Com. v. Young, C. ( 2015 )


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  • J-A27008-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    CEDRIC YOUNG,
    Appellant                  No. 1288 WDA 2013
    Appeal from the Judgment of Sentence July 10, 2013
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0000532-2012
    BEFORE: BOWES, OLSON, AND STABILE, JJ.
    MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 19, 2015
    Cedric Young appeals from the judgment of sentence of five to ten
    years incarceration to be followed by five years probation after the court
    found him guilty of possession with intent to deliver (“PWID”), possession of
    a controlled substance, and conspiracy to commit PWID.       Since Appellant
    was sentenced under mandatory minimum statutes that have been declared
    unconstitutionally void, we are constrained to vacate his judgment of
    sentence and remand for resentencing. We affirm in all other respects.
    Monroeville Police and agents from the Office of the Attorney General
    were conducting an undercover narcotics operation at a Days Inn in
    Monroeville on December 12, 2011.      That investigation was unrelated to
    Appellant. However, during the course of that operation, law enforcement
    observed suspicious activity involving two hotel rooms, Room 319 and Room
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    329.   Specifically, OAG agents Timothy Yesho and Ronald Sepic witnessed
    numerous incidents between 3:00 p.m. and 4:30 p.m. that were consistent
    with possible drug transactions. Five of the occurrences happened between
    3:13 p.m. and 3:20 p.m. Two more instances happened between 4:15 and
    4:30. In each case, an individual would arrive on foot or in a vehicle and
    proceed to one of two rear stairwells. One or two African American males
    would then exit Room 319 and meet the other person in the stairwell for
    thirty seconds to a minute. The person who arrived at the Days Inn would
    then leave and the males would return to Room 319. Police did not actually
    witness any transactions.    Another agent, Francis Speranza, also saw a
    male, later identified as Robert Smiley, exit Room 329 and walk to Room
    319. Smiley and another male entered one of the stairwells and met two
    individuals who had driven to the Days Inn.
    During one of these suspected drug transactions, at approximately
    3:15 p.m., Agent Sepic saw a Hyundai vehicle enter the parking lot. There
    were three occupants in the vehicle. A white male left the car and entered
    one of the stairwells.   An African American male exited Room 319 and
    entered the same stairwell. The white male then returned to the car and the
    black male to the hotel room. Agent Sepic provided Agent Speranza with a
    description and license number of the Hyundai.
    Agent Speranza observed the car pull to the front of the Days Inn and
    park. The driver of the car, a woman, exited the vehicle and opened a rear
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    door. The woman then injected the back seat passenger with a substance.
    Agent Speranza believed that the person had just used heroin and radioed
    Detective John Trukla of the Monroeville Police.   Police then effectuated a
    traffic stop of the Hyundai and arrested the individuals.   Police discovered
    twelve stamp bags of heroin, which were marked “Juliette,” and also
    recovered a syringe and spoon.
    Agent Speranza consulted with a deputy attorney general regarding
    procuring a search warrant for Rooms 319 and 329.      The deputy attorney
    general agreed that probable cause existed and instructed the agent to
    secure the rooms if any individuals were observed leaving the rooms while
    the search warrant application was being prepared.     Police secured room
    keys for Room 319 and 329.       Shortly thereafter, Smiley was seen exiting
    Room 329. Officers detained him, and Agent Yesho, Detective Trukla, Agent
    Andrew Sakmar, and an additional Monroeville police officer went to secure
    Room 319.     When they approached the hotel room door, they detected a
    strong marijuana odor coming from inside.
    Agent Yesho knocked and announced twice, “Police.”              No one
    answered the door, but the officers could hear movement and muffled voices
    inside. Detective Trukla then used a pass key to open the door. The door
    was opened several inches, and a haze of smoke emanated from the room.
    The door could not be opened completely because the security latch was
    secured. Agent Yesho saw a person run from the door toward what turned
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    out to be the restroom.    Detective Trukla forced the door open using his
    shoulder.
    Upon entering the room, police encountered Appellant and three other
    individuals, Anthony Williams, Gerald Lee, and Darryl Nelson. Williams had
    run into the bathroom and was followed by Agent Yesho and Detective
    Trukla.   Detective Trukla discovered fifty-six stamp backs of heroin in the
    toilet. Also inside the room, in plain view, were bricks of suspected heroin,
    plastic baggies, and cash on the beds, floor, and dressers.     Thirty-seven
    stamp bags of heroin, marked “Juliette,” and $119 were on Appellant’s
    person. Police also recovered 257 stamps bags of heroin from Williams, who
    also possessed $1400. Nelson was found in possession of $567. Police also
    discovered $940 from a nightstand, $405 on a bed, $75 on another bed, and
    $1,200 in a cigar box. In addition, fifty stamp bags were found in a trash
    basket and 310 bags of heroin were located on a bed. Police did not find
    any syringes or other paraphernalia used to ingest heroin.
    Marijuana blunts were in an ashtray, ten cellphones were in the room,
    and a loaded .45 caliber pistol was found under one of the mattresses. Lee’s
    fingerprint was on that weapon. In Room 329, police also located a stolen
    loaded 9mm Glock pistol, two magazines for the weapon, a box of 9mm
    ammunition, and two boxes of .45 caliber ammunition.
    The Commonwealth charged Appellant with two counts each of PWID
    heroin and possession of heroin, and one count each of receiving stolen
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    property and conspiracy to commit PWID. Appellant adopted a suppression
    motion filed by co-defendant Williams.        The trial court conducted a
    suppression hearing on March 25, 2013, relative to Appellant, Williams, Lee,
    and Nelson. The court denied the suppression motion and Appellant waived
    his jury trial rights.   The court conducted a bench trial.   After granting
    Appellant’s motion for judgment of acquittal on the receiving stolen property
    count, the court found Appellant guilty of one count each of PWID,
    possession of heroin, and conspiracy. On April 19, 2013, the Commonwealth
    informed Appellant that it intended to seek mandatory minimum sentences
    under 18 Pa.C.S. § 7508 and 42 Pa.C.S. § 9712.1.
    The court conducted a sentencing hearing on July 10, 2013.           It
    sentenced Appellant to a mandatory term of incarceration of five to ten
    years for PWID and a consecutive period of five years probation for
    conspiracy.    The possession charge merged with the PWID count and
    therefore the court imposed no sentence on that charge. This timely appeal
    ensued.   The trial court directed that Appellant file and serve a Pa.R.A.P.
    1925(b) concise statement of errors complained of on appeal.       Appellant
    complied, and the trial court authored its Rule 1925(a) opinion. The matter
    is now ready for this Court’s review.
    Appellant presents two issues for our consideration.
    A. Under Pennsylvania law, does the Commonwealth survive a
    sufficiency challenge to the charges of possession with intent to
    deliver narcotics and conspiracy to receiving stolen property
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    when the Appellant is merely present in a hotel room that is
    rented by one of multiple co-defendants where large amounts of
    drugs are found on the bed, a stolen gun is retrieved from under
    a mattress, a fingerprint to the gun is linked to the renter of the
    same room and the Appellant is only found to have a small
    amount of drugs and cash on his person that is consistent with
    personal use?
    B. Under Pennsylvania and United States’ law, did the trial court
    commit error by denying a pre-trial motion to suppress evidence
    seized from a warrantless search of a hotel room, when agents
    failed to articulate probable cause for a warrant, obtain a
    passkey from the hotel desk for a specific room, use the pass
    key on the room, break the latch on the door after the door
    would not open, seize evidence from a room then later attempt
    to get ‘voluntary consent to search’ from the renter while he is in
    handcuffs, plainly asserted his right to remain silent and [was]
    surrounded by agents?
    Appellant’s brief at 5.1
    Appellant’s initial claim pertains to the sufficiency of the evidence. In
    performing a sufficiency review, we consider all of the evidence admitted,
    even improperly admitted evidence. Commonwealth v. Watley, 
    81 A.3d 108
    , 113 (Pa.Super. 2013) (en banc). We view the evidence in a light most
    favorable to the Commonwealth as the verdict winner, drawing all
    reasonable inferences from the evidence in favor of the Commonwealth. 
    Id.
    The evidence “need not preclude every possibility of innocence and the
    fact-finder is free to believe all, part, or none of the evidence presented.”
    ____________________________________________
    1
    In the argument portion of his brief, Appellant inverts the order in which he
    addresses his claims, arguing his suppression issue first. However, since a
    successful sufficiency challenge warrants discharge, we address that
    contention first.
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    Id.
       When evidence exists to allow the fact-finder to determine beyond a
    reasonable doubt each element of the crimes charged, the sufficiency claim
    will fail.   
    Id.
        In addition, the Commonwealth can prove its case by
    circumstantial evidence. Where “the evidence is so weak and inconclusive
    that, as a matter of law, no probability of fact can be drawn from the
    combined circumstances[,]” a defendant is entitled to relief. 
    Id.
     This Court
    does not “re-weigh the evidence and substitute our judgment for that of the
    fact-finder.” 
    Id.
    Appellant argues that because he only possessed a small amount of
    cash and that the amount of heroin on his person was consistent with
    personal use, insufficient evidence was introduced to show that he
    committed both PWID and conspiracy to commit PWID.          He continues by
    asserting that his mere presence at the crime scene is not sufficient to show
    a conspiracy. Appellant contends that the Commonwealth did not prove that
    he actually possessed the large amount of drugs in the room or the firearm
    and that it did not show that he constructively possessed the heroin not
    recovered on his person.
    The Commonwealth relies on this Court’s decision in Commonwealth
    v. Vargas, 
    108 A.3d 858
     (Pa.Super. 2014) (en banc), to counter Appellant’s
    positions. In Vargas,
    [defendant] was inside a hotel room with two other individuals
    while a third person remained outside in a Chevy Impala with a
    New Jersey license plate. The person in the Impala had indicated
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    to police that the owner of the car was in the [hotel] room where
    police located Appellant. Police secured a search warrant for the
    [hotel] room and found four bags of heroin on another individual
    who was in the hotel room with Appellant. Also, police observed
    a large Ziploc bag that ordinarily contains smaller Ziploc bags,
    which one officer described as being used almost exclusively for
    the packaging of narcotics. Rubber bands, frequently used in
    packaging drugs, were found floating in the toilet, which
    appeared to have been flushed just before police arrived. Drug
    sniffing dogs performed a sniff on the outside of both Appellant's
    car and the Impala, which belonged to Francisco Saldana, one of
    the men who was inside the hotel room with Appellant. The dog
    alerted on both cars. Police then obtained a search warrant for
    the vehicles. Inside Mr. Saldana's car, police found a bag
    containing over 370 grams of heroin and a loaded .40 caliber
    semi-automatic pistol. These items were located in a secret
    compartment in the vehicle. Part of the drugs found in Mr.
    Saldana's vehicle were packaged in balloon and condom-like
    wrappers. . . .
    Inside the hotel room, an industrial-sized trash bag and
    large blue plastic containers were seized. The bag and containers
    as well as a trash can in the room contained numerous items
    used to package heroin, including rubber stamps, wax paper,
    digital scales, empty condom wrappers similar if not identical to
    those used to package the drugs in Mr. Saldana's car, thousands
    of one-inch-by-one-inch Ziploc bags, grinders, and lamps. The
    trash bag and plastic containers were on the floor of the [hotel]
    room and were not hidden. Six grinders and two scales tested
    positive for either cocaine or heroin residue. Additional
    packaging in the room tested positive for heroin residue. A
    surveillance video of Mr. Saldana entering the hotel room
    showed that he had arrived at the hotel shortly before the police
    and had entered the hotel room without any of the plastic
    containers or trash bag. No luggage or bags were located in
    Appellant's vehicle. Expert testimony was introduced that the
    materials recovered indicated a mobile heroin packaging mill.
    Vargas, supra at 866 (internal citation omitted). The Vargas Court held
    that the evidence was sufficient to establish PWID and conspiracy.
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    In the instant case, viewing the evidence in a light most favorable to
    the Commonwealth and thereby giving it the benefit of the reasonable
    inferences derived therefrom, the pertinent proof is sufficient to establish the
    aforementioned crimes.    Only by setting aside our standard of review can
    this evidence be viewed as Appellant merely being present while others were
    packaging heroin for purposes of distribution.
    Determining whether a person possessed a drug with an intent to
    deliver is based upon the totality of circumstances.      Commonwealth v.
    Ratsamy, 
    934 A.2d 1233
     (Pa. 2007). As it relates to conspiracy, we have
    outlined that:
    “To sustain a conviction for criminal conspiracy, the
    Commonwealth must establish the defendant: 1) entered into an
    agreement to commit or aid in an unlawful act with another
    person or persons; 2) with a shared criminal intent; and 3) an
    overt act was done in furtherance of the conspiracy.”
    Commonwealth v. Devine, 
    26 A.3d 1139
    , 1147 (Pa.Super.
    2011). “The conduct of the parties and the circumstances
    surrounding such conduct may create a web of evidence linking
    the accused to the alleged conspiracy beyond a reasonable
    doubt.” 
    Id.
     The conspiratorial agreement “can be inferred from
    a variety of circumstances including, but not limited to, the
    relation between the parties, knowledge of and participation in
    the crime, and the circumstances and conduct of the parties
    surrounding the criminal episode.” 
    Id.
    Commonwealth v. Feliciano, 
    67 A.3d 19
    , 25-26 (Pa.Super. 2013) (en
    banc).
    Here, Appellant not only possessed thirty-seven bags of heroin on his
    person, bags which were marked the same as those recovered from a
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    vehicle that had just left the Days Inn, but a vast quantity of stamp bags
    were also located inside the room. Appellant did not possess a syringe or
    spoon when arrested.        Huge amounts of cash were inside the hotel room.
    Appellant’s cohorts also possessed either drugs and money or large amounts
    of cash on their person. Stamp bags of heroin were inside both a toilet and
    trash can.     This case is not close to being akin to a situation where the
    evidence is so weak and inconclusive that no probability of fact could be
    drawn therefrom. Appellant’s sufficiency argument is entirely without merit.
    We now consider Appellant’s suppression issue, and in light of our
    recent decision in Commonwealth v. Haynes, 
    116 A.3d 640
     (Pa.Super.
    2015), find he is entitled to no relief.2          Appellant contends that neither
    probable cause nor exigent circumstances existed in this matter. He asserts
    that Agent Yesho could not state with certainty that he saw drug
    transactions outside the hotel room, and used a key to enter without a
    warrant.     Appellant contends that Agent Sepic did not witness a drug
    transaction, but simply observed individuals leave a stairwell.           Further,
    Appellant maintains that even if a drug transaction did occur outside, it
    would not give rise to probable cause to search Appellant’s room.
    ____________________________________________
    2
    Appellant fails to meaningfully confront the Haynes decision in his brief
    and does not acknowledge its existence. We are aware that Haynes was
    decided after the suppression motion was filed in this matter. However, it
    was filed before the briefs in this case were submitted.
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    Additionally, Appellant submits that there were no exigent circumstances in
    this matter and that any exigency was created by the police.
    The Commonwealth responds that both probable cause and exigent
    circumstances existed and that this case is controlled by Haynes, supra.
    As it relates to probable cause, the Commonwealth sets forth that “probable
    cause    exists   where   there   is    a   probability   of   criminal   activity.”
    Commonwealth’s brief at 25 (quoting Commonwealth v. Dukeman, 
    917 A.2d 338
    , 341 (Pa.Super. 2007)). It posits that law enforcement personnel
    witnessed seven instances of unusual activity in which persons exited a
    room at the Days Inn and would meet in a stairwell with other persons who
    drove to the Days Inn.    These meetings would last for approximately one
    minute before the individuals from the hotel would return to their room and
    those who had arrived would leave.          It highlights that after one of these
    incidents, a person was observed injecting another individual with what was
    believed to be heroin. The Days Inn in question was noted as a high drug
    trafficking area and police stopped a vehicle after observing the suspected
    drug transactions. The individuals in that car possessed heroin.
    With respect to exigent circumstances, the Commonwealth relies
    extensively on Haynes, supra.           Therein, state police were conducting
    surveillance outside an apartment complex. Police observed what appeared
    to be drug sale activity and effectuated a traffic stop of a vehicle in which an
    occupant was believed to have purchased drugs. The driver of the car was
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    found with heroin and admitted to buying heroin from a woman at the
    apartment complex. A woman was seen leaving one of the buildings in the
    complex and meeting a series of persons in the parking lot and taking part in
    what appeared to be hand-to-hand drug transactions. This activity occurred
    on three occasions. Police followed the woman, but were unable to intercept
    her before she entered the apartment. Officers then knocked and asked to
    speak to the renter. Police heard rumbling inside, identified themselves as
    police, and asked for the door to be opened. No one responded, and after
    approximately thirty seconds, police forced entry. They found in plain view
    nine bricks of heroin, money, and burnt marijuana blunts. On appeal,
    Haynes alleged that the warrantless entry was unlawful and violated his
    Fourth Amendment and Article I, § 8 rights.
    This Court undertook a lengthy discussion of the historical meaning
    and purpose of the constitutional warrant protections and the common law
    authority to conduct warrantless entry into a residence. We concluded that
    police therein did not act unconstitutionally by improperly creating their own
    exigency. Haynes is directly analogous to the present case. Here, similar
    to Haynes, police observed suspicious activity that they believed involved
    narcotics transactions.   In each case, police stopped a vehicle in which
    occupants were suspected of engaging in the purchase of narcotics.       That
    stop resulted in the recovery of heroin. Police here then approached a room
    where it was suspected that the drug dealers were operating and knocked
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    and announced their presence. In both Haynes and this case, the smell of
    marijuana was emanating from the room and those inside refused to open
    the door. Police then entered and found drugs and money in plain view. For
    reasons fully delineated in Haynes, Appellant’s claim fails.
    However, as in Haynes, Appellant was also sentenced to a mandatory
    minimum sentence.       The statutory authority for that sentence has been
    declared to be unconstitutional in its entirety and to present a legality of
    sentence question. See Haynes, supra (discussing cases). Therefore, we
    are constrained to find that Appellant’s sentence must be vacated.
    Judgment of sentence vacated.          Case remanded for resentencing.
    Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/19/2015
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Document Info

Docket Number: 1288 WDA 2013

Filed Date: 11/19/2015

Precedential Status: Precedential

Modified Date: 11/19/2015