contraband[, the Commonwealth] did not establish that
Appellant was in possession of the drugs . . . [and the Commonwealth] also
failed to demonstrate that [] Appellant was part of a conspiracy.” Id. at 13
and 15.
Appellant’s claim fails. Viewing the evidence in the light most
favorable to the Commonwealth as the verdict winner, the evidence in this
case was sufficient to show that: Appellant constructively possessed the
heroin residue and drug paraphernalia that was discovered in the “heroin
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mill” of a hotel room; Appellant was engaged in an active, ongoing
conspiracy with Messrs. Saldana and Carrasco – the purpose of which was to
cut and package raw heroin “for sale at the street level;” as part of the
conspiracy, Appellant, Mr. Saldana, and Mr. Carrasco intended to cut and
package the 377.73 grams of raw, uncut heroin that was discovered in Mr.
Saldana’s vehicle; and, as a member of the ongoing conspiracy with Mr.
Saldana, Appellant is criminally liable for the substantive offense of
possessing the 377.73 grams of raw, uncut heroin that was discovered in Mr.
Saldana’s vehicle.
We review Appellant’s sufficiency of the evidence claim under the
following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for [that of] the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter of
law no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the
evidence.
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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806
(Pa. Super. 2008).
At the outset, we reject Appellant’s claim that the evidence was
insufficient to prove that Appellant constructively possessed the heroin
residue and drug paraphernalia in the hotel room.
“In narcotics possession cases, the Commonwealth may meet its
burden by showing actual, constructive, or joint constructive possession of
the contraband.” Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa.
Super. 1981). Actual possession is proven “by showing . . . [that the]
controlled substance [was] found on the [defendant’s] person.”
Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983). If the
contraband is not discovered on the defendant’s person, the Commonwealth
may satisfy its evidentiary burden by proving that the defendant had
constructive possession of the drug. Id.
Our Supreme Court has defined constructive possession as “the ability
to exercise a conscious dominion over the illegal substance: the power to
control the contraband and the intent to exercise that control.” Macolino,
469 A.2d at 134. In the words of our Supreme Court, “constructive
possession is a legal fiction, a pragmatic construct to deal with the realities
of criminal law enforcement.” Commonwealth v. Johnson, 26 A.3d 1078,
1093 (Pa. 2011) (internal quotations, citations, and corrections omitted). It
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is a “judicially created doctrine . . . [that] enables law enforcement officials
to prosecute individuals in situations where the inference of possession is
strong, yet actual possession at the time of arrest cannot be shown.” Mark
I. Rabinowitz, Note, Criminal Law Constructive Possession: Must the
Commonwealth Still Prove Intent? – Commonwealth v. Mudrick, 60 TEMPLE
L.Q. 445, 499-450 (1987).
To find constructive possession, the power and intent to control the
contraband does not need to be exclusive to the defendant. Our Supreme
Court “has recognized that constructive possession may be found in one or
more actors where the item [at] issue is in an area of joint control and equal
access.” Johnson, 26 A.3d at 1094 (internal quotations, citations, and
corrections omitted). Nevertheless, “where more than one person has equal
access to where drugs are stored, presence alone in conjunction with such
access will not prove conscious dominion over the contraband.”
Commonwealth v. Davis, 480 A.2d 1035, 1045 (Pa. 1984) (emphasis
omitted).
For the Commonwealth to prove constructive possession where more
than one person has access to the contraband, “the Commonwealth must
introduce evidence demonstrating either [the defendant’s] participation in
the drug related activity or evidence connecting [the defendant] to the
specific room or areas where the drugs were kept.” Commonwealth v.
Ocasio, 619 A.2d 352, 354-355 (Pa. Super. 1993). However, “[a]n intent
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to maintain a conscious dominion may be inferred from the totality of the
circumstances . . . [and] circumstantial evidence may be used to establish a
defendant’s possession of drugs or contraband.” Macolino, 469 A.2d at
134-135 (internal citations omitted). Moreover, we agree with the
statement from the United States Court of Appeals for the Tenth Circuit that,
although “mere presence” at a crime scene cannot alone sustain a conviction
for possession of contraband:
a jury need not ignore presence, proximity and association
when presented in conjunction with other evidence of guilt.
Indeed, presence at the scene where drugs are being
processed and packaged is a material and probative factor
which the jury may consider. Drug dealers of any size and
[illegal drug] manufacturers probably are reticent about
allowing the unknowing to take view of or assist in the
operation.
United States v. Robinson, 978 F.2d 1554, 1157-1158 (10th Cir. 1992)
(internal quotations and citations omitted); see also Rivas v. United
States, 783 A.2d 125, 138 (D.C. 2001) (en banc) (“a claim of innocent
presence becomes decidedly less plausible in an environment (vehicular or
otherwise) that is rife with evidence of ongoing drug production or
distribution, such as a manufacturing or cutting facility, a warehouse, or a
staging or preparation area where a large quantity of drugs or drug
paraphernalia is exposed to view”); United States v. Batista-Polanco, 927
F.2d 14, 18 (1st Cir. 1991) (casting doubt upon the “hypothesis that
participants in a [large-scale heroin packaging] scheme would permit a
noncontributing interloper to remain for an extended period of time in a
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small apartment while their conspicuous criminal conduct continued
unabated [since s]uch is not normally the conduct that one would expect of
conspirators engaged in conduct which by its nature is kept secret from
outsiders”) (internal quotations, citations, and corrections omitted); United
States v. Staten, 581 F.2d 878, 885 n.67 (D.C. Cir. 1978) (“[i]t would
seem that the voluntary presence of the accused in an area obviously
devoted to preparation of drugs for distribution is a circumstance potently
indicative of his involvement in the operation”).
Viewing the evidence in the light most favorable to the
Commonwealth, the evidence in the case at bar was sufficient to prove that
Appellant constructively possessed the heroin residue and the drug
paraphernalia that was discovered in the hotel room. Indeed, a review of
the totality of the circumstances reveals the following facts and permissible
inferences, which – taken together – are sufficient to prove that Appellant
possessed “the power to control the contraband [in the hotel room] and the
intent to exercise that control.” Macolino, 469 A.2d at 134.
First, Appellant was caught in a single, open hotel room, with drug-
cutting and drug-packaging material strewn about the room, in plain view.
Taken together, these circumstances furnished a sound basis for the fact-
finder to reject the claim that Appellant was unaware of the substantial
heroin-cutting and heroin-packaging operation that was occurring within his
midst, in the confined space of a hotel room.
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Second, the Commonwealth introduced expert testimony that the
operation in the hotel room constituted a multi-person “mobile heroin mill” –
where raw heroin was cut, weighed, and then packaged into baggies for sale
“at the street level.” N.T. Trial, 10/17/11, at 87, 89, and 90. As the Tenth
Circuit has explained, Appellant’s presence in the middle of such an
operation is highly probative and supports the inference that Appellant was
an active participant in the activity. Indeed, as the Tenth Circuit explained,
it is common knowledge that “[d]rug dealers of any size and [illegal drug]
manufacturers probably are reticent about allowing the unknowing to take
view of or assist in the operation.” Robinson, 978 F.2d at 1157-1158.
Third, Appellant’s “mere presence” claim is further undercut by the
fact that he was caught in a hotel room – rather than in an individual’s
residence – and that no luggage was found in the hotel room or in
Appellant’s vehicle. These facts support a permissible inference that the
hotel room was being used for one purpose: a mobile heroin mill. These
facts also support a permissible inference that Appellant was not merely
visiting the individuals in the hotel room (as he might if the operation had
been conducted in one of the individuals’ residences) but that Appellant was
an active participant in the only activity that was being conducted in the
room: the cutting and packaging of heroin.
Fourth, and on a related note, there is no evidence that the hotel room
was being used as a place for the illegal sale of heroin. Most tellingly, there
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was no evidence that the police seized any money in this case. See N.T.
Trial, 10/17/11, at 1-112. Further, at trial, Officer Clee was asked whether
“any money [was] found on [Appellant’s] person” during the search; Officer
Clee answered: “I don’t recall any money being recovered in this case.” Id.
at 49-50. Admittedly, under a de novo standard of review, a fact-finder
could ascribe a variety of different meanings to Officer Clee’s answer,
including that Officer Clee actually did not remember whether any money
was recovered in this case. We observe, however, that “I don’t recall” is a
common idiomatic expression, which means “no.” See, e.g., S.E.C. v.
Woodruff, 778 F.Supp.2d 1073, 1094 n.24 (D.Colo. 2011) (recognizing the
idioms “I don’t believe” and “I don’t recall”). Since our review of Appellant’s
sufficiency of the evidence challenge requires that we interpret Officer Clee’s
answer in the light most favorable to the Commonwealth, we view Officer
Clee’s answer as supporting the conclusion that Appellant possessed no
money at the time he was searched and that no money was found in the
hotel room. Thus, when combined with the actual evidence in the case
(which demonstrates that the police recovered no money from Appellant,
Appellant’s co-defendants, or the hotel room), Officer Clee’s testimony
further negates any suggestion that Appellant was present in the hotel room
merely to purchase the heroin.
Fifth, the evidence at trial supports the inference that Appellant was,
at the very least, complicit in the destruction of evidence. At trial, Officer
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Clee testified that, when he was questioning Mr. Torres in the parking lot, he
noticed an individual open the door to Room 161 and look directly at the
officer. N.T. Trial, 10/17/11, at 20. Officer Clee testified that, right when he
began to walk towards the room, the individual shut the door. Id. In
response, Officer Clee testified that he approached Room 161, “knocked on
the door several times[,] and then made an announcement outside that [he]
was the police and [he] was inquiring about the owner or operator of the
Chevrolet Impala that was occupied in the parking lot.” Id. Officer Clee
testified that it took approximately 45 seconds for Mr. Saldana to open the
door to the small hotel room – and that, when Officer Clee entered the
room, the officer discovered a trail of small rubber bands on the floor, with
the trail leading to the toilet, and then “two or three small rubber[] bands in
the toilet.” Id. at 20-21.
Viewing this evidence in the light most favorable to the
Commonwealth, the evidence supports the inference that the individuals in
the hotel room flushed some of the contraband down the toilet. Moreover,
even if Appellant did not actively take part in flushing the contraband down
the toilet, Appellant’s failure to answer the door when Officer Clee knocked –
while his compatriots flushed the contraband down the toilet – demonstrates
that Appellant was, at the very least, complicit in the destruction of
evidence.
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Sixth, the evidence at trial supports the inference that Appellant
brought all of the drug-cutting and drug-packaging paraphernalia to the
hotel room in the Honda automobile. At trial, Officer Clee testified that a
search of the three individuals in the hotel revealed that the individuals only
possessed vehicle keys to two cars: the Honda vehicle and the Chevrolet
Impala. Appellant possessed the vehicle keys to the Honda and video
evidence revealed that Mr. Saldana operated the Chevrolet Impala. N.T.
Trial, 10/17/11, at 22 and 29.
Officer Clee testified that a trained narcotics dog alerted to the
presence of narcotics on both the Honda and the Chevrolet Impala – and,
while heroin was discovered in Mr. Saldana’s Chevrolet Impala, no narcotics
were discovered in the vehicle to which Appellant possessed the keys. Id. at
28-30. Nevertheless, the narcotics and the large amounts of paraphernalia
in the hotel room needed to get into the room some way and surveillance
video demonstrated that, when Mr. Saldana arrived at the hotel in his
Chevrolet Impala, Mr. Saldana parked his vehicle in the lot and walked
empty-handed into the hotel room.
Viewing this evidence in the light most favorable to the
Commonwealth, it was permissible for the fact-finder to infer that the dog
alerted to Appellant’s vehicle because Appellant brought much, if not all, of
the drug-cutting and drug-packaging paraphernalia into the hotel room –
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and, therefore, that Appellant constructively possessed the contraband found
in the hotel room.
From the above, it is apparent that the Commonwealth’s case against
Appellant was based upon far more than Appellant’s “mere presence in [the]
hotel room.” See Appellant’s Brief at 8. Indeed, viewing the evidence in the
light most favorable to the Commonwealth, the evidence is sufficient to
support the trial court’s conclusion that Appellant was an active participant
in the drug-cutting and drug-packaging operation that was being conducted
in the hotel room – and that Appellant possessed both “the power to control
the contraband [in the hotel room] and the intent to exercise that control.”
Macolino, 469 A.2d at 134.
We note that, within Appellant’s brief to this Court, Appellant claims
that the factual pattern of this case is “strikingly analogous” to the factual
pattern of Commonwealth v. Ocasio. 619 A.2d 352 (Pa. Super. 1993).
According to Appellant, since the Ocasio Court held that the evidence was
insufficient to show that the defendant constructively possessed the
contraband, we must likewise conclude that the evidence was insufficient to
support Appellant’s convictions. Appellant’s Brief at 12-14. Appellant’s
argument fails because the underlying facts in Ocasio were far less
incriminating than the facts in the case at bar.
In Ocasio, the police executed a search warrant for 2128 North
Second Street, in Philadelphia. The residence was a multi-bedroom house,
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which housed multiple residents. Ocasio, 619 A.2d at 353. During the
ensuing search, the police heard one of the co-defendants declare, in
Spanish, “it’s in the trash.” Id. A search of the kitchen trashcan uncovered
12 baggies containing 567 vials of crack cocaine. Id. The police searched
the rest of the house and discovered: in a third floor bedroom, “a baggie
containing a large chunk of crack cocaine” and $5,882.00; in the basement,
“a triple beam scale, one baggie containing numerous empty clear plastic
vials with gray and black caps, two strainers, and one baggie containing
numerous empty clear smaller packets;” and, in an unspecified area of the
house, a plastic grinding apparatus and “a substance commonly used to
dilute or ‘cut’ cocaine before selling it.” Id.
Mr. Ocasio returned home during the search and the officers on scene
arrested him. A search of Mr. Ocasio’s person revealed $422.00 in small
denominations and a driver’s license, which declared that Mr. Ocasio’s
residence was 2128 North Second Street. Id. A jury subsequently found
Mr. Ocasio guilty of PWID and criminal conspiracy.
On appeal, Mr. Ocasio claimed that the evidence proved only his
“presence” in the house and that the Commonwealth thus failed to prove he
constructively possessed the contraband. We agreed with Mr. Ocasio and
vacated his convictions. Id.
Within our Opinion, we noted that Mr. Ocasio “was present at the
scene of the crime and, as a resident, had access to the drugs in the house.”
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Id. at 354. We explained, however, that since other individuals had equal
access to the drugs in the house, the Commonwealth was required to prove
more than Mr. Ocasio’s “mere presence” in the house. Id. Rather, we held
that the Commonwealth needed to introduce evidence “demonstrating either
[Mr. Ocasio’s] participation in the drug related activity or evidence
connecting [Mr. Ocasio] to the specific room or areas where the drugs were
kept.” Id. at 354-355.
We concluded that the Commonwealth failed its burden, as “[t]he only
evidence linking [Mr. Ocasio] to any drug related activity [was] the $422[.00
in] cash found in his pocket at the time of his arrest” – and this limited
evidence was insufficient to prove that Mr. Ocasio was involved in drug sales
or in the drug packaging and distribution that was occurring at the residence
where the warrant had been executed. Id. at 355. Moreover, we concluded
that there was no evidence linking Mr. Ocasio to any room in which the
contraband was discovered and that there was no evidence that Mr. Ocasio
“even knew of the criminal activity in the house.” Id. Finally, we concluded
that, even though Mr. Ocasio was present at the scene of a crime, “[a]s a
resident of the house, [Mr. Ocasio’s] presence at the scene of the crime was
not out of the ordinary.” Id.
Appellant’s reliance upon Ocasio cannot succeed, as the evidence in
the case at bar is far more incriminating than the evidence that was present
in Ocasio. To start, unlike Mr. Ocasio, Appellant simply cannot persuasively
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claim that he was unaware of the criminal activity that was occurring in the
hotel room. Indeed, Appellant was caught in a single, open hotel room, with
drug-cutting and drug-packaging material in plain view and strewn about the
confined space.
Moreover, when the police arrested Mr. Ocasio, Mr. Ocasio was inside
of his own residence – where he had a legitimate right to be – and the police
did not discover any contraband in any room in which Mr. Ocasio exclusively
controlled. In the case at bar, however, the evidence demonstrates that
Appellant drove to an out-of-state hotel, with no overnight luggage, and was
found inside of a room that was being used exclusively as a “mobile heroin
mill” – and, thus, for no legitimate purpose. Echoing the District of
Columbia Court of Appeals, Appellant’s claim of “innocent presence” in such
an incriminating and secretive environment is “decidedly less plausible” than
was the claim in Ocasio. Rivas, 783 A.2d at 138.
Finally, the Ocasio Court held that (beyond Mr. Ocasio’s mere
presence in his own residence) there was a dearth of evidence supporting
Mr. Ocasio’s convictions. In the case at bar, however, the Commonwealth
introduced additional evidence supporting the inference that Appellant
constructively possessed the contraband in the hotel room. Indeed, as
summarized above, the Commonwealth introduced evidence supporting the
inference that Appellant was, at the very least, complicit in the destruction
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of contraband and that Appellant transported the drug-cutting and drug-
packaging paraphernalia to the hotel room.
Appellant’s dependence upon Ocasio thus does not entitle him to
relief.11 The evidence in the case at bar is sufficient to support the trial
court’s conclusion that Appellant was an active participant in the drug-
cutting and drug-packaging operation that was being conducted in the hotel
room and that Appellant possessed “the power to control the contraband [in
the hotel room] and the intent to exercise that control.” Macolino, 469
A.2d at 134.
Moreover, we conclude that the evidence is sufficient to support the
trial court’s conclusion that Appellant and Mr. Saldana conspired to cut and
package for sale the 377.73 grams of raw, uncut heroin that was discovered
in Mr. Saldana’s vehicle. As such, the evidence is sufficient to support
11
In support of his sufficiency claim, Appellant also cites to
Commonwealth v. Valette. 613 A.2d 548 (Pa. Super. 1992). However,
from Appellant’s standpoint, the facts of Valette are even weaker than the
facts of Ocasio. Therefore, we will not separately analyze Valette. See
Valette, 613 A.2d at 548 (the police raided a two story apartment and
arrested Mr. Valette, along with multiple people who were present at the
time of the raid; a search revealed that contraband was secreted in various
places throughout the apartment; while the Commonwealth produced
evidence that Mr. Valette’s co-defendants lived in the apartment, there was
no evidence that Mr. Valette resided in the apartment and the police
discovered no contraband on Mr. Valette’s person; we held that, since “the
record demonstrates nothing more than that [Mr. Valette] was present in an
apartment in which drugs were found,” the evidence was insufficient to
support Mr. Valette’s conviction for possession).
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Appellant’s conviction for the substantive offense of PWID, insofar as it
related to the raw and uncut heroin.
As our Supreme Court has explained: “to sustain a conviction for
criminal conspiracy, the Commonwealth must establish that 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.
Fisher, 80 A.3d 1186, 1190-1191 (Pa. 2013) (internal quotations, citations,
and corrections omitted); see also 18 Pa.C.S.A. § 903. We have held:
The essence of a criminal conspiracy is the common
understanding that a particular criminal objective is to be
accomplished. Mere association with the perpetrators, mere
presence at the scene, or mere knowledge of the crime is
insufficient. Rather, the Commonwealth must prove that
the defendant shared the criminal intent, i.e., that the
Appellant was an active participant in the criminal
enterprise and that he had knowledge of the conspiratorial
agreement. The defendant does not need to commit the
overt act; a co-conspirator may commit the overt act.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en
banc) (internal quotations and citations omitted).
“Proof of a conspiracy is almost always extracted from circumstantial
evidence. The Commonwealth may present a ‘web of evidence’ linking the
defendant to the conspiracy beyond a reasonable doubt. The evidence
must, however, rise above mere suspicion or possibility of guilty collusion.”
Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)
(internal quotations and citations omitted). We have held that, “[a]mong
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the circumstances which are relevant, but not sufficient by themselves, to
prove a corrupt confederation are: (1) an association between alleged
conspirators; (2) knowledge of the commission of the crime; (3) presence at
the scene of the crime; and (4) in some situations, participation in the object
of the conspiracy.” Lambert, 795 A.2d at 1016 (internal quotations and
citations omitted). Moreover:
Once there is evidence of the presence of a conspiracy,
conspirators are liable for acts of co-conspirators committed
in furtherance of the conspiracy. Even if the conspirator did
not act as a principal in committing the underlying crime, he
is still criminally liable for the actions of his co-conspirators
taken in furtherance of the conspiracy.
...
The premise of the rule is that the conspirators have formed
together for an unlawful purpose, and thus, they share the
intent to commit any acts undertaken in order to achieve
that purpose, regardless of whether they actually intended
any distinct act undertaken in furtherance of the object of
the conspiracy. It is the existence of shared criminal intent
that is the sine qua non of a conspiracy.
Lambert, 795 A.2d at 1016-1017 (internal quotations and citations
omitted). “The duration of a conspiracy depends upon the facts of the
particular case, that is, it depends upon the scope of the agreement entered
into by its members.” Johnson, 26 A.3d at 1092 (internal quotations and
citations omitted).
As stated above, the only remaining issue with respect to Appellant’s
sufficiency of the evidence claim is whether the conspiracy between
Appellant and Mr. Saldana encompassed, as its object, the cutting and
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packaging of the 377.73 grams of uncut heroin that was discovered in Mr.
Saldana’s vehicle. We conclude that the evidence was sufficient to support
this conclusion.
We have explained that the evidence at trial was sufficient to support
the trial court’s conclusion that Appellant was an active participant in an
ongoing, multi-person “mobile heroin mill,” where raw heroin was cut,
weighed, and packaged for sale “at the street level.” Moreover, viewing the
evidence in the light most favorable to the Commonwealth, the evidence at
trial demonstrated that the hotel room within which the operation was being
conducted was being used exclusively for the cutting and packaging of raw
heroin – and that Appellant and his compatriots had already cut and
packaged “thousands of bags of heroin” before the police arrived. Further,
Detective Carroll testified that, by the time the police arrived, the
“thousands of bags” of cut and packaged heroin had already “left the [hotel]
room” for ultimate sale “at the street level.” N.T. Trial, 10/17/11, at 87, 89,
and 90.
Under such circumstances, it takes a very small inferential step to
conclude that Appellant and Mr. Saldana understood, agreed, and intended
to cut, weigh, and package for sale the 377.77 grams of raw heroin that was
discovered in Mr. Saldana’s vehicle. To be sure, the facts of this case
demonstrate that Mr. Saldana transported “well over a hundred thousand
dollars” of raw heroin to an out-of-state hotel and then entered a room
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where the only activity being conducted was the cutting of raw heroin and
the packaging of the cut heroin for sale on the street. Indeed, the grinders,
scales, lamps, stamps, and packaging materials were consistent with the
items needed to process raw heroin such as that found in Mr. Saldana’s
vehicle.
Moreover, the evidence at trial demonstrated that some of the raw
heroin discovered in Mr. Saldana’s vehicle was packaged in rubber condoms
“for transportation in a human body;” and, as Detective Carroll testified, the
heroin-filled condoms found in Mr. Saldana’s vehicle were “very similar, if
not identical” to the “used empty condom[s]” that were found in the hotel
room. N.T. Trial, 10/17/11, at 90-91. Since the evidence at trial
demonstrates that Appellant and his compatriots had already cut and
packaged “thousands of bags” of raw heroin before the police arrived, a fair
inference from the evidence is that the “used empty condom[s]” in the hotel
room had previously been filled with raw heroin, and that Appellant and his
compatriots had already cut and packaged the heroin that had filled those
condoms. Further, since the heroin-filled condoms in Mr. Saldana’s vehicle
were “very similar, if not identical” to the “used empty condom[s]” in the
hotel room, the fact-finder could have fairly inferred that Appellant and Mr.
Saldana had intended to cut and package the raw heroin that filled the
condoms in Mr. Saldana’s vehicle.
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Simply stated, the evidence in this case was not “so weak and
inconclusive that as a matter of law no probability of fact [could have been]
drawn from the combined circumstances.” Brown, 23 A.3d at 559-560
(internal quotations and citations omitted). Rather, viewing the evidence in
the light most favorable to the Commonwealth, the evidence is sufficient to
support the trial court’s conclusion that Appellant and Mr. Saldana were
engaged in an ongoing conspiracy and that they conspired to cut and
package for sale the 377.73 grams of raw, uncut heroin that was discovered
in Mr. Saldana’s vehicle. Moreover, since the evidence is sufficient to
support Appellant’s conviction for criminal conspiracy, the evidence is also
sufficient to support Appellant’s conviction for the substantive offense of
PWID with respect to the 377.73 grams of raw heroin. Commonwealth v.
Roux, 350 A.2d 867, 871 (Pa. 1976) (“[w]here the existence of a conspiracy
is established, the law imposes upon a conspirator full responsibility for the
natural and probable consequences of acts committed by his fellow
conspirator or conspirators if such acts are done in pursuance of the
common design or purpose of the conspiracy”); Commonwealth v. Perez,
931 A.2d 703, 709 (Pa. Super. 2007) (“successful proof of a conspiracy
makes each co-conspirator fully liable for all of the drugs recovered, without
the necessity of proving constructive possession”).
Appellant’s sufficiency of the evidence claim thus fails.
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For Appellant’s second and final claim on appeal, Appellant contends
that the trial court erred in sentencing him to the mandatory minimum
sentence under 18 Pa.C.S.A. § 7508(a)(7)(iii), as “there was no proof that []
Appellant was in actual or constructive possession of the narcotics in
question.” Appellant’s Brief at 17 (some internal capitalization omitted).
Appellant’s specific claim fails. Nevertheless, precedent from this Court
requires that we sua sponte consider whether Appellant’s mandatory
minimum sentence is illegal. Because we must conclude that Appellant’s
sentence is unlawful, we are required to vacate Appellant’s judgment of
sentence and remand for resentencing.
In relevant part, 18 Pa.C.S.A. § 7508 provides:
(a) General rule.--Notwithstanding any other provisions of
this or any other act to the contrary, the following
provisions shall apply:
(7) A person who is convicted of violating [35 P.S.
§ 780-113(a)(30) (“PWID”)] . . . where the controlled
substance or a mixture containing it is heroin shall, upon
conviction, be sentenced as set forth in this paragraph:
...
(iii) when the aggregate weight of the compound or
mixture containing the heroin involved is 50 grams
or greater: a mandatory minimum term of five years
in prison and a fine of $25,000 or such larger
amount as is sufficient to exhaust the assets utilized
in and the proceeds from the illegal activity. . . .
...
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(b) Proof of sentencing.--Provisions of this section shall
not be an element of the crime. Notice of the applicability
of this section to the defendant shall not be required prior to
conviction, but reasonable notice of the Commonwealth’s
intention to proceed under this section shall be provided
after conviction and before sentencing. The applicability of
this section shall be determined at sentencing. The court
shall consider evidence presented at trial, shall afford the
Commonwealth and the 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)(7)(iii) and (b).
Appellant argues in his brief that the trial court erred in sentencing
him to the mandatory minimum sentence under 18 Pa.C.S.A.
§ 7508(a)(7)(iii), as “there was no proof that [] Appellant was in actual or
constructive possession of the narcotics in question.” Appellant’s Brief at 17.
We have already explained why Appellant’s actual claim on appeal fails. As
was explained above, Appellant was convicted of participating in an ongoing
criminal conspiracy with Mr. Saldana, which encompassed as its object the
cutting and packaging of the 377.73 grams of raw heroin that was
discovered in Mr. Saldana’s vehicle. Since the evidence was sufficient to
support Appellant’s conviction for participating in this ongoing conspiracy,
the evidence was also sufficient to support Appellant’s conviction for the
substantive offense of PWID, with respect to the 377.73 grams of raw
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heroin. Roux, 350 A.2d at 871; Perez, 931 A.2d at 709.12 Hence,
Appellant’s claim on appeal fails.
Yet, we are required to vacate Appellant’s judgment of sentence. A
panel of this Court recently held that our 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.13 Commonwealth v. Fennell, 2014 WL 6505791, *1-8
(Pa. Super. Nov. 21, 2014). Specifically, the Fennell Court noted that 18
Pa.C.S.A. § 7508 is structured in the same manner as the statutes that were
12
We also note that Appellant stipulated to the fact that the heroin weighed
377.73 grams (which constitutes heroin in the amount of 50 grams or
more). 18 Pa.C.S.A. § 7508(a)(7)(iii); see N.T. Trial, 10/17/11, at 39-41
(Appellant stipulated to the authenticity and accuracy of the Bucks County
Laboratory Report and to the chain of custody regarding the items tested);
see also Bucks County Crime Laboratory Report, dated 11/23/10, at 1
(declaring that the substance in Mr. Saldana’s vehicle was 377.73 grams of
heroin).
13
Although Appellant has not raised any issue relating to the legality of his
sentence, we note that “[l]egality of sentence questions are not waivable
and may be raised sua sponte by this Court.” Commonwealth v. Watley,
81 A.3d 108, 118 (Pa. Super. 2013) (en banc). Moreover, this Court has
held that “a challenge to a sentence premised upon [Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151 (2013)] . . . implicates the legality of
the sentence and cannot be waived on appeal.” Newman, 99 A.3d at 90.
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at issue in Newman and Valentine14 – 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 Fennell concluded that, pursuant to Newman and
Valentine, the unconstitutional portion of 18 Pa.C.S.A. § 7508 is
14
Newman dealt with 42 Pa.C.S.A. § 9712.1 (mandatory minimum
sentence to be applied to a person convicted of certain drug charges when,
at the time of the offense, said person or said person’s accomplice is in
physical possession or control of a firearm). Valentine dealt with 42
Pa.C.S.A. § 9712 and § 9713 (mandatory minimum sentence to be applied
to a person convicted of certain enumerated crimes of violence if said crime
occurred in or near public transportation).
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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 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.
Appellant’s convictions for PWID, possession of a controlled substance,
possession of drug paraphernalia, and criminal conspiracy affirmed.
Judgment of sentence vacated. Case remanded for resentencing only.
Jurisdiction relinquished.
P.J.E. Ford Elliott and Judges Allen and Mundy join this opinion.
P.J.E. Ford Elliott files a concurring statement in which Judges Panella,
Donohue and Lazarus join.
P.J. Gantman and Judge Panella concur in the result.
P.J.E. Bender files a concurring and dissenting opinion in which Judges
Donohue and Lazarus join.
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J-E01004-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2014
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