J-A27009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARRYL MATTHEW NELSON,
Appellant No. 1391 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-0000529-2012
BEFORE: BOWES, OLSON, AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 19, 2015
Darryl Matthew Nelson appeals from the aggregate 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”) heroin, possession of heroin, and conspiracy to commit PWID.
After careful review, we affirm.
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
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
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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 African American 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
other 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
door. The woman then injected the back seat passenger with a substance.
Agent Speranza believed that the person had just used heroin and radioed
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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, marked “Juliette,” and also recovered a syringe
and spoon.
Agent Speranza consulted with a deputy attorney general regarding
procuring a search warrant for Room 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 had
been secured. Agent Yesho saw a person run from the door toward what
turned out to be the restroom. Detective Trukla forced the door open using
his shoulder.
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Upon entering the room, police encountered Appellant and three other
individuals, Anthony Williams, Gerald Lee, and Cedric Young. 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 Young’s person.
Police also recovered 257 stamps bags of heroin from Williams, who also
possessed $1,400. Appellant 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 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
property and conspiracy to commit PWID. Appellant adopted a suppression
motion filed by co-defendant Williams. The trial court conducted a
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suppression hearing on March 25, 2013, relative to Appellant, Williams, Lee,
and Young. The court denied the suppression motion and Appellant waived
his jury trial rights. A bench trial ensued. After granting Appellant’s motion
for judgment of acquittal relevant to the receiving stolen property count, the
court found Appellant guilty of one count each of PWID, possession of
heroin, and conspiracy.
The court conducted a sentencing hearing on July 10, 2013. It
sentenced Appellant to a term of incarceration of three to six years to be
followed by a consecutive period of five years probation for PWID and a
consecutive sentence of two to four years imprisonment for the conspiracy
charge. 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 raises three issues for our
consideration.
I. Did the trial court err in denying Mr. Nelson’s motion to
suppress evidence that was the product of a warrantless
search, which was not justified under any recognized
exception to the warrant requirement?
II. Was the evidence sufficient to support Mr. Nelson’s
convictions for possession of a controlled substance and
possession of a controlled substance with intent to deliver
where the Commonwealth merely established that Mr.
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Nelson was present in a hotel room where drugs were
found?
III. Was the evidence sufficient to support Mr. Nelson’s
conviction for conspiracy to commit the crime of
possession of a controlled substance with intent to deliver
where the Commonwealth merely established that Mr.
Nelson was present in a hotel room where drugs were
found?
Appellant’s brief at 6.
Appellant’s second and third issues pertain to the sufficiency of the
evidence. Since sufficiency claims warrant discharge rather than retrial, we
address those claims at the outset. 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.”
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
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does not “re-weigh the evidence and substitute our judgment for that of the
fact-finder.” Id.
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). Necessarily, if a person possesses
narcotics with intent to deliver, he or she is guilty of possession. 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).
Appellant argues that the evidence in this case is insufficient to
establish more than mere presence and possession of money. He contrasts
his case with our recent decision in Commonwealth v. Vargas, 108 A.3d
858 (Pa.Super. 2014) (en banc). In Vargas,
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[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
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.
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Vargas, supra at 866 (internal citation omitted). The Vargas Court found
the evidence sufficient for both PWID and conspiracy.
Appellant maintains that, although drugs, cash, and a significant
amount of baggies used for packaging heroin were found either in the room
or on persons present inside the room, the “hotel room in this case was not
filled with the vast quantity of drug paraphernalia found in Vargas.”
Appellant’s brief at 29. In addition, Appellant contends that there was more
compelling evidence in Vargas that the occupants of the room were
attempting to destroy evidence.
According to Appellant, this case is more akin to Commonwealth v.
Ocasio, 619 A.2d 352 (Pa.Super. 1993), which the Vargas Court
distinguished. In Ocasio, the defendant lived at a house where police found
a large amount of cocaine, packaging materials, and the defendant had $422
in cash on his person. Therein, police were executing a search warrant at
the home when Ocasio returned home. The home contained multiple
bedrooms and Ocasio was not the only resident. In the kitchen trashcan,
police discovered 567 vials of cocaine. They also recovered a large chunk of
cocaine and close to $6,000 in a third floor bedroom. In the basement,
police found a scale, a bag containing empty plastic vials, and another
baggie containing multiple empty clear packets. Police also recovered a
plastic grinder commonly used for diluting cocaine. This Court found the
evidence in Ocasio insufficient to convict him of PWID and conspiracy.
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We find this case is more analogous to Vargas. Unlike Ocasio, this
matter did not involve the defendant arriving at his home. Here, Appellant
was already inside a hotel room with numerous other individuals when police
arrived. The Court in Ocasio noted that the Commonwealth needed to
establish a nexus between the rooms were the drugs were kept and the
defendant or that he participated in the drug activity. In this case, Appellant
was directly connected to the room where the drugs were stored. Not only
were those drugs in plain view, but packaging material and money were also
clearly evident. Further, police had the room under surveillance for an
extended period. There is no indication that Appellant recently arrived inside
the room. Moreover, our standard of review requires us to give the
Commonwealth all reasonable inferences from the evidence. Aside from the
narcotics located in the room and on other individuals present, those inside
the room had also attempted to discard drugs in the bathroom, just as in
Vargas. Appellant’s contention that it is possible that he arrived to play
video games and that others were engaged in the drug business ignores our
standard of review. The evidence is sufficient to establish PWID, possession
of heroin, and conspiracy. See Vargas, supra; see also Feliciano, supra.
Appellant is entitled to no relief.
Having addressed Appellant’s sufficiency claims, we now consider his
suppression issue and find that our recent decision in Commonwealth v.
Haynes, 116 A.3d 640 (Pa.Super. 2015), controls. Therein, state police
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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 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 and improperly create their own
exigency. Haynes is directly analogous to the present case. Here, similar
to Haynes, police observed suspicious activity that they believed involved
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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 then approached a room
where it was suspected that the drug dealers were operating and knocked
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 thereafter entered and found drugs and money in plain
view. For reasons fully delineated in Haynes, Appellant’s claim that police
lacked exigent circumstances fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2015
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