Com. v. Mendez, E.

J-S11037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EDUARDO MENDEZ :
:
Appellant : No. 2568 EDA 2022

Appeal from the Judgment of Sentence Entered July 15, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001707-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED OCTOBER 24, 2023

Appellant, Eduardo Mendez, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas, following his jury trial

convictions for two counts of possession with intent to deliver a controlled

substance (“PWID”), possession of a controlled substance, possession of drug

paraphernalia, and criminal conspiracy.1 We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. (See Trial Court Opinion, filed 12/15/22, at 1-5).

Appellant raises the following issues for our review:

Were the verdicts of guilty not supported by sufficient
evidence?

____________________________________________

1 35 P.S. §§ 780-113(a)(30), (16), (32), and 18 Pa.C.S.A. § 903, respectively.
J-S11037-23

Did the [trial] court err in holding that Appellant’s arrest was
supported by probable cause?

Did the trial court err in precluding Appellant from
presenting evidence that he was represented by the Bucks
County Public Defender’s Office?

Did the trial court abuse its discretion in sentencing
Appellant by imposing a manifestly excessive sentence at
the high end of the aggravated range, relying on improper
factors and the nature of the offense and failing to consider
all relevant factors?

(Appellant’s Brief at 10) (reordered for purposes of disposition).

Our standard of review for sufficiency claims is as follows:

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 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.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal

denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.

Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

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J-S11037-23

Additionally, the following principles govern our review of an order

denying a motion to suppress:

An appellate court’s standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because
the Commonwealth prevailed before the suppression court,
we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by
[those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below
are subject to plenary review.

Commonwealth v. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal

denied, 647 Pa. 522, 190 A.3d 580 (2018).

Our standard of review of a trial court’s admission or exclusion of

evidence is well established and very narrow:

Admission of evidence is a matter within the sound
discretion of the trial court, and will not be reversed absent
a showing that the trial court clearly abused its discretion.
Not merely an error in judgment, an abuse of discretion
occurs when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by
the evidence on record.

Commonwealth v. M. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),

cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal

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J-S11037-23

citations and quotation marks omitted). When reviewing the denial of a

motion in limine, we apply the same standard as to other evidentiary rulings.

Commonwealth v. Sami, 243 A.3d 991, 997 (Pa.Super. 2020) (noting that

motion in limine is procedure for obtaining ruling on admissibility of evidence

prior to trial).

“The threshold inquiry with the admission of evidence is whether the

evidence is relevant.” Commonwealth v. Stokes, 78 A.3d 644, 654

(Pa.Super. 2013), appeal denied, 625 Pa. 636, 89 A.3d 661 (2014). “Evidence

is relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable, or supports a reasonable inference

or presumption regarding the existence of a material fact.” Id. See also

Pa.R.E. 401 (defining relevant evidence). Nevertheless, “[t]he court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.E. 403.

Further, “[c]hallenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right.” Commonwealth v. Phillips,

946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct.

2450, 174 L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary

aspects of sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P

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J-S11037-23

902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)). When appealing the

discretionary aspects of a sentence, an appellant must invoke this Court’s

jurisdiction by including in his brief a separate concise statement

demonstrating a substantial question as to the appropriateness of the

sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa.

419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f).

This Court reviews discretionary sentencing challenges based on the

following standard:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. An abuse of
discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting

Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Brian T.

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J-S11037-23

McGuffin, we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.

Regarding Appellant’s sufficiency of the evidence claims, the court

initially found that Appellant waived these claims by failing to specify in his

Rule 1925(b) statement the elements of each crime that he alleges was

insufficient to sustain each conviction, particularly where Appellant raised

sufficiency challenges to multiple offenses. (See Trial Court Opinion at 8).

The court further found that even if Appellant had properly preserved his

claims, Appellant’s sufficiency arguments lacked merit. Specifically, the

Commonwealth presented sufficient evidence to establish the existence of a

conspiracy between Appellant and his co-conspirator, Giovanni Rosales, where

Appellant travelled approximately 1,500 miles from Texas to Pennsylvania

with Mr. Rosales, drove Mr. Rosales to the “sample buy,” carried the black

backpack in which the drugs were found into a hotel room that Mr. Rosales

rented for the day, remained in the room with Mr. Rosales for hours while Mr.

Rosales set up a subsequent “bulk buy,” and left the room with Mr. Rosales at

approximately the time when the “bulk buy” was scheduled to occur. The

court noted that proof of a conspiracy between Appellant and Mr. Rosales

negates the need to prove that Appellant constructively possessed the

controlled substances and paraphernalia to sustain his remaining convictions.

In any event, the court found that the Commonwealth presented sufficient

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J-S11037-23

evidence to establish Appellant’s constructive possession of the drugs because

a surveillance video showed Appellant carrying an air compressor and the

backpack containing the drugs into the hotel room. Viewed in the light most

favorable to the Commonwealth as the verdict winner, Appellant’s physical

handling of the drugs and the surrounding circumstances of Appellant’s

involvement with Mr. Rosales throughout the day was sufficient to

demonstrate that Appellant had the ability and intent to exercise control over

the contraband.2 (See id. at 9-14).

Regarding Appellant’s claim that the court erred in denying his motion

to suppress evidence of his flight prior to arrest and the $3,300.00 found on

his person, the court found that the police officers had probable cause to arrest

Appellant. Prior to his arrest, police observed Appellant drive Mr. Rosales to

the “sample buy,” remain with him for the remainder of the day while an

additional transaction was set up, carry a bag and an air compressor into a

hotel room with Mr. Rosales, look up and down the hallway with Mr. Rosales

multiple times, and leave the room together at approximately the time of the

second sale. Here, the circumstances clearly demonstrate that police had

____________________________________________

2 Additionally, the Commonwealth presented the testimony of Detective Jarrod

Eisenhauer, who was qualified as an expert in the field of drug trafficking
investigations. Detective Eisenhauer testified that typically when there are
two individuals involved in a transaction, the higher-ranking individual will
attempt to insulate himself from exposure and the lower-ranking individual
will handle the drugs during the sale and undertake tasks such as securing
lodging.

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J-S11037-23

probable cause to suspect that Appellant was not merely present but

participating in the criminal activity.3 (Id. at 15-16).

With respect to Appellant’s claim that the court erred in denying his

motion in limine seeking to present evidence that Appellant’s counsel was a

public defender, the court determined that Appellant failed to establish that

he was entitled to introduce such evidence for the purpose of suggesting to

the jury that he was indigent. The court further found that introduction of

such evidence risked confusing the jury and increased the likelihood that the

verdict would not be based on the facts presented but rather on Appellant’s

perceived economic status. (See Trial Court Opinion at 16-17).

The court further explained that it acted within its discretion in

____________________________________________

3 Appellant cites to United States v. Butts, 704 F.2d 701 (3rd Cir. 1983) and

Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978) to support his
claim that the police did not have probable cause. In Butts, the U.S. Court
of Appeals for the Third Circuit determined that probable cause did not exist
to arrest the defendant who was merely sitting in the backseat of a car that
the individuals being surveilled were about to enter. The Court noted that at
the time of the arrest, the police officers who arrested the defendant had no
other information about him and did not know what connection he had to the
individuals who the police suspected of criminal activity. In Shaw, our
Supreme Court found that probable cause did not exist where the only
information the police had about the defendant was a general statement that
he associated with the perpetrators of the crime. Our Supreme Court noted
that police officers did not have any information to indicate that the defendant
was at the scene of the crime or involved with the criminal activity. Here,
Appellant was present at the first sale, remained with Mr. Rosales the whole
day while Mr. Rosales set up the second sale, and left with Mr. Rosales in time
for the second sale. Accordingly, the instant case is factually distinguishable
from both Butts and Shaw.

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J-S11037-23

sentencing Appellant.4 At the sentencing hearing, the court stated that it took

into consideration Appellant’s personal history, his rehabilitative needs, and

the letters from his mother and sister but ultimately found that Appellant’s

criminal history, his refusal to take accountability and the impact of his actions

on the community warranted a sentence in the aggravated range. (See Trial

Court Opinion at 20-22). Accordingly, we affirm on the basis of the trial court’s

opinion.

Judgment of sentence affirmed.

Date: 10/24/2023

____________________________________________

4 Appellant filed a timely notice of appeal, preserved his claim in a timely post-

sentence motion, and included in his brief a Rule 2119(f) statement. As
presented, Appellant’s claim concerning an excessive sentence in combination
with the court’s failure to consider certain mitigating factors and reliance on
impermissible factors arguably raises a substantial question. See
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal
denied, 629 Pa. 636, 105 A.3d 736 (2014) (stating: ““[A]n excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question”). See also
Commonwealth v. Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding
defendant’s claim that court failed to consider factors set forth under Section
9721(b) and focused solely on seriousness of defendant’s offense raised
substantial question).

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 Circulated 09/26/2023 03:01 PM

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY
CRIMINAL DIVISION
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA No.:
No.: CP-09-CR-0001707-2021
CP-.09-CR-0001707-2021

Appellate No.:
No.. 2568 EDA 2022
V.
.. .,.
EDUARDO
EDUARDO MENDEZ
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OPINION
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Appellant Eduardo Mendez appeals from this Court's Judgement
Judgement of Sentetibe enbered on
Sentence entered
L-
July
July 15,
15, 2022, following
following this Court's September
September 9, 2022
2022 Denial of Appellant's Post-Sentence
Appellant's Post-Sentence

Motions filed July 22, 2022. Appellant filed this appeal on October 6, 2022. This Court files this

opinion in
in accordance
accordance with
with Pa.R.A.P.
Pa.R.A.P. 1925(a).
1925(a).

PROCEDURAL & FACTUAL
PROCEDURAL & FACTUAL BACKGROUND
BACKGROUND

This case arises from a
a series of incidents that occurred on December 4,
4, 2020,
2020, in

Philadelphia,
Philadelphia, Philadelphia
Philadelphia County,
County, Pennsylvania and
and Bensalem,
Bensalem, Bucks
Bucks County,
County, Pennsylvania.
Pennsylvania, On
On

tthe
he morning of December 3, 2020, Appellant Eduardo Mendez, aaresident of El Paso,
Paso, Texas, met

with Giovanni Rosales' and the pair of them drove over the course of around twenty
twenty (20)
(20) hours

the approximately one-and-a-half-thousand
one-and-a-half-thousand (1,500) miles from El Paso to Bensalem,
Bensalem, Pennsylvania
Pennsylvania

for the purpose of selling bulk ''uncut'
uncut' quantities
quantities of both
both heroin and methamphetamine.
methamphetamine. N.T.

4/12/2022, p.
4/12/2022, p. 72, passim; N.T. 4/13/2022,
passim; N.T. 4/13/2022, passim.
passim. Upon arriving at
Upon arriving at a
a Holiday
Holiday Inn Express in
Express in

Bensalem Township
Bensalem Township on
on December
December 4, 2020, Mr.
4, 2020, Mr. Rosales
Rosales rented
rented Room
Room 348 for only
348 for one day,
only one day, using
using

his Passport
Passport issued
issued from Mexico, as
from Mexico, as identification.
identification. N.T.
N.T. 4/11/2022,
4/11/2022, p. 54. Both
p. 54. Both Appellant and Mr
Appellant and Mr.

'While referred
While referred to throughout the Notes
Notes of Testimony C'N.T.")
(N.T.") as Appellant's
Appellant's co-defendant,
co-defendant, Giovanni Rosales pled
pled
guilty before
guilty before Appellant's
Appellant's trial, including to
trial, including to one
one count
count of
of Conspiracy.
Conspiracy.
I1
 Rosales
Rosales retrieved
retrieved items including ablack
including a black backpack, compressor, and a
backpack, an air compressor, alarge
large toolbox
toolbox from
from a
%

silver GMC pickup truck registered to Mr. Rosales and carried them up
up to Room 348 at
348 at

approximately 8.24
8:24 A.M. on December 4, 2020. N.T. 4/12/2022,
4/12/2022, pp.
pp. 129,
129, 225.
225. Mr.
Mr. Rosales
Rosales

wheeled the
wheeled the large tool chest
large tool chest behind
behind him,
him, while
while Appellant
Appellant transported the air
transported the air compressor
compressor with
with the
the

black
black backpack on his
backpack on his right
right shoulder. N.T. 4/12/2022,
shoulder. N.T. 4/1 2/
2022, p.
p. 225.
225.

A short time later, both Appellant and Mr. Rosales left Room 348 and returned
A returned to
to Mr
Mr.

Rosales' silver GMC pickup truck in the parking Appellant got
parking lot. Appellant got in the driver's seat
the driver's seat and drove
and drove

of them
both of them to
to aaDunkin'
Dunkin' Donuts parking lot
Donuts parking located in
lot located in the
the Roosevelt
Roosevelt Mall
Mall at
at Cottman and
Cottman and
,
Roosevelt Boulevard in Northeast Philadelphia arriving
arriving around noon. N.T. 4/11/2022 p.
N.T. 4/11/2022 42; N.T.
p. 42; N.T,

4/1 2/
2022, p. 97. Appellant pulled the pickup into a
4/12/2022, parking space,
a parking space, whereupon
whereupon Mr. Rosales exited
Rosales exited

passenger door,
the passenger door, walked down a
walked down afew
few parking spaces and
parking spaces and past one parked
past one parked vehicle, and got
vehicle, and got into
into

the passenger door
door of aaparked vehicle.
vehicle. N.T. 4/12/2022, pp.
N.T, 4/12/2022, pp. 104
104— 105.
105. Unbeknownst to ye
Unbeknownst to Mr.

Rosales, the driver of the vehicle he entered was aaConfidential Human Source ("CHS")
Human Source (CHS") — an
an

informant
informant -— for the Federal Bureau
Bureau of Investigation.
Investigation. N.T. 4/12/2022, p.
N.T. 4/12/2022, p. 105.
105. Mr.
Mr. Rosales
Rosales spoke
spoke

with the CHS for approximately 90 seconds and handed them two small bundles, one containing
bundles, one containing

heroin and
heroin and the other methamphetarnine.
the other methamphetamine. N.T.
N.T. 4/12/2022, p.
4/12/2022, p. 106;
106; C-1; C-4; C-5.
C-I; C-4; C-5. The
The CHS
CHS did
did not
not

provide
provide compensation for
for the
the controlled
controlled substances provided
provided in
in this
this `'sample
sample transaction.'
transaction.' Mr.
Mr.

Rosales then
then exited the
the CHS's
CHS's vehicle,
vehicle, returned to
to his pickup truck, and Appellant
pickup truck, Appellant drove
drove them
them

both
both to aaLiberty
Liberty Gas Station. N.T. 4/12/2022,
4/12/2022, p.
p. 147.
147. A
A short time
time later,
later, Appellant
Appellant drove
drove from
from the

gas station to a
a Bob Evans restaurant located next to the Holiday
Holiday Inn Express Bensalem. NT
Express in Bensalem. N.T.

4/1 2/
2022, p.
4/12/2022, p. 128.
128. Afer
After spending
spending approximately
approximately 30
30 minutes
minutes inside
inside the
the Bob
Bob Evans,
Evans, Appellant and
Appellant and

Mr.
Mr. Rosales exited
exited the restaurant, returned to
to Mr. pickup truck,
Mr, Rosales's pickup truck, and drove
drove back to the
back to the

Holiday Inn
Holiday Inn Express
Express parking
parking lot
lot next door. N.T.
next door. N.T. 4/12/2022,
4/12/2022, p.
p. 149.
149

22

.. j
 Appellant Mr. Rosales
Appellant and Mr. returned to
Rosales returned to Room
Room 348.
348. N.T. 4/12/2022, pp.
N,T, 4/12/2022, pp. 149
149 -— 150.
150. They
They

both remained inside for the next few hours, with both Appellant
Appellant and Mr. Rosales exiting
exiting briefly
briefly

to look up and down the hallway,
hallway, and
and Appellant leaving
leaving to purchase
purchase an item
item at 3rd floor
at the 3" floor vending
vending

machine. N.T.
machine. 4/11/2022, p.
N.T. 4/11/02022, p. 41;
41; N.T. 4/12/2022, p.
N.T. 4/12/2022, p. 244.
244. During
During this
this time, while both
time, while both Appellant
Appellant

Mr. Rosales
and Mr. Rosales were
were inside Room 348,
inside Room 348, Mr.
Mr. Rosales
Rosales was
was communicating
communicating with the CHS
with the CHS over
over text
text

messaging
messaging and
and via phone calls.
calls. N.T. 4/12/2022,
4/12/2022, pp.
pp. 124
124-— 125. Mr. Rosales and the CHS arranged
arranged

another transaction: the
the CHS was to
to purchase two
two kilograms
kilograms of heroin
heroin at
at a
a price
price of $50,000 per
of $50,000 per

kilogram
kilogram and
and one
one pound
pound of methamphetamine
methamphetamine at
at aaprice
price of
of $8,500,
$ 8,500, for
for a
a total
total price
price of $ 108,500.
of $108,500.

N.T. 4/12/2022, p. 198. The deal was scheduled to occur in the parking
NT, parking lot of the Holiday
Holiday Inn
Inn

Express. N.T.
N.T. 4/12/2022, pp. 126 — 127. 'The
pp. 126 The deal was later
later modified to occur
occur between
between 5:00 and

5:30 P.M.
5.30 P.M. in
in the parking lot of a
a nearby
nearby Texas Roadhouse
Roadhouse restaurant
restaurant in
in Bensalem. N.T. 4/11/2022,
N.T, 4/11/2022,

p. 46.
p.46.

From approximately 2:30 P.M. until approximately P.M., Officer Farnan of
approximately 4:55 P.M., the
of the

Bensalem Police Department
Bensalem Police was inside
Department was in Room
inside in 347 with
Room 347 with other
other law enforcement officers,
law enforcement officers,

watching the door to Room 348 through
through the peephole.
peephole. N.T. pp. 200 -204.
N.T, 4/12/2022, pp.200 — 204. No one other

than Appellant
Appellant and Mr. Rosales entered
entered or during that time,
or exited the room during time, and luggage
luggage was

carried in or
or out of Room
Room 348.
348. N.T. 4/12/2022 pp. — 204. At roughly
pp. 203 --204. roughly 4:55 P.M.
P.M. on December
December

4, 2020,
4, 2020, Appellant and Mr.
Appellant and Rosales exited
Mr. Rosales exited their
their hotel
hotel room exited to
room and exited to the
the parking
parking lot.
lot. N.T.
N.T.

4/12/2022, p.
p. 204.
204. As
As they started to
to walk towards
towards Mr.
Mr. Rosales'
Rosales' pickup,
pickup, members
members of the Violent
Violent

Gang Safe Streets
Streets Task Force
Force of F.B.I.'s Philadelphia field
FE.B.I's Philadelphia field office, Bensalem Township
Township Police

officers, and Philadelphia attempted to
Philadelphia Police officers attempted to arrest Appellant and Mr.
arrest Appellant Mr. Rosales.
Rosales. N.T.

4/12/2022, p.
p. 143.
I43. As law attempted to arrest both Appellant
law enforcement officers attempted Appellant and Mr.
Mr. Rosales,
Rosales,

Appellant turned and attempted
turned and attempted to
to run to aa wooded area
area at the
the end of the
the parking
parking lot.
lot. N.T.
NT,
'i
4/12/2022, p. 65. F.B.I. Special A
p.65.F.B.I. Agent
gent William Wickman, driving
driving an unmarked
unmarked vehicle
vehicle with active

I 3
l

I
 emergency lights, drove next to the fleeing Appellant and commanded him to stop
stop from an open
open

window. N.T. 4/12/2022, p. 66. Appellant kept running,
p. 66. running, before tripping
tripping and was then tackled
tackled by
by

agents on foot,
foot, taking
taking him N.T. 4/12/2022, p.
him into custody. N,T, p. 67. When searched, Appellant
When searched, Appellant had
had no
no

controlled substances and $3,300.00 in United States currency
currency on him. N.T.
N.T, 4/12/2022,
4/12/2022, p.
p. 68.
68.

Mr. Rosales had neither controlled substances nor money
money on his person. Id.
person. I

A search warrant
A search warrant was executed on
was executed on Room
Room 348
348 of
of the
the Holiday
Holiday Inn
Inn Express
Express in
in Bensalem, and
Bensalem, and

aablack
black bookbag
bookbag was found
found within
within the locked
locked large tool
tool chest. N.T.
N.T, 4/1 2/
2022, pp.
4/12/2022, — 208; C-
pp. 205 --208;C-

12. Inside
12. the bookbag
Inside the was aaclear
bookbag was clear Ziploc
Ziploc bag of heroin
bag of weighing approximately
heroin weighing 90 to
approximately 90 to 100
100 grams
grams

and two half kilograms of methamphetamine. N.T. 4/12/2022,
4/12/2022, p. A large
p. 213. A large digital scale was
digital scale was

found inside the Husky toolbox underneath the bookbag.
bookbag. N.T. 4/12/2022, p.
N.T. 4/12/2022, 216; C-18.
p. 216; C-18. Residue
Residue

found on the digital scale was determined to be composed
composed of controlled
controlled substances. N.T.
substances. NT

4/12/2022, p. 255. Plastic film was discovered in a
a nearby
nearby trashcan similar to what was
to what was covering
covering

the controlled substances. N.T. 4/13/2022, pp. 28 -— 29; C-21. Mr. Rosales' DNA was recovered
recovered

from the covering
from the covering of
of the
the controlled substances. N.T.
controlled substances. N.T. 4/1 2/
2022, p.
4/12/2022, p. 212; C-14. No
212; C-14. controlled
No controlled

substances were recovered from Mr. Rosales's vehicle when it was searched. N.T. 4/12/2022,
4/12/2022, pp.
pp.

217 -
217 — 218.
218. Notably,
Notably, in
in order
order to
to fulfill
fulfill the quantity of
the quantity of the
the controlled substances that
controlled substances that had
had been
been

negotiated in the deal with the CHS, and there was every
every indication that was their intent,
intent, the
the

Appellant and Mr. Rosales would have had to secure an additional quantity from
quantity of heroin from

someone or
someone or somewhere,
somewhere, as
as the
the quantity of controlled
quantity of controlled substances recovered from
substances recovered from their
their hotel
hotel room
room

would have been insufficient to meet the quantity of the controlled substances they
they had agreed
agreed to
to

sel. Thus
sel. the Conspiracy
Thus the Conspiracy would
would have
have then
then necessarily
necessarily involved other people
involved other or the
people or acquisition of
the acquisition of

more controlled substances by the Appellant and Mr. Rosales.. N.T. 4/12/2022, pp.
N.T, 4/12/2022, pp. 241,
241, 294-295.

4
4

1
 Appellant was subsequently charged with the following: 1, Possession with Intent
following: Count I,

to
to Deliver
Deliver aaControlled Substance—Heroin,
Substance-Heroin, an
an ungraded
ungraded felony 2,
felony', Possession
Possession with
with Intent
Intent to Deliver

aa Controlled Substance
Substance—Methamphetamine,
Methamphetamine, an ungraded
ungraded felony',
felony', Criminal Conspiracy,
Conspiracy, an

ungraded
ungraded misdemeanor,
misdemeanor, Possession
Possession of
of a
a Controlled
Controlled Substance—Heroin
Substance-Heroin and/or
and/or

Methamphetamine, an ungraded misdemeanor,
misdemeanors, Possession of Paraphernalia,
Paraphernalia, an ungraded
ungraded

misdemeanor6,
misdemeanor, and Criminal
and Criminal Use of a
Use of aCommunication
Communication Facility,
Facility, aafelony of the
felony of the third degree. Count
third degree'. Count

6, Criminal Use of a
a Communication Facility,
Facility, was nolle prossed
prossed at Appellant's
Appellant's Arraignment
Arraignment and

was
was not aacomponent
component of the
the trial.

MATTERS
MATTERS COMPLAINED
COMPLAINED OF ON APPEAL
APPEAL OF
Appellant
Appellant filed
filed aatimely Notice
Notice of Appeal
Appeal to
to the Superior
Superior Court 6, 2022.
Court on October 6, 2022, On
On

October 7, 2022, this Court issued an Order directing Appellant to file aaConcise Statement of

Matters Complained of on Appeal within twenty-one
twenty-one (21) days of the date of the Order
(21) days Order. On

18, 2022, Appellant filed a
October I8, a Motion for an extension of time to file his Concise Statement
Statement.

On October 24, 2022, this Court issued an Order granting
granting Appellant's
Appellant's motion for an extension of

time to file and granted Appellant an extension until November 18, 2022, to file his Concise

Statement. Appellant
Statement. filed a
Appellant filed timely Concise
a timely Concise Statement
Statement of
of Matters Complained of
Matters Complained of on
on Appeal on
Appeal on

November 17, 2022, which raises the following issues verbatim:
17,2022,

1. The conviction for possession with intent to deliver aacontrolled substance,

heroin, was not supported
supported by sufficient evidence.

35 P.S. §$ 780-113()030)
35PS.
2 780-113(x)(30)
' 35 P.S. §$ 780-113(a)(30)
35P.$. 780-113()030)
4 18
18 Pa.C.S. § 903
Pa.C.S. $903
' 35 P.S. §$ 780-1136a)015)
'3$P.5. 780-113(a)(15)
6 35 P.S. §
'35P.$. 780-113(a)(32)
$ 780-113(8)032)
'18 Pa.C.S. $7512(a)
'18PCS § 7512(a)

55
 2. The conviction for possession with intent to deliver a
a controlled
controlled substance,
substance,

by sufficient evidence.
methamphetamine, was not supported by

3.3. The conviction for criminal conspiracy
conspiracy was not supported
supported by
by sufficient
sufficient

evidence.
evidence.

4.4. The conviction for possession of a
a controlled substance was not
not supported
supported
by sufficient evidence.

5.
5, The conviction
conviction for
for possession of paraphernalia
paraphernalia was not supported by
not supported by
sufficient evidence.
sufficient evidence.

6. The
6. The trial court erred
trial court erred in denying the
in denying the Motion to Suppress
Motion to Suppress the search of
the search of

Appellant because there was no probable cause to arrest Appellant.
Appellant.

7.
7. The trial
trial court erred
erred in denying
denying Appellant's
Appellant's motion
motion in
in limine
limine to refer to his
his

trial counsel as
trial counsel as a
a public defender.
public defender.

S. The trial court erred in permitting Officer Faman
8. testify regarding
Faran to testify regarding the
the

contents of surveillance video whish was not preserved
preserved in violation of the
the best

evidence rule.

9.
9, The trial court erred in permitting
permitting testimony
testimony of Detective Eisenhauer

because
because it went
went beyond the
the scope
scope of expert testimony usurped the fact-finding
testimony and usurped fact-finding

function
function of the jury.
the jury.

10. The trial court abused its discretion in sentencing Appellant because the
sentencing Appellant

sentence exceeds what is
sentence is necessary
necessary to
to protect
protect the public.
public.

11.
IL. The trial court abused its discretion in sentencing
sentencing Appellant
Appellant because
because the

sentence exceeds
sentence exceeds what is necessary
what is to rehabilitate
necessary to Appellant.
rehabilitate Appellant

12.
12. The
The trial court
court abused its
its discretion in sentencing Appellant
in sentencing Appellant because the

sentence fails
sentence to take into
fails to into consideration
consideration Appellant's
Appellant's Age, conduct, character,
Age, conduct, character,

66
 criminal history, the impact of Appellant's actions on the
the community,
community, Appellate
Appellant's

rehabilitative needs, and the Sentencing Guidelines.

13. The trial court abused its discretion in sentencing
3. sentencing Appellant
Appellant because the trial

court relied
relied on improper factors.
factors.

14.
14. The trial court
The trial abused its
court abused its discretion
discretion in
in sentencing
sentencing Appellant because the
Appellant because the trial
trial

court failed to
court failed adequately state
to adequately state the reasons for
the reasons for the sentence on
the sentence on the
the record
record.

15.
15. The trial
trial court
court abused
abused its discretion in
its discretion in sentencing
sentencing Appellant
Appellant because
because the
the trial
trial

court failed
failed to
to consider mitigating
mitigating factors.
factors.

16. The trial court abused its discretion in sentencing
sentencing Appellant
Appellant because the trial

court relied on factors already contemplated by the Sentencing
Sentencing Guidelines.

17. The trial court abused its discretion in sentencing
17.The sentencing Appellant
Appellant because the

sentence was manifestly
manifestly excessive.

18. The trial court abused its discretion in sentencing Appellant in the high
8.The high end

of the aggravated range of the Sentencing
Sentencing Guidelines.

DISCUSSION$
DISCUSSION'

I. Sufficient evidence was
was presented at trial to find Appellant
Appellant guilty
guilty beyond
beyond aa

reasonable doubt for all Counts

Appellant first
first challenges the
the sufficiency of the
the evidence supporting the
evidence supporting the verdict for Counts

1
l through
through 5. The standard of review in assessing
assessing a
achallenge
challenge to the sufficiency
sufficiency of evidence is well

settled in Pennsylvania. See Commonwealth v.
Y. Hunzer,
Huner, 868 A.2d 498, 505
505 (Pa. Super. 2005).
(Pa. Super. 2005). The

standard to
to be applied
applied in reviewing the
in reviewing the sufficiency
sufficiency of
of evidence "is whether viewing
viewing all the

evidence admitted at trial in the light
light most favorable to the verdict winner, there is sufficient

Due to factual and legal interrelationships, some of the grounds for appeal are responded to collectively for
Due
8

efficiently explaining this Court's reasoning.
Court'sreasoning.
7
7

I
 evidence to enable the fact-finder to find every
every element of the crime
erime beyond
beyond aareasonable
reasonable doubt."
doubt."

Commonwealth
Commonwealth v.
v, Distefano, 782 A.24
A.2d 574, 582
582 (Pa. Super. 2001).
(Pa. Super. 2001).

In reviewing this Court's determination that the evidence adduced at trial was sufficient to
sufficient to

support aaverdict of guilty on all charges,
charges, it must be noted "that the facts and circumstances
circumstances

established by the
the Commonwealth need every possibility
need not preclude every possibility of innocence.
innocence. Any
Any doubts
doubts

regarding aadefendant's guilt may be resolved by the fact-finder unless the evidence is
is so weak

and inconclusive that as a
a matter of law no probability of fact may
may be drawn from the combined

circumstances.
circumstances. The Commonwealth may sustain its
its burden
burden of proving every element of the crime
proving every crime

beyond a
a reasonable doubt by means of wholly
wholly circumstantial evidence. Moreover...the
Moreover ... the entire
entire

record must
record be evaluated
must be evaluated and all evidence
and all actually received
evidence actually received must
must be considered. Finally,
be considered. Finally, the
the trier
trier

of fact while passing upon
upon the credibility of witnesses and
and the weight
weight of the produced, is
the evidence produced, is

free to believe all, part or none of the evidence." See Id
Id.

However, Appellant's bare assertion that each conviction
conviction "was not supported
supported by
by sufficient
sufficient

evidence" fails to provide the requisite specificity for this Court to respond speculating on
respond without speculating on

what
what Appellant's claim v. Flores, 921 A.2d 517,
claim is. See Commonwealth v, 522 (Pa.
517, 522 (Pa. Super. 2007) ("If
Super, 2007) (If

Appellant wants to preserve aaclaim that the evidence was insufficient,
insufficient, then the 1925(b)
1925(b) statement

needs to specify the element or elements upon which the evidence was insufficient. This Court can

then analyze the element or elements on appeal. ").
appeal.").

A
A non-specific statement may be sufficient in simple
simple trials where there are only
only few

elements at issue.
issue. However, each
each determination
determination that Appellant committed
that Appellant committed the charged
charged crimes
crimes

established. This Court cannot assume
required that multiple separate elements of the offence be established.

to know
to know what
what elements or factors
elements or factors that
that Appellant
Appellant believes were not
believes were not sufficiently
sufficiently established, other
established, other

than Appellant's identity
than Appellant's identity as
as the
the perpetrator.
perpetrator. As
As such,
such, Appellant's
Appellant's claim
claim for
for insufficient evidence
insufficient evidence

is
is waived due to
waived due the inadequate
to the inadequate 1925(b)
1925(b) statement.
statement.

88

I
 In the event that these issues are not considered waived, this Court will address the issues
issues

and
and finds that each of Counts I1through
through 5S5was fully
fully established
established at trial.

a. Sufficient evidence was presented at trial to find Appellant
Appellant guilty
guilty beyond
beyond a
a

reasonable doubt of Possession with the Intent to Distribute a
a Controlled

Substance

Appellant was found guilty in Counts 1
I and 2
2 of violating
violating 35 P.S.
P,S. §$ 780-113(a)(30),
780-113(a)(30), which

states:

(a) The following acts and the causing thereof within the Commonwealth are
hereby prohibited:
hereby prohibited:

(30) Except
Except as authorized
...
authorized byby this act,
act, the manufacture, delivery,
the manufacture, delivery, or
or
possession
possession with intent to manufacture or deliver, a
intent to acontrolled substance by by
a
a person not
not registered under this
this act,
act, or
or aapractitioner
practitioner not
not registered
registered or
licensed by the appropriate State board, or knowingly creating, delivering
creating, delivering
or possessing with intent to deliver, aacounterfeit controlled substance.

At trial, Appellant did not dispute that: (a) the compounds recovered by
by the police
police from

Room 348 of the Holiday Inn Express in Bensalem were controlled substances pursuant
pursuant to
to The

Controlled Substance,
Controlled Substance, Drug, Device,
Device, and Cosmetic
Cosmetic Act,
Aet, 35
35 P.S. §§ 780-1
P.S. $$ 780-1 -780.144,
— 780-144, ("the Act");
(the Act")y;

was not
(b) Appellant was not aaperson
person entitled under the
the Act to possess
Act to possess said controlled substances;
substances; and

(c) based
(c) based on
on the
the amount
amount of
of the controlled substances
the controlled substances and
and their
their packaging, whomever possessed
packaging, whomever possessed

them did so with the intent to deliver. In fact Appellant conceded the above in argument
argument to the

N.T. 4/13/2022, p.
jury. N.T p. 43. As such, for determining
determining whether
whether Appellant
Appellant committed the
the crimes

charged in
in Counts 1
I and 2,
2, the jury was
the question for the jury was solely Appellant "possessed"
solely whether Appellant "possessed" the

substances.
controlled substances

Actual, physical,
physical, possession is
is not
not the
the only
only method
method in
in which
which aaparty
party can
can "possess"
"possess" narcotics
narcotics

with the
the intent to
to distribute. Contraband can be actually/physically possessed by
actually/physically possessed by aa person,
person,

99
 constructively
constructively possessed by a
a person, constructively possessed
person, or jointly constructively possessed amongst
amongst multiple
multiple people.
people
As our Supreme Court has explained:
explained:

[T]he tripartite
[The legal requirements
tripartite legal requirements for
for aafinding,
finding, beyond
beyond aareasonable doubt, that
reasonable doubt, that a
a
defendant constructively possessed illegal substance[
possessed an illegal substance[ are:] 1) the
are:] I) defendant's
the defendatg
ability to
ability to exercise
exercise a a conscious dominion over the illegal substance;
the illegal substance; 2) the
2) the
defendant's power to control the illegal substance; and 3)
3) the defendant's intent
intent to
to
exercise that
that control.

v. Johnson, 26 A.3d 1078, 1086(Pa.
Commonwealth v, 1086 (Pa. 2011)
2011) (citing
(citing Commonwealth
Commonwealth v. Valette, 613
v. Valerte, 613

548 (Pa.
A.2d 548 (Pa. 1992)).
1992)). A
A person's ability *to
person's ability to have
have conscious dominion over illegal
illegal substances
substances and
and

their
their intent
intent to
to exercise
exercise control
control over the same may
may be examining the totality
be inferred from examining of the
totality of the

circumstances. Commonwealth
circumstances. v,
Commonwealth v.Cash,
Cash, 367
367 A.2d
A.2d 726, 729 (Pa.
726, 729 Super. 1976);
(Pa. Super. 1976); Commonwealth v,
Commonwealth v.
Macolino, 469
Macolino, 469 A.2d
4.24 132, 134 (Pa.
132, 134 1983).
(Pa. 1983)

This
This court is aware that
that a
a person's mere
mere equal access
access to
to the
the area where illegal contraband
illegal contraband

is found does not establish that person's per
per se power
power or intent to control said contraband.
said contraband.

Commonwealth v.
v, Heidler, 741
741 A.2d 213, 216 (Pa.
213,216 (Pa. Super.
Super. 1999).
1999). However,
However, neither is
is it irrelevant:
irrelevant:

aajury need not ignore presence, proximity
proximity and association when presentedpresented in
conjunction with other evidence of guilt. Indeed, presence
conjunction presence at the drugs
the scene where drugs
are
are being
being processed
processed and
and packaged
packaged is amaterial
is a material and
and probative
probative factor
factor which
which the
the jury
jury
may
may consider.
consider. Drug
Drug dealers of
of any and [illegal
any size and [illegal drug]
drug] manufacturers
manufacturers probably
probably
are reticent about
are about allowing
allowing the
the unknowing
unknowing toto take
take view
view of
of or
or assist
assist in
in the
the operation.
operation.
Commonwealth •
Commonwealth v. Vargas, 108 A.3d 858, 869
869 (Pa. Super. 2014)
(Pa. Super. 2014) (citing United
(citing United States
States v. Robinson,
v Robinson,

F.2d 1554,
978 F24 1557-1558 ((10th
1554, 1557-1558 10th Cir.
Cir. 1992)). And Appellant merely nearby
Appellant was not merely nearby Mr. Rosales
Rosales

during these events. Appellant travelled approximately one-and-a-half-thousand ((1,500)
travelled approximately 1,500) miles
miles

from Fort
Fort Worth, Texas to Bensalem,
Bensalem, Pennsylvania,
Pennsylvania, aatrip
trip which
which took
took roughly
roughly twenty
twenty (20)
(20) hours.
hours.

N.T. 4/12/2022, p. 72.
72. Appellant carried the black backpack
backpack in which the drugs
drugs were found into
into

the hotel
hotel room
room Mr.
Mr. Rosales
Rosales rented for
for only one
one day.
day, N.T. 4/11/2022, p.
4/11/2022, p. 54. Appellant
Appellant was
was with

Rosales throughout
Mr. Rosales throughout the entire day. N.T.
entire day. 4/11/2022 passim;
N.T. 4/11/2022 passim; N.T.
N.T. 4/12/2022,
4/12/2022, passim;
passim; N.T.
N.T,

4/13/2022,
4/13/2022, passim.
passim. Appellant
Appellant drove Mr. Rosales to the initial "sample" transaction,
initial "sample" transaction, lasting
lasting only
only

10
 90 seconds and two of minutes, before turning
between 0 turning around and driving
driving to a
a restaurant
restaurant located
located

adjacent to the hotel they had left. 4/12/2022, p. 97 -
— 128. Even further,
further, Appellant
Appellant was
was inside
inside the
the

hotel room
hotel while Mr.
room while Mr. Rosales
Rosales spent
spent hours
hours setting
setting up the bulk
up the bulk narcotics sale, not
narcotics sale, not only via text
only via text

messages, but also aloud via
via phone calls. N.T. 4/12/2022, pp.
N.T, 4/12/2022, pp. 124 -— 125. This is
125. This is not
not an
an instance
instance

where Appellant's ability to have conscious dominion over the contraband
contraband or
or Appellant's
Appellant's intent
intent to
to

exercise control over the same is merely inferred by operation of
by operation of law, but rather
law, but rather both are
both are

inextricable conclusions stemming from an examination of the circumstances.
circumstances. Further, the
Further, the

evidence presented showed that Appellant had the power
power to exercise control over both
control over both the
the heroin
heroin

and the methamphetamine recovered from
methamphetamine recovered from the
the black
black book
bookbag
bag recovered from inside
recovered from inside the
the toolbox in
toolbox in

Room 348
348 of
of the
the Holiday
Holiday Inn
Inn Express in Bensalem.
Express in Bensalem.

Moreover, in cases involving Possession with Intent to Distribute and related
related Conspiracy
Conspiracy

charges, "successful proof
proof of
of aaconspiracy makes
makes each
each co-conspirator
co-conspirator fully
fully liable
liable for all of
for all of the
the

drugs recovered, without
drugs recovered, necessity of
without the necessity of proving
proving constructive possession." Commonwealth
constructive possession." Commonwealth v.

Perez,
Perez, 931 A.2d 703,
703, 709
709 (Pa.
(Pa. Super. ( Commonwealth v. Holt,
citing Commonwealth
Super. 2007) (citing Holt, 711 A.2d
A.2d 1011,
1011, 1017
1017

(Pa. Super.
(Pa. Super. 1998)).
1998)). A
A conspiracy
conspiracy can
can be established
established by the "web
by the "web of evidence" established
of evidence" established by
by the
the
conduct of the co-conspirators along with the circumstances surrounding
surrounding said conduct.
conduct

Commonwealth y, Morton, 512
Commonwealth v. 512 A2d
A.2d 1273,
1273, 1275
1275 (Pa. Super. 1986).
(Pa. Super. 1986). Resultingly, both of
Resultingly, both of

by establishing
Appellant's Possession with the Intent to Distribute convictions are established by establishing

Count 3, the Criminal Conspiracy between Appellant
Appellant and Mr. Rosales,
Rosales, discussed
discussed infra.
infra.

When this
this evidence,
evidence, and the reasonable
and the inferences drawn
reasonable inferences therefrom, is
drawn therefrom, is viewed in the
viewed in the light
light

most favorable to the Commonwealth as the verdict winner,
winner, the existence of aaconspiracy
conspiracy between
between

Appellant
Appellant and
and Mr.
Mr. Rosales
Rosales to distribute the
to distribute the drugs establishes
establishes that Appellant possessed
that Appellant possessed the is
the is

I11I
sufficient to establish that Appellant possessed the controlled substances with the intent to

distribute them beyond a
a reasonable doubt.

Therefore, sufficient evidence
evidence was
was provided
provided at
at trial
trial to establish the violations
violations of
of Counts
Counts 1
t
and
and 2.

b. Sufficient evidence was presented at trial to find
fid Appellant guilty beyond
Appellant guilty beyond a
a

reasonable doubt of Criminal Conspiracy
Conspiracy

Appellant was found guilty in Count 33of violating
violating 18
I8 Pa.C.S.
Pa.C.S. §$ 903
903 (in
(in reference to Counts

1
l and 2), which states:

(a) Definition
(a) Definition of
of conspiracy.
conspiracy. — A A person
person is guilty of
is guilty of conspiracy
conspiracy with another
with another
person or persons to commit aacrime if with the intent of promoting
promoting or facilitating
facilitating
its commission he:he
(1) agrees
(I) agrees with such other
with such other person or persons
person or persons that
that they or one
they or one or
or more
more of
of them
them
will engage in conduct which constitutes such crime or an attempt
attempt or solicitation
to commit such crime;
crime; or
or
(2) agrees to aid such other person
person or persons
persons in the planning
planning or commission of
such crime or of an attempt
attempt or solicitation to commit such crime.
... (e) Overt act.
crime

act. --— No person may be convicted of conspiracy
conspiracy to commit a a
act in
crime unless an overt act in pursuance of such
such conspiracy alleged and
conspiracy is alleged and
proved to have been done by him or by aaperson with whom he conspired.
conspired.

Appellant and Mr. Rosales's long drive from Texas to Bensalem—
Bensalem-- over twenty hours --—

followed immediately by a
a drug sample transaction, a
a subsequent negotiation for aabulk narcotics

sale, renting
renting a
a hotel
hotel room for
for a
a single
single day, and
and attempted
attempted flight
flight before
before his
his arrest create
create the sort
sort of

"web of evidence"
"web of evidence" that
that establishes
establishes Appellant
Appellant and
and Mr.
Mr. Rosales
Rosales conspired
conspired for
for the purpose of
the purpose of the
the

illegal sale of controlled substances in Pennsylvania. N.T. 4/13/2022, pp. — 173. Mr. Rosales
pp. 172 --173.

provided the CHS with sample drugs and Mr. Rosales' D.N.A. was found on the drug
drug packaging
packaging

recovered from Room 348. N.T. 4/12/2022, p.
p. 212; C-14. Beyond
Beyond Mr. Rosales' overt acts,

Appellant personally
Appellant personally drove
drove his co-conspirator
co-conspirator to the sample drug
the sample drug transaction.
transaction. N.T. 4/12/2022, pp.
N.T. 4/12/2022, pp

104 — 147. When this evidence, and the reasonable inferences drawn therefrom, is viewed in the
104

12
 light most favorable to the Commonwealth as the verdict winner,
winner, it is sufficient to establish that

both Appellant and Mr. Rosales conspired to travel to Pennsylvania
Pennsylvania for the purpose
purpose of distributing
distributing

bulk narcotics and committed multiple overt acts in furtherance thereof.

Therefore, sufficient evidence was provided at trial to establish the violation of Count 3.

c.
e. Sufficient evidence was presented at trial to find Appellant
Appellant guilty
guilty beyond
beyond a
a

reasonable doubt of Possession of aaControlled Substance

Appellant was found guilty in Count 4
4 of violating
violating 35 P.S. $§ 780-113(a)(16),
780-113(a)(16), which states:

(a) The following acts and the causing thereof within the Commonwealth are
hereby prohibited:
•••
(16) Knowingly or intentionally possessing
possessing aa controlled or counterfeit
substance by a a person not registered
registered under this act,
act, or aapractitioner
practitioner not
registered or licensed by the appropriate State board, unless the substance
was
was obtained directly from, or pursuant to, aavalid prescription
prescription order or
order of a
a practitioner, or except as otherwise authorized by
by this act.
Appellants Possession of a
a Controlled Substance was established supra, Discussion

Section I(a). Therefore, sufficient evidence was provided at trial to
to establish the violation of Count

44.

d. Sufficient evidence was presented at trial to find Appellant guilty beyond
beyond aa

reasonable doubt of Possession of Paraphernalia
Paraphernalia

Appellant was found guilty in Count 5
5 of violating
violating 35 P.S. $§ 780-113(a)(32),
780-113(a)632), which states:

(a) The following acts and the causing thereof within the Commonwealth are
hereby prohibited:
prohibited:
•••
(32) The
The use of, or possession with intent to use, drug paraphernalia for the
purpose
purpose of planting,
planting, propagating, cultivating, growing,
propagating, cultivating, growing, harvesting,
harvesting,
manufacturing, compounding, converting, producing, processing,
processing, preparing,
preparing,
testing, analyzing, packing, repacking, storing, containing,
containing, concealing,
injecting, ingesting, inhaling or otherwise introducing into the human body
body aa
controlled substance in violation of this act.
"Drug
Drug paraphernalia" is defined under the Act as:

13
 "Drug paraphernalia"
paraphernalia" means
means all
all equipment, products
products and materials of of any
any kind
kind
which are used, intended for use or designed for use in planting,planting, propagating,
propagating,
cultivating, growing, harvesting, manufacturing,
manufacturing, compounding, converting,
compounding, converting,
producing, processing, preparing, testing,
testing, analyzing,
analyzing, packaging,
packaging, repackaging,
repackaging,
storing, containing, concealing, injecting,
injecting, ingesting,
ingesting, inhaling
inhaling or otherwise
otherwise
introducing into
into the
the human
human body
body a a controlled
controlled substance
substance in
in violation act. It
violation of this act. It
includes, but is not limited to:
...
(5) Scales and balances used, intended for use or designed use in
designed for use in
weighing or measuring controlled substances
substances.
35 P.S. §$ 780-102.
35PS. 780-102

To convict Appellant for Possession of Paraphernalia, the Commonwealth was required to
was required to

establish that Appellant possessed drug paraphernalia and
and "the use of,
of, or possession with intent
possession with intent to
to

use, drug paraphernalia
use, drug paraphernalia for the purpose
for the purpose of... compounding, ...
of ... compounding, ... processing, preparing, ...
processing, preparing, . . packing,
packing,

repacking,
repacking,...
... or otherwise introducing into the human body
body aacontrolled substance in
in violation of
violation of

this act". 35P.S.
35 P.S. $§ 780-113(a)(32). Among the items recovered from Room 348 was a
adigital
digital scale
scale

with residue on it that tested positive for controlled substances, proximity to
substances, found in close proximity to the
the

bulk drugs. N.T. 4/12/2022, p. 255. Further, thin plastic
4/12/2022, plastic found
found inside a
a nearby
nearby trashcan suggested
trashcan suggested

further
further that
that the
the bulk
bulk drugs
drugs had been repackaged
repackaged into samples inside the
into the samples hotel room.
the hotel room. N.T.
NT

4/1 3/
2022, pp. 28 -29;C-21.
4/13/2022, — 29; C-21. When this evidence, and the reasonable inferences therefrom,
inferences drawn therefrom,

is
is viewed
viewed in
in the light most
most favorable to
to the Commonwealth as the verdict
verdict winner,
winner, it is sufficient
it is sufficient

to establish that Appellant possessed paraphernalia in contravention of the Act,
Act, and, therefore,
and, therefore,

sufficient evidence was
was produced at
at trial to
to find
find Appellant guilty beyond
Appellant guilty beyond a
areasonable
reasonable doubt of
doubt of

committing the
the crime as alleged in
as alleged in Count
Count 5.
5.

Accordingly, this Court submits that Appellant's first five allegations
allegations of error are without

merit and should be dismissed.

14
14
 II. The trial court did not abuse its discretion in denying
denying Appellant's
Appellant's Motion to

Suppress
Suppress the
the $3,300
$3,300 found
found on Appellant and
and Appellant's flight incident
Appellant's flight incident to his
his

Arrest as Probable Cause Existed to
to Arrest
Arrest Appellant
Appellant

"Probable cause exists if the facts and circumstances within the knowledge
Probable knowledge of the police
police

officer at the time of the arrest are sufficient to justify
justify a person of reasonable caution in believing
a person believing

the
the suspect has
has committed or is committing a
a crime." Commonwealth v. Burnside,
Burnside, 625 678,
625 A.2d 678,

681
681 (Pa. Super. 1993).
(Pa. Super, 1993). If someone is
is arrested
arrested without probable
probable cause the
the "fruits"
"fruits" of that
that search

must be suppressed and disregarded in aacriminal proceeding, and no
no "good faith exception"
exception"exists
exists

in
in the state of
the state of Pennsylvania to the
Pennsylvania to requirement. Commonwealth
the requirement. Commonwealth v. Hopkins,
Hopkins, 164
164 A.3d
A.3d 1133,
1133, 1137
1137

(Pa.
(Pa. 2017).
2017). Moreover, this
this Court is
is aware that
that probable
probable cause for requires more than
for an arrest requires than

merely being near
near aaperson to which there
there exists probable suspected criminal activity
probable cause of suspected activity (but
(but

U.S, v. Butts, 704 F.2d 701,
such is not what the evidence in this case demonstrates.) U.S. 704 (3d
701, 704 (3d Cir.

1983); see also Ybarra v.
v, Ill.,
ILL,, 444 U.S. 85, 91 ((1979)
1979) ("[A]
([A] aaperson's
person's mere propinquity
propinquity to others

independently
independently suspected
suspected of
of criminal activity does
criminal activity not, without
does not, without more,
more, give
give rise to probable
rise to probable cause
cause

to search that person. ").
person.").

Before
Before police Appellant as he
police arrested Appellant he exited the Holiday
Holiday Inn Express in Bensalem,
Inn Express Bensalem, they
they

had observed
observed him drive Mr. Rosales'
Rosales' truck to
to Philadelphia,
Philadelphia, Mr. Rosales leave
leave the
the passenger seat
passenger seat

of the truck, enter another vehicle, hand narcotics to aaConfidential Human Source of the Federal

Investigation ("CHS"),
Bureau of Investigation (CHS"), Appellant drive the
the vehicle back
back to the
the Holiday
Holiday Inn in
in Bensalem
Bensalem

where
where Mr. Rosales had rented aaroom
mom after making two
two stops, both Appellant and Mr. Rosales exit

the truck and enter Room 348, both Appellant
Appellant and Mr. Rosales leave Room 348 to look up
up and

down the hallway
hallway over the next few hours, and Appellant
Appellant and Mr.
Mr, Rosales leave Room 348 in time

to get
get to aanarcotics transaction as scheduled between Mr. Rosales and the CHS. Appellant
Appellant was

inside the hotel
hotel room
room with co-conspirator as Mr.
with his co-conspirator Mr. Rosales made phone
phone calls setting up the
setting up the bulk
15
 drug transaction, N,T. 4/12/2022, pp. 124 - 125. Under these circumstances, it strains credulity to
12/2022, pp. 124 — 125. Under these circumstances, it strains credulity to
drug transaction. N.T. 4/
suggest that Appellant was somehow not participating in the narcotics transaction but that he was
suggest that Appellant was somehow not participating in the narcotics transaction but that he was
also wholly unaware that it was to occur. The police not only had probable cause to arrest Appellant
also wholly unaware that it was to occur. The police not only had probable cause to arrest Appellant
for the planned bulk drug transaction, they had probable cause to arrest Appellant for the prior
for the planned bulk drug transaction, they had probable cause to arrest Appellant for the prior
"sample" drug transaction in Philadelphia.
"sample" drug transaction in Philadelphia.

Accordingly, this Court submits that Appellant's sixth allegation of error is without merit
Accordingly, this Court submits that Appellant's sixth allegation of error is without merit
and should be dismissed.
and should be dismissed.

IHI. The trial court did not abuse its discretion in denying Appellant's Motion in
III. The trial court did not abuse its discretion in denying Appellant's Motion in
Limine to Refer to Defense Counsel as a Publie Defender
Limine to Refer to Defense Counsel as aPublic Defender
The standard practice of courts in his Commonwealth is to avoid references to defense
The standard practice of courts in his Commonwealth is to avoid references to defense
counsel as a public defender if possible. Whatever the rationale, be it fear of the jury making
counsel as apublic defender if possible. Whatever the rationale, be it fear of the jury making
decisions based on the defendant's perceived economic status, a societal assumption that an
decisions based on the defendant's perceived economic status, a societal assumption that an
innocent individual would hire a private attorney, or otherwise, the understanding that this Court
innocent individual would hire aprivate attorney, or otherwise, the understanding that this Court
has is that the defense counsel's status as a public defender or private counsel is, at best, irrelevant
has is that the defense counsel's status as apublic defender or private counsel is, at best, irrelevant
to the determination of the ultimate case.
to the determination of the ultimate case.

This Court is aware that the courts of Pennsylvania have held that the inadvertent
This Court is aware that the courts of Pennsylvania have held that the inadvertent
disclosure of defense counsel as a public defender has been held to be "insignificant and does not
disclosure of defense counsel as apublic defender has been held to be "insignificant and does not
violate equal protection". Commonwealth v, Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006) (citing
violate equal protection". Commonwealth v. Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006) (citing
Commonwealth v. Dunson, 11 Pila. 339 (Pa. Com, PI, 1984)). However, in this case, defense
Commonwealth v. Dunson, 11 Phila. 339 (Pa. Corn. Pl. 1984)). However, in this case, defense
counsel filed a Motion in Limine for permission to actively inform the jury of their status,
counsel filed a Motion in Limine for permission to actively inform the jury of their status,
seemingly for the purpose of having the jury assume that Appellant cannot be a drug dealer, as he
seemingly for the purpose of having the jury assume that Appellant cannot be adrug dealer, as he
would then have the funds to hire private counsel.
would then have the funds to hire private counsel.

Defense counsel did not provide, and this Court is unaware of, any law in this
Defense counsel did not provide, and this Court is unaware of, any law in this
Commonwealth establishing that such an action is permissible. Further, this Court found that
Commonwealth establishing that such an action is permissible. Further, this Court found that
16
16
'
I

stating to the jury that defense counsel was a public defender risked confusion and the jury making
stating to the jury that defense counsel was apublic defender risked confusion and the jury making
a finding based not on the facts presented, but rather Appellant's perceived economic status. Even
afinding based not on the facts presented, but rather Appellant's perceived economic status. Even
beyond this Court's concerns, Appellant himself seemed reluctant to proceed down this route.
beyond this Court's concerns, Appellant himself seemed reluctant to proceed down this route.
When asked by the court "do you want me to allow [Defense Counsel] to tell the jury that he's a
When asked by the court "do you want me to allow [Defense Counsel] to tell the jury that he's a
public defender?", Appellant replied, I mean, do we have to?" N.T, 4/11/22, p. 7.
public defender?", Appellant replied, "Imean, do we have to?" N.T. 4/11/22, p. 7.
Accordingly, this Court submits that Appellant's seventh allegation of error is without
Accordingly, this Court submits that Appellant's seventh allegation of error is without

merit andshould
meritand dismissed.
shouldbebedismissed.

IV. The trial court did not abuse its discretion in permitting Officer Farnan to testify
IV. The trial court did not abuse its discretion in permitting Officer Farnan to testify
regarding the contents of surveillance videos
regarding the contents of surveillance videos
During the suppression hearing, defense counsel objected to Bensalem Township Police
During the suppression hearing, defense counsel objected to Bensalem Township Police
Department Officer Connor Farnan testifying as to what he observed on surveillance videos from
Department Officer Connor Farnan testifying as to what he observed on surveillance videos from
the Holiday Inn Express as violative of the Best Evidence Rule in that certain surveillance videos
the Holiday Inn Express as violative of the Best Evidence Rule in that certain surveillance videos
were not preserved and provided to the defense. N.T. 4/11/22 p. 23. Specifically, Defense counsel
22p. 23. Specifically, Defense counsel
were not preserved and provided to the defense. N.T. 4/1 1/
was not provided videos from December 4, 2020 at approximately 9:00 A.M. to approximately
was not provided videos from December 4, 2020 at approximately 9:00 A.M. to approximately
L00 P.M.. N.T. 4/11/22 pp. 23 - 25. The objection was overruled and the question rephrased to
1:00 P.M.. N.T. 4/11/22 pp. 23 — 25. The objection was overruled and the question rephrased to
elicit answers from Officer Farnan regarding surveillance videos from roughly 8:30 A.M. to 9.00
elicit answers from Officer Farnan regarding surveillance videos from roughly 8:30 A.M. to 9:00
A.M.
A.M..

At trial, the Commonwealth introduced Commonwealth Exhibit C-6 and C-10, containing
At trial, the Commonwealth introduced Commonwealth Exhibit C-6 and C-10, containing
surveillance videos of the Holiday Inn lobby and 3" floor, respectively. Exhibit C-6 contains five
surveillance videos of the Holiday Inn lobby and 3rd floor, respectively. Exhibit C-6 contains five
videos with visible timestamps" from 08:1101 08:14:25, 08:IE:01 - 08:14.18, 08:16.34 -
videos with visible timestamps 9 from 08:11:01 — 08:14:25, 08:11:01 — 08:14:18, 08:16:34 —
08-1711, 08:2220 -- 08.25.00 and 08:23:14 - 0824.06. See C-6. Mr. Rosales checks in to the
08:17:11, 08:22:20 — 08:25:00 and 08:23:14 — 08:24:06. See C-6. Mr. Rosales checks in to the
hotel, and then Appellant and Mr. Rosales enter the elevator, carrying various items. Appellant is
hotel, and then Appellant and Mr. Rosales enter the elevator, carrying various items. Appellant is

I

I
I
pe video timestamps re in 24-hour time format, often referred to as military time."
'The video timestamps are in 24-hour time format, often referred to as "military time."
17
17

i
 seen carrying a black back pack while wheeling an air compressor, while Mr. Rosales maneuvers
seen carrying ablack backpack while wheeling an air compressor, while Mr. Rosales maneuvers
a large, wheeled toolbox into the elevator. See C-6. One black backpack was recovered during the
alarge, wheeled toolbox into the elevator. See C-6. One black backpack was recovered during the
search of Room 348, which contained approximately 100 grams of heroin and I kilogram of
search of Room 348, which contained approximately 100 grams of heroin and 1kilogram of
methamphetamine. N.T, 4/12/2022,p. 225; C-6. Exhibit C-10 contains body-camera recordings of
methamphetamine. N.T. 4/ 2022, p. 225; C-6. Exhibit C-10 contains body-camera recordings of
12/

a screen, presumably the surveillance computer's, playing three videos with visible timestamps
ascreen, presumably the surveillance computer's, playing three videos with visible timestamps
from 12-56.30- 12:57:16, 13:00.09 - 13.00:15, and 16:55:12 - 16:55:40. See C-10. These videos
from 12:56:30 — 12:57:16, 13:00:09 — 13:00:15, and 16:55:12 — 16:55:40. See C-10. These videos
show Appellant and/or Mt. Rosales walking to and/or from the 3" floor elevator, and neither
show Appellant and/or Mr. Rosales walking to and/or from the 3rd floor elevator, and neither
Appellant nor Mr. Rosales appear to be carrying any objects in their hands. Defense counsel did
Appellant nor Mr. Rosales appear to be carrying any objects in their hands. Defense counsel did
not object to the introduction and playing of these videos on the grounds that they were not in the
not object to the introduction and playing of these videos on the grounds that they were not in the
defense's possession. Officer Farnan did not testify regarding surveillance videos ranging from
defense's possession. Officer Farnan did not testify regarding surveillance videos ranging from
approximately 9.00 A.M. to approximately 1.00 P.M. on December 4, 2020. This is unsurprising,
approximately 9:00 A.M. to approximately 1:00 P.M. on December 4, 2020. This is unsurprising,
seeing as during that time Appellant and Mr. Rosales were being surveilled by the FBI Task force.
seeing as during that time Appellant and Mr. Rosales were being surveilled by the FBI Task force.
N.T. 4/1202022, pp. 104 - 147. Appellant and Mr. Rosales were engaged in the sample narcotics
N.T. 4/12/2022, pp. 104 — 147. Appellant and Mr. Rosales were engaged in the sample narcotics
transaction and then went to the Bob Evans restaurant. N.T. 4/12/2022, p. 128. Officer Farman did
2 022, p. 128. Officer Farnan did
transaction and then went to the Bob Evans restaurant. N.T. 4/12/
not testify regarding any surveillance videos that were not preserved or not handed over to the
not testify regarding any surveillance videos that were not preserved or not handed over to the
defense. As such, Appellant's claim that Officer Farnan's testimony was in contravention of the
defense. As such, Appellant's claim that Officer Farnan's testimony was in contravention of the
Best Evidence Rule is meritless
Best Evidence Rule is meritless.

Accordingly, this Court submits that Appellant's eighth allegation of error is without merit
Accordingly, this Court submits that Appellant's eighth allegation of error is without merit
and should be dismissed.
and should be dismissed.

V, The trial court did not abuse its discretion in permitting testimony of Detective
V. The trial court did not abuse its discretion in permitting testimony of Detective
Eisenhauer
Eisenhauer

The purpose of expert testimony is to provide the jury with information requiring special
The purpose of expert testimony is to provide the jury with information requiring special
expertise or knowledge helpful to their determination of a fact at issue. Pa.R.E. 702. If valuable to
expertise or knowledge helpful to their determination of afact at issue. Pa.R.E. 702. If valuable to
the trier of fact, an expert witness may even express an opinion on an ultimate issue of fact. See
the trier of fact, an expert witness may even express an opinion on an ultimate issue of fact. See
18
18
 Commonwealth v, Daniels, 390 A.2d 172, 178 (Pa. 1978) (The contention that an expert should
Commonwealth v. Daniels, 390 A.2d 172, 178 (Pa. 1978) (The contention that an expert should
never be permitted to express an opinion on an "ultimate issue" is similarly misconceived.). [fa
never be permitted to express an opinion on an " ultimate issue" is similarly misconceived.). If a
witness testifies improperly, potential prejudice can be cured by a timely curative instruction, as
witness testifies improperly, potential prejudice can be cured by atimely curative instruction, as
"when an objection is sustained and a cautionary instruction is given, and the defendant fails to
"when an objection is sustained and acautionary instruction is given, and the defendant fails to
object to the cautionary instruction or to request any further instruction, counsel is presumed to be
object to the cautionary instruction or to request any further instruction, counsel is presumed to be
satisfied with the cautionary instruction and any prejudice is cured, because we further presume
satisfied with the cautionary instruction and any prejudice is cured, because we further presume
that the jury follows the court's instructions." MountOlivet Tabernacle v, Edwin L. Wiegand Div,,
that the jury follows the court's instructions." Mount Olivet Tabernacle v. Edwin L. Wie and Div.
Emerson Elec. Co,, 781 A.24 1263, 1275 n.12 (Pa. Super. 2001) (citing Commonwealth v. Jones,
citing Commonwealth v. Jones,
Emerson Elec. Co., 781 A.2d 1263, 1275 n.12 (Pa. Super. 200 1) (
668 A.24 491, 508 (Pa. 1995),cert denied, 519 U.S. 826 (1996))
668 A.2d 491, 508 (Pa. 1995), cert denied, 519 U.S. 826 ( 1996)).
Detective Eisenhauer was offered as an expert witness without defense voir dire or
Detective Eisenhauer was offered as an expert witness without defense voir dire or
objection. See N.T. 4/122022, p. 266. At trial, defense counsel objected to Detective Eisenhauer's
objection. See N.T. 4/12/2022, p. 266. At trial, defense counsel objected to Detective Eisenhauer's
testimony suggesting that there was likely another party who would come to deliver drugs as the
testimony suggesting that there was likely another party who would come to deliver drugs as the
narcotics sale orchestrated by the CHS and Mr. Rosales involved drugs in quantities beyond what
narcotics sale orchestrated by the CHS and Mr. Rosales involved drugs in quantities beyond what
was recovered from Room 348, which was offered in response to the question "how - is that
was recovered from Room 348, which was offered in response to the question "how — is that
consistent with the way a drug trafficking organization would operate?" N.T. 4/12/2022, pp. 288
consistent with the way adrug trafficking organization would operate?" N.T. 4/ 2022, pp. 288
12/

- 291. As the narcotics recovered from Room 348 included 95.89 grams of heroin, but the
— 291. As the narcotics recovered from Room 348 included 95.89 grams of heroin, but the
transaction as negotiated was for two kilograms - 2,000 grams - of heroin, there is an inherent
transaction as negotiated was for two kilograms — 2,000 grams — of heroin, there is an inherent
incongruity between the deal as designed and the deal that could actually be satisfied with the
incongruity between the deal as designed and the deal that could actually be satisfied with the
contraband already in Appellant and Mr. Rosales's possession. See C-17. Defense counsel objected
contraband already in Appellant and Mr. Rosales's possession. See C-17. Defense counsel objected
further that Detective Eisenhauer's use of "they" in testifying "I feel very confident that they were
further that Detective Eisenhauer's use of "they" in testifying "Ifeel very confident that they were
going to attempt to set up a distribution hub right in this area from this organization." N.T.
going to attempt to set up a distribution hub right in this area from this organization." N.T.
4/12/2022, pp. 295 - 296. This Court gave a curative instruction to the jury, and upon defense
12/2022, pp.
4/ 295 — 296. This Court gave acurative instruction to the jury, and upon defense
counsel's motion, ruled that "[t]Jo the extent that the word they was brought up, it will be stricken."
f
counsel's motion, ruled that "t]o the extent that the word they was brought up, it will be stricken."

19

-
 N.T, 4/12/2022, p. 298. Defense Counsel expressed their satisfaction with this resolution. N.T.
N.T. 4/
12/
2022, p. 298. Defense Counsel expressed their satisfaction with this resolution. N.T.

4/12/2022, p. 298.
4/
12/
2022, p. 298.

Appellant did not identify what portion of Detective Eisenhauer's testimony exceeded the
Appellant did not identify what portion of Detective Eisenhauer's testimony exceeded the
scope of proper expert testimony in his 1925(b) statement. However, as this court struck the
scope of proper expert testimony in his 1925(b) statement. However, as this court struck the
disputed testimony and provided a curative instruction to the Defense Counsel's satisfaction, any
disputed testimony and provided acurative instruction to the Defense Counsel's satisfaction, any
potential prejudice was cured.
potential prejudice was cured.

Accordingly, this Court submits that Appellant's ninth allegation of error is without merit
Accordingly, this Court submits that Appellant's ninth allegation of error is without merit
and should be dismissed.
and should be dismissed.

VI The trial court did not abuse its discretion when sentencing Appellant
VI. The trial court did not abuse its discretion when sentencing Appellant
Appellant had a prior record score of 5, stemming from prior convictions in the State of
Appellant had aprior record score of 5, stemming from prior convictions in the State of
Texas. N.T. 7/15/2022, p. 7. Appellant had a 2007 conviction for a misdemeanor analogous to
Texas. N.T. 7/15/2022, P. 7. Appellant had a2007 conviction for amisdemeanor analogous to
Then from a Motor Vehicle, two simultaneous 2008 convictions for the same, a 2010 conviction
Theft from aMotor Vehicle, two simultaneous 2008 convictions for the same, a2010 conviction
for DUI, a 2013 conviction for a crime analogous to second-degree felony Aggravated Assault,
for DUI, a2013 conviction for acrime analogous to second-degree felony Aggravated Assault,
and a 2017 conviction for second-degree felony Aggravated Assault. N.T. 7/15/2022, pp. 7- 10.
and a2017 conviction for second-degree felony Aggravated Assault. N.T. 7/15/2022, pp. 7 — 10.
Appellant was completed his sentence for the 2017 conviction roughly 8 months prior to his
Appellant was completed his sentence for the 2017 conviction roughly 8 months prior to his
behavior incident to his arrest. N,T, 7/15/2022, p. 10,
behavior incident to his arrest. N.T. 7/15/
2022, p. 10.

The guidelines for Count I, Possession with Intent to Deliver a Controlled Substance-
The guidelines for Count 1, Possession with Intent to Deliver aControlled Substance—
Heroin had a standard range sentence of 60 to 72 months and an aggravated range of 84 months
Heroin had astandard range sentence of 60 to 72 months and an aggravated range of 84 months
for possession of slightly over 95 grams of heroin. N.T. 7/15/2022, pp. 29 - 30. These guidelines
for possession of slightly over 95 grams of heroin. N.T. 7/15/2022, pp. 29 — 30. These guidelines
were for possession of between 50 and IO0 grams of heroin. Appellant was sentenced on Count L
were for possession of between 50 and 100 grams of heroin. Appellant was sentenced on Count 1
to not less than 7 years, no more than I5 years, within the aggravated range. N.T. 7/15/2022, p.
to not less than 7years, no more than 15 years, within the aggravated range. N.T. 7/ 15/2022, p.

43. 43.

The guidelines for Count 2, Possession with Intent to Deliver a Controlled Substance-
The guidelines for Count 2, Possession with Intent to Deliver aControlled Substance—
Methamphetamine, were for 60 months to 60 months as the amount possessed was between 100
Methamphetamine, were for 60 months to 60 months as the amount possessed was between 100
20
20
 and 1,000 grams of methamphetamine. N,T, 7/15/2022, p. 29. Appellant possessed 957+ grams of
and 1,000 grams of methamphetamine. N.T. 7/1 5/
2 022, p. 29. Appellant possessed 957+ grams of

met hamphetamine, just below the top end of the range. The standard range for the
methamphetamine, just below the top end of the range. The standard range for the
methamphetamine charge is the maximum permitted by law on that count. N.T. 7/15/2022, p. 29.
methamphetamine charge is the maximum permitted by law on that count. N.T. 7/1 5/
2022, p. 29.

Appellant was sentenced on Count 2 to not less than 5 years, no more than I0 years, concurrent to
Appellant was sentenced on Count 2to not less than 5years, no more than 10 years, concurrent to
Count I, within the standard range. N.T, 7/15/2022, p. 43,
Count 1, within the standard range. N.T. 7/
15/
2022, p. 43.

Appellant was sentenced on Count to S years of probation running consecutive to Count
Appellant was sentenced on Count 3to 5years of probation running consecutive to Count
I. N.T. 7/15/2022, p. 44. This was below the standard range of 60 months and the mitigated range
1. N.T. 7/
15/2022, p. 44. This was below the standard range of 60 months and the mitigated range

of 60 months.
of 60 months.

Appellant was sentenced to no further penalties on Counts 4 and S as they either merged
Appellant was sentenced to no further penalties on Counts 4and 5as they either merged
or any sentence imposed would have been redundant, N,T, 7/15/2022, p. 44.
or any sentence imposed would have been redundant. N.T. 7/1 5/
2 022, p. 44.

Throughout the Sentencing Hearing, this court explained the how it took into consideration
Throughout the Sentencing Hearing, this court explained the how it took into consideration
Appellant's Age, conduct, character, criminal history, the impact of Appellant's actions on the
Appellant's Age, conduct, character, criminal history, the impact of Appellant's actions on the
community, Appellant's rehabilitative needs, the Sentencing Guidelines, the mitigating and
community, Appellant's rehabilitative needs, the Sentencing Guidelines, the mitigating and
aggravating factors present, Appellant's behavior at trial, and the letters from his mother and sister.
aggravating factors present, Appellant's behavior at trial, and the letters from his mother and sister.
See NT. 7/15/2022, pp. 4 - 13, 36 46; Sentencing D-I and D.-2. This Court also considered
See N.T. 7/15/2022, pp. 4 — 13, 36 — 46; Sentencing D-1 and D-2. This Court also considered
Appellant's two prior convictions for crimes of violence and that he was arrested only roughly 8
Appellant's two prior convictions for crimes of violence and that he was arrested only roughly 8
months after completing supervision for his second aggravated assault conviction in Texas. See
months after completing supervision for his second aggravated assault conviction in Texas. See
N.T. 7/1502022, pp. 10, 40. Further, the impact these drugs have had in the local community,
N.T. 7/15/2022, pp. 10, 40. Further, the impact these drugs have had in the local community,
Appellant's boldness in driving up from Texas to distribute bulk quantities, the fact that the
Appellant's boldness in driving up from Texas to distribute bulk quantities, the fact that the
quantities of drugs recovered were just undereath the next level of the guidelines for both Counts
quantities of drugs recovered were just underneath the next level of the guidelines for both Counts
l and 2, and his continued lack of any acceptance of responsibility were considered. N.T
1 and 2, and his continued lack of any acceptance of responsibility were considered. N.T.
7/15/2022, pp. 36, 39, 42. Only after considering all of these factors, this Court found that
7/15/2022, pp. 36, 39, 42. Only after considering all of these factors, this Court found that
Appellant's actions required a sentence be imposed in the aggravated range. N.T. 7/15/2022, p.
Appellant's actions required asentence be imposed in the aggravated range. N.T. 7/15/2022, p.
42. 42.
21
21
 --- -

Accordingly, this Court submits that Appellant's
Appellant's tenth through eighteenth allegations
through eighteenth allegations of
of

error are without merit and should be dismissed.

CONCLUSION
CONCLUSION

Based on
Based on all
all of
of the
the forgoing,
forgoing, this
this Court respectfully submits
Court respectfully submits that
that Appellant's
Appellant's eighteen
eighteen

issues on appeal are without merit. Furthermore, this Court respectfully submits that
respectfully submits the Guilty
that the Guilty

Verdict of April 13, 2022 by a
a jury of Appellant's peers, following an exceedingly
peers, following exceedingly fair
fair Trial,
Trial, with
with

Lastly, it
qualified Trial Counsel representing his interests, should be affirmed. Lastly, it is
is respectfully
respectfully
submitted that this Court's July 15, 2022, Sentencing Order, which followed
followed aacomprehensive
comprehensive

review of all relevant sentencing information, and which had followed the Appellant's
Appellant's conviction
conviction

based on overwhelming evidence of guilt that Appellant committed the erimes
crimes of Possession with
Possession with

Intent to Deliver aaControlled Substance-Heroin",
Substance—Heroin' °, Possession with Intent to
to Deliver
Deliver a
a Controlled
Controlled

Substance—Methamphetamine• 1,Criminal Conspiracy
Substance-Methamphetamine!', Conspiracy— Possession with Intent to Deliver
Intent to Deliver aa

Substance--(a) Heroin and (b)
Controlled Substance-{a) (b) Methamphetamine 12 ,Possession of a
Methamphetamine', Controlled
a Controlled

Substance--(a)
-(a) Heroin and
Substance and (b) Methamphetamine 13 ,
Methamphetamine", and Possession of Paraphernalia
Paraphernalia"14 should
should also
also

be affirmed. Accordingly, this Court respectfully requests that all issues raised by Appellant be
by Appellant be

determined to be without merit and that Appellant's appeal
appeal be dismissed in its entirety.
its entirety.

Date: ld
ll• U •

10 35 P.S.
3$PS. §$ 780-113(x)(30)
780-113(a)030)
11 35 P.S.
3$PS. §$780-113(a)830)
780-113(a)(30)
18 Pa.C.S. §$903
1218PCS. 903
35 P.S. $780-113(a)015
1)3$PS. § 780-113(a)(15)
35 P.S. §$ 780-113(a)(32)
1°35P.$. 780-1136832)
22
 PROOF OF SERVICE
PROOF OF SERVICE

I hereby certify that I served this day the foregoing
Ihereby certify that Iserved this day the foregoing
documents upon the persons and in the manner indicated below, which
documents upon the persons and in the manner indicated below, which
service satisfies the requirements of Pa. R.A.P. 121:
service satisfies the requirements of Pa. R.A.P. 121:

Service in person
Service in person
as follows:
as follows:

Hon. Brian T. McGuffi
Hon. Brian T. McGuffin
(215) 348-6606
(215) 348-6606
Judges Chambers
Judges Chambers
Bucks County Justice Center
Bucks County Justice Center
Doylestown, PA 18901
Doylestown, PA 18901

Matthew Weintraub
Matthew Weintraub
District
District Attorney
Attorney
(215) 348-6344
(215) 348-6344
District Attorney's Office
District Attorney's Office
Bucks County Justice Center
Bucks County Justice Center
Doylestown, PA 18901
Doylestown, PA 18901
Attorney for Appellee
Attorney for Appellee

DATED: BY:
. £ /
CR1sis.
CHRISTA
DUNLEAVY
S. DUNLEAVY
CHIEF DEPUTY PUBLIC DEFENDER
CHIEF DEPUTY
ATTORNEY 476134DEFENDER
IDPUBLIC
ATTORNEY ID # 76134
PUBLIC DEFENDER'S OFFICE
PUBLIC
BUCKS DEFENDER'S OFFICECENTER
COUNTY JUSTICE
BUCKS COUNTY JUSTICE
DOYLESTOWN, PA 18901 CENTER
DOYLESTOWN,
(215) 348-6473PA 18901
(215) 348-6473
EMAIL: slspickler@buckscounty.org
EMAIL: slspickler@buckscounty.org
ATTORNEY FOR APPELLANT
ATTORNEY FOR APPELLANT