Com. v. Peralta-Gonzalez, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMBIORIS A. PERALTA-GONZALEZ :
:
Appellant : No. 1093 MDA 2019
Appeal from the Judgment of Sentence Entered May 20, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000714-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 31, 2020
Appellant, Ambioris A. Peralta-Gonzalez, appeals from the May 20, 2019
Judgment of Sentence entered in the Berks County Court of Common Pleas
following his jury conviction of Possession of a Controlled Substance,
Possession with Intent to Deliver (“PWID”), and Possession of Drug
Paraphernalia.1 Appellant challenges the denial of his Motion to Suppress, and
the weight and sufficiency of the Commonwealth’s evidence. After careful
review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
135 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32), respectively. The drug
paraphernalia the jury convicted Appellant of possessing pursuant to Section
780-113(a)(32) was the cellophane packaging surrounding the softball-sized
ball of more than 200 grams of cocaine.
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On December 15, 2017, at approximately 8:30 AM, Pennsylvania State
Police Trooper Justin Hope observed Appellant, who was driving a 2008 Jeep
Cherokee, change lanes without using his turn signal. Trooper Hope
effectuated a traffic stop.2
The Jeep had a New York license plate. Appellant, a male, was the
Jeep’s only occupant. Appellant, who speaks primarily Spanish, informed
Trooper Hope, who speaks primarily English, that his friend “Robert” had
purchased the Jeep a few months earlier at auction, and that “Robert” had
loaned it to Appellant. Trooper Hope determined, however, that, although the
Jeep was an older model, it had been recently registered to a woman in
Brooklyn, New York.
Upon request, Appellant produced his New Jersey issued driver’s license
indicating that he lived in Patterson, New Jersey. Appellant also produced the
Jeep’s vehicle registration and insurance cards, none of which were in
Appellant’s name. Appellant had no personal effects in the passenger
compartment of the Jeep other than a cell phone and charger, and the ring
holding the Jeep ignition key had only that single key on it.
Appellant told Trooper Hope that he was traveling from New Jersey to
pick up a friend in Reading to go to an auto auction in Lancaster to buy a car,
and then both he and his friend were going to return to New Jersey.
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2Changing lanes without activating a turn signal is a violation of 75 Pa.C.S. §
3334 for which Trooper Hope subsequently wrote Appellant a ticket. N.T.
Suppression Hr’g, 11/2/18, at 51.
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Appellant’s travel plans did not make sense to Trooper Hope and Trooper Hope
found Appellant’s itinerary “significant” because Appellant was coming from
Patterson, New Jersey, which he characterized as a known “major source of
narcotics . . . especially for heroin[,]” and going to Reading, a “major
destination area for narcotics.”3
Prior to pulling Appellant over, Trooper Hope had noticed that the spare
tire mounted to the undercarriage of the Jeep appeared to be hanging several
inches below the Jeep’s rear bumper. This indicated to him that the tire was
likely concealing a false compartment under the Jeep. Thus, during the traffic
stop, Trooper Hope crawled under the rear of the Jeep and, using a flashlight,
inspected its undercarriage. Trooper Hope observed a false compartment
above the spare tire bolted to the undercarriage and painted to match the
undercarriage. Based upon this observation, Trooper Hope returned to his
vehicle and requested that a Pennsylvania State Police K-9 unit search the
Jeep.
While he waited for the K-9 unit to arrive, Trooper Hope, using his
limited Spanish vocabulary and Google Translate, obtained Appellant’s oral
consent to search the vehicle for drugs and guns. In addition, Trooper Hope
gave Appellant a consent to search form written in Spanish on which Appellant
wrote his first name on the signature line. Trooper Hope explained to
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3 N.T. Suppression Hr’g 11/2/18, at 29, 35, 91-92.
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Appellant that he did not have to consent to the search, to which Appellant
responded, that he “had no problem.”4
When the K-9 unit arrived, the dog “alerted” to narcotics in the rear
cargo area of the Jeep. Trooper Hope then opened the hidden compartment
and recovered a cellophane-wrapped softball-sized ball of cocaine weighing
209.72 grams.
At approximately 10:40 AM, Trooper Edgardo Lugo arrived to assist
Trooper Hope by providing translation services. Appellant informed Trooper
Lugo that the Jeep did not belong to “Robert,” but instead belonged to another
person who owed “Robert” money. Appellant reported that “Robert” was
holding the Jeep as collateral and that he had permitted Appellant to use it.
Appellant did not offer the troopers any proof that either the registered owner
of the Jeep or “Robert” had authorized Appellant to use it. Appellant also
informed Trooper Lugo that he had deleted his Reading friend’s contact
information and their text message conversation from his phone.5
Trooper Hope arrested Appellant and charged him with various drug
possession and trafficking offenses.
Appellant filed, inter alia, Motions to Suppress Physical Evidence and
Statements. The suppression court held hearings on Appellant’s Motions at
which Trooper Hope, Appellant, and Maria Lopez, a translation expert,
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4 N.T. Suppression Hr’g, 11/2/18, at 56-57.
5 Transcript of Dash Camera Video in English/Spanish, 12/15/17, at 29.
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testified. The suppression court also admitted the transcript of conversations
between Appellant and the police officers recorded by Trooper Hope’s dash
camera. Following the hearings, the court denied Appellant’s suppression
motions, concluding that Appellant did not have a reasonable expectation of
privacy in the vehicle. Suppression Ct. Conclusions of Law, 2/5/19, at 17.
The case proceeded to a jury trial where the Commonwealth established
the aforementioned facts.6 Additionally, the Commonwealth presented
testimony from Trooper Luke Straniere, an expert in drug interdiction, who
testified that, in his expert opinion, Appellant possessed the drugs found in
the Jeep with the intent to deliver them.7
Appellant also testified at trial.8 Relevantly, he testified that he had
been driving the Jeep for 15 to 20 days before Trooper Hope stopped him. He
testified that during that time, someone else had borrowed the Jeep and had
been driving it for the five days before the traffic stop.9
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6The Commonwealth also presented the testimony of Trooper Hope’s partner,
Trooper Thomas Fleisher, Trooper Reed, and Jordan Tuttle, who had formerly
been employed by the Pennsylvania State Police Forensic Services Unit.
7 N.T. Trial, 4/3/19, at 285-304.
8 Appellant also offered character testimony from his mother and the mother
of his children.
9 N.T. Trial, 4/3/19, at 454, 459.
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Appellant also presented the testimony of Trooper Lugo. He testified
that he recalled Appellant explaining that someone other than him had used
the Jeep between 10 and 12 days before the traffic stop.10
On April 9, 2019, the jury convicted Appellant of the above offenses.
On May 20, 2019, the court sentenced Appellant to an aggregate term of 3 to
10 years’ incarceration. On May 29, 2019, Appellant filed a Post-Sentence
Motion, which the court denied on June 3, 2019.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant has raised the following issues for our review:
1. Whether the [c]ourt erred by denying [Appellant’s] Pre-Trial
Motion to Suppress?
a. Whether the [c]ourt erred by finding the traffic stop was
supported by reasonable suspicion?
b. Whether the [c]ourt erred in finding that the Trooper’s
search of the underside of the vehicle with the use of a
flashlight did not constitute a search requiring probable
cause and/or a warrant?
c. Whether the [c]ourt erred in finding that [Appellant’s]
consent was valid?
2. Whether the evidence at trial was insufficient to prove
[Appellant] guilty of all of the crimes of his conviction as the
elements of intent were not made out?
3. Was the verdict against the weight of the evidence [insofar] as
there was evidence of good character and no evidence that
[Appellant] knew that the narcotics were secreted in the vehicle?
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10 N.T. Trial, 4/3/19 at 378-79.
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Appellant’s Brief at 9.
Motion to Suppress
In his first issue, Appellant challenges the denial of his Motion to
Suppress. When we review the denial of a Motion to Suppress, “we are limited
to considering only the Commonwealth’s evidence and so much of the
evidence for the defense as remains uncontradicted when read in the context
of the record as a whole.” Commonwealth v. Yorgey, 188 A.3d 1190, 1198
(Pa. Super. 2018) (en banc) (citation and internal quotation marks omitted).
When the testimony and other evidence support the trial court’s findings of
fact, this Court is bound by them and we “may reverse only if the court erred
in reaching its legal conclusions based upon the facts.” Id. (citation omitted).
We are highly deferential to the suppression court’s factual findings and
credibility determinations. Commonwealth v. Batista, 219 A.3d 1199, 1206
(Pa. Super. 2019). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (citations omitted). If the
record supports the suppression court’s findings, we may not substitute our
own findings. Bastista, 219 A.3d at 1206. However, we give no deference
to the suppression court’s legal conclusions and review them de novo. Id.
“The scope of review from a suppression ruling is limited to the
evidentiary record created at the suppression hearing.” Commonwealth v.
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Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016). Importantly, “[o]nce a motion
to suppress evidence has been filed, it is the Commonwealth’s burden to
prove, by a preponderance of the evidence, that the challenged evidence was
not obtained in violation of the defendant’s rights.” Commonwealth v.
Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012) (citing Pa.R.Crim.P. 581(H)).
In support of his claim that the suppression court erred in denying his
Motion to Suppress, Appellant advances four alternate arguments; we address
them seriatim.
Burden of Proof
The trial court denied Appellant’s Motion to Suppress because it found
that Appellant did not have a reasonable expectation of privacy in the Jeep
because he did not own it, it was not registered to him, and he did not provide
any evidence that he had the authority to operate it. Suppression Ct.
Conclusions of Law, 2/5/19, at 17. Appellant does not challenge this finding.
Rather, in his first issue, Appellant asserts that the trial court improperly
shifted the burden to establish that he had a reasonable expectation of privacy
onto him. Appellant’s Brief at 18-22. We conclude that Appellant waived this
argument.11
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11Moreover, even if Appellant had not waived this issue, it would not garner
him relief. The Commonwealth presented evidence at the Suppression
Hearing that Appellant did not own the Jeep, that it was not registered to
Appellant, and that Appellant did not offer the officers any proof that the Jeep’s
owner had authorized Appellant to operate it. The trial court properly relied
on this evidence when it concluded that Appellant did not have a reasonable
expectation of privacy in the Jeep.
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Pa.R.A.P. 1925(b)(4)(ii) directs that an appellant’s Concise Statement
of Errors Complained of on Appeal shall “concisely identify each error that the
appellant intends to assert with sufficient detail to identify the issues to be
raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). Further, a Rule 1925(b)
Statement must be sufficiently specific so as to afford the trial court the ability
to draft a meaningful opinion without resorting to speculation regarding what
issues or arguments appellant wishes to present. Commonwealth v.
Dowling, 778 A.2d 683, 686 (Pa. Super. 2001).
Our review of Appellant’s Rule 1925(b) Statement indicates that
Appellant claimed that the trial court erred in denying his Motion to Suppress
and advanced numerous theories in support of this assertion, not one of which
asserted that the trial court erred as a matter of law by shifting the burden of
proving that Appellant had a reasonable expectation of privacy onto Appellant.
See Rule 1925(b) Statement, 6/11/20, at 1-2. Because Appellant did not
raise this claim with “sufficient detail to identify” it, Appellant has waived it.
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any
issues not raised in a 1925(b) statement will be deemed waived.”).
Violation of the Motor Vehicle Code
Next, Appellant claims that the trial court erred in finding that the
Commonwealth established that Trooper Hope had a reasonable basis to
conclude that Appellant’s failure to signal when moving from the left lane of
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traffic to the right lane of traffic violated the Motor Vehicle Code. Appellant’s
Brief at 23-26. Appellant avers, without citation to supporting authority, that
he did not violate the Motor Vehicle Code by not using his signal when the
lane in which he was travelling split into two lanes. He concludes that, because
his conduct did not violate the Motor Vehicle Code, Trooper Hope did not have
a reasonable basis to effectuate a traffic stop. Id.
“A police officer has the authority to stop a vehicle when he or she has
a reasonable suspicion that a violation of the vehicle code has taken place, for
the purpose of obtaining necessary information to enforce the provisions of
the code.” Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super.
2013) (citing 75 Pa.C.S. § 6308(b)). However, “[f]or a stop based on [an]
observed violation of the Vehicle Code or otherwise non-investigable offense,
an officer must have probable cause to make a constitutional stop.”
Commonwealth v. Harris, 176 A.3d 1009, 1019 (Pa. Super. 2018); see
also Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)
(same).
Police have probable cause “where the facts and circumstances within
the officer’s knowledge are sufficient to warrant a person of reasonable caution
in the belief that an offense has been or is being committed. Brown, 64 A.3d
at 1105 (citation omitted). “We evaluate probable cause by considering all
relevant facts under a totality of circumstances analysis.” Id. (citation
omitted).
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Section 3334 of the Motor Vehicle Code prohibits a driver from
“mov[ing] from one traffic lane to another . . . without giving an appropriate
signal[.]” 75 Pa.C.S. § 3334(a).
Here, Trooper Hope testified at the suppression hearing that he
observed Appellant violate 75 Pa.C.S. § 3334 when Appellant’s “vehicle was
in the left lane” and he “moved [it] to the right lane and failed to use a turn
signal.” N.T. Suppression, 11/2/18, at 22. Appellant argues that Trooper
Hope lacked probable cause to find a violation of Section 3334 because
Appellant merely changed lanes when the lane in which he was driving split
into two lanes. Appellant, however, provides no legal authority for such an
exception to Section 3334, and Section 3334 does not create one. Rather,
the clear and unambiguous language of Section 3334 requires the use of a
turn signal when a driver is “moving” from one lane to another. Trooper
Hope’s testimony established that he reasonably believed that Appellant had
violated Section 3334 by “moving” from one lane to the new lane. That the
lane into which Appellant moved was new is irrelevant to the requirement that
Appellant signal his lane change. Thus, Trooper Hope had probable cause to
stop Appellant’s vehicle.12
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12The suppression court credited Trooper Hope’s testimony that he believed
Appellant had committed a violation of the Motor Vehicle Code. Suppression
Ct. Findings of Fact, 2/5/19, at ¶¶ 6-7.
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Warrantless Search
Third, Appellant asserts that Trooper Hope impermissibly “conducted a
warrantless search when he got on the ground, crawled under the vehicle, and
used a flashlight to inspect the underside of the vehicle.” Appellant’s Brief at
30. He contends that Trooper Hope did not have probable cause to perform
the inspection of the exterior undercarriage of the Jeep. Id. at 30-31. He
further asserts that the search performed by Trooper Hope “cannot be the
kind reasonably believed to be in the public view.” Id. at 31.
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of our state Constitution protect citizens from unreasonable searches
and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “The threshold
question in any Fourth Amendment inquiry is whether the conduct of the police
amounted to a search.” Commonwealth v. Smith, 85 A.3d 530, 536 (Pa.
Super. 2014) (citations, bracket, and ellipses omitted). “A search occurs when
the government intrudes on an area where a person has a ‘constitutionally
protected reasonable expectation of privacy.’” Commonwealth v. Robbins,
647 A.2d 555, 558 (Pa. Super. 1994) (quoting Katz v. United States, 389
U.S. 347, 360 (1967) (Harlan, J., concurring). “The examination of the
exterior of an automobile is not, for purposes of the Fourth Amendment, a
“search”; and generally a warrant therefor is not required.” Commonwealth
v. Grabowski, 452 A.2d 827, 831 (Pa. Super. 1982) (emphasis in original).
See also Cardwell v. Lewis, 471 U.S. 583, 592 (1974) (explaining that “a
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warrantless examination of the exterior of a car is not unreasonable under the
Fourth [] Amendment[.]”)
Trooper Hope testified that he “got on [his] back on the shoulder of the
road and looked under the Jeep above the spare tire area[,]” using nothing
more than his “naked eye,[ and] the aid of a flashlight.” N.T. Suppression
Hr’g, 11/2/18, at 43, 45. He testified, while narrating the dash camera video
shown to the court, that he was under the Jeep for “[j]ust a few seconds.”
Id. at 45. He affirmed that, while he may have touched the Jeep’s bumper to
balance himself, he did not “reach up and pull anything down or try to
manipulate any part of the undercarriage of the vehicle[]” or physically attach
anything to the underside of the Jeep. Id.
Appellant has claimed that Pennsylvania law required Officer Hope to
possess probable cause and obtain a warrant merely to examine visually the
exterior of the undercarriage of the Jeep with a flashlight. In support of this
claim, Appellant relies exclusively on U.S. v. Jones, 565 U.S. 400, 404
(2012), where the Supreme Court held that the government’s use of a GPS
device attached to the defendant’s car to monitor his car’s movements without
a valid warrant violated his Fourth Amendment rights.
Jones is factually and legally inapposite to the instant case. Trooper
Hope’s brief observation of the exterior of the undercarriage of Appellant’s
vehicle is not analogous to the physical intrusion onto the Jones defendant’s
vehicle by a GPS tracking device and the attendant tracking of the vehicle’s
movements. Moreover, Trooper Hope, while lawfully in a position underneath
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Appellant’s Jeep, viewed the false compartment with his naked eye and a
flashlight and then obtained Appellant’s consent to search the Jeep. Thus,
Jones is inapplicable.
Furthermore, Appellant has overlooked that Trooper Hope’s visual
inspection of the exterior of the undercarriage of the Jeep did not constitute a
“search” that would implicate the warrant requirements of the Fourth
Amendment. See Grabowski, 452 A.2d at 831; Cardwell, 471 U.S. at 592.
Because, Appellant did not have a constitutionally protected expectation of
privacy in the exterior of the undercarriage of the Jeep, he is not entitled to
relief on this claim.
Validity of Appellant’s Consent to Search
Last, Appellant claims that his consent and waiver to search was not
knowing, intelligent, and voluntary. Appellant’s Brief at 32-39.
It is well-settled that a search conducted without a warrant is
unreasonable and unconstitutional, unless an established exception to the
warrant requirement applies. Commonwealth v. Strickler, 757 A.2d 884,
888 (Pa. 2000). “One such exception is consent[.]” Id. “To establish a valid
consensual search, the Commonwealth must first prove that the consent was
given during a legal police interaction.” Commonwealth v. Bell, 871 A.2d
267, 273 (Pa. Super. 2005). Next, the Commonwealth must prove the
consent was given voluntarily. Id. In Pennsylvania, a person’s consent to a
warrantless search must be “unequivocal, specific, and voluntary.”
Commonwealth v. Gibson, 638 A.2d 203, 207 (Pa. 1994).
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As noted, supra, the interaction between Trooper Hope and Appellant
constituted a legal police interaction. Thus, we proceed to address whether
Appellant gave his oral and written consent to search the Jeep voluntarily and
knowingly.
Written Consent
Appellant advances numerous bald claims in support of his assertion
that his written consent was involuntary. He claims that: (1) in order to be
valid, a trooper must first complete in full all sections of the consent form; (2)
a defendant’s printed first name alone is insufficient to acknowledge consent;
and (3) the Pennsylvania State Police consent form is not valid unless its
Spanish translation accounts for variations among words and their meanings
across all Spanish-speaking countries. Appellant’s Brief at 36.
“[I]t is an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal
authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.
2007) (citations omitted). “This Court will not act as counsel and will not
develop arguments on behalf of an appellant.” Id. If a deficient brief hinders
this Court’s ability to address any issue on review, we shall consider the issue
waived. Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006)
(holding that the appellant waived his issue on appeal for failing to support
his claim with relevant citations to case law and the record). See also In re
R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (finding waiver where the argument
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portion of an appellant’s brief lacked meaningful discussion of, or citation to,
relevant legal authority).
Although Appellant has included in his Brief references to the record and
citation to boilerplate case law pertaining generally to the legal principles
relevant to consent and voluntariness,13 Appellant has not provided this Court
with citation to any case law supporting his individual bald claims. This
omission has precluded this Court’s meaningful review. Gould, 912 A.2d at
873. Accordingly, we are constrained to conclude that Appellant has waived
this claim.
Oral Consent
Appellant next claims that his oral consent to search was also
involuntary because he does not speak English. Appellant’s Brief at 38. In
support of this claim Appellant, asserts that Trooper Hope’s testimony that he
“asked over and over” whether he could search the Jeep indicates that
Appellant did not give unequivocal consent. Id. (citing Commonwealth v.
Powell, 994 A.2d 1096, 1103 (Pa. Super. 2010) (explaining that the fact that
the officer sought confirmation or clarification of the defendant’s initial
response suggested that the defendant’s first answer was not unequivocal)).
See also Appellant’s Brief at 36 (where Appellant claims that Trooper Hope
“asked the same questions again and again[.]”).
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13 Appellant’s Brief at 32-35.
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Appellant has not cited to the places in the Notes of Testimony that
support his assertion that Trooper Hope “asked over and over” whether he
could search the Jeep.
“We shall not develop an argument for an appellant, nor shall we scour
the record to find evidence to support an argument[.]” Commonwealth v.
Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018). To do so would place this
Court “in the conflicting roles of advocate and neutral arbiter.”
Commonwealth v. Williams, 782 A.2d 517, 532 (Pa. 2001) (Castille, J.,
concurring). “[I]nstead, we will deem the issue to be waived.” Cannavo,
199 A.3d 1289 (brackets omitted). Appellant has, thus, waived this claim.
Sufficiency of the Evidence
In his second issue, Appellant claims that the Commonwealth failed to
prove that he possessed the contraband in the Jeep’s secret compartment.
Appellant’s Brief at 39-48. In particular, Appellant asserts that the
Commonwealth did not prove that Appellant was aware of the Jeep’s secret
compartment or its contents, and notes the absence of evidence that he knew
how to access the secret compartment. Id. at 39, 41-42, 47.
We review claims regarding the sufficiency of the evidence by
considering 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.”
Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation
omitted). Further, a conviction may be sustained wholly on circumstantial
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evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence. Id. at 40. “Because evidentiary sufficiency is a matter of law, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014) (citation
omitted).
The jury convicted Appellant of drug offenses under the Controlled
Substance, Drug, Device & Cosmetic Act, 35 P.S. § 780-101, et seq, each of
which required the Commonwealth to prove that Appellant “possessed” the
contraband. See 35 P.S. §§ 780-113(a)(16), (30), and (32). The Crimes
Code defines the term “possession” as “an act, within the meaning of this
section, if the possessor knowingly procured or received the thing possessed
or was aware of his control thereof for a sufficient period to have been able to
terminate his possession.” 18 Pa.C.S. § 301(c). Because possession is the
only statutory element Appellant challenges, we address his three issues
together.
Constructive Possession
We have held that “[p]ossession can be found by proving actual
possession, constructive possession, or joint constructive possession.”
Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (citation
omitted). Where a defendant is not in actual possession of the prohibited
items, the Commonwealth must establish that the defendant had constructive
possession to support the conviction. Commonwealth v. Hopkins, 67 A.3d
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817, 820 (Pa. Super. 2013). “Constructive possession is a legal fiction, a
pragmatic construct to deal with the realities of criminal law enforcement.”
Id. (citation omitted). “We have defined constructive possession as conscious
dominion,” meaning that the defendant has “the power to control the
contraband and the intent to exercise that control.” Id. (citation omitted).
“To aid application, we have held that constructive possession may be
established by the totality of the circumstances.” Id. (citation omitted).
It is well established that, “[a]s with any other element of a crime,
constructive possession may be proven by circumstantial evidence.”
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citation
omitted). See, e.g., Commonwealth v. Davis, 743 A.2d 946, 953-54 (Pa.
Super. 1999) (holding that evidence was sufficient to prove constructive
possession over drugs found in common areas of an apartment where the
defendant entered the apartment using his own key, possessed $800 in cash
on his person, and police recovered defendant’s identification badge, size
appropriate clothing, and firearms from a bedroom). The Commonwealth can
prove constructive possession if the defendant shared with another actor or
actors equal access and joint control of an area where the drug or gun was
located. Commonwealth v. Mudrick, 507 A.2d 1212, 1214 (Pa. 1986).
Here, the evidence presented at trial related to Appellant’s constructive
possession of contraband included the following: (1) Appellant was the driver
and only person in the vehicle when Trooper Hope stopped it; (2) Appellant
had access to the vehicle for approximately 15 days prior to the traffic stop;
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(3) Appellant gave Troopers Hope and Lugo inconsistent responses to their
questions about the Jeep’s ownership, the identity of the person who
permitted Appellant to drive it, and who else had access to it; (4) Appellant
was coming from a high drug source area—Patterson, New Jersey—to a high
drug destination—Reading, Pennsylvania; and (5) Appellant was evasive when
answering questions about the friend he planned to visit in Reading, and
whose contact information he had recently deleted from his cell phone. See
N.T. Trial, 4/3/19, at 126-28, 187-88, 207, 212, 215-18, 294, 296-97, 304,
380-83, 427-34, 442-43, 452-54, 459. See also Appellant’s Trial Exhibit 3,
Transcript of Dash Cam Video in English/Spanish, 12/15/17.
Our review of the testimony and evidence presented at trial, viewed in
its totality and in a light most favorable to the Commonwealth as verdict
winner, reveals sufficient evidence from which a jury reasonably could have
inferred that Appellant was acting as a courier for a narcotics trafficking
organization and was aware of the drugs present in the Jeep’s secret
compartment. Further, it was reasonable for the jury to infer that a narcotics
trafficker would not place drugs worth more than $200,000 in a vehicle
subsequently driven out of state unless the driver of the vehicle was a witting
participant. Thus, given the location of the narcotics, the bulk weight and
value of the cocaine, and the changing and illogical story told by Appellant,
the evidence was sufficient to support each of Appellant’s convictions.
Accordingly, Appellant is not entitled to relief on this claim.
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Weight of the Evidence
In his final issue, Appellant claims that the verdict was against the
weight of the evidence. Appellant’s Brief at 48-55. Appellant essentially
argues that the jury should have credited the testimony of Appellant and his
character witnesses over that of the Commonwealth’s witnesses.14 Id. at 53-
55.
A defendant must preserve his claim that the jury’s verdict was against
the weight of the evidence by, inter alia, raising it in a post-sentence motion.
Pa.R.Crim.P. 607. “Failure to properly preserve the claim will result in
waiver[.]” Commonwealth v. Rivera, 238 A.3d 482, 497 (Pa. Super. 2020)
(citation omitted).
“[A] post-verdict motion, either that ‘the evidence was insufficient to
support the verdict,’ or that ‘the verdict was against the weight of the
evidence,’ will preserve no issue for appellate review unless the motion goes
on to specify in what respect the evidence was insufficient or why the verdict
was against the weight of the evidence.” Id. (quoting Commonwealth v.
Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983) (en banc) (emphasis in
original).
Instantly, Appellant filed a Post-Sentence Motion in which he asserted,
inter alia, that “[t]he jury verdict was against the weight of the evidence.”
____________________________________________
14Appellant also reasserts his claim that the Commonwealth’s evidence did
not support the jury’s finding that Appellant possessed the drugs found in the
Jeep. Appellant’s Brief at 51-53. We addressed this claim supra, and found
that it lacked merit.
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J-A29001-20
Post-Sentence Motion, 5/29/19, at ¶ 7. Appellant did not specify in the Motion
in what respect the evidence was insufficient or why the verdict was against
the weight of the evidence. Accordingly, Appellant has not properly preserved
this claim for our review.15
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2020
____________________________________________
15 The trial court likewise concluded that Appellant had waived this claim for
failing to raise it with sufficient specificity. See Trial Ct. Op., 6/10/20, at 24-
25.
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