Com. v. Almodovar-Rivera, L. ( 2021 )

J-S30017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS MANUEL ALMODOVAR-RIVERA :
:
Appellant : No. 211 MDA 2021
Appeal from the Judgment of Sentence Entered December 30, 2020
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001040-2019
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 23, 2021
Luis Manuel Almodovar-Rivera (Appellant) appeals from the judgment
of sentence entered in the Lebanon County Court of Common Pleas following
his jury conviction of one count of attempted possession with intent to
distribute (PWID), cocaine.1 Appellant challenges the denial of his pretrial
suppression motion, arguing his arrest was not supported by probable cause.
For the reasons below, we affirm.
The facts relevant to Appellant’s suppression claim are as follows.2 Prior
to May 30, 2019, the US Postal Service notified Pennsylvania State Police they
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 901(a); 35 P.S. § 780-113(a)(30).
2At Appellant’s pretrial hearing, the Commonwealth presented no testimony,
but instead rested on the preliminary hearing transcript. See N.T., Pretrial
(Footnote Continued Next Page)
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received a package containing cocaine addressed to Appellant’s residence in
Lebanon County, Pennsylvania. N.T., Preliminary H’rg, at 8 (unpaginated);
Trial Ct. Op. 1/9/20, at 2. After notifying police, the post office delivered the
package to Appellant’s address on May 30, 2019. N.T., Preliminary H’rg, at
1, 9; Trial Ct. Op. 1/9/20, at 2. Pennsylvania State Trooper Clint Long
conducted surveillance on the package after delivery. N.T., Preliminary H’rg,
at 2. Trooper Long observed Appellant in the area “approximately 45 minutes”
after the package was delivered. Id. He stated “it looked like [Appellant] was
conducting counter-surveillance [ ] prior to going to his residence[,] checking
for anyone that could be out of place as far as police officers or law
enforcement.” Id. After 15 minutes of “counter-surveillance,” Appellant
“drove to his residence, left the driver’s door open, walked up to the front
stoop, picked up the parcel[,] walked back to his vehicle, [and] closed the
door.” Id. Appellant had the package for “a minute at most” before Trooper
Long arrested him. Id. at 12. Trooper Long arrested Appellant “as soon as
he got to his vehicle [because he] didn’t want a pursuit or anything like that.”
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H’rg, 11/6/19, at 2-3. From our review of the record, it seems neither party
requested a certified copy of the preliminary hearing transcript. An unofficial
copy, typed by the Commonwealth, was included in the reproduced record.
See Reproduced Record at 16a-29a; N.T., Pretrial H’rg, at 2. Appellant
stipulated to the accuracy of the Commonwealth’s typed transcript. N.T.,
Pretrial H’rg, at 5. Upon this Court’s inquiry, on November 8, 2021, the trial
court issued an order making this copy part of the certified record. See Order
11/8/21, Exhibit A. Although the preliminary hearing transcript is not dated,
the docket reveals Appellant’s charges were held for court on June 27, 2019.
We will refer to the transcript as “N.T., Preliminary H’rg.”
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Id. The package contained an amount of cocaine that was consistent with
intent to deliver. Id. at 8. The name on the package was “Manuel Rivera,”
Appellant’s middle and last names. Id. at 3.
Appellant was charged with one count each of PWID and criminal
attempt. On September 3, 2019, Appellant filed a pretrial motion, seeking,
inter alia, suppression of the evidence obtained as a result of the warrantless
arrest. Appellant’s Omnibus Pretrial Motion, 9/3/19, at 3 (unpaginated). On
November 6, 2019, the trial court held a hearing on the motion.
On January 9, 2020, the trial court denied Appellant’s pretrial motion,
and the case proceeded to a jury trial on November 19, 2020. At the
conclusion of the Commonwealth’s case-in-chief, Appellant moved for
acquittal on both charges. The trial court granted Appellant acquittal on the
charge of PWID and the jury convicted Appellant on one count of attempted
PWID. On December 30, 2020, the trial court sentenced Appellant to a term
of 5 to 10 years’ incarceration.
Appellant filed a notice of appeal and timely complied with the trial
court’s order to file a concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b). 3
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3Appellant’s 1925(b) statement alleged six additional issues which Appellant
has abandoned on appeal. The trial court issued an opinion on April 8, 2021,
addressing Appellant’s abandoned claims. See Trial Ct. Op. 4/8/21. The trial
court did not address Appellant’s suppression claim in its April 8, 2021,
opinion. However, it addresses this issue in detail in its January 9, 2020,
opinion, accompanying the order denying his motion to suppress physical
evidence.
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Appellant raises one issue on appeal:
Whether the [t]rial [c]ourt erred by denying [Appellant’s pretrial]
motion to suppress the use of evidence obtained after an
unconstitutional search and seizure and arrest without a
warrant[?]
Appellant’s Brief at 4.
In his sole claim on appeal, Appellant argues the Commonwealth
presented no evidence the package containing cocaine was mailed to him or
that he knew its contents. Appellant’s Brief at 10. Appellant avers his name
was not on the package, but it was merely “a name close to” his. Id. He
maintains that because Trooper Long did not “wait to observe [his] reaction”
upon opening the package, there was no evidence he knew the package
contained cocaine. Id. at 10-11. Appellant contends Trooper Long thus
“acted without probable cause” in his arrest. Id. at 11. Appellant states the
trial court erred when it “relied heavily” on post-arrest evidence and evidence
not admitted at the preliminary or pretrial hearings. Id. Further, Appellant
contends that under Commonwealth v. Alexander, 243 A.3d 177 (Pa.
2020), a warrantless vehicle search requires both probable cause and exigent
circumstances. Id. at 10.
Our standard of review is well-settled:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When
reviewing the ruling of a suppression court, we must
consider only the evidence of the prosecution and so much
of the evidence of the defense as remains uncontradicted
when read in the context of the record as a whole. Where
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the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
It is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given
their testimony.
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (citations
and punctuation omitted).
This Court has stated:
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
[stop], and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the belief
that the suspect has committed or is committing a crime. The
question we ask is not whether the officer’s belief was correct or
more likely true than false. Rather, we require only a probability,
and not a prima facie showing, of criminal activity. In determining
whether probable cause exists, we apply a totality of the
circumstances test.
Commonwealth v. Bozeman, 205 A.3d 1264, 1277 (Pa. Super. 2019)
(emphasis and citation omitted).
In the instant case, Appellant challenges whether police had probable
cause to effectuate his arrest based on the information known to them at the
time. The trial court found the following factors supported a finding of
probable cause: (1) the package was addressed to and delivered to
Appellant’s home; (2) the package was addressed to Appellant’s middle and
last names, “Manuel Rivera;” (3) Appellant “spent approximately [15] minutes
surveilling the package, seemingly to ensure the absence of law
enforcement[;]” and (4) when Appellant went to obtain the package, he
“parked his vehicle near the residence[ ], left the driver’s side door open,
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retrieved the package and, attempted to drive away[.]”4 Trial Ct. Op. at 5-6.
We agree with the trial court that the Commonwealth established probable
cause for Appellant’s arrest.
The United States Post Office notified the police that they intercepted a
package with a large amount of cocaine. N.T., Preliminary H’rg, at 8; Trial Ct.
Op. 1/9/20, at 2. After receiving this tip, Trooper Long set up a controlled
delivery where he observed Appellant engaging in “counter-surveillance” of
the package. N.T., Preliminary H’rg, at 2; Trial Ct. Op. 1/9/20, at 2. Trooper
Long has been a Pennsylvania State Trooper since 2010 where he has
participated in drug law enforcement strike force units, received “specialized
training in drug deliveries, identification[,] and use[,]” and “has filed charges
on individuals who possessed controlled substances with the intent to deliver
more than [25] times.” N.T., Preliminary H’rg, at 3, 5-7; Trial Ct. Op. at 6.
Trooper Long knew the package contained cocaine before approaching
Appellant. Thus, under the totality of the circumstances, based upon the
“reasonably trustworthy information” about the package contents, and
Appellant’s behavior “indicative of someone who knew that contraband was
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4 The trial court also relied on screenshots tracking the package, which were
obtained from Appellant’s phone after his arrest. This information cannot
retroactively be applied to a probable cause determination. See Bozeman,
205 A.3d at 1277 (“Probable cause is made out when the facts and
circumstances which are within the knowledge of the officer at the time of
the [stop]” are sufficient to establish a crime was committed) (emphasis
added). Nevertheless, Trooper Lang’s knowledge and observations before the
arrest, without the information from Appellant’s phone, rose to the level of
probable cause.
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located” in the package, we agree with the trial court’s conclusion that
Trooper Long had probable cause to arrest Appellant. Trial Ct. Op. at 5, 8;
see Bozeman, 205 A.2d at 1277. The combination of this reliable information
and observation of Appellant gave Trooper Lang a reasonable “belief that
[Appellant had] committed or [was] committing a crime.” See Bozeman,
205 A.2d at 1277.
With regard to Appellant’s contention that the Supreme Court’s recent
decision in Alexander is applicable, we remind Appellant that Alexander
applies to the search of vehicles. In this appeal, Appellant does not
challenge the search of his vehicle, but only the search of his person.
Appellant fails to argue how Alexander applies to the present facts. Thus,
we do not reach this claim. See Commonwealth v. Murchinson, 899 A.2d
1159, 1162 (Pa. Super. 2006) (finding waiver where Appellant did not develop
meaningful argument).
Furthermore, to the extent that Appellant argues the Commonwealth
did not present evidence that he knew the contents of the package, this claim
goes to the weight and sufficiency of the evidence supporting his conviction,
not whether the officers had probable cause to arrest him. Appellant does not
challenge the weight or sufficiency of the evidence on appeal, nor does he cite
to any legal authority supporting any such claim. Thus, this claim is also
waived. See Pa.R.A.P. 2119(a) (appellant’s argument must cite to authorities
as are deemed pertinent); see Murchinson, 899 A.2d at 1162.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2021
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