J-A27008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CEDRIC YOUNG,
Appellant No. 1288 WDA 2013
Appeal from the Judgment of Sentence July 10, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000532-2012
BEFORE: BOWES, OLSON, AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 19, 2015
Cedric Young appeals from the judgment of sentence of five to ten
years incarceration to be followed by five years probation after the court
found him guilty of possession with intent to deliver (“PWID”), possession of
a controlled substance, and conspiracy to commit PWID. Since Appellant
was sentenced under mandatory minimum statutes that have been declared
unconstitutionally void, we are constrained to vacate his judgment of
sentence and remand for resentencing. We affirm in all other respects.
Monroeville Police and agents from the Office of the Attorney General
were conducting an undercover narcotics operation at a Days Inn in
Monroeville on December 12, 2011. That investigation was unrelated to
Appellant. However, during the course of that operation, law enforcement
observed suspicious activity involving two hotel rooms, Room 319 and Room
J-A27008-15
329. Specifically, OAG agents Timothy Yesho and Ronald Sepic witnessed
numerous incidents between 3:00 p.m. and 4:30 p.m. that were consistent
with possible drug transactions. Five of the occurrences happened between
3:13 p.m. and 3:20 p.m. Two more instances happened between 4:15 and
4:30. In each case, an individual would arrive on foot or in a vehicle and
proceed to one of two rear stairwells. One or two African American males
would then exit Room 319 and meet the other person in the stairwell for
thirty seconds to a minute. The person who arrived at the Days Inn would
then leave and the males would return to Room 319. Police did not actually
witness any transactions. Another agent, Francis Speranza, also saw a
male, later identified as Robert Smiley, exit Room 329 and walk to Room
319. Smiley and another male entered one of the stairwells and met two
individuals who had driven to the Days Inn.
During one of these suspected drug transactions, at approximately
3:15 p.m., Agent Sepic saw a Hyundai vehicle enter the parking lot. There
were three occupants in the vehicle. A white male left the car and entered
one of the stairwells. An African American male exited Room 319 and
entered the same stairwell. The white male then returned to the car and the
black male to the hotel room. Agent Sepic provided Agent Speranza with a
description and license number of the Hyundai.
Agent Speranza observed the car pull to the front of the Days Inn and
park. The driver of the car, a woman, exited the vehicle and opened a rear
-2-
J-A27008-15
door. The woman then injected the back seat passenger with a substance.
Agent Speranza believed that the person had just used heroin and radioed
Detective John Trukla of the Monroeville Police. Police then effectuated a
traffic stop of the Hyundai and arrested the individuals. Police discovered
twelve stamp bags of heroin, which were marked “Juliette,” and also
recovered a syringe and spoon.
Agent Speranza consulted with a deputy attorney general regarding
procuring a search warrant for Rooms 319 and 329. The deputy attorney
general agreed that probable cause existed and instructed the agent to
secure the rooms if any individuals were observed leaving the rooms while
the search warrant application was being prepared. Police secured room
keys for Room 319 and 329. Shortly thereafter, Smiley was seen exiting
Room 329. Officers detained him, and Agent Yesho, Detective Trukla, Agent
Andrew Sakmar, and an additional Monroeville police officer went to secure
Room 319. When they approached the hotel room door, they detected a
strong marijuana odor coming from inside.
Agent Yesho knocked and announced twice, “Police.” No one
answered the door, but the officers could hear movement and muffled voices
inside. Detective Trukla then used a pass key to open the door. The door
was opened several inches, and a haze of smoke emanated from the room.
The door could not be opened completely because the security latch was
secured. Agent Yesho saw a person run from the door toward what turned
-3-
J-A27008-15
out to be the restroom. Detective Trukla forced the door open using his
shoulder.
Upon entering the room, police encountered Appellant and three other
individuals, Anthony Williams, Gerald Lee, and Darryl Nelson. Williams had
run into the bathroom and was followed by Agent Yesho and Detective
Trukla. Detective Trukla discovered fifty-six stamp backs of heroin in the
toilet. Also inside the room, in plain view, were bricks of suspected heroin,
plastic baggies, and cash on the beds, floor, and dressers. Thirty-seven
stamp bags of heroin, marked “Juliette,” and $119 were on Appellant’s
person. Police also recovered 257 stamps bags of heroin from Williams, who
also possessed $1400. Nelson was found in possession of $567. Police also
discovered $940 from a nightstand, $405 on a bed, $75 on another bed, and
$1,200 in a cigar box. In addition, fifty stamp bags were found in a trash
basket and 310 bags of heroin were located on a bed. Police did not find
any syringes or other paraphernalia used to ingest heroin.
Marijuana blunts were in an ashtray, ten cellphones were in the room,
and a loaded .45 caliber pistol was found under one of the mattresses. Lee’s
fingerprint was on that weapon. In Room 329, police also located a stolen
loaded 9mm Glock pistol, two magazines for the weapon, a box of 9mm
ammunition, and two boxes of .45 caliber ammunition.
The Commonwealth charged Appellant with two counts each of PWID
heroin and possession of heroin, and one count each of receiving stolen
-4-
J-A27008-15
property and conspiracy to commit PWID. Appellant adopted a suppression
motion filed by co-defendant Williams. The trial court conducted a
suppression hearing on March 25, 2013, relative to Appellant, Williams, Lee,
and Nelson. The court denied the suppression motion and Appellant waived
his jury trial rights. The court conducted a bench trial. After granting
Appellant’s motion for judgment of acquittal on the receiving stolen property
count, the court found Appellant guilty of one count each of PWID,
possession of heroin, and conspiracy. On April 19, 2013, the Commonwealth
informed Appellant that it intended to seek mandatory minimum sentences
under 18 Pa.C.S. § 7508 and 42 Pa.C.S. § 9712.1.
The court conducted a sentencing hearing on July 10, 2013. It
sentenced Appellant to a mandatory term of incarceration of five to ten
years for PWID and a consecutive period of five years probation for
conspiracy. The possession charge merged with the PWID count and
therefore the court imposed no sentence on that charge. This timely appeal
ensued. The trial court directed that Appellant file and serve a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Appellant
complied, and the trial court authored its Rule 1925(a) opinion. The matter
is now ready for this Court’s review.
Appellant presents two issues for our consideration.
A. Under Pennsylvania law, does the Commonwealth survive a
sufficiency challenge to the charges of possession with intent to
deliver narcotics and conspiracy to receiving stolen property
-5-
J-A27008-15
when the Appellant is merely present in a hotel room that is
rented by one of multiple co-defendants where large amounts of
drugs are found on the bed, a stolen gun is retrieved from under
a mattress, a fingerprint to the gun is linked to the renter of the
same room and the Appellant is only found to have a small
amount of drugs and cash on his person that is consistent with
personal use?
B. Under Pennsylvania and United States’ law, did the trial court
commit error by denying a pre-trial motion to suppress evidence
seized from a warrantless search of a hotel room, when agents
failed to articulate probable cause for a warrant, obtain a
passkey from the hotel desk for a specific room, use the pass
key on the room, break the latch on the door after the door
would not open, seize evidence from a room then later attempt
to get ‘voluntary consent to search’ from the renter while he is in
handcuffs, plainly asserted his right to remain silent and [was]
surrounded by agents?
Appellant’s brief at 5.1
Appellant’s initial claim pertains to the sufficiency of the evidence. In
performing a sufficiency review, we consider all of the evidence admitted,
even improperly admitted evidence. Commonwealth v. Watley, 81 A.3d
108, 113 (Pa.Super. 2013) (en banc). We view the evidence in a light most
favorable to the Commonwealth as the verdict winner, drawing all
reasonable inferences from the evidence in favor of the Commonwealth. Id.
The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
____________________________________________
1
In the argument portion of his brief, Appellant inverts the order in which he
addresses his claims, arguing his suppression issue first. However, since a
successful sufficiency challenge warrants discharge, we address that
contention first.
-6-
J-A27008-15
Id. When evidence exists to allow the fact-finder to determine beyond a
reasonable doubt each element of the crimes charged, the sufficiency claim
will fail. Id. In addition, the Commonwealth can prove its case by
circumstantial evidence. Where “the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances[,]” a defendant is entitled to relief. Id. This Court
does not “re-weigh the evidence and substitute our judgment for that of the
fact-finder.” Id.
Appellant argues that because he only possessed a small amount of
cash and that the amount of heroin on his person was consistent with
personal use, insufficient evidence was introduced to show that he
committed both PWID and conspiracy to commit PWID. He continues by
asserting that his mere presence at the crime scene is not sufficient to show
a conspiracy. Appellant contends that the Commonwealth did not prove that
he actually possessed the large amount of drugs in the room or the firearm
and that it did not show that he constructively possessed the heroin not
recovered on his person.
The Commonwealth relies on this Court’s decision in Commonwealth
v. Vargas, 108 A.3d 858 (Pa.Super. 2014) (en banc), to counter Appellant’s
positions. In Vargas,
[defendant] 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
-7-
J-A27008-15
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. 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.
Vargas, supra at 866 (internal citation omitted). The Vargas Court held
that the evidence was sufficient to establish PWID and conspiracy.
-8-
J-A27008-15
In the instant case, viewing the evidence in a light most favorable to
the Commonwealth and thereby giving it the benefit of the reasonable
inferences derived therefrom, the pertinent proof is sufficient to establish the
aforementioned crimes. 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.
Determining whether a person possessed a drug with an intent to
deliver is based upon the totality of circumstances. Commonwealth v.
Ratsamy, 934 A.2d 1233 (Pa. 2007). As it relates to conspiracy, we have
outlined that:
“To 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. Devine, 26 A.3d 1139, 1147 (Pa.Super.
2011). “The 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.” Id. The 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.” Id.
Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa.Super. 2013) (en
banc).
Here, Appellant not only possessed thirty-seven bags of heroin on his
person, bags which were marked the same as those recovered from a
-9-
J-A27008-15
vehicle that had just left the Days Inn, but a vast quantity of stamp bags
were also located inside the room. Appellant did not possess a syringe or
spoon when arrested. Huge amounts of cash were inside the hotel room.
Appellant’s cohorts also possessed either drugs and money or large amounts
of cash on their person. Stamp bags of heroin were inside both a toilet and
trash can. This case is not close to being akin to a situation where the
evidence is so weak and inconclusive that no probability of fact could be
drawn therefrom. Appellant’s sufficiency argument is entirely without merit.
We now consider Appellant’s suppression issue, and in light of our
recent decision in Commonwealth v. Haynes, 116 A.3d 640 (Pa.Super.
2015), find he is entitled to no relief.2 Appellant contends that neither
probable cause nor exigent circumstances existed in this matter. He asserts
that Agent Yesho could not state with certainty that he saw drug
transactions outside the hotel room, and used a key to enter without a
warrant. Appellant contends that Agent Sepic did not witness a drug
transaction, but simply observed individuals leave a stairwell. Further,
Appellant maintains that even if a drug transaction did occur outside, it
would not give rise to probable cause to search Appellant’s room.
____________________________________________
2
Appellant fails to meaningfully confront the Haynes decision in his brief
and does not acknowledge its existence. We are aware that Haynes was
decided after the suppression motion was filed in this matter. However, it
was filed before the briefs in this case were submitted.
- 10 -
J-A27008-15
Additionally, Appellant submits that there were no exigent circumstances in
this matter and that any exigency was created by the police.
The Commonwealth responds that both probable cause and exigent
circumstances existed and that this case is controlled by Haynes, supra.
As it relates to probable cause, the Commonwealth sets forth that “probable
cause exists where there is a probability of criminal activity.”
Commonwealth’s brief at 25 (quoting Commonwealth v. Dukeman, 917
A.2d 338, 341 (Pa.Super. 2007)). It posits that law enforcement personnel
witnessed seven instances of unusual activity in which persons exited a
room at the Days Inn and would meet in a stairwell with other persons who
drove to the Days Inn. These meetings would last for approximately one
minute before the individuals from the hotel would return to their room and
those who had arrived would leave. It highlights that after one of these
incidents, a person was observed injecting another individual with what was
believed to be heroin. The Days Inn in question was noted as a high drug
trafficking area and police stopped a vehicle after observing the suspected
drug transactions. The individuals in that car possessed heroin.
With respect to exigent circumstances, the Commonwealth relies
extensively on Haynes, supra. Therein, state police were conducting
surveillance outside an apartment complex. Police observed what appeared
to be drug sale activity and effectuated a traffic stop of a vehicle in which an
occupant was believed to have purchased drugs. The driver of the car was
- 11 -
J-A27008-15
found with heroin and admitted to buying heroin from a woman at the
apartment complex. A woman was seen leaving one of the buildings in the
complex and meeting a series of persons in the parking lot and taking part in
what appeared to be hand-to-hand drug transactions. This activity occurred
on three occasions. Police followed the woman, but were unable to intercept
her before she entered the apartment. Officers then knocked and asked to
speak to the renter. Police heard rumbling inside, identified themselves as
police, and asked for the door to be opened. No one responded, and after
approximately thirty seconds, police forced entry. They found in plain view
nine bricks of heroin, money, and burnt marijuana blunts. On appeal,
Haynes alleged that the warrantless entry was unlawful and violated his
Fourth Amendment and Article I, § 8 rights.
This Court undertook a lengthy discussion of the historical meaning
and purpose of the constitutional warrant protections and the common law
authority to conduct warrantless entry into a residence. We concluded that
police therein did not act unconstitutionally by improperly creating their own
exigency. Haynes is directly analogous to the present case. Here, similar
to Haynes, police observed suspicious activity that they believed involved
narcotics transactions. In each case, police stopped a vehicle in which
occupants were suspected of engaging in the purchase of narcotics. That
stop resulted in the recovery of heroin. Police here then approached a room
where it was suspected that the drug dealers were operating and knocked
- 12 -
J-A27008-15
and announced their presence. In both Haynes and this case, the smell of
marijuana was emanating from the room and those inside refused to open
the door. Police then entered and found drugs and money in plain view. For
reasons fully delineated in Haynes, Appellant’s claim fails.
However, as in Haynes, Appellant was also sentenced to a mandatory
minimum sentence. The statutory authority for that sentence has been
declared to be unconstitutional in its entirety and to present a legality of
sentence question. See Haynes, supra (discussing cases). Therefore, we
are constrained to find that Appellant’s sentence must be vacated.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2015
- 13 -