Com. v. Morales, R. ( 2020 )

J-A13014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUBEN MORALES :
:
Appellant : No. 2631 EDA 2019
Appeal from the Judgment of Sentence Entered August 20, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006582-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 19, 2020
Appellant, Ruben Morales, appeals from the judgment of sentence of an
aggregate term of 2-5 years’ imprisonment, followed by five years’ probation,
imposed after the trial court found him guilty of, inter alia, corrupt
organizations and possession of marijuana with intent to deliver. We affirm.
The trial court summarized the factual and procedural background of
this case as follows:
[Appellant] participated in a corrupt organization that distributed
marijuana in and around Montgomery County, Pennsylvania.
After the Commonwealth charged him with more than a dozen
offenses, he filed a pretrial motion seeking to suppress, inter alia,
evidence seized from 2051 Carlisle Street and 1537 Fontain
Street, both in Philadelphia, Pennsylvania. [Appellant] asserted
the search warrants for those two locations were not supported
by affidavits that provided sufficient probable cause. This court
declined to suppress the evidence after a hearing and
subsequently found [Appellant] guilty at a bench trial of one count
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A13014-20
of corrupt organizations,2 two counts of possession of marijuana
with intent to deliver,3 one count of criminal conspiracy,4 two
counts of dealing in proceeds of unlawful activity,5 three counts of
criminal use of a communication facility,6 four counts of
possession of a controlled substance[,]7 and one count of drug
paraphernalia.8 He received an aggregate sentence of two to five
years in prison, plus five years of consecutive probation.
2 18 Pa.C.S. § 911(b)(1).
3 35 Pa.C.S. § 780-113(a)(30).
4 18 Pa.C.S. § 903(a)(1).
5 18 Pa.C.S. § 5111(a)(1).
6 18 Pa.C.S. § 7512(a).
7 35 Pa.C.S. § 780-113(a)(16).
8 35 Pa.C.S. § 780-113(a)(32).
[Appellant] did not file a post-sentence motion. He filed a notice
of appeal to the Pennsylvania Superior Court and later produced
a concise statement of errors in accordance with Pa.R.A.P.
1925(b). [T]he Superior Court dismissed the appeal without
prejudice and remanded the case for resentencing.[1] This court
____________________________________________
1With respect to this case’s procedural history, the trial court further explained
that:
[Appellant] previously filed a direct appeal from his original
judgment of sentence. Commonwealth v. Morales, 1805 EDA
2018, notice of appeal docketed (Pa. Super. June 27, 2018). He
produced a Pa.R.A.P. 1[9]25(b) concise statement[,] and this
court authored a Rule 1925(a) Opinion and forwarded the record
to the Superior Court. Upon defense request, the Superior Court
dismissed the appeal without prejudice, remanded the case back
to this court for resentencing[,] and relinquished jurisdiction. Id.,
Order (June 27, 2019). This court subsequently executed an
agreed[-upon] Order modifying the original sentence to make
[Appellant] eligible [under] the Recidivism Risk Reduction
Incentive [Act, 61 Pa.C.S. §§ 4501-4512]. [Appellant] has now
filed an appeal from his judgment of sentence, as modified. Under
the circumstances, this court did not intend to order [Appellant]
-2-
J-A13014-20
issued an Order dated August 20, 2019, modifying [Appellant’s]
sentence. He has timely appealed again.
TCO at 1-3 (footnote omitted).
Presently, Appellant raises the following issues for our review:
1. Did the lower court err in denying … Appellant’s pretrial motion
to suppress evidence where the search warrants for the two
locations in this case did not establish probable cause that there
was a sufficient nexus between the contraband that was supposed
to be seized and these locations?
2. Was the evidence insufficient to prove that … Appellant was
guilty of any of the charges for which he was convicted where his
constructive possession of the controlled substances was not
proven beyond a reasonable doubt?
Appellant’s Brief at 3.
I.
In Appellant’s first issue, he argues that the trial court “erred in denying
[his] pretrial motion to suppress evidence where the search warrants for the
two locations in this case did not establish a sufficient nexus between
contraband and those locations.” Id. at 8 (unnecessary capitalization and
emphasis omitted). He submits that “a fair and objective review of the search
warrant Affidavits of Probable Cause in this case will persuade this Court that
____________________________________________
to file a new concise statement of errors. He, nevertheless,
submitted a concise statement that is almost identical to the one
previously filed, except it appears to seek to remedy a lack of
specificity with regard to issue two that this court noted in its
original opinion.
Trial Court Opinion (TCO), 10/22/19, at 1 n.1.
-3-
J-A13014-20
the issuing authority did not have a substantial basis for concluding that
probable cause existed to search these two residences.” Id.
At the outset, we acknowledge our scope and standard of review for
such claims. This Court has explained:
[O]ur scope and standard of review of an order denying a motion
to suppress are unique when we are reviewing a magistrate’s
decision to issue a search warrant. They differ from those cases
in which we are reviewing a court’s decision regarding evidence
obtained without a warrant. When reviewing a magistrate’s
decision to issue a warrant, there are no factual findings from the
trial court. Thus, we need not 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. Instead, we are merely reviewing the magistrate’s
decision to issue the warrant. As such, our duty is to ensure that
the magistrate had a substantial basis for concluding that probable
cause existed. In so doing, the reviewing court must accord
deference to the issuing authority’s probable cause determination,
and must view the information offered to establish probable cause
in a common-sense, non-technical manner.
***
The legal principles applicable to a review of the sufficiency
of probable cause affidavits are well settled. Before an
issuing authority may issue a constitutionally valid search
warrant, he or she must be furnished with information
sufficient to persuade a reasonable person that probable
cause exists to conduct a search. The standard for
evaluating a search warrant is a “totality of the
circumstances” test as set forth in Illinois v. Gates, 462
U.S. 213 … (1983), and adopted in Commonwealth v.
Gray, … 503 A.2d 921 ([Pa.] 1985). A magistrate is to
make a practical, common sense decision whether, given all
the circumstances set forth in the affidavit before him, …
there is a fair probability that contraband or evidence of a
crime will be found in a particular place. The information
offered to establish probable cause must be viewed in a
common sense, nontechnical manner. Probable cause is
based on a finding of the probability, not a prima facie
-4-
J-A13014-20
showing of criminal activity, and deference is to be accorded
a magistrate’s finding of probable cause.
Probable cause does not demand the certainty we associate with
formal trials. Rather, a determination of probable cause requires
only that the totality of the circumstances demonstrates a fair
probability that contraband or evidence of a crime will be found in
a particular place.
Commonwealth v. Manuel, 194 A.3d 1076, 1080-82 (Pa. Super. 2018)
(internal citations, footnote, and quotation marks omitted). See also
Commonwealth v. Huntington, 924 A.2d 1252, 1258 (Pa. Super. 2007)
(“The application for the search warrant must be evaluated from the
perspective of the issuing magistrate and whether it provides sufficient
information, within the four corners of the affidavit, to support the conclusion
that probable cause exists to believe that contraband or evidence of a crime
will be found in a particular place.”) (citation omitted).
Here, the affidavits of probable cause outline the investigation of a drug-
trafficking organization operated by Jason Marks, Gregory Gaudreau, Michael
Lynch, Larry Kline, Appellant, and others. See Commonwealth’s Exhibit 1 at
3 (Carlisle Affidavit).2 Because the affidavits are lengthy, spanning over 180
pages, we attempt to summarize briefly the most pertinent information set
forth in them.
____________________________________________
2 Because the affidavits of probable cause for the Fontain Street and Carlisle
Street locations are substantially similar, we primarily cite to the Carlisle
Street affidavit. See also TCO at 5 n.10 (“The affidavits of probable cause
are substantially the same….”); Appellant’s Brief at 10 (not making any
distinction between the affidavits); Commonwealth’s Brief at 8 (noting that
the facts set forth in the affidavits are “essentially identical to each other”).
-5-
J-A13014-20
The drug operation conducted by Marks, Lynch, and Gaudreau was
reported to police by ten confidential informants, a concerned citizen, and
several unwitting informants. Id. at 7. Collectively, these sources revealed
that Marks, Lynch, and Gaudreau procured large quantities of marijuana from
California, transported the marijuana to Pennsylvania, and sold it to drug
dealers. Id. at 8.
Between July 7, 2013 and January 11, 2014, Appellant’s phone number
had 203 telephone contacts with a phone number used by Marks. Id. at 64-
65. Between August 14, 2013 and January 3, 2014, Appellant’s phone number
had 32 telephone contacts with a phone number attributed to Kline, a drug
supplier in California. See id. at 38, 64-65. Between the dates of July 20,
2013 and January 2, 2014, Appellant’s phone number had 59 telephone
contacts with a phone number identified as belonging to Adam Karloff. Id. at
66.3
Police conducted controlled purchases and surveillance on members of
the drug-trafficking organization, details of which are set forth in the
____________________________________________
3 With respect to Karloff, the affidavit details that the Pennsylvania Office of
Attorney General, Organized Crime Section, and the United States
Department of Homeland Security, completed an investigation into a
marijuana drug trafficking organization operating within the Pennsylvania
counties of Montgomery and Berks in 2007, which revealed involvement by
Marks and Appellant in the sale of pounds of high-grade marijuana, though
they were not indicted in the case. Id. at 17. Instead, law enforcement
“targeted the hierarchy of the organization[,]” including Karloff, but did not
charge all of the sub-dealers below him, such as Marks and Appellant. Id. at
17, 18. An agent that worked on that investigation stated that Appellant and
Marks were identified as directly below Karloff in the marijuana business. Id.
at 66.
-6-
J-A13014-20
affidavits. See id. at 68-83. Police also obtained approval of a non-
consensual intercept (wiretap) on telephones utilized by various members of
the organization, noting that “[i]n an attempt to conceal incriminating
conversation from law enforcement agents who may be monitoring their
conversations and pagers, drug traffickers will use codes and cryptic
language.” See id. at 83-84, 85. The affidavit provides that the following
interceptions pertinent to Appellant occurred, which we have produced
verbatim, with the exception of substituting Appellant’s name with Appellant:
March 9, 2014 at 12:40 PM, Call 421 on Court Order 38-1
E.D. 2014, a phone utilized by Jason Marks, Outgoing call
to 267-784-3073, utilized by Michael Lynch
This conversation was between Jason Marks and Michael Lynch.
In the beginning of the conversation they talk about a trailer.
Marks then said, “I was going to ask you if you wanted to bring
the rest of those contracts over, everything that’s left on there,
the remainder of the paperwork, know what I mean, and then we
can get that out, but I’ll just come over.” Through our training
and experience we believe Marks attempted to conceal the true
reason for this call and the need to visit Lynch’s residence. Marks
initially said contracts and then paperwork but he attempted to
clarify the true meaning to Lynch by saying, “Know what I mean.”
We have learned that terms such as “Paperwork” are commonly
used as a code word. These code words are known by each
member of the organization. We believe these words used in this
context are referring to Marijuana being stored at Lynch’s
residence at 41 Hickory Lane, Boyertown, Berks County,
Pennsylvania.[4]
____________________________________________
4The affidavit sets forth that, based on the affiants’ training, knowledge and
participation in controlled substances investigations, they know that:
It is common for large[-]scale drug dealers to secrete contraband,
proceeds of drug sales, and records of drug transactions in secure
-7-
J-A13014-20
As the conversation continued Lynch said he was not currently
home. Marks told Lynch that, “I’m not going over at least an hour
and a half.” Lynch continued on and said, “Well um give a buzz
and if l have to go anywhere I’ll just leave that thing unlocked.
This portion of the call further supports our opinion that this
conversation is in furtherance of their drug trafficking
organization. We received information from that a Confidential
Informant observed fifty pounds of Marijuana in a garage on
Lynch’s property located at 41 Hickory Lane, Boyertown, Berks
County, Pennsylvania. This Confidential Informant also detailed
how trusted confederates have access to this location. This
portion of the conversation detailed that the area Marks’ needs
access to is commonly locked but will be left unlocked for Marks’
access. The exact location is not being disclosed in the
conversation due to the fact that both of these individuals
understand the code being used, the area Marks needs to access
and the purpose for his visit.
On Sunday, March 9, 2014 at 9:00 AM, in reference to calls: 360,
362, 363, 421, 446, Docket 38-1 E.D. 2014, and calls 533, 534,
535, 545, 552, Docket 38-3 E.D. 2014, Plant advised that Jason
Marks would be going to Michael Lynch’s residence, located at 41
Hickory Lane, Boyertown, Pennsylvania. At approximately 10:00
AM, Detective Fedak did observe a black Mercedes and a black
Ford pick-up truck at Marks’ residence, located at 2922 Kutztown
Road, East Greenville, Pennsylvania. Marks does have a 1995
Mercedes, Pennsylvania Registration HXB-4548 and a 2004 Ford
Truck, Pennsylvania Registration ZDS-8238 registered to him with
the address listed as 2922 Kutztown Road, East Greenville,
Pennsylvania.
____________________________________________
locations within their residences, the residences of trusted family
members and associates, garages, basements, attics,
outbuildings, vehicles, and/or their businesses for their ready
access and to conceal from law enforcement authorities. We know
they need ready access to them in order to operate their illegal
drug business.
Id. at 14.
-8-
J-A13014-20
At approximately 1:00 PM, Detective Fedak drove past Marks’
residence and noticed that Marks’ Ford truck was not parked in his
driveway.
At approximately 4:21 PM, Detective Leporace observed Marks
driving his Ford truck, Pennsylvania Registration ZDS-8238 in the
area of Lynch’s residence located at 41 Hickory Lane, Boyertown,
Pennsylvania. Marks was the only person in the vehicle. Detective
Lackner observed the aforementioned Ford truck pull onto Laurel
Valley Lane which leads to Hickory Lane.
March 9, 2014 at 9:04 PM, 10:18 PM, 10:20 PM, 10:22 PM,
10:23 PM, 10:34 PM, 10:40 PM, 10:42 PM, 10:46 PM Call
474, 482, 483, 484, 485, 488, 489, 490, 491on Court Order
38-1 E.D. 2014, a phone utilized by Jason Marks,
Incoming/Outgoing calls/text to/from 267-304-2788.
utilized by [Appellant].
This conversation is between [Appellant] and Jason Marks.
[Appellant] returned Marks’ phone call. In the beginning of the
conversation [Appellant] justified why he did not pick up the
phone. Marks then asked, “Feel like seeing chocolate.” Marks
then laughed. [Appellant] replied, “I never mind.” We believe the
term “seeing chocolate” is in actuality a code word used between
these two individuals to determine a meet location. We have
learned through our experience in non-consensual interceptions
that individuals involved in the distribution of controlled substance
attempt to conceal the exact place of a meeting by using code
words to determine the location. This is done due to their fears
of being intercepted. They do not want to give a specific location
over the phone and alert law enforcement on where the
clandestine meeting will take place.
As they continued Marks informed [Appellant], “I’m bringing
fifteen bucks with me you know.” Here again, we believe Marks
is providing information to [Appellant] in code. We believe
[Appellant] responded and attempted to legitimize the
conversation and said, “Yeah, that should do like a half a song
between we’ll put the money together and make and have her
give us a lap dance or something.” Marks continued to talk in
code and said, “I’m a little scattered on it but yeah it’s cool.” We
have learned from information obtained through this investigation
that this organization sells various types of Marijuana one of which
is “Scatter Brain.” We believe when Marks said, “scattered” he
informed [Appellant] on the type of Marijuana being brought.
-9-
J-A13014-20
They agreed to talk again prior to meeting. Marks expects to be
at the meet location within an hour and a twenty and I’ll be over
the spot.” [Appellant] responded, “Sounds good brother.”
Although they did not give a location both know where the
meeting will take place. We believe Marks is bringing “fifteen” to
[Appellant].
At approximately 9:45 PM, Detective Lackner observed A
Mercedes Benz, dark in color, displaying Pennsylvania Registration
Number HXB-4548 exit the driveway at 2922 Kutztown Road, E.
Greenville, Pennsylvania 18041. Surveillance Detectives Lackner
and Vinter maintained mobile surveillance of the aforementioned
vehicle as it travelled to the area of the Schuylkill Expressway (Rt.
76). At that time, Detectives Wood and Rowe participated in the
mobile surveillance as the Mercedes Benz travelled to the city of
Philadelphia. During this surveillance, Detective Vinter positively
identified the driver of the Mercedes Benz as Jason Marks. An
inquiry made on the aforementioned Mercedes Benz though the
Pennsylvania Bureau of Motor Vehicles shows the registration
displayed on a 1995 Mercedes Benz registered to Jason Marks,
2922 Kutztown Road, E. Greenville, Pennsylvania 18041.
In call 482 Marks contacted [Appellant] and attempted to change
the location and said, “I’ll see you in about twenty, twenty five
minutes at the roll cage.” [Appellant] does not understand the
meet location and Marks clarified the location and responded, “The
one I knocked off it’s hinge.” [Appellant] then understood and
does not want to meet there and said, “No, no, no, no, no I
thought you were going to place where you with the chocolate
lady…. I’m trying to avoid going over there.” The two then agreed
to go to the initial meet location. Here again the two talked in a
coded language. This portion of the conversation showed us that
these individuals have multiple locations where they meet in
furtherance of their drug trafficking.
At 10:20 PM Marks sent a text to [Appellant] which read, “My car
don’t lock right so can I put my gym bag in your car when I get
there.” [Appellant] responded, “K. Forget u gt no tints. Makes
safety in city a plus. Dnt gt Ur windows broken.”
At 10:34 PM Marks sent a text to [Appellant], which read, “3
minutes.” We believe Marks informed [Appellant] he was three
minutes away from the meet location. In call 489 Marks called
[Appellant], [Appellant] told Marks, “I’ll be right there brother I
- 10 -
J-A13014-20
can’t talk on the phone my battery dying.” Marks responded, “All
right later.”
At approximately 10:40 PM, referencing calls number 488, 490
and 491, Docket 38-1 E.D. 2014, Detective’s Vinter and Wood
observed Jason Marks enter the parking lot of the Atlantis
Gentlemen’s Club located at 3813 Chestnut Street, Philadelphia,
Pennsylvania 19104. Marks backed his vehicle in to a parking
space and sat in the vehicle.
At 10:42 PM, Marks sent a text to [Appellant,] which read, “Drive
through the parking lot behind the club.” Approximately three
minutes later, [Appellant] responded via text, “Don’t see u.”
Approximately (3) three minutes later, Detective Vinter observed
a Toyota Camry, White in color, displaying Pennsylvania
Registration Number HKE-0962, enter the same parking lot. The
vehicle stopped in the area of Marks vehicle. At the same time,
Marks was observed exiting his vehicle and yelling something at
the driver of the Toyota Camry. Both vehicles left the parking lot
together. An inquiry made on the aforementioned Toyota Camry
though the Pennsylvania Bureau of Motor Vehicles shows the
registration displayed on a 1995 Toyota registered to Ruben
Enrique Morales[, which is Appellant’s name,] address of 3022 N.
5th Street, Harrisburg, Pennsylvania 17110.
At approximately 10:50 PM, both vehicles turned left onto
Chestnut Street and pulled over to the shoulder of Chestnut Street
at 37th Street. As Detective Rowe was driving past the vehicles,
he observed [Appellant] standing at his open trunk. Seconds
later, Detective Wood drove past the vehicles and observed
[Appellant] standing at the driver side window of the Mercedes
Benz talking to Marks who was seated in the driver seat. Both
vehicles remained at this location for approximately (5) five
minutes. Detective Wood positively identified the person
operating the Toyota as being [Appellant].
At approximately 10:55 PM, both vehicles departed the immediate
area. Surveillance was maintained on the Toyotas Camry being
operated by [Appellant].
As these two individuals talked they alluded to the fact that they
were going to patronize a drinking establishment. They did not.
Marks and [Appellant] met on the street and then departed. Due
to this there was no reason to for Marks to request the placement
of his gym bag in [Appellant’s] vehicle. We believe this meeting
- 11 -
J-A13014-20
occurred for a delivery of Marijuana from Marks to [Appellant].
We also believe Marks not only spoke cryptically in arranging the
purpose and location of the meeting but also attempted to justify
why a bag would be moved from his vehicle to [Appellant’s]
vehicle.
At approximately 11:15 PM, surveillance followed [Appellant]
directly to the area of Fontain Street, Philadelphia, Pennsylvania.
Detective Rowe observed [Appellant] exited his vehicle and walk
to 1537 Fontain Street, where he utilized a key to unlock the front
door and enter. Detective Rowe, drove around the block to
position his vehicle in a secure parking spot. When he returned,
[Appellant] was observed exiting a secondary unknown address
on the 1500 block of Fontain and returning to 1537 Fontain Street.
Seconds later, [Appellant] exited the residence, where he
appeared to lock the front gate on the door. [Appellant] walked
back to his vehicle and left the area.
At approximately 11:25 PM, surveillance was maintained on
[Appellant] as he went to the 2000 block of Carlisle Street,
Philadelphia, Pennsylvania. Detective Lackner observed
[Appellant] park his Toyota on Carlisle Street and enter a house
located at 2051 Carlisle Street, utilizing a key. Approximately ten
minutes later, [Appellant] exited this residence and left the area
operating his Toyota.
Surveillance was maintained on [Appellant] as he left 2051
Carlisle Street. Surveillance lost sight of [Appellant] in the area
of Front at Diamond Street. Approximately five minutes later,
Detective Lackner located [Appellant’s] vehicle parked unoccupied
in the 2100 block of Susquehanna Avenue, Philadelphia,
Pennsylvania. Surveillance was conducted on the unoccupied
vehicle for several minutes. During that time, [Appellant] never
returned.
Detective Harris and Detective Echevarria believe that this is a
fifteen pound marijuana delivery that began on March 8, 2014
with Marks contacting Lynch to see if he could stop over the next
morning. The conspiracy continued on March 9, 2014 when Lynch
and Marks said, “I was going to ask you if you wanted to bring the
rest of those contracts over, everything that’s left on there, the
remainder of the paperwork, know what I mean, and then we can
get that out, but I’ll just come over.” Marks then picked up the
marijuana from Lynch to deliver to [Appellant].
- 12 -
J-A13014-20
ADDITIONAL SURVEILLANCE OF [APPELLANT]
PHILADELPHIA
On Monday, March 17, 2014 at approximately 8:00 AM, Detective
Vinter conducted surveillance in the city of Philadelphia in search
of [Appellant’s] vehicle. At approximately 10:00 AM, Detective
Vinter located a Toyota Camry, white in color, displaying
Pennsylvania Registration Number HKE-0962 parked unoccupied
on 15th Street near Fontain Street, Philadelphia, Pennsylvania.
This area is within close proximity of 1535-1537 Fontain Street.
The vehicle was snow covered from an overnight snow storm. An
inquiry made on the aforementioned Toyota Camry though the
Pennsylvania Bureau of Motor Vehicles shows the registration
displayed on a 1995 Toyota registered to Ruben Enrique Morales,
[i.e., Appellant,] address of 3022 N. 5th Street, Harrisburg,
Pennsylvania 17110.
Detective Vinter drove around the block in attempt to obtain a
fixed position on the vehicle. When Detective Vinter returned, a
Hispanic male, believed to be [Appellant] was cleaning the snow
off the vehicle with a small broom. [Appellant] was wearing blue
jeans and a grey hooded sweat shirt. After the vehicle was
cleaned of snow, [Appellant] entered the driver’s seat and left the
area. He was not followed.
On Friday, March 21, 2014 at approximately 8:00 AM, Detective
Vinter located a Toyota Camry, white in color, displaying
Pennsylvania Registration Number HKE-0962 owned by
[Appellant] parked unoccupied on the southwest corner of
Diamond Street at Carlisle Street, Philadelphia, Pennsylvania.
This area is within close proximity to 2051 Carlisle Street. As
previously mentioned in a surveillance report dated March 9,
2014, Detective Lackner observed [Appellant] park his Toyota on
Carlisle Street where he utilized a key to enter a house located at
2051 Carlisle Street. Detective Vinter maintained surveillance in
the area for approximately four hours.
At approximately 12:00 PM, Detective Vinter observed a black
male, wearing a red jacket with the words “Chiefs Football” written
on the back. The unknown black male knocked on the front door
of 2051 Carlisle Street and remained there for several minutes.
After receiving no answer, he left the area.
***
- 13 -
J-A13014-20
March 17, 2014 at 2:24 PM, 8:00 PM, 8:01 PM, 8:06 PM, Call
1537, 1636, 1637, 1640 on Court Order 38-1 E.D. 2014, a
phone utilized by Jason Marks, Incoming/Outgoing
calls/text to/from 267-304-2788, utilized by [Appellant].
At 2:24 PM Marks called [Appellant] they exchange greetings and
then discussed a party at Marks’ house located at 2922 Kutztown
Road, East Greenville, Pennsylvania that [Appellant] attended.
Marks then asked, “Did you leave that application with me?”
[Appellant] said, “Yeah.” Marks responded, “You did oh boy
(laughs) where did I put it (laughs)?” [Appellant] continued, “I
knew you fucking forget.” [Appellant] then ended call. We believe
when Marks said the term, “application” he is referring to U.S.
Currency. [Appellant] understood the code. We believe the
“application” is actually partial payment for the previously
received marijuana on March 9, 2014. This is further supported
in later intercepted conversations.
In the first text Marks sent a text to [Appellant], “I’m losing my
mind looking for that application.” [Appellant] responded, "Check
under Ur bed.” After a few minutes Marks texted back, “Ya I must
have kicked it on there. 5 pages.”
***
March 22, 2014 at 1:52 PM, Call 220 on Court Order 38-1
E.D. 2014 (Supplemental Order-215-679-2699), a phone
utilized by Jason Marks/[Appellant], Outgoing call to (215)
554-7297, utilized by unknown male referred to as “Henry”
The call starts and two men conversed in Spanish. The caller
asked for “Henry.” “Henry” does not recognize the number but
recognized the voice and asked, “Who’s this [Appellant], yeah, I’m
on the road who’s phone is this?” [Appellant] then said, “I’m at a
friend’s house, It’s that I don’t have cell phone, wait a minute I
remember the number of the guy I’ll call him from here.” In this
portion of the call [Appellant] explained to his drug confederate
why he called from an unknown number. [Appellant] said, “I’m
at a friend’s house.” We know through surveillance and other
intercepted conversations that [Appellant] was calling from Marks’
residence located at 2922 Kutztown Road, East Greenville,
Montgomery County, Pennsylvania.
[Appellant] continued, “No, crazy, I’m here, when can I see you,
cause my friend is leaving Monday?” Henry responded, “Oh yeah.”
Here, [Appellant] attempted to notify Henry that an individual of
- 14 -
J-A13014-20
importance to their organization was here but Henry did not
understand. [Appellant] continued to stress the need for the two
to meet when he said, “The person you have to talk to.” Henry
then asked, “Where’s he going to?” [Appellant] explained, “No,
because he lives in the up there in the mountains.” Henry then
said, “I’m up in the mountains, he’s in upstate New York?” No
motherfucker, the friend of mine that’s on the other side in the
mountains. Henry understood the cryptic description of this
person’s residence and said, “Oh on the west side.” [Appellant]
responded, “Uh-huh”. [Appellant] continued to talk in code and
attempted to clarify who this individual was in relation to their
illegal activity. We believe when [Appellant] detailed that this
individual lived in the mountains and on the other side he was
referring to someone living in California. Through the course of
this investigation we have learned that this organization’s source
of marijuana supply is California. We have not received any
information that Marks was departing the area on the 24th of
March. This leads us to believe that [Appellant] was referring to
someone that was in the area from California that was a member
of this drug trafficking organization.
Henry then said, “Ah, ok, ok all right, all right, right now I’m going
to a couple of appointments you want me to call you back on this
number when I get done?” [Appellant] then instructed Henry,
“No, no call me on my phone, it’s that I’m at this house I don’t
have service but we’re not going to be here, call me on my phone.
It’s that I want to talk for the man can understand the position
that you are in, he’s talking about somethings that are in line one
what you are talking about but the manner to do it with the papers
are right and the address of the people that are involved so they
can help do things the way have to be so there isn’t problems,”
the call the ends. Through our training, knowledge and
experience we believe this conversation was [Appellant]
attempting to broker a marijuana arrangement between two
separate parties one of which is Henry Santana and the other we
have learned is Larry Kline. At the time of this call we did not
know Larry Kline was in the Pennsylvania area but through
information received through intercepted conversations and
surveillance we know Larry Kline was in Pennsylvania and in
Montgomery County and is returning to California on the March
24th.
On Saturday, March 22, 2014 at 2:00 PM, in reference to call 110
at 1:52, Docket 38-1 E.D. 2014, Plant advised that [Appellant]
- 15 -
J-A13014-20
was at Jason Marks’ residence, located at 2922 Kutztown Road,
East Greenville, Pennsylvania.
Detective’s Fedak and Walsh did observe a grey four door sedan
with a Florida Registration parked in the driveway at Marks’
residence. The Plant advised that Ruben Morales Melendez[,
which closely resembles Appellant’s name,] does have a 2006
Buick Lucerne, grey in color, displaying Florida Registration
V971RC registered to him with an address of 4240 South West
153 Place, Miami, Florida. This information was ascertained
through a law enforcement data base. Surveillance was unable to
ascertain a registration out of fear of being compromised.
***
March 22, 2014 at 2:28 PM, Call 1011 on Court Order 38-3
E.D. 2014, a phone utilized by Michael Lynch Incoming Call
from 707-834-5621, utilized by Larry Kline
Lynch received an incoming call from Larry Kline. Kline asked,
“What are you doin?” Lynch responded, “I’m on the golf course.”
Then someone is heard saying “Aw fuck.” Kline then asked, “Want
to get some dinner?” Lynch responded, “We probably can, your
in town I guess huh?” Kline answered, “S/L Yeah.” Lynch asked,
“Where you out now?” Kline told Lynch, “I’m ah over at the ah
fucking dwarf’s, he’s going to the Poconos for some gambling
thing with the wrestling he won’t be back till late so I’m with ah
[Appellant] I was hoping we could all hang out and get some
dinner.” Lynch said, “He won’t be around but we’re definitely up
for it.” They agree to talk after Lynch is done golfing.
March 22, 2014 at 6:35 PM, Call 1019 on Court Order 38-3
E.D. 2014, a phone utilized by Michael Lynch Incoming Call
from 707-834-5621, utilized by Larry Kline
Michael Lynch received a call from Larry Kline. Kline said he was
at the Tiki Bar having a drink and waiting for Lynch to come home.
Lynch said that he was at home having a drink and invited Kline
to come up. Kline said he was with [Appellant], and they were
going to come up.
Surveillance
In reference to call 1019 at 6:36 PM, Docket 38-3 E.D. 2014, Plant
advised that [Appellant] and Larry Kline were going to Lynch’s
residence.
- 16 -
J-A13014-20
At approximately 6:49 PM, through the use of fixed surveillance,
Plant advised that a Hyundai, silver in color, arrived in the vicinity
of Lynch’s residence located at 41 Hickory Lane, Boyertown,
Pennsylvania 19512.
***
March 23, 2014 at 11:54 AM, 11:58 AM, 11:59 AM, 12:01
PM, 12:02 PM, 12:03 PM, 12:04 PM, Call 2362, 2365, 2366,
2368, 2369, 2370, 2371, on Court Order 38-1 E.D. 2014, a
phone utilized by Jason Marks, Outgoing/Incoming
call/text to/from 267-304-2788, utilized by [Appellant]
Marks called [Appellant] and asked, “What are you doing today?”
Then the call is dropped.
[Appellant] responded to the previous call via text which read, “Gt
bad service here. Still sleeping herw.” Marks responded, “Omw”.
We believe that [Appellant] attempted to tell Marks of his location
but Marks did not understand. We also know that the text
acronym “Omw” means on my way. Marks told [Appellant] that
he is on his way. Through surveillance and intercepted
communications we know that [Appellant] is still with Kline and
they are currently at Lynch’s residence located at 41 Hickory Lane,
Boyertown, Berks County, Pennsylvania.
[Appellant] then texted to confirm the meet location and sent,
“2mikes rt ? Not downtown”. This text message elicited a
response from Marks, “Are you here im on the fuckin turn pike.”
[Appellant] confirmed his and Kline’s location and texted, “At
Mikes.” We believe Marks was enroute to a meet location in
Philadelphia to meet [Appellant] and Kline due to the text
message conversation Marks responded, “Meet me at my place
getting off the Lansdale exit I’ll be home in 25 minutes.” During
this exchange [Appellant] confirmed that they were still at Lynch’s
residence.
March 23, 2014 at 12:09 PM, 12:11 PM, Call 2373, 2377 on
Court Order 38-1 E.D. 2014, a phone utilized by Jason
Marks Incoming/Outgoing Call from 707-834-5621,
utilized by Larry Kline
After the series of text messages from [Appellant], Kline called
Marks. It is apparent that Kline is with [Appellant] and that Kline
is privy to the communications between [Appellant] and Marks.
Marks said, “You guys kill me.” Kline asked if Marks was home
- 17 -
J-A13014-20
and he told him he was not but was driving back from the turnpike.
Marks continued on and said, “You knew I was coming down there
today, I told you, no I told him I had a taste for the chocolate. I
said that plain as day yesterday.” As Marks talked to Kline said,
“I thought we were coming to your house. He was talking about
me coming to your house.” We believe that the meeting that
occurred on March 22, 2014 at Marks’ residence laid the
foundation for a follow up meeting between these participants of
this drug trafficking organization. The two parties were confused
on the location of the meeting. Marks believed he was meeting
[Appellant] and Kline in Philadelphia. Marks used coded
terminology that was previously intercepted as the meet location.
[Appellant] and Kline believed they were returning to Marks
residence to meet. We believe that the residence located at 2922
Kutztown Road, East Greenville, Montgomery County,
Pennsylvania is the center point of Marks portion of the
organization. We also believe through surveillance and
intercepted conversation that the residence/buildings located at
41 Hickory Lane, Boyertown, Berks County, Pennsylvania is the
center point of Lynch’s portion.
As the conversation continued, Kline said “He talked about me
coming to your house but. Marks replied, “well yeah that’s you
me but he needed something..” Marks then mumbled, “for his ah
paperwork.” Kline then responded, “We’ll ah come by your house
in a … I don’t know in a bit, I’m going to grab something to eat
and shit.” Marks the said, “okay cause like I don’t like ta … have
to take it back then you know what I mean … cause I don’t wanna
figure” Kline then interrupted, “Yeah He’ll figure it out, he’ll figure
it out.” The two individuals talked cryptically to conceal the true
nature of the need for this clandestine meeting. The two talked
in code and mumbled and ended the conversation when it became
too detailed.
Marks then called Kline back and said, “You know I’m gonna, I’m
comin through Greenlane, I’m gonna go up to Bear Creek and
hang out, they’re doin the snowmobile races up there… I was
already taken out of my day to go do that for him cause he was
up my ass about it yesterday so now that I’m not doing that I’m
going up there like I was supposed to.” Kline then responded, “All
right go ahead we’ll…” They continued to talk and prior to the call
ending Kline said, “All right I’ll call you in a bit I’ll see you up
there.”
- 18 -
J-A13014-20
In the follow up conversation Marks tells the two that he is going
to Bear Creek. Bear Creek Mountain Resort was having snow
mobile races on this date. Kline agreed to meet with Marks at this
location. We know that this meeting will also include [Appellant].
March 23, 2014 at 3:43 PM, Call 2404 on Court Order 38-1
E.D. 2014, a phone utilized by Jason Marks Outgoing Call
from 267-772-1791, subscribed to Dana Crist utilized by an
unknown male
Marks told the unknown male that he arrived at Bear Creek. This
individual was intercepted numerous times in regards to Marks
going to Bear Creek. Marks asked the unknown male, “Did you
see [Appellant] or Larry?” The Unknown male said, “No.” Marks
continued to talk and said, “I knew they weren’t going to come
over, they were like oh, we’re hungry we’ll see you over there.
I’m like why don’t you just fucking eat there. That’s what fucked
up my whole day up or I’d be up there already.” The unknown
male said, “It’s all good man, you have to do what you have to
do.” Marks then responded, “[Appellant] got these documents
you got to look at in the morning, so I started driving down there,
well he never told me he never went home last night they went to
Lynchies and partied all night.” Marks complained about driving
to the city and that they were at “Mike’s.”
In this conversation Marks complained about his morning and his
partial drive to Philadelphia. He told the unknown male that he
doubted [Appellant] and Kline were going to go Bear Creek but
needed to see him. We know through the surveillance that
[Appellant], Kline and Marks met and talked at Bear Creek
departed and then returned to Marks’ residence.
On Sunday, March 23, 2014, in reference to calls 2379 and 2404,
Docket 38-1 E.D. 2014, Plant advised that Jason Marks was
planning to meet Jeff Roth, [Appellant] and Larry Kline at the Bear
Creek Mountain Resort and Conference Center located at 101 Doe
Mountain Lane, Macungie, Pennsylvania 18062 for a snow mobile
event.
Surveillance
At approximately 9:00 AM, Detective’s Vinter and Wood went to
the Bear Creek Mountain Resort/Conference Center and confirmed
the resort was having a “snow mobile drag race competition”.
Detective Vinter and Wood maintained surveillance at the resort.
- 19 -
J-A13014-20
At approximately 1:45 PM, Detective Walsh arrived at the Bear
Creek Mountain Resort/Conference Center and observed a
Mercedes Benz, displaying Pennsylvania Registration Number
JHN-0729, being operated by Jason Marks arrive. Marks parked
his vehicle in the upper parking lot near the resort and walked
toward the hotel/ski area.
March 23, 2014 at 2:52 PM, Call 2422, 2430 on Court Order
38-1 E.D. 2014, a phone utilized by Jason Marks
Incoming/Outgoing Call from 707-834-5621, utilized by
Larry Kline
In call 2422 Marks called Kline to check on their location. Marks
said, “Where you at?” Kline confirmed to monitors that
[Appellant] was still with him when he said, "We’re on our way to
Bear Creek where you at?” Marks then described his location at
Bear Creek. Kline told Marks, “I’ll be up there in like ten minutes.”
In the second call Kline arrived at Bear Creek and contacted Marks
to ascertain his location. Marks told Kline, “I came into that lower
bar the regular one where we had dinner.” Kline said he will see
Marks in a minute.
March 23, 2014 at 7:18 PM, Call 2450 on Court Order 38-1 E.D.
2014, a phone utilized by Jason Marks Incoming Call from 215-
272-1112, utilized by Unknown Male.
Marks received a call from an unknown male and they exchanged
greetings. The unknown male then said, “Larry told me to give
him a call I don’t know if they are still around.” Marks responded,
“They just left my house .. they’re probably on their way to the
turnpike right now if you want to give em a buzz.” This is yet
another local individual in contact with Kline. Kline instructed this
individual to call him. We know Larry Kline is currently utilizing at
least one communication device in furtherance of his portion of
this organization. The communication we identified was a Verizon
Wireless mobile phone 707-834-5621. This call further
substantiated Kline being at Marks’ residence.
The unknown male declined calling Kline at that time and then
said, “Hey a [Appellant], [Appellant] gave me a chore to do I
probably”. Marks understood the “chore” given by [Appellant] to
the unknown male and responded, “I know whenever this week
that’s fine.” The caller said, "Probably gonna be Tuesday.” We
believe this “chore” is an instruction received by this individual by
[Appellant]. Due to the fact that they use the code word “chore”
- 20 -
J-A13014-20
we further believe that this action is in furtherance of this drug
trafficking operation.
The Unknown male continued on and talked about problems with
his Lincoln. The unknown male said, “My place is up at
Quakertown so I’ll just get in touch with you all right. I didn’t
know if you guys were hanging out tonight or doing anything
what’s Larry heading back to California?” Through this portion of
the call we are able to determine that not only does the Unknown
Caller know Kline but knew that he is from California with pending
plans to return to California.
Marks answered the caller, “I guess he’s leaving at eight in the
morning.” The caller continued on about the “chore”, “All right I’ll
be in touch with you if it happens tomorrow if not Tuesday.” Marks
then told the caller about Kline, “He didn’t seem like he wanted to
hang and party, he just came in to get some numbers straight.”
When Marks said, “He didn’t seem like he wanted to hang and
party, he just came in to get some numbers straight” leads us to
believe that Kline was in this part of the country in regards to the
marijuana trafficking organization. We also believe Marks told the
unknown male that Kline was here to focus on the task at hand,
“get some numbers straight.” Through our training, knowledge
and experience we know that large scale drug organization handle
large amounts of illegal drugs and in turn the U.S. Currency
generated from their illegal activity. We also know that the illegal
drug, in this investigation marijuana, equates to money. The
quicker the product is ordered, obtained and then distributed the
quicker the drug traffickers yield their profit. We know Larry Kline
arrived in Pennsylvania to meet with important members of his
drug trafficking organization, including but not limited to,
[Appellant], Michael Lynch and Jason Marks. The existence of
these meetings was documented through intercepted
communications and surveillance. We know [Appellant], Kline and
Lynch met at Lynch’s residence located at 41 Hickory Lane,
Boyertown, Pennsylvania. This meeting was arranged via Kline’s
Verizon Wireless phone and Lynch’s phone. The initial
conversation intercepted informed monitors that Kline wanted to
meet with Lynch, Marks and [Appellant] at the same time but
Marks was unavailable.
The next day after meeting with Lynch, Kline orchestrated another
meeting with [Appellant] and Marks. This meeting was arranged
on his Verizon Wireless phone 707-834-5621. Marks, [Appellant]
- 21 -
J-A13014-20
and Kline met in a public place. They were together for
approximately one hour talking. They then departed the public
location and immediately met again at Marks’s residence located
at 2922 Kutztown Road, E. Greenville, Pennsylvania 18041. They
were at this location getting “numbers straight” for approximately
two and a half hours. The change of location leads us to believe
that portions of this conversation were too sensitive in nature to
discuss in a public location and/or they needed access to items
stored within Marks’ residence. We believe the phone calls and
meetings between these individuals occurred to finalize details of
a pending marijuana delivery and/ or a previous marijuana
delivery received by the Montgomery/Berks County portion of this
organization.
Surveillance
At approximately 2:54 PM, in reference to call 2422, Docket 38-1
E.D. 2014, Plant advised surveillance that Larry Kline was 10
minutes away from the Bear Creek Mountain Resort/Conference
Center.
At approximately 3:06 PM, Detective Vinter observed a Hyundai,
silver in color, displaying Florida Registration Number BPI-A49
arrive at the resort. As previously documented in surveillance
reports, this is a rented vehicle and operated by Larry Kline and/or
[Appellant]. An inquiry made through the Berks County Police
Radio Network on BPI-A49 shows it displayed on a Hyundai
registered to PV Holding Co., address of 8600 Hanger Blvd.,
Orlando, Florida.
Detective Vinter followed the vehicle to the parking area. Two
males believed to be [Appellant] and Larry Kline exited the vehicle
and walked toward the competition.
At approximately 4:00 PM, Detective Vinter and Fedak, acting in
an undercover capacity, observed four males sitting in the
grille/bar area. The Grille is a full-service restaurant and bar
offering a spectacular mountainside view. Three of the four
individuals were positively identified to be [Appellant], Larry Kline
and Jason Marks. The remaining individual was believed to be Jeff
Roth.
At approximately 4:15 PM, it appeared the individuals were
getting ready to leave the establishment. Detective Fedak and
Vinter, who were standing within close proximity of the
- 22 -
J-A13014-20
individuals, overheard one say; “Be careful, stay in the left lane.”
They all left the area and walked to their respective vehicles.
Surveillance was maintained on the Hyundai, silver in color,
displaying Florida Registration Number BPI-A49. Although it was
not known who the operator of the vehicle was, it is believed the
vehicle was occupied by [Appellant] and Larry Kline. Surveillance
followed the vehicle directly to the Jason Marks’ residence, located
at 2922 Kutztown Road, E. Greenville, Pennsylvania 18041.
Detective Walsh observed the vehicle enter the driveway and
park. Two males were observed exiting the vehicle and walking
toward the residence.
At approximately 5:28 PM, Detective Lackner observed (3) three
males standing next to the Hyundai. Moments later, the males
returned to the residence.
At approximately 7:08 PM, Detective Lackner observed an
unknown male enter the Hyundai and back it up against the house
and partially out of view. Moments later, Detective Lackner
observed the Hyundai exiting the driveway where it proceeded
southbound on Kutztown Road. Surveillance lost sight of the
vehicle prior to arriving at RT 663.
At approximately 8:15 PM, Detective Vinter arrived in the area of
2051 Carlisle Street, Philadelphia, Pennsylvania. Detective Vinter
observed [Appellant’s] Toyota Camry, white in color, displaying
Pennsylvania Registration Number HKE-0962 parked unoccupied
on the northeast comer of Diamond Street at Carlisle Street,
Philadelphia, Pennsylvania. This area is within 30 yards of 2051
Carlisle Street. An inquiry made on the aforementioned Toyota
Camry though the Pennsylvania Bureau of Motor Vehicles shows
the registration displayed on a 1995 Toyota registered to Ruben
Enrique Morales[, i.e., Appellant], address of 3022 N. 5th Street,
Harrisburg, Pennsylvania 17110.
At approximately 9:58 PM, Detective Fedak and Reynolds
observed a Hyundai, silver in color, displaying Florida Registration
Number BPI-A49 parked unoccupied parked on the northeast
comer of Diamond Street at 15th Street. This area is located within
close proximity of the Toyota Camry, owed by [Appellant] that
was parked on the northeast corner of Diamond Street at Carlisle.
Both vehicles remained at the aforementioned locations.
Surveillance was terminated at 11:30 PM.
***
- 23 -
J-A13014-20
March 26, 2014 at 12:57 PM, 5:26 PM, Call 2991, 2998 on
Court Order 38-1 E.D. 2014, a phone utilized by Jason
Marks Outgoing call to 267-304-2788, utilized by
[Appellant]
In the first call Marks and [Appellant] talked about meeting.
Marks told [Appellant] that he was currently in Philadelphia.
Marks asked [Appellant], “Should I come by and see you or ain’t
it worth it right now?” [Appellant] responded, “If you want to
come by, you can come by I’d like to talk to you about a couple
of things but ah it’s up to you.” Marks confirmed that he would
see [Appellant]. We believe through our training, knowledge,
experience and information gleamed from this investigation we
believe Marks attempted to see [Appellant] to obtain U.S.
Currency. When Marks asked, “ain’t it worth it right now?” we
believe Marks asked [Appellant] if he had enough U.S. Currency
to justify Marks’s trip. We believe [Appellant] not only agreed to
meet Marks but also showed his concern for talking on the phone.
[Appellant] showed his hesitation about talking on the phone
when he said, “I’d like to talk to you about a couple things.” We
have learned that individuals involved in the distribution of illegal
drugs will commonly openly discuss general conversation and/or
issues that are not illegal. We also learned that when the
conversation turns to their illegal activity they speak cryptically or
in code but if the conversation needs to detailed they will attempt
to meet in person. We believe [Appellant] showed his concern by
trying to meet with Marks to talk in person.
In the second call, Marks called [Appellant, and] they briefly talked
about meeting. Marks told [Appellant] that he looked at house to
purchase with “Mike” to renovate and sell. [Appellant] then
attempted to end the call. [Appellant] said, “Call me back later,
I’m busy right now, call me, call me back later when you’re coming
through back up I won’t be at the house just call me we’ll meet
somewhere.” Marks responded, “Is it important?” [Appellant]
said, “No.” Then Marks continued, “I just need, I just wanted to
see you by Monday you know so we could get that ah paper signed
to send it out in the mail.” [Appellant] then asked, “What’s the
date?” Marks answered, “Ah, Tuesday is when it needs to be in,
when it’s going out in the mail. I just need to have the contract
signed by then so whenever, just so you know, whatever by then
that’s good.” [Appellant] responded, “Maybe I’ll see you Monday.”
The conversation continued and Marks told [Appellant] about a
bonfire at Marks residence.
- 24 -
J-A13014-20
We believe the second conversation further substantiated our
belief that Marks wanted to see [Appellant] to obtain U.S.
Currency for previously delivered marijuana. We believe that
when Marks said, “I just wanted to see you by Monday you know
so we could get that ah paper signed to send it out in the mail”,
Marks was telling [Appellant] he wanted the U.S. Currency. We
have learned through our training and experience that
organizations, such as this drug organization, will gather their
money from their customer base and transport it to their source
of supply to purchase more of their illegal product. We believe
that this marijuana trafficking organization is preparing to
purchase more marijuana and are pooling/collecting U.S.
Currency to prepare for the purchase.
***
March 28, 2014 at 3:57 PM, Call 3225 on Court Order 38-1
E.D. 2014, a phone utilized by Jason Marks Incoming call
from 215-272-1112, utilized by Unknown Male
The two talked and Marks explained why he was not around to
meet the unknown male. The unknown male asked, “Did you want
to maybe stop over?” Marks said, “You want me to swing past the
house I’m picking my son up right now.” The unknown male
responded, “I just left [Appellant’s] house. Actually, I just left, I
did his personal house, I did all his other houses in the past.” The
agreed to talk again to arrange the meeting Marks said, “Dump
that off that’ll be fine.” The unknown male asked, “Did you see
that guy from the band.” Marks responded, “Yeah, that’s not
going to happen.”
We know this individual in contact with [Appellant], Larry Kline
and Jason Marks. This conversation shows how [Appellant] has
access and control over numerous residences and one these
residences is referred to as his “personal house.”
Id. at 97-104, 127, 140-42, 144-45, 146-53, 169-71, 172.
In addition, the Fontain Street affidavit provides the following
information regarding Appellant:
March 21, 2014 In a series of telephone calls/texts
between [Appellant] and an unknown male using
telephone facility 909-446-2610, intercepted on Court
Order 38-7 E.D. 2014
- 25 -
J-A13014-20
[Appellant] and the unknown male discuss the fact that
[Appellant] has this male’s motorcycle and is holding it as
collateral as the male still owes [Appellant] approximately $5,000.
During these conversations and text messages, [Appellant] tells
the male that the motorcycle is being kept at a location he
describes to the other male as 2027 N. 18th Street, Philadelphia,
Pennsylvania.
March 31, 2014 at 1:33 PM Call 313 on Court Order 38-7
E.D. 2014, a phone utilized by [Appellant] incoming call
from 215-290-7229, utilized by an unknown male
[Appellant] received a call from an unknown male. The Unknown
male requested to meet with [Appellant]. [Appellant] said he was
having lunch with an unknown female at Fontain. They agree to
meet in a short period of time at the caller’s residence or at a
residence on Fontain.
In call 328 [Appellant] said he was in Fontain and exiting the door.
[Appellant] gave directions to the unknown male to Fontain. Det.
Echevarria listened to the directions given by [Appellant] and
these directions are consistent to the residence located at 1537
Fontain Street.
Grand Jury Information
On Monday, March 24, 2014, Montgomery County Grand Jury
Subpoena Number 31 (Investigation Number 14, MD: 1607-13)
was served upon the Exelon Corporation, DBA: PECO Energy for
information including, but not limited to subscriber and billing
information in the name of [Appellant] and properties that have
been identified thus far to be associated with [Appellant].
On Monday, March 31, 2014, in response to that subpoena, PECO
Energy provided the requested information, which included but
not limited to the residence of 1537 Fontain Street, Philadelphia,
Pennsylvania. The PECO Energy service for 1537 Fontain Street,
Philadelphia, Pennsylvania is the name of Ruben Morales[, which
is Appellant’s name,] at 4240 SW 153rd Pl, Miami, Florida….
See Commonwealth’s Exhibit 2 at 174-75 (Fontain Affidavit).
Here, the trial court determined that the affidavits submitted in support
of the search warrant requests for 2051 Carlisle Street and 1537 Fontain
- 26 -
J-A13014-20
Street contained sufficient probable cause to support a nexus between those
locations and the presence of controlled substances, books and records, U.S.
currency, and telephones, among other things. The trial court rationalized:
[R]eference is made to [Appellant] throughout the affidavits of
probable cause prepared in support of search warrants for both
Philadelphia locations. See N.T., 11/14/17; Exhs. C-1 and C-2,
pp. 18, 65-66, 98-103, 127, 140-[]42, 146-[]53, 169-[]71 and
175. Those references detail [Appellant’s] involvement in the
marijuana distribution organization and his entry into the two
Philadelphia properties on March 9, 2014, following what law
enforcement believed was a drug transaction.
In giving the required deference to the issuing authority’s
probable cause determination, this court stated at the suppression
hearing:
This case involves the investigation of an alleged drug
conspiracy spanning several counties, including
Montgomery County and Philadelphia. The affiants are
experienced drug enforcement officers. The affiants assert
that[,] in their training and experience[,] persons involved
in drug trafficking operations secret[e] contraband,
proceeds of drug sales, records of drug transactions and
currency in secure locations in their residences. Persons
involved in drug trafficking commonly use cellular phones[,]
which contain saved messages and outgoing phone calls and
photographs and other information about co-conspirators
and customers. The affidavit details a number of telephone
calls involving [Appellant] and other members of the alleged
drug distribution conspiracy. The affiants assert that the
coded language used in these calls, based on their training
and experience, demonstrate the participants’ involvement
in drug distribution…. During one of the recorded phone
calls, [Appellant] is to meet with an alleged co-conspirator
in Philadelphia. Based on the contents of those calls and
the affiants’ interpretation of the coded language used by
the participants, the affiants believe that [Appellant] was
engaged in a transaction involving fifteen pounds of
marijuana. [Appellant] is then seen driving to 1537 Fontain
Street in Philly and using a key to enter the property.
Shortly thereafter, [Appellant] is seen leaving the Fontain
- 27 -
J-A13014-20
Street property and driving to a property at 2051 Carlisle
Street in Philadelphia. [Appellant] is seen entering the
property using a key. Investigators requested warrants for
both the Fontain Street and Carlisle Street properties in
order to search for, among other things, controlled
substances, books and records, U.S. currency, indicia of
occupancy and telephones and the information contained
therein. The search warrants were executed by a Common
Pleas Court judge in Philadelphia…. Sufficient evidence
exists in the Affidavit of Probable Cause in order for the
issuing authority to have found a fair probability that
contraband, including currency and cellular phones, would
be found at the two properties.
Based on the above, the affidavits submitted in support of the
requests for search warrants for the two Philadelphia properties
contain sufficient probable cause. This court, therefore, did not
err in declining to upset the issuing authority’s probable cause
determination and denying [Appellant’s] motion to suppress.
TCO at 5-6 (internal citation and footnotes omitted).
Appellant argues that, in the trial court’s opinion, the trial court “referred
to a single incident, discussed in the Affidavit of Probable Cause, on March 9,
2014[,] where the police observed what they believed could be a transaction
involving fifteen pounds of marijuana, with … Appellant then driving to 1537
Fontain Street and allegedly using a key to enter the premises[,]” and then
shortly thereafter, police saw him “leaving that location and driving to 2051
Carlisle Street, again supposedly entering the property using a key.”
Appellant’s Brief at 9. He contends that “these factual references could not
be sufficient, upon objective review, to establish a fair probability that
contraband would be found on those premises.” Id. at 9-10. He points out
that “[a]t no time did the police observe [him] engage in a narcotics
transaction[,]” “[n]o bags were seen going or coming from either location[,]”
- 28 -
J-A13014-20
and he “was not even observed carrying anything in his hands.” Id. at 11.
Moreover, he says that the Commonwealth has asserted that “‘members of
this drug organization’ kept items related to their drug business, such as cash,
drugs and cell phones, in their homes, and that evidence obtained through
recorded conversations between members of the organization showed plans
to pick up cash or drugs at each others’ homes[,]” but insists that none of
those conversations involved him and made no reference to either the Fontain
Street or Carlisle Street properties. See id. at 11-12. He also states that,
“[a]lthough the [a]ffidavit discussed information provided from October 2010
to February 2013 by ten informants and four concerned citizens, none of that
information pertained to … Appellant or to either of these locations.” Id. at
12. He says that the Commonwealth is “relying upon a theory that people
who may be involved in marijuana trafficking would likely place their sales
proceeds and records of transactions in their homes[,]” and states that there
are no decisions from our Supreme Court determining that “a fair probability
of marijuana being found in a location attributed to the [d]efendant
automatically exists merely because he has allegedly been engaging in a drug
trafficking scheme with others.” Id. at 12, 13.
No relief is due. Looking at the information provided within the four
corners of the affidavits from the perspective of the issuing authority, we deem
it sufficient to support the conclusion that probable cause existed to believe
that contraband or evidence of drug trafficking would be found at the Carlisle
Street and Fontain Street properties. See Huntington, supra. As the
- 29 -
J-A13014-20
Commonwealth discerns, “[t]he warrant affidavits established that [Appellant]
was part of an active drug trafficking organization whose members used their
homes to store drugs, money, and other items related to their illegal business.
There was thus a fair probability that evidence related to drug trafficking would
be found inside [Appellant’s] homes.” Commonwealth’s Brief at 10. The
Commonwealth aptly observes:
[Appellant] was connected to the homes on Fontain and Carlisle
Street. Police determined that [Appellant’s] name was on the
electric bill at Fontain Street. He went directly to Fontain Street
after the transaction with Marks on March 9, 2014, and entered
and left that house utilizing a key. [Appellant] also went [to]
Carlisle Street right after the transaction with Marks, using a key
to enter and exit. And on other occasions, police observed
[Appellant’s] car parked close to the Carlisle Street house, and,
on one of those occasions, saw [Appellant] cleaning snow off [of]
the car, thus supporting the inference that he resided on Carlisle
Street.
Id. at 15; see also Appellant’s Brief at 8 (referring to these locations as “two
residences”). Moreover, intercepted calls and surveillance suggested that
Appellant probably conducted drug trafficking out of his homes; for instance,
an unknown male — who had contact with Kline, Marks, and Appellant — told
Marks that he had just left Appellant’s personal house, and had, in the past,
visited all of Appellant’s other houses. See Carlisle Affidavit at 172.
In addition, because the affidavits detail a widespread drug trafficking
organization of which Appellant was an active, high-ranking member, we find
distinguishable the cases relied upon by Appellant involving merely one or two
drugs transactions. See Appellant’s Brief at 12-23. Instead, we deem more
apt the case of Commonwealth v. Iannelli, 634 A.2d 1120 (Pa. Super.
- 30 -
J-A13014-20
1993), in which this Court rejected Iannelli’s argument that no probable cause
existed for a search warrant of a house where the police did not state specific
facts to support that the house was Iannelli’s residence, and the only
connection between him and the house was the averment that it was his
residence. Id. at 1131. This Court deemed sufficient the police officers’
averments that, through electronic, photographic and physical surveillance,
they had determined that Iannelli resided there and was heading illegal
gambling operations. Id. Further, we stated that “it was a matter of common
sense that the most likely place to find the physical evidence of gambling
would be at Iannelli’s home[,]” and accordingly concluded that the affidavit
provided probable cause to support the issuance of the search warrant. Id.
at 1132.
Similarly, and given the totality of the circumstances set forth in the
affidavits — including, inter alia, Appellant’s numerous communications with
Kline and Marks, his cryptic conversations and the affiants’ learned
interpretation of them, Appellant’s meetings with Kline, Marks, and Lynch, the
2007 investigation, and the March 9, 2014 surveillance — the issuing authority
in the case sub judice made a practical, common sense decision that there
was a fair probability that contraband or evidence of drug trafficking would be
- 31 -
J-A13014-20
found at the Carlisle and Fontain properties.5 Therefore, we conclude that the
trial court properly denied his motion to suppress.
II.
In Appellant’s second issue, he argues that “the evidence was
insufficient to prove that [he] was guilty of any of the charges for which he
was convicted in the lower court where constructive possession was not
proven beyond a reasonable doubt.” Appellant’s Brief at 24 (capitalization
and emphasis omitted). He claims that the Commonwealth did not prove that
____________________________________________
5 To the extent Appellant claims that the warrants were too old given the time
that passed between the March 9, 2014 surveillance and the execution of the
warrants at the end of that month, we deem this argument waived as he does
not indicate to us where he raised it below. See Appellant’s Brief at 13-14;
see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”); Pa.R.A.P. 2119(e)
(“Where under the applicable law an issue is not reviewable on appeal unless
raised or preserved below, the argument must set forth, in immediate
connection therewith or in a footnote thereto, either a specific cross-reference
to the page or pages of the statement of the case which set forth the
information relating thereto as required by Pa.R.A.P. 2117(c), or substantially
the same information.”); Commonwealth’s Brief at 20 (arguing that Appellant
waived this issue by not raising it in the suppression court below).
Nevertheless, even if not waived, we would agree with the Commonwealth
that “[w]hen viewed in the totality, … the affidavits established evidence of an
ongoing drug trafficking business that was likely to continue to exist up to the
time the warrant was issued and executed.” Commonwealth’s Brief at 20
(citing Commonwealth v. Jones, 668 A.2d 114, 118 (Pa. 1995) (plurality)
(“A showing that criminal activity is likely to have continued up to the time of
the issuance of a warrant renders otherwise stale information viable.”)
(citations omitted)); see also Commonwealth v. Macolino, 485 A.2d 1134,
1138 n.2 (Pa. Super. 1984) (“Probable cause for the issuance of a search
warrant must be established at the time the warrant is issued; therefore,
evidence of criminal activity at some prior time will not support a finding of
probable cause on the date the warrant issues unless it is also shown that the
criminal activity continued up to or about that time.”) (citation omitted).
- 32 -
J-A13014-20
he had “conscious dominion or control over the controlled substances that
were seized” from either the Carlisle or Fontain Street properties. See id. at
25.
Our standard of review for sufficiency-of-the-evidence claims is well-
established:
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 proof 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 the evidence actually
received must be considered. Finally, the trier of fact while
passing on the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part[,] or none of the
evidence.
Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005) (citation
omitted).
When substances are not found on the defendant’s person, the
Commonwealth must establish that the defendant constructively possessed
the substance. Id. This Court has explained:
Constructive possession requires proof of the ability to exercise
conscious dominion over the substance, the power to control the
contraband, and the intent to exercise such control. Constructive
possession may be established by the totality of the
- 33 -
J-A13014-20
circumstances. We have held that circumstantial evidence is
reviewed by the same standard as direct evidence—a decision by
the trial court will be affirmed so long as the combination of the
evidence links the accused to the crime beyond a reasonable
doubt.
Id. (internal citations and quotation marks omitted).
Here, the trial court reasoned:
[I]n addition to a number of relevant pieces of evidence, including
thousands of dollars in U.S. currency and drug paraphernalia, the
search of 2051 Carlisle Street in Philadelphia resulted in the
seizure of marijuana, heroin and cocaine. The search of 1537
[Fontain] Street revealed the presence of a large amount of
marijuana and other indicia of drug activity….
The evidence presented at the stipulated bench trial proved
beyond a reasonable doubt that [Appellant] had actual and/or
constructive possession of the controlled substances found at the
Philadelphia properties. The evidence showed [Appellant] was
involved in a marijuana distribution organization with a number of
other individuals. [Appellant] had access and keys to both
Philadelphia locations and was seen entering the properties
shortly after a suspected drug transaction on March 9, 2014.
[Appellant] was inside the Carlisle Street residence at the time the
search warrant[] was executed. During that search, [Appellant]
complained about laws against marijuana.[6] When reminded that
it is illegal in Pennsylvania to traffic marijuana, [Appellant]
demonstrated his consciousness of guilt by getting on his knees
and asking a detective to shoot him. All of this evidence amply
demonstrated that [Appellant] was part of a marijuana
distribution organization and that he possessed the controlled
substances found at the two Philadelphia locations in connection
with his involvement in the trafficking operation.
TCO at 7-9 (internal citations omitted).
____________________________________________
6 Specifically, at trial, Detective Michael Reynolds testified that, as state
troopers were about to begin searching the Carlisle Street house pursuant to
the warrant, Appellant told him that “the police were the criminals and that
marijuana plants are made by God and we had no right to interfere with God
or interfere with enforcing the laws of marijuana.” N.T. Trial, 11/14/17, at
77.
- 34 -
J-A13014-20
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner and considering the totality of the circumstances, we
agree with the trial court that the evidence was sufficient to prove Appellant’s
intent and ability to control the controlled substances found at the Carlisle
Street and Fontain Street properties.7 Accordingly, we deny Appellant’s
sufficiency-of-the-evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2020
____________________________________________
7 Appellant mentions that, when the Carlisle Street warrant was executed,
“there was a female in the house as well, in a bedroom on the second floor.”
Appellant’s Brief at 27 (citation omitted). This Court has stated that, “[w]here
more than one person has equal access to where drugs are stored, presence
alone in conjunction with such access will not prove conscious dominion over
the contraband.” Bricker, 882 A.2d at 1016 (citation and brackets omitted).
“Rather, the Commonwealth must introduce evidence demonstrating either
[the a]ppellant’s participation in the drug-related activity or evidence
connecting [the a]ppellant to the specific room or areas where the drugs were
kept.” Id. (citation and brackets omitted). Here, the Commonwealth
introduced adequate evidence demonstrating that Appellant participated in
the trafficking of marijuana.
- 35 -