Com. v. Cespede, J.

• Court: Superior Court of Pennsylvania
• Decided: May 14, 2019
• Docket: 3178 EDA 2016
• Status: Unpublished

Opinion

J-A01031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSE E. CESPEDE : : Appellant : No. 3178 EDA 2016

Appeal from the Judgment of Sentence August 30, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004559-2015

BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 14, 2019

Jose E. Cespede appeals from the judgment of sentence entered

following his jury-trial convictions for possession with intent to deliver a

controlled substance (“PWID”) and conspiracy to commit PWID. Cespede

challenges the trial court’s denial of his motion to suppress and the sufficiency

of the evidence to support the convictions. We affirm.

Cespede was arrested in March 2015 in connection with the manufacture

and distribution of heroin.

The trial court set forth the following factual history:

Multiple credible witnesses testified and direct and circumstantial physical evidence [was] introduced that amply demonstrated that . . . Cespede, had been actively involved as a remorseless high level heroin manufacturer and trafficker. The sworn testimony introduced from various Federal Special Agents, state and county police officers assigned to Homeland Security Investigations, referred to as “H.[S.I.],” established that a three year investigation, J-A01031-19

coordinated by investigative agencies, had begun in May 2012, focusing on the heroin packaging and transportation “mills” and organizations operating predominantly by persons born in the Dominican Republic in Philadelphia area. This collective investigative intelligence had been largely based upon surveillances of drug trafficking behaviors combined with reliable confidential, multi-sourced information. This concerted investigation led to the related arrests of multiple persons including [Cespede] on at least one earlier occasion and the previous confiscation of at least 492 grams of heroin.

On March 3, 2015, two reliable confidential sources led these same investigators to surveil a dark-skinned male, nicknamed “Papi,” later identified as Simeon Gonzalez, a native of the Dominican Republic. Papi had reportedly been operating numerous heroin packing “mills” at specified residences (specifically 5440 Rutland Street and 5144 Whitaker Avenue [(“Whitaker House”)] in Philadelphia) with other males from the Dominican Republic, and using a brown Honda Accord PA registration HHW-5453 to transport the narcotics. On that date, H.[S.I.] Special Agents and others set up observation posts and videotaped the surveillance of Papi in the surrounding Cheltenham and Rutland Streets in Philadelphia.

At approximately 10:57 a.m., agents observed Papi exit the 5440 Rutland Street house and enter the targeted brown Honda Accord. Papi was followed to the corner of Whitaker and Smylie Streets where he parked the Accord and entered [the Whitaker House]. After Papi’s entry into the real property, agents observed a red Honda Sedan stop in front of [the Whitaker House]. They saw a second Hispanic male, identified initially as “HM#2,” check the mailbox in front of the property at [the Whitaker House] and walk inside through the same door previously used by Papi and others. Shortly thereafter, HM#2 exited the property and conducted his own counter-surveillance for law enforcement. After HM#2 stared at the positioned surveillance units, he walked quickly toward Harkness Street and appeared to text on his cell phone while checking parked vehicles on the block. He then crossed the street on foot before returning to enter

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[the Whitaker House]. Agents realized that HM#2 detected law enforcement.[1]

Shortly after conducting his counter-surveillance measures, HM#2 exited [the Whitaker House] carrying at least one large sporty duffel bag, a baseball bat and glove. He walked with these items to the front of a gold Chrysler minivan which had been parked at 5156 Melbus Street (located to the rear of [the Whitaker House]) and walked away empty- handed down an alley. During the attempt to view the activities of HM#2, agents noticed that Papi’s Honda Accord had also left the area. Agents summoned a certified and markedly reliable K-9 drug sniffing dog “Spike” and his handler, Police Officer John Callahan[,] to conduct an exterior sniff of the minivan. Spike immediately signaled the presence of the illegal narcotic substances within the van.

As surveillance units were attempting to process the minivan, the brown Honda Accord that was previously seen being driven and parked by Papi, returned to the area and literally interrupted police in the middle of the street. This vehicle was stopped to prevent flight in the middle of the street just outside of [the Whitaker House]. Papi, who later identified himself as Simeon Gonzalez from the Dominican Republic with a residence in New York, was the driver. Two additional occupants of the brown Honda were Dalton Morinta-Abreu who was identified by agents as HM#2, who had been viewed earlier carrying the subject duffle bags and conducting counter-surveillance after exiting [the Whitaker House], and [Cespede] as a rear-passenger who identified himself as Jose Cespede.

Special Agent Edward Troy, one of the investigators at the scene, recognized the rear passenger in the brown Honda Accord as [Cespede] who previously identified himself as Jose Ernesto Cespede-Gonzalez, a registered Legal Permanent Resident from the Dominican Republic living in Wildwood New Jersey, from a preceding arrest involving the heroin mill operation at 7409 Oxford Avenue in Philadelphia on February 27, 2[01]4. This Agent also recalled that ____________________________________________

1The agents testified that they suspected that their surveillance was detected, but did not know whether the individuals suspected law enforcement or a rival drug gang. N.T., 4/28/16, at 19, 50.

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[Cespede] had been seen during the prior surveillance two years earlier operating the same Chrysler Minivan that was now holding the processed heroin filled duffle bags.

The registered owner to the brown Honda Accord was none of the occupants. The three occupants, including [Cespede] as rear passenger, were temporarily detained pending the obtaining of search warrants and further investigation. A valid consent to search the brown Honda Accord was duly obtained from the driver Papi. A pat down of the three individuals in the Honda Accord was conducted for the safety of the officers.

The keys to the front door of [the Whitaker House] were retrieved from Dalton Morinta-Abreu’s person. A single Chrysler key with fob was found on [Cespede’s] person. Subsequent to the consent to search, agents located and retrieved three cell phones in the front are[a] of the Accord, various paperwork for the brown Honda’s repairs and the sweat shirt that Mr. Abreu had been wearing earlier. A State of New Jersey Driver’s License with [Cespede’s] photograph and listing the Wildwood, New Jersey residence was produced by [Cespede] as identification along with $1000.00 United States Currency.

In the back seat, next to where [Cespede] had been seated, an Under Armour back pack was retrieved and later found to contain the following items: medical paperwork reflecting liposuction costing $30,000.00 for Jose Cespede as the patient; a Dominican Republic election card with [Cespede’s] photograph in the name of Jose Ernesto Cespede Gonzalez; a PECO bill in the name of Jose Cespede listing the same Oxford Avenue Philadelphia address where Cespede had been arrested in connection with heroin distribution in 2014; the American Insurance Company receipt for the targeted 2006 Chrysler Minivan placed in the name for the registered owner Korey Devaughn; flight tags and receipts in the name of Jose Cespede with Jet Blue Airways; a child support Order issued to Jose Cespede by the Superior Court of New Jersey with hearing notice; TD Bank receipts for Jose Cespede; a key ring and a piece of cardboard with handwriting listing names and varied dollar amounts up to $39,0000.00 per person similar to the drug ledgers writing samples found in the apartment at [the Whitaker House].

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The key fob that had been removed from [Cespede’s] person, caused the targeted gold Chrysler minivan lights to turn on and off upon application. This Chrysler key fob was later used to click open the minivan after the Search Warrant for the Chrysler minivan had been obtained.

Inside the backpack positioned next to where [Cespede] had been seated in the brown Honda Accord was paperwork reflecting the American Insurance Company receipt for the targeted 2006 Chrysler Minivan placed in the name for the registered owner Korey Devaughn.

Separate from the automobile stop, immediately after Spike, the reliable working detection dog, had reacted to the minivan other agents obtained Search and Seizure Warrants Numbers 179642 and 179643. Special Agent Richard Gramlich was the affiant and the Honorable Bradley Moss as duly elected Judge of the Municipal Court for the First Judicial District of Pennsylvania signed and authorized the searches on March 3, 2015[,] authorizing the search, after review and approval of the probable cause section of each warrant. The warranted search was executed upon the targeted Gold Chrysler Minivan and the real property located at [the Whitaker House]. Following execution, the two sporty duffle bags that had been previously observed as transported and deposited by HM#2, identified as Honda Accord passenger Dalton Morinta-Abreu, were confiscated from the subject minivan. Also confiscated from the minivan were rental receipts in the name of Mark Escobar and bills for the same listed apartment as the receipt in the name of [Cespede] as Jose Cespede Gonzalez.

The large sporty duffle bags retrieved from the minivan contained in excess of 1250 grams of cut heroin in various forms, along with numerous heroin coated items including: Scotch whiskey containers, glassine packets; straws; coffee grinders; platinum tins; ink pads and stamps; metal sifters; freezer bags and assorted containers commonly used by drug traffickers to package, weigh, sort, stamp, cook and cut and distribute heroin. Inside the apartment located at [the Whitaker House], numerous boxes of similar narcotics processing items were retrieved along with itemized hand written ledgers matching the ledgers found in the back pack containing [Cespede’s] documents. Additionally, eleven cellular telephones, a Garmin GPS device, bags of

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respiratory masks, additional sporty duffle bags, Samsung tablet, miscellaneous documents, a metal PA License Plate, and $4,200.00 were found and confiscated. Because the atmosphere inside the apartment was so toxic, the air born substances had been bagged together after protective gear was provided to law enforcement. No evidence of any normal residential living quarters was located within the real property [at the Whitaker House].

All of the physical evidence was collected, field tested, inventoried and assigned to at least twenty four Property Receipts and subsequently formally examined by the Police Chemical Lab and processed. At trial, expert testimony was introduced concerning the common methods and instruments used by heroin processing mills and distributors and the estimated overall street value of the bulk heroin confiscated in this case was over $412,520,000.00.

Trial Court Opinion, filed June 6, 2018, at 5-10 (“1925(a) Op.”).

The affidavit of probable cause in support of the application for a search

warrant for the minivan stated that an investigation of a heroin mill

organization started on or about May 2012, and that the information from this

investigation caused the officers to identify and target a male known as “Papi”

in 2015. It detailed the surveillance set forth above, including the actions of

the individuals under surveillance, the canine sniff, the stop of the Honda

Accord, and that a key fob found on Cespede activated the minivan.

Cespede filed a motion to suppress the physical evidence, challenging

the car stop, pat-down search, retrieval of the car key and use of the key fob,

and the search warrants.2 After a hearing on the motion to suppress, the trial

court denied the motion.

____________________________________________

2Although the certified record does not contain the motion to suppress, the hearing on the motion detailed the arguments.

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The case proceeded to a jury trial. The jury found Cespede guilty of

PWID and conspiracy, but acquitted him of use or possession of drug

paraphernalia. On August 30, 2016, the trial court sentenced Cespede to an

aggregate term of ten to 30 years’ incarceration.

Cespede filed a post-sentence motion, which the trial court denied.

Cespede filed a timely notice of appeal.

Cespede raises the following issues:

I. Whether the stop and frisk of [Cespede] violated Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the Constitution of the United States where the uncontradicted evidence indicates no individualized, objective basis for the agent to conclude that [Cespede] was armed and dangerous and whether the evidence derived from the illegal stop and frisk must be suppressed as fruit of the poisonous tree?

II. Whether the evidence was sufficient to prove that [Cespede] actually or constructively possessed with intent to deliver more than 1000 grams of heroin or conspired with unidentified persons to do so as charged in counts one and two of the Information?

III. Whether the evidence was insufficient to prove that [Cespede] conspired with unidentified persons to possess with intent to deliver heroin as charged in count two?

Cespede’s Br. at 3-4.

I. The Court Did Not Err in Denying Motion to Suppress.

In his first issue, Cespede challenges the denial of his motion to

suppress. He argues that the police officers lacked an individualized, objective

basis to believe he was armed and dangerous and that an individual’s location,

standing alone, does not provide sufficient grounds for a protective search.

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Cespede claims that “discovery of the key fob was direct fruit of the unlawful

stop and frisk” and that “[p]ressing the key fob was another” constitutional

violation “since it violated what the Commonwealth alleged was [Cespede’s]

possessory interest in the gold minivan and his right to privacy.” Cespede’s

Br. at 21. He further claims the “heroin found in the gold minivan is fruit of

the poisonous tree to the extent the Commonwealth linked the heroin to

[Cespede] through the unlawful searches and seizures leading to discovery of

the key to the vehicle on [Cespede’s] person.” Id.

Our standard of review on appeal of the denial of a motion to suppress

is limited to determining “whether the record supports the suppression court’s

factual findings and the legitimacy of the inferences and legal conclusions

drawn from those findings.” Commonwealth v. Griffin, 24 A.3d 1037, 1041

(Pa.Super. 2011) (quoting Commonwealth v. Lohr, 715 A.2d 459, 461

(Pa.Super. 1998)). If the record supports the factual findings of the trial court,

we reverse “only if there is an error in the legal conclusions drawn from those

factual findings.” Id. (citation omitted).

“[T]he [F]ourth [A]mendment to the United States Constitution as well

as Article I, § 8 of the Pennsylvania Constitution protect citizens from

‘unreasonable searches and seizures.’” Commonwealth v. Simmons, 17

A.3d 399, 402-03 (Pa.Super. 2011) (quoting Commonwealth v. Baer, 654

A.2d 1058, 1059 (Pa.Super. 1994)). A warrantless search or seizure is

unreasonable “unless conducted pursuant to specifically established and well-

delineated exceptions to the warrant requirement.” Id. at 403 (quoting Katz

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v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

“One such exception, the Terry[3] ‘stop and frisk,’ permits a police officer to

briefly detain a citizen for investigatory purposes if the officer ‘observes

unusual conduct which leads him to reasonably conclude, in light of his

experience, that criminal activity may be afoot.’” Id. (quoting

Commonwealth v. Fitzpatrick, 666 A.2d 323, 325 (Pa.Super. 1995)).

Further, “‘[w]hen an officer is justified in believing that the individual whose

suspicious behavior he is investigating at close range is armed and presently

dangerous to the officer or to others’ the officer may conduct a pat down

search ‘to determine whether the person is in fact carrying a weapon.’” Id.

(quoting Terry, 392 U.S. at 24).

Search warrants “may only issue upon probable cause and ‘[t]he issuing

authority, in determining whether probable cause has been established, may

not consider any evidence outside the affidavits.’” Commonwealth v. Leed,

186 A.3d 405, 413 (Pa. 2018) (quoting Pa.R.Crim.P. 203(B)). “Probable cause

exists where the facts and circumstances within the affiant’s knowledge and

of which he has reasonably trustworthy information are sufficient in

themselves to warrant a man of reasonable caution in the belief that a search

should be conducted.” Id. (quoting Commonwealth v. Johnson, 42 A.3d

1017, 1031 (Pa. 2012)). Further, “[t]he affidavit of probable cause ‘must

provide the magistrate with a substantial basis for determining the existence

3 Terry v. Ohio, 392 U.S. 1, 24 (1968).

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of probable cause[.]’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 239, 103

S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In addition, where a search warrant is

based on inaccurate information, we have held that “courts may uphold a

warrant if an independent basis exists to support a finding of probable cause;

however, . . . a court must invalidate a search warrant if the sole basis for

finding probable cause is the material misstatements.” Commonwealth v.

Antoszyk, 985 A.2d 975, 982 (Pa.Super. 2009) (emphasis omitted).

A. Reasonable Suspicion

Following the suppression hearing, the trial court found the officers had

reasonable suspicion to stop the vehicle and to conduct a pat-down search for

the officer’s protection. N.T., 4/28/16, at 90.

We agree. Based on surveillance of the driver of the Honda Accord and

of a house associated with the car and minivan, and the results of a canine

sniff of the minivan, the police officers reasonably suspected the minivan to

contain narcotics. While waiting the approval of a search warrant for the

minivan, the Honda Accord returned. Based on their prior experience, the

officers were concerned that the car’s occupants either knew the police officers

were surveilling them or believed the police officers were a rival drug gang.

This provided reasonable suspicion that the car’s occupants, including

Cespede, were armed and dangerous and justified the protective search.

Cespede relies, in part, on Commonwealth v. Grahame, 7 A.3d 810

(Pa. 2010), and Ybarra v. Illinois, 444 U.S. 85 (1979), for the proposition

that the officers lacked individualized suspicion to search him. In Grahame,

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the Pennsylvania Supreme Court found the police officers lacked reasonable

suspicion to search the defendant’s handbag solely based on her presence in

the residence of another individual who sold illegal drugs outside the

defendant’s presence. 7 A.3d at 817. There, the officer “conducted a

protective search of [the defendant’s] purse based on a generalization that

firearms are commonly found in close proximity to illegal drugs.” Id. In

Ybarra, police officers were executing a search warrant of a tavern based on

probable cause that “Greg” was selling narcotics from the tavern. 444 U.S. at

88. The officers conducted a “cursory search for weapons” of all individual

located in the tavern, including the defendant, who was a tavern patron. Id.

The United States Supreme Court found the search of the defendant was

unconstitutional, noting the police did not recognize the defendant and had no

reason to believe he had committed or was committing any offense, the

defendant made no movements to suggest he was concealing contraband, and

he said nothing of a suspicious nature to the officer. Id. at 91. The court noted

that “a person’s mere propinquity to others independently suspected of

criminal activity does not, without more, give rise to probable cause to search

that person.” Id.

Here, unlike in Grahame and Ybarra, the protective search was not

based merely on presence or on a generalization that firearms follow drugs.

Rather, the officers were investigating a drug mill involving multiple

individuals in the car and believed that the individuals detected their

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surveillance, and either knew of the officers’ presence or believed the officers

to be a rival drug gang.4

B. Key Fob

Cespede also challenges the officer’s use of the fob, claiming the use

“violated Article I, Section 8 and the Fourth Amendment since it violated what

the Commonwealth alleged was [Cespede’s] possessory interest in the gold

minivan and his right to privacy.” Cespede’s Br. at 21.5

We conclude that we need not reach this issue, as sufficient probable

cause supported the search warrants, and the driver of the Honda Accord

consented to the search of the Honda.

Where a search warrant is based on inaccurate information, “courts may

uphold a warrant if an independent basis exists to support a finding of

probable cause.” Antoszyk, 985 A.2d at 982. In Commonwealth v.

Harvard, we concluded that the use of a key fob found at a robbery scene did

4 The police officers testified that they conducted the pat-down search of Cespede before Special Agent Troy recognized Cespede as someone who had driven the minivan in the past and had previously been arrested in connection with the investigation. N.T., 4/28/16, at 23, 30. Because the frisk occurred before Special Agent Troy saw Cespede and the agents do not claim this recognition was a basis for the search, id. at 49, we also do not rely on it as a basis to support the protective search.

5 Cespede does not argue on appeal that the officer violated his rights when the officer retrieved the key from his person. He argues the police officer lacked reasonable suspicion to conduct a protective search and violated his rights when the officer used the key fob.

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not constitute a search, but, even if it did constitute a search,6 the “use of the

key fob was immaterial to [the officer’s] ability to obtain the warrant” for the

residence. 64 A.3d 690, 695-96 (Pa.Super. 2013). We noted the officer had

identified the defendant from surveillance videos and his driver’s license

photo, the defendant became a suspect by using a robbery victim’s ATM card,

and the officer confirmed Harvard’s “connection to the vehicle through . . .

observations of [the defendant] using the vehicle.” Id. at 696. The key fob

“provided additional evidence linking [the defendant] to the home invasion,

but it was superfluous for purposes of obtaining the warrant.” Id.

Here, we conclude that, even if the retrieval of the key and use of the

fob constituted violations, no evidence would have been suppressed. The

search of the Honda Accord was based on consent of the driver and the

searches of the minivan and Whitaker House were based on warrants

supported by probable cause.

The trial court found:

[It] reasonably determined that the admission of all physical evidence confiscated from the targeted brown Honda Accord and its occupants, the Chrysler Minivan and its contents, and the real property located at [the Whitaker House], was completely reasonable. The receipt of credible confidential ____________________________________________

6 In Harvard, this Court found use of a key fob did not constitute a search requiring a search warrant. 64 A.3d at 695-96. There, police recovered a key fob from the location of a robbery, and used that fob to activate a vehicle suspected to be used by the perpetrator of the robbery. Id. at 695. This Court found use of the key fob did not constitute a search, noting the officer did not use the fob to gain entry to any concealed portion of the car. Id. at 696. Rather, the “key fob simply enabled [the officer] to make additional plain view observations from his lawful vantage point.” Id.

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information combined with the analysis of the reported ongoing observed activities of all arrested persons within this case presented ample probable cause to justify the execution of Search and Seizure Warrants upon the associated Chrysler minivan and real property located at [the Whitaker House]. A valid consent to search the Accord had been duly provided by the driver, “Papi.” Although not necessary for this Court’s determination, exigent circumstances also existed that validated the stop of the Accord in the street outside of the real property at [the Whitaker House] to prevent harm through flight or destruction of evidence.

1925(a) at 13. We agree. The evidence obtained was not found as a result of

the stop, frisk, or use of the fob. Rather, the evidence was obtained following

the execution of the search warrants supported by probable cause. Although

the warrant for the minivan mentioned the key fob found on Cespede and that

the fob activated the minivan, this information was superfluous and not a

material portion of the warrant and, if the use of the key fob was removed

from the warrants, the warrants would still be supported by probable cause.

Harvard, 64 A.3d at 696; Antoszyk, 985 A.2d at 982.

II. The Commonwealth Presented Sufficient Evidence to Support the Convictions.

Cespede next argues the Commonwealth failed to present sufficient

evidence to support the PWID and conspiracy convictions.

When reviewing a sufficiency of the evidence claim, we must determine

whether, when viewed in the light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find that each element of the crime charged is established

beyond a reasonable doubt. See Commonwealth v. Brown, 23 A.3d 544,

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559 (Pa.Super. 2011) (en banc). “The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means

of wholly circumstantial evidence.” Id. (quoting Commonwealth v.

Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008)).

Cespede first claims the Commonwealth failed to present sufficient

evidence of PWID. He claims the Commonwealth failed to establish he

possessed any narcotics and failed to establish he knew narcotics were in the

minivan. He notes that the officers saw another individual carrying the bag to

the minivan and the minivan was registered to a third individual.

Cespede next argues the Commonwealth failed to present sufficient

evidence of a conspiracy. He claims the Commonwealth did not establish he

knew he was involved in a conspiracy, as there was no evidence he knew there

was heroin in the minivan and no evidence he was inside the Whitaker House.

He claims the evidence merely shows he was out of the country for a couple

months and asked friends to pay his bills, and that 13 months prior to his

arrest he drove the minivan. He claims this merely establishes association,

not conspiracy.

The trial court set forth the elements of the crimes and the relevant law

and found the Commonwealth presented sufficient evidence to support the

convictions for PWID and conspiracy. 1925(a) Op. at 13-18. It reasoned that

the surveillance, the items found in the bag in the Honda Accord, the evidence

found in the minivan, and the items and paperwork found in the Whitaker

House supported the convictions. We agree with the trial court that the

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evidence was sufficient. After review of the parties’ briefs, the certified record,

and the well-reasoned opinion of the Honorable Anne Marie B. Coyle, we affirm

on the basis of the trial court opinion. 1925(a) Op. at 6-7.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/14/19

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) j ,. j u, IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL ]RIAL DIVISION

COMMONWEALTH OF PENNSYLVAltHA ) PHILADELPHIA COUNTY i � COURT OF COMMON PLEAS CP-51-CR-OOO.t559-20i5Comm. v. cespeoe, Jose E. Opinion ; VS.

JOSE E. CESPEDE 1111111111 ill I 8119214981 j . I / '10. CP-5 l-CR-0004559-2015 FILED 'JUN·-0' 6 2018 �ls/PostTrlal OPINION Office of Judicial Records

Appellant, Jose Cespede, as the above-named Defendant, seeks review of the Order and

Judgments ofSentence, entered on August 30, 2016 in the above-captioned matter, by this Court,

the Honorable Anne Marie B. Coyle, Judge of the FirstJudicialDistrict, Court of Common Pleas.

The Appellant asserts various errors within his Statement of Matters Complained of on Appeal

Pursuantto Pa. R. P. 1925(b)Jiled . onAugust 16, 2017. Appellant's . claims were reasserted and I

rephrased within the Supplemental Statement of Matters Complained of on Appeal Pursuant to Pa.

R. P. l925(b) filed on March 19, 2018 by Appellant's subsequently retained appellate counsel Cheryl J. Strum, Esquire following the Motion For Leave to File the Supplemental Statement of

Matters Complained Of On Appeal Nunc f!ro Tune.

PROCEDURAL HISTORY

The underlying case, which is the svhject matter of the instant appeal, stems from the arrest

ofJose E. Cespede on March 4, 2015 for his active participation with at least three other men, also

from the Dominican Republic, in the illegal manufacture and distribution of heroin valued on the

. street in excess of $4,000,000.00 inside land near 5144 Whitaker Avenue,. Philadelphia, PA.

Following his arrest, Appellant was charge'.d with the. felony offenses of Manufacture, Delivery or Possession With Intent to Manufacture \or Deliver Controlled Substance, 35 §78-113 §§A30,

i Conspiracy- Manufacture, Delivery or Possession With Intent to Manufacture or Deliver ' Controlled Substance, 18 P.S. §903,. and Jthe misdemeanor offenses of Knowing and Intentional

Possession of Controlled Substance By PersonNot Registered, 35 P.S. §78-113 §§A16, and Use '

or Possession ofDrug Paraphernalia, 35 �· S. §78-113 §§A32.

After extensive defense pre-trial delay, on April 28, 2016, a hearing was conducted before

this Court concerning a pre-trial Motion.To Suppress Physical Evidence filed on behalf of the ' Defendant by his trial counsel Guy ScioI!Ia, Esquire. This Court denied Defendant's Motion To

Suppress on May 9, 2016.

On May l 0, 2016, this Court conducted an evidentiary hearing concerning the Defendant's

Motion in Limine seeking to exclude relevant evidence from a previous surveillance that the

Defendant had been seen two years earlier driving the subject Chrysler minivan, from which the !

duffle bags of packaged heroin were retrieved in the instant matter. This Court denied Defendant's

Motion in Limine to exclude this relevant nexus data.

Following jury selection, the Commonwealth's case began on May 10, 2016 and ended !

May 11, 2016 with this Court as the presiding jurist. The defense Motion For Directed Verdict was ' raised and denied on May 11, 2016. The defense began its introduction of evidence on May 11,

2016 and completed the defense case on May 12, 2016.

On May 12, 2016, closing arguments and jury instructions were given before the jury

retired to begin deliberations. Following this Court's response to jury questions, the jury returned

verdicts of guilty on May 13, 2016 to the felony offenses of Manufacture, Delivery or Possession

With Intent to Manufacture or Delive� Controlled Substance, 35 P.S. §780-113 §§A30,

Conspiracy- Manufacture, Delivery or Possession With Intent to Manufacture or Deliver

2 Controlled Substance, 18 P.S.§903. The j�u)' found the Defendant not guilty of the misdemeanor

offense of Use or Possession of Drug Par�phemaJia, 35 P.S. §780-113 §§A32 . Immediately following entry of verdicts, Presentence Investigative Reports and Mental

Health Assessments were ordered and a ientencing hearing date was set for July 14, 2016. This .' Court granted the defense request for a continuance of the sentencing hearing. On August 30, 2016,

following thorough review of the Presentence Investigative Reports, the sentencing guideline

calculations promulgated by the Pennsylvania Commission of Sentencing and upon hearing .' testimonial evidence and oral argument, this Court sentenced Defendant to serve an aggregate term

of state supervised confinement of 10 years to 30 years with permitted calculated credit for time

served and applied rehabilitative conditions, followed by 5 years of state supervised probation.

Specifically; the Order of Sentence: directed the imposition of standard guideline sentences

for each count as follows:

Count 1 : Manufacture, Delivery or Possession With Intent to Manufacture or Deliver Controlled Substance, 35 P .S. §780-113 §§A30: State supervised confinement for minimum period of5 years to maximum period of 15 years;

Count 2: 1 Conspiracy- Manufacture, Delivery or Possession With Intent to Manufacture or Deliver Controlled Substance, 18 P.S. §903: State supervised confinement for minimum period of 5 years to maximum period of 15 years running consecutively to the period of confinement imposed in Count 1.

The Order of Sentence reflected that credit for custodial time served was to be applied and

that the Defendant was not statutorily deemed eligible for RRRl or Boot Camp early release

programs. In addition, the Order of Sentence reflected the imposition of payment ofa $50,000.00

fine and rehabilitative requirements of educational or vocational training. The Defendant was ' directed to use his best efforts to seek and, maintain legitimate employment when paroled and to

3 submit to random testing for illegal drugs pr alcohol and to home and vehicle checks for drugs or

weapons. ' A timely Motion for Reconsideratfon of Sentence was filed on behalf of the Defendant by

his trial counsel on September 8, 2016. Op September 21,2016, Defendant's trial counsel filed a '

corresponding Writ of Habeas Corpus. .· !1This Court entered an Order denying. Post-Sentence

Motions after a hearing on September 26, �016.

The Defendant's Notice of Appeal �o the Superior Court was filed by subsequently retained ' appellate counsel Lawrence Anthony Narcisi, III. This Court issued an Order Pursuant to PA.R.P.

1925(b) on October 21, 2016, again on November 7, 2016, and again on August 3, 2017. The

Defendant's Statement ofMatters Complained on Appeal was filed on August 16, 2017;

In his Statement of Matters Complained of on Appeal Pursuant to Pa. R P. 1925(b), Defendant argues as follows:

1, "The trial court erred by denying the motion to suppress; 2. The trial court erred in granting the motion in limine allowing testimony to be introduced regarding Appellant operating the gold minivan 33 months prior to arrest; , 3. The trial court erred in denying] trial counsel the opportunity to cross exam regarding the disposition of the co-defendant's case; 4. The verdict was inconsistent and against the evidence to the extent that Appellant was found not guilty of possessing paraphernalia which was located in the same duffle bag as the narcotics; and. 5. The aggregate sentence of IO to 30 years state incarceration was unreasonable and an abuse of discretion." ·

On March 19, 2018, Appellant, by �nd through subsequently hired counsel, Chery J. Sturm,

Esquire, filed a Motion For Leave to File Supplemental Statement of Matters Complained of on !

Appeal Nunc Pro Tune and the attached a� "Exhibit "D." corresponding Supplemental Statement ' of Matters Complained of on Appeal citing the need to supplement the previously filed "vague"

Statement of Matters Complained of on Appeal.

·--·-----"--·----·-------·--·----·---·-···--·-··--·----'·--·- -····-····-·----···----·--·-···---·--·--·--·-·-·----------·------·--···· · "'--··--'""·----- The Supplemental Statement essentially repeated the previous claims, i.e; that the trial court

erred by denying the suppression motion originally litigated. The Supplemental Statement also ' reiterated the argument that the verdicts had not been supported by sufficient evidence; The l Supplemental Statement also argues that t�e imposed sentence violated the double jeopardy clause ' ' of the Fifth Amendment made applicable to the States through the Due Process Clause of the

Fourteenth Amendment because the imposed sentences for the felony offenses of Conspiracy and

Possession With Intent To Distribute Controlled Substance should have merged despite the salient ' difference in statutory offense elements. j l

This Court entered an Order on March 23, 2108 granting the Appellant's Motion For Leave to

file Supplemental Statement ofMatters Complained of on Appeal nunc pro tune and permitted the

docketing of the Supplemental Statement as of record.

FACTUAL HISTORY

Multiple credible witnesses testified and direct and circumstantial physical evidence had

been introduced that amply demonstrated jthat the Defendant, Jose E. Cespede, had been actively

involved as a remorseless high level heroin manufacturer and trafficker. The sworn testimony

introduced from various Federal Special! Agents, state and county police officers assigned to

Homeland Security Investigations, referred to as "H.LS.," established that a three year

investigation, coordinated by investigative agencies, had begun in May 2012, focusing on the

heroin packaging and transportatiorrvmills'' and organizations operating predominantly by persons

born in the Dominican Republic in Philadelphia area. This collective investigative intelligence

had been largely based upon surveillances of drug trafficking behaviors combined with reliable ' confidential, multi-sourced information. 'Jihis concerted investigation led to the related arrests of

--------------------------------------------'-------------- multiple persons including Appellant on a� least one earlier occasion and the previous confiscation

of at least 492 grams of heroin. ' On March 3, 2015, two reliable confidential sources led these same investigators to surveil

a dark-skinned male, nicknamed "Pupi,"l later identified as Simeon Gonzalez, a native of the ' reportedly Dominican Republic. Papi had been operating numerous heroin packing "mills" at

specified residences (specifically 5440 Rutland Street and 5144 Whitaker Avenue in Philadelphia)

with other males from the Dominican Republic, and using a brown Honda Accord PA registration 1 HHW-5453 to transport the narcotics. o;n that date, H.I.S. Special Agents and others set up l

observation posts and videotaped the su7eillance of Papi in the surrounding Cheltenham and

Rutland Streets in Philadelphia.

At approximately 10:57 a.m., agents observed Papi exit the5440 Rutland Street house and

enter the targeted brown Honda Accord. Papi was followed to the corner of Whitaker and Smylie !

Streets where he parked the Accord and entered a row home located at 5144 Whitaker Street. After

Papi's entry into the real property, agents observed a red Honda sedan stop in front of 5144

Whitaker Avenue. They saw a second Hispanic male, identified initially as "HM#2," check the

mailbox in front of the property at SJ 44 W\hitaker A venue and walk inside through the same door

previously used by Papi and others. Shortly thereafter, HM#2 exited the property and conducted !

his own counter-surveillance for law enforcement. After HM#2 stared at the positioned

surveillance units, he walked quickly toward Harkness Street and appeared to text on his cell phone

while checking parked vehicles on the block. He then crossed the street on foot before returning

to enter 5144 Whitaker A venue, Agents realized that HM#2 detected law enforcement. Shortly after conducting his countclr�surveillance measures, HM#2 exited 5144 Whitaker

A venue carrying at least one large sporty lduffel bag, a baseball bat and glove. He walked with

6 these items to the front of a gold Chryslef minivan which had been parked at 5156 Melbus Street

(located to the rear of 5144 Whitaker AJ.enue) and walked away empty-handed down an alley.

9f HM#2, agents noticed that Papi 's Honda Accord had ' During the attempt to view the activities !

also left the area. Agents summoned a :certified and markedly reliable K.:.9 drug sniffing dog '

"Spike" and his handler, Police Officer John Callahan to conduct an exterior sniff ofthe minivan.

Spike immediately signaled the presence �fthe illegal narcotic substances within the van.

As surveillance units were attempting to process the minivan, the brown Honda Accord '!

that was previously seen being driven ahd parked by Papi, returned to the area and literally l

interrupted police in the middle of the street, This vehicle was stopped to prevent flight in the

middle of the street just outside of 5144jWhitaker Street. Papi, who later identified himself as

Simeon Gonzalez from the Dominican Republic with a residence in New York, was the driver.

Two additional occupants of the brown Honda were Dalton Morinta-Abreu who was identified by

agents as HM#2, who had been viewed earlier carrying the subject duffle bags and conducting

counter-surveillance after exiting 5144 Whitaker Avenue, and Appellant asarear passenger who

identified himself as Jose Cespede.

Special Agent Edward Troy, one iof the investigators at the scene, recognized the rear

passenger in the brown. Honda Accord as Appellant who previously identified himself as Jose !

Ernesto Cespede-Gonzalez, a registered Legal Permanent Resident from the Dominican Republic

living in Wildwood New Jersey, from a �receding arrest involving the heroin mill operation at

7409 Oxford Avenue in Philadelphia on February 27, 2 I 04. This Agent also recalled that Appellant

had been seen during the prior surveillance two years earlier operating the same Chrysler Minivan

that was now holding the processed heroin! filled duffle bags,

"···-·--·--�--..�··---�-�·-..-·--··-·---·..........�............ "�·--------·�--·- . ------.. ------·-'·-·--- ,,_ The registered owner to the brown Honda Accord was none of the occupants. The three

occupants, including the Defendant as r�ar passenger, were temporarily detained pending the ' obtaining of search warrants and further irivestigation. A valid consent to search the brown Honda ! Accord was duly obtained from the driver! Papi. A pat down of the three individuals in the Honda '

Accord was conducted for the safety of th� officers.

The keys to the front door of5 l 44j Whitaker Avenue were retrieved from Dalton Morinta-

Abreu' s person. A single Chrysler key with fob was found on Appellant's person. Subsequent to i the consent to search, agents located and retrieved three cell phones in the front are of the Accord,

various paperwork for the brown Honda's repairs and the sweat shirt that Mr. Abreu had been

wearing earlier. A State of New Jersey Driver's License with the Defendant's photograph and

listing the Wildwood, New Jersey residence was produced by the Defendant as identification along

with $1000.00 United States Currency.

In the back seat, next to where Appellant had been seated, an Under Armour back pack ' was retrieved arid later found to contain the following items: medical paperwork reflecting

liposuction costing $30,000.00 for Jose Cesepede as the patient; a Dominican Republic election

card with Appellant's photograph in the name of Jose Ernesto Cespede Gonzalez; a PECO bill in

the name of Jose Cespede listing the same Oxford Avenue Philadelphia address where Cespede !

had been arrested in connection with heroin distribution in 2014; the American Insurance

Company receipt for the targeted 2006 Chrysler Minivan placed in the name for the registered

owner Korey Devaughn; flight tags and receipts in the name of Jose Cespede with Jet Blue

Airways; a child support Order issued to Jose Cespede by the Superior Court of New Jersey with '

hearing notice; TD Bank receipts for Josb Cespede; a key ring and a piece of cardboard with

·---·--·-··----·-----·-··-·--·-------..----------'-------------- --- -·------.. ... .. , , , , ..... handwriting listing names and varied doll�r amounts up to $39,0000.00 per person similar to the

drug ledgers writing samples found in the apartment at 5144 Whitaker Avenue. ' The key fob that had been removed from the Defendant's person, caused the targeted gold l Chrysler minivan lights to tum on and offhipon application. This Chrysler key fob was later used '

to click open the minivan after the Searc� Warrant for the Chrysler minivan had been obtained.

Inside the backpack positioned next to where the defendant had been seated in the brown Honda

Accord was paperwork reflecting the American Insurance Company receipt for the targeted 2006 ' Chrysler Minivan placed in the name for the registered owner Korey Devaughn.

Separate from the automobile stop,! immediately after Spike, the reliable working detection

dog, had reacted to the minivan other agents obtained Search and Seizure Warrants Numbers

179642 and 179643. Special Agent . Richard . Gramlich was the affiant and the Honorable.Bradley

Moss as duly elected Judge of the Municipal Court for the First Judicial District of Pennsylvania ;

signed and authorized the searches on March 3, 2015 authorizing the search, after review and

approval of the probable cause section of each warrant. The warranted search was executed upon

the targeted Gold Chrysler Minivan and [the real property located at 5144 Whitaker Avenue,

Philadelphia. Following execution, the t�o sporty duffle bags that had beenpreviously observed

as transported and deposited by HM#2, identified as Honda Accord passenger Dalton Morinta- !

Abreu, were confiscated from the subject minivan. Also confiscated from the minivan were rental

receipts in the name of Mark Escobar and jbills for the same listed apartment as the receipt in the

name of Defendant as Jose Cespede Gonzalez.

The large sporty duffle bags retrieved from the minivan contained in excess ofl 250 grams

of cut heroin in various forms, along with numerous heroin coated items including: Scotch whiskey

containers, glassine packets; straws; coffee grinders; platinum tins; ink pads and stamps; metal

.. ··--·--··---·--·····-·----- sifters; freezer bags and assorted containers commonly used by drug traffickers to package, weigh,

sort; stamp, cook and cut and distribute heroin. Inside the apartment located at 5144 Whitaker ' A venue, numerous boxes of similar narcofics processing items were retrieved along with itemized ! hand written ledgers matching the ledgers found in the back pack containing the Defendant's i ' documents. Additionally) eleven cellular �elephones, a Garmin OPS device, bags of respiratory

masks, additional sporty duffle bags) S�msung tablet, miscellaneous documents, a metal PA ! License Plate, and $4,200.00 were found and confiscated. Because the atmosphere inside the ' ' apartment was so toxic, the air born substances had been bagged together after protective gear was l

provided to law enforcement. No evidence of any normal residential living quarters was located

within the real property 5144 WhitakerA�enue.

All ofthe physical evidence was collected, field tested, inventoried and assigned to at least

twenty four Property Receipts and subsequently , formally examined by the Police Chemical Lab

and processed. At trial, expert testimony' was introduced concerning the common methods and

instruments used by heroin processing mills and distributors and the estimated overall street value

of the bulk heroin confiscated in this case was over $412,520,000.00. !

DISCUSSION

I. Appellant's pre-trial Motion to Suppress Physical Evidence was properly denied.

Within his Supplemental and original Statement of Matters Complained of on Appeal,

Appellant asserted that this Court erred by admitting the physical evidence at trial after denying

the pre-trial Motion to Suppress all confiscated physical evidence filed on behalf of the Defendant

by his trial counsel.

-----··------···-----..·--·--- The appellate court's standard of rtview of a denial of a motion to suppress is to determine

whether the record supports the trial court's factual findings and whether the legal conclusions ' drawn therefrom are free from error. Commonwealth v. Moye, 836 A.2d 973 (Pa. Super. 2003)

quoting. Commonwealth v. McC!ease,- . 750:I A.2d 320, 323 (Pa. Super. 2000). The scope of review '

is limited; the appellate court may consid¢r "only the evidence of the prosecution and so much of '

the evidence for the defense as remains uricontradicted when read in the context of the record as a

whole." Id. quoting Commonwealth v. J\.faxon, 798 A.2d 761, 765 {Pa. Super. 2002), Where the ' record supports the findings of the suppression court, the appellate court is bound by those facts l

and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Moye, supra., quoting Mctllease, 750 A.2� at 323-24 quotingln the Interest ofD.M,560 Pa. 166,

743 A.2d 422, 424 (1999).

The Fourth Amendment of the United States Constitution provides that government !

officers shall not violate the right of thei people to be secure from unreasonable searches and

seizures in their persons and effects, U.S. Const. Amend. IV. A person is "seized" within the

meaning of the Fourth Amendment if, in !view of the circumstances surrounding the incident, a

reasonable person would have believed !that he or she was not free to leave. Michigan v.

Chesternut, 486 tr.s. 567, 573 (1988) (hol:cting that no seizure occurred when defendantran upon

seeing police car and officers accelerated to drive alongside him). Factors indicating the

occurrence of a seizure of the person include the threatening presence of several police officers,

display of a weapon, physical contact, aha use of language or a tone of voice indicating that

government officers might compel the !person's compliance with a request 1 Robert L.

Evangelista, Pennsylvania Criminal Trial Guide§ 7.60 (2002) (compiling state and federal cases).

11 Additionally, the Fourth Amendment does not prohibit warrantless searches, but rather

unreasonable searches. The reasonableness of a search depends upon the facts and ' circumstances of the particular case, considered in the context of established constitutional

principles. Commonwealthv. Cihylik, 3i7 Pa. Super. 221, 486 A.2d 987 (Pa. Super. Ct 1985) '

citing United States v. Samuels, 374 F.S:upp. 684, 685 {E.D.Pa. 1974).. In Pennsylvania, "the < •

burden is upon the Commonwealth to pr�ve by a preponderance of the evidence that a search or

seizure did not violate the fourth amendment." Cihylik, citing Commonwealth v. Silo, 480 Pa. 15, ' 21, 3 89 A.2d 62, 65 ( 1978). It is now well-recognized that, in order to challenge successfully a

warrantless search, the challenger must have a legitimate expectation of privacy in the area or

property searched. See Katz v, United States, 389 U.S. 347, 35 J-52, 88 S.Ct. 507, 511, 19 L.Ed.2d

576 (1967).

This privacy testis twofold: "the expectation must not only be 'actual (subjective),' but also !

one that 'society is prepared to tecogniz� as reasonable." Commonwealth v. Cihylik, quoting

Commonwealthv. Lowery, 305 Pa. Super, 66, 71, 451 A.2d 245, 247 (1982), quoting.Katz v. United

States, supra. 389 U.S. at 361, 88 S.Ct at! 516 (HARLAN, J., concurring). In Commonwealth v. !

Sell, 288 Pa. Super. 3 71, 432 A.2d 206 (\198 l), the court stated: The controlling consideration,

therefore, is whether the individual contesting the search and seizure entertains a legitimate

expectation of privacy in the premises or area searched. A legitimate expectation of privacy by

definition means more than a subjective expectation of not being discovered.

When reviewing the denial of a motion to suppress, a reviewing court must determine: (l)

whether the record supports the suppression court's factual findings; and (2) whether the

suppression court drew appropriate infJrences and legal conclusions from those findings.

Commonwealth v. Davis, 979 A.2d 357, j360 (Pa. Super. Ct. 2009) (internal citation omitted).

12 When the record supports the suppression court's factual findings, the reviewing court is bound

· by those facts and may reverse only if th¢ suppression court formulated its legal conclusions in

error. id.

In the instant matter, this Court properly conducted an evidentiary hearing and reasonably ! <

determined that the admission of al I physical evidence confiscated from the targeted brown Honda

Accord and its occupants, the Chrysler Minivan and its contents, and the real property located at

5144 Whitaker A venue, Philadelphia, P .+,. was completely reasonable. The receipt of credible i confidential information combined with the analysis of the reported ongoing observed activities of

aJl arrested persons within this case presented ample probable cause to justify the execution of

Search and Seizure Warrants upon the associated Chrysler minivan and real property located at

i 5144 Whitaker A venue in Philadelphia. A valid consent to search the Accord had been duly

provided by the driver, "Papi." Although! not necessary for this Court's determination, exigent !

circumstances also existed that validated the stop of the Accord in the street outside of the real

property at 5144 Whitaker A venue to prevent harm through flight or destruction of evidence.

II. Evidence sufficiently supported the Jury verdicts of guilt.

Appellant claimed in his Supplemental and original Statement of Matters Complained of

on Appeal, that the entry of the jury verdicts of guilty to the felony offenses of Manufacture,

Delivery or Possession With Intent to Manufacture or Deliver Controlled Substance, 35 P.S. §78-

113 §§A30, and Conspiracy- ManufacturejDelivery or Possession With Intent to Manufacture or !

Deliver Controlled Substance, 18 P.S. §903 were not supported by sufficient evidence. In

reviewing the sufficiency of evidence, an appellate court considers "whether the evidence

...·--·-········-·-- ------- _,,,;,. ··----·--··-�·-·-·········-----···· . ·······--········ presented at trial was sufficient to establish all elements of the crime beyond a reasonable doubt."

Commonwealth v. Burton, 2 A.3d 598 (P�. Super. Ct. 2010). ' The appellate court views all of t�e evidence and reasonable inferences there from in a

light most favorable to the Commonwealth as verdict winner. Id. Where there is sufficient ! evidence to enable the finder of fact to determine every element of the crime has been established

beyond a reasonable doubt, the sufficiency of the evidence claim must fail. Id. The evidence

established at trial need not preclude every possibility of innocence and the fact-finder is free to 1 believe all, part, or none of the evidence presented." Commonwealth v. Feliciano, 2013 Pa. Super l

117, 67 A.3d 19 quoting Commonwealth v.! Stokes, 2011 Pa. Super 261, 38 A.3d 846, 853-854 (Pa. ' Super. 2011) (internal citations and quotations omitted). For purposes ofappellate review under

these principles, the entire record is reviewed and all evidence is considered. Commonwealth v.

Trinidad, 96 A.3d 1031, I 038 (Pa. Super. 2014)(quoting ! Commonwealth v. Emler,. 903 A.2d 1273,

1276-1277 (Pa. Super. 2006)).

Simply stated; in order to sustain a guilty verdict for the offense of Manufacture, Delivery

or Possession With Intent to Manufacture! or Deliver Controlled Substance, pursuant to 35 P.S.

§780-113 §§A30, there must have been proof presented beyond a reasonable doubt that Appellant

had participated in some manner in the: manufacture, delivery, or possession with intent to

manufacture, or deliver controlled substance as enumerated within the Controlled Substance,

Drug, Device, and Cosmetic Act.

As to all applicable elemental sections of this offense, it is undisputed that heroin is one of

the enumerated controlled substances under Schedule I as enumerated within the Controlled i . . . . .

Substance, Drug, Device, and Cosmetic Act. For a person to be convicted of "Manufacturing"

heroin it must be proven beyond a reasonable doubt that the individual intentionally, knowingly,

-------�----------------··-····----·-··-·-·-·.,-····-·--·--··"""···--........ _ or recklessly manufactured heroin. Thej term "Manufacture" is defined. as the "production,

preparation, propagation, compounding, conversion or processing of a controlled substance, other 1 drug or device or the packaging or repackaging of such substance or article, or the labeling or ! relabeling of the commercial container qf such substance or article, but does not include the <

' activities of a practitioner who, as an incident to his administration or dispensing such substance

or article in the course of his professionall practice, prepares, compounds, packages or labels" 35

P.S. §780-102(b). Basically, the term manufacture incorporates to any active participation in the ' creation of heroin as the controlled substance at issue.

To be held responsible for the "Delivery" of the controlled substance is must be proven

that the individual delivered the controlled substance. The term "Deliver" includes the actual;

constructive, attempted transfer of one person to another of a controlled substance. It is well

accepted that a delivery may take place between two persons even though one of them is acting as !

an agent for the other. 35 P.S. §780-102(b).

The alternate offense element of "Possession With Intent To Deliver" refers to two essential

elements, possession combined with the demonstrated purpose to transfer the controlled substance

to at least one other person. As with all statutory elements, possession and the requisite intent can

be proven with direct or circumstantial evidence. For an individual to possess the controlled

substance, the Individual must have the intent to control and the power to control the controlled

substance. Naturally, the individual must �e aware of the items presence and nature. Two or more

persons may have joint possession of a controlled substance as long as each individual shares the

necessary intent to control the narcotics] In addition, an individual may be found guilty of

possession of an item he does not hold if i� is proven that the defendant was part of a conspiracy

--·-------···..--.......-.. --- and another conspirator knowingly possessed the dru�s and that possession occurred while the !

conspiracy was in existence and was in fu�herance of the goals of the conspiracy; 1 Before the separate charge of Conspiracy-Manufacture, Delivery-or Possession With Intent l to Manufacture or Deliver Controlled Subf tance, pursuant to 18 P.S. §903 can be sustained, proof . beyond a reasonable doubt must be introduced that the Defendant agreed and acted in concert with

at least one other person to deal, manufacture, distribute; deliver or possess with intent to deliver

enumerated controlled substances such as heroin. This agreement may be unspoken and may also . ! be proven with a form of combined direct and circumstantial evidence presented. Additionally, l

one of the members of a conspiracy . . must [actually do some overt act to facilitate the goal of the

conspiracy.

The cumulative evidence .introduced at the instant trial proved beyond a reasonable doubt

that Appellant . had been interrupted from actively participating as a middle to high management ;

Jevel heroin trafficker and from resuming his manufacturing and distribution efforts by law

enforcement. Before Appellant had entered the viewpoint of surveillance officers on the date of

his arrest in this case, his co-conspirators had been detected by law enforcement, utilizing the same ;

brown Honda Accord that was later confiscated and hastily and temporarily transporting and

storing over 1290 grams of processed heroin, along with all of the tools of the trade of heroin,

from the distribution and processing mill jinside 5144 Whitaker Avenue to a Chrysler minivan

parked in a nearby alley to avoid law enforcement detection. Appellant had been relevantly linked

as a driver of the same Chrysler minivan that held the bulk of confiscated heroin in this case two

years earlier during a surveillance of heroin distribution conducted by the same law enforcement

officials.

. ···---------·-·-············--··-···· ·-···------�---·-------__;,,_ ·---· Appellant's individual and collective constructive possession of all of the confiscated

narcotics from inside the minivan and the �eal property located inside 5144 Whitaker A venue was ' abundantly established by connective threads of evidence. 'fhe Defendant's complicity was l introduced when he was observed in the. b1ack seat of the earlier spotted Honda Accord along with ! '

the originally targeted subject Papi, also known as Simeon Gonzalez, as the driver, and HM#2;

also known as Dalton Morinta-Abreu, as t,he front passenger upon their return to presumably pick

up the million dollar valued heroin and distribution or processing apparatuses from the Chrysler

minivan parked in the back alley.

The contents of the Under Armour back pack that had been removed from where the

Defendant had been singularly seated a� a rear passenger in the stopped specifically linked

Appellant to both the heroin production mill at 5144 Whitaker A venue and the Chrysler minivan with its contraband cargo. This back packcontained Appellant's identifying information including !

a Dominican Republic election card with the Defendant's photograph in the name of Jose Ernesto

Cespede Gonzalez; the medical paperwork reflecting liposuction costing in excess of$30,000.00

in the patient name of Jose Cesepede witry the Wildwood residential address; and a PECO bill in

the name of Jose Cespede listing the same Oxford Avenue Philadelphia address where Cespede

had been arrested in connection with earlier heroin distribution ring in 2014 was also recovered.

This previous surveillance included the] observation of Appellant's operation of the subject

Chrysler minivan confiscated in this case. I Appellant's back pack also contained an American Insurance Company receipt for the

targeted 2006 Chrysler Minivan placed in the name for the registered owner Korey Devaughn;

flighttags and receipts in the name of J ose Cespede with Jet Blue Airways for flights to and from

the Dominican Republic; a child support Order issued to Jose Cespede by the Superior Court of

17 New Jersey with hearing notice; TD Bank.receipts for Jose Cespede; and a key ring. Within the

same back pack, pieces of cardboard with handwriting listing names and varied dollar amounts up ' to $39,0000.00 per person were recovered that looked remarkably similar to the drug ledgers

writing samples retrieved from the apart111ent at 5144 Whitaker Avenue following the warranted '

and authorized search and seizure of that property. Also found inside the Chrysler minivan were

rental receipts in the name of Mark Escobar and bills listed for the same apartment as the receipt

in Appellant's name of Jose Cespede Gonzalez, '! The key fob that had been removed from Appellant's person was particularly probative of

the Appellant's complicity and intent to! distribute heroin. This key fob opened the Chrysler

minivan vehicle that contained the sports bags of extremely expensive contraband that had been

hurriedly carried and deposited for safe-keeping by his co-conspirator and fellow Honda occupant,

Dalton Malton-Abrue immediately following Abrue's counter-surveillance measures and exit . ;

from the apartment at 5 I 44 Whitaker Avenue, No other key was found on any other person or

place following this arrest and seizure. It] was a fair inference that this key was in Appellant's

possession because he had claim to the rninivan's contents when he and his co-conspirators had l

returned to retrieve their product. All

manufacturing and distribution business. l

III. The Order of Sentence was reasonable.

Appellant has vaguely challenged the discretionary aspects of the Order of Sentence within

both of the Supplemental and the original Statement of Matters Complained ofon Appeal filed on

his behalf. The original Statement generally claimed that the "aggregate sentence of 10 to 3 0 years l

·-------·· . ····-----..-----·--·-----------'------------------------- - - ---------- .. state incarceration was unreasonable and] an abuse of discretion." The Supplemental Statement

additionally alleged that the sentence was illegal because the two individual crimes for which 1 Appellant had been convicted merged fqr sentencing purposes. The claims failed to assert a

substantial question justifying appellate reyiew. Further, there is no merit presented to warrant any <

relief.

To invoke the appellate jurisdiction, appellant must have: (I) preserved the issue either by

raising it at the time of sentencing or in a posr-sentence motion; (2) filed a timely notice of appeal; .' (3) set forth a concise statement of reasons relied upon for the allowance of his appeal pursuant to l

Pa.R.A.P.21 l9(f); and (4) raised a substantial question for ourreview; Commonwealth v. Dunphy,

20 A.3d 1215, 1220 (Pa. Super. 2011) (citetion and footnotes omitted). Only if the appeal satisfies

each of these four requirements, will i the substantive merits of the claim be reviewed.

Commonwealth v. Antidormi, 84 A.3d at 759. !

Absent such efforts, an objectlorr to a discretionary aspect of a sentence is waived."

Commonwealth v. McAfee, 849 A.2d 270, �75 (Pa. Super. 2004}(citations and internal quotations

marks omitted). Appellate review of the . sentence ! imposed begins with the statutory prescription

contained within 42 Pa. C.S.A. § 9781 (b), which directs that an appeal may be granted at the

discretion of the appellate court only where it appears that there is a substantial question that the

sentence imposed is not appropriate under \this chapter.

Appellant does not have a valid claim of excessive sentence without including an additional

and more specifi� violation of the sentencing code. Only when a sentencing claim sets forth the

manner in which either a particular provision of the Sentencing Code or an underlying fundamental

norm of the sentencing process was violat�d, does a claim of excessiveness present a substantial

19 question. Commonwealth v. Mouzon, 8 p A.2d 617, 620 (Pa. 2002). A blanket claim of

excessiveness, with no further allegations, ictoes not create a substantial question. Id. ' Moreover, within this Commonwealth, the "imposition of a sentence is vested in the

discretion of the sentencing court and will pot be disturbed absent a manifest abuse of discretion." '

Commonwealth v. Smith, 543 Pa. 566, 67� A.2d 893, 895 (1996). This standard reflects that the

sentencing court is "in the best position t$ determine the proper penalty for a particular offense ! I based upon an evaluation of the individual circumstances before it." Commonwealth v. Ward, 524

Pa. 48, 568 A.2d 1242, 1243 (1990). It is loundly recognized that:

"Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish] bya reference to the record, that the sentencing court ignored or misapplied the I awl exercised its.judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision."

Commonwealth v. Antidormi, 84 A.3d 736� 760 (Pa. Super. 2014) (citation omitted). There is no

automatic right to appeal from the discrcltionary aspects of sentencing. Id. at 759. See also

Commonwealth v, Cook, 941 A.2d 7 (Pa. S;uper. 2007).

An allegation that the sentencing court failed to consider certain mitigating factors

generally does not necessarily raise a substantial question. Commonwealth v. McNabb, 819 A.2d

54, 57 (Pa. Super. 2003). Accord Commonwealth v. Wei/or, 731 A.2d 152, 155 (Pa. Super. 1999)

(reiterating allegation that sentencing court "failed to consider" or '•did not adequately consider"

certain factors generally does not raise substantial question). Compare Commonwealth v. Felmlee,

828 A.2d 1105, 1107 (Pa. Super. 2003) (en . l bane) (stating substantial question is raised, however,

where appellant alleges sentencing court imposed sentence in aggravated range without adequately

considering mitigating circumstances).

. ·-------- ..···· ---·-------------------------'------------- Consistent with this standard of record review, the appellate court shall have regard for:

"(I) the nature and circumstances of t�e offense and the history and characteristics of the ' defendant; and .. , (3) the findings upon which the sentence was based." 42 Pa. C.S.A. § 9781 (d)

(1) and (3). This review is based uponjthe premise that When imposing a sentence, a court is ! ' required to consider the particular circums!tances ofthe offense and the character ofthe defendant."

Commonwealth v. Griffin, 804 A.2d 1, 10 rPa. Super. 2002), appealdenied, 582 Pa. 671, 868 A.2d

1198 (2005), cert. denied,. 545 U.S. 1148,!125 I S.Ct. 2984, 162 L.Ed.2d 902 (2005). ' . "In particular, the court should refer to the defendant's prior criminal record, his age,

personal characteristics and his potential for rehabilitation." Id. Where the sentencing court had

the benefit of a presentence investigation report ("PSI"), we can assume the sentencing court "was ;

aware of relevant information regarding the defendant's character and weighed those ' considerations along with mitigating statutory factors." Commonwealth v, Devers, 519 Pa. 88, !

101-02, 546 A.2d 12, 18 ( 1988). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.

2005) (stating if sentencing court has benefit of PSI, law expects court was a�are of relevant

information regarding defendant's chara�ter and weighed those considerations along with any mitigating factors).

Further, where a sentence is withiri the standard range of the guidelines, Pennsylvania law

views the sentence as appropriate under] the Sentencing Code. See Commonwealth v. 'Cruz-

Centeno, [] 668 A.2d 536 ([Pa. Super.] 19:95), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)

(stating combination of PSI and standard range sentence, absent more, cannot be considered

excessive or unreasonable). Although Pennsylvania's system stands for individualized sentencing,

the court is not required to impose the "miri.imum possible" confinement. Walls, supra at 570, 926

A.2d at 965.

···-- ··----·--··---······-----·---- ------- Under 42 Pa.C.S.A. § 9721, the. court has discretion to impose sentences for each convicted

offense consecutively or concurrently and, ordinarily. a challenge to this exercise of discretion i does not raise a substantial question. Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.

2006). The imposition of consecutive, rather than concurrent, sentences may raise a substantial ! <

question in only the most extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes iand the length of imprisonment. Id. (holding challenge

to court's imposition of sentence of six (6) �o twenty-three (23) months imprisonment and sentence ' of one (I) year probation running consecutive, did not present substantial question). Compare . Dodge 11, supra (holding imposition oft consecutive sentences totaling 58 Yi to 124 years

imprisonment for thirty-seven (37) counts of theft-related offenses presented a substantial question

because total sentence was essentially Jife sentence for forty-two year-old defendant who

committed non-violent offenses with limited financial impact). !

To the extent Appellant's discretionary aspects argument focuses on the imposition of

consecutive sentences, well-settled jurisprudence, cited supra, is that a sentencing court has

discretion to impose consecutive sentences, 42 Pa.C.S.A. § 9721, and that the imposition of 1

consecutive sentences may raise a substantial question in only the most extreme circumstances, . such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the

length of imprisonment." Lamonda, 52 A�d at 3 72. See also Commonwealth v. Moury, 992 A.2d

162, 171-72 (Pa. Super. 2010).

In his original Statement of Matters To Be Complained Of On Appeal, Appellant

superficially claimed that the aggregate sentence of t O to 30 years state incarceration was

unreasonable and an abuse of discretion.'] Thus, Appellant failed to state a claim that raises a

substantial claim warranting appellate review. His claim was vague and lacked sufficient

. ·····-·-·······--··--·····---··--··-·-···------ ------'-·------------··--··········------�---·-· ···········-·--·····---··-·----·-············ specificity beyond expression of general disagreement-with the discretionary aspect of this Court's ! sentencing authority. The claim foiled tp recognize that the Order of Sentence reflected the ' imposition of a minimum period of five (5), years state supervised confinement to fifteen (15) years

separately for each of the two criminal offenses for which Appellanthad been found guilty by the ! ' J juryrunning consecutively to each other.

Even if a substantial question was presented, the transcribed record of the sentencing ! hearings conducted on August 30, 2016, and following Appellant's Motion For Reconsideration l ' ' of Sentence on September 26, 2016, directly dispelled each claim. At the first sentencing hearing

on August 30, 2018, this Court incorporated and specifically referenced its analysis of all the

sentence data and written memoranda and oral arguments proffered by all parties and including ! the Presentence Investigative Reports and Mental Health evaluations.

In addition, it was duly recorded that the guidelines for sentencing and resentencing !

adopted by the Pennsylvania Commission on Sentencing had been duly considered. There was no

discrepancy in its review and this Court provided a proper basis in a statement of reasons for the

imposed sentence. This Court identified onthe record that all significant aspects of the Defendant's

background, his criminal actions, his extensive prior record, his impact on the community and the i recommended sentencing guideline calculations had formed the basis for the sentences imposed.

This trial court acknowledged that . the guidelines . promulgated by the Pennsylvania

Commission of Sentencing classified the Offense Gravity Score for each offense as a" 13" and the

Defendant's computed Prior Record Score as a "O*", based upon his computed record score

excluding the diversionary program that he had successfully completed following his previous

'i arrest in the State of New Jersey for possession of heroin. At the outset, and on the record, both

counsel agreed that the guideline sentence range recommended for each offense was for a state

23 term of confinement of sixty (60) months !to seventy-eight (78) months with deviation of plus or

minus twelve (12) months. (N.T., 08/30�2016, p.6). The imposed sixty (60} month minimum i period of confinement was at the lowest etjd of the recommended standard range for each offense.

The language of section 9781(c) states, a sentencing court's determination must stand . ! . unless the sentence was unreasonable, 42 ra. C.S.A. § 978l(c). A sentence is reasonable when it

includes examination of the public protection, the crime's gravity, and the defendant's

rehabilitative needs, as listed in section 4� of the Pennsylvania Code. 42 Pa. Cons. Stat. Ann. § ' 9721 (West); Walls, 926 A.2d at 964. Additionally when the sentencing court has reviewed a

presentence report, it is presumed that the court has considered the information it contains.

Commonwealth v, Boyer, 856 A.2d 149, 1 �4 (Pa. Super. Ct. 2004) ajj'd 891 A.2d 1265 (Pa. 2006).

Facts can be considered, pursuant to § 9721(b)'s sentencing requirements, even if the facts are

subsumed within the guideline recommendation, Commonwealth v. Sheller, 961 A.2d 187, 192 !

(Pa. Super. Ct. 2008).

This Court succinctly outlined, on the record, its rational for the imposed fair and

reasonable Order of Sentence. This Court explicitly and implicitly touched upon all of the relevant l

or required sentencing factors, particularlylwhen public safety was stated as a concern. On August

JO, 2016, this Court after hearing all arguments anc testimony presented from both parties, stated

as follows;

"Mr. Cespede, I do find that the verdicts of guilty for Possession With the Intent to Deliver a controlled substance, that substance being identified for the jury as heroin, in large quantities, and] conspiracy related to the same had sufficient evidence supporting teach verdict. i I find that the appropriate bffense gravity score for each charge is 13. I accept the fact that your prior record is a zero. I note your prior contact with the State of New Jersey, relative to theldiversionary program that was granted to you. Now, as you counsel correctly pointed out sir, you are an individual before this Court. And that individual, 1 note that you, like many other fo]ks, including my ancestors, came to this country.Iimrnigrated to this country, and was granted the

24 ability to remain in this country to this land of opportunity. You took that opportunity to make a profit from I people's pain. Thatis beyond reprehensible in this Court's eyes. You are not.apersonwho is addicted or even using narcotics as you pointed out in the presentence] which I have reviewed in detail. You came to this country with skills. You had a prior architectural education. You come from a good family, according to you. You were raised by both parents until their separation. You described your childhood as a good one with great relationships with your family members. Your father was an entrepreneur, as you have been. You've not had a legitimate type of employment in quite some time as noted in our 1presentence report, however, indicated that you, as an entrepreneur, bought and sold cars and upgraded cars for profit. You sold drugs for the profit. You participated in the heroin distribution. Heroin, is in this Court's [mind one of the most insidious narcotics that destroys lives, family relationships and has a rippling effect throughout this community. You did this for profit. You didn't have to do this, and you did it anyway. Based on all the circumstances I heard during the trial I identify you sir as upper middle management of the heroin trade. Those are aggravating circumstances that I take into account. I take in to account the aggravating circumstances of the extremely large amount of narcotics to which you were brought your cohorts back to the location.because they contained your profit. Greed is the source of your difficulty, sir J You have had every opportunity to do otherwise. You chose this. Whenyou were granted the ability to have the diversionary program for the 39 packets of heroin that should have been a stoplight for you. It was not, because here you are not very Jong thereafter. You did not accept responsibility for your actions. That is not-you don't have a penalty for taking a trial, but you do not have the mitigating circumstances that present themselves when folks accept responsibility for their actions. I, note with some dismay, i that the paperwork that was recovered in this incident reflected thatindeed you �pent you ill-gotten gains on items for your own personal upkeep shall we say. I also note the trips that must have cost you a fair bit to go back and forth to the Dominican Republic. I note the type of vehicles that were used in this incident as well as the type of vehicle that was used in your prior arrest. I incorporate into my finding my review of the guidelines, myreview of the presentence and psychological reports indicating that you are someone who is intelligent and devoid of mental difficulties. 1 note that you reported that you do not use narcotics. I have nothing to; indicate otherwise. All right. I do consider you to be a danger to the community given your choices in life, As such, to the lcharge of possession with intent to deliver a coritrolled substance, the sentence of this Court is that you serve fivelto fifteen years ofstate time incarceration. To the charge of conspiracy, the sentence of the Court is that your serve five to fifteen state time incarceration to run consecutively to the possession with intent to deliver a controlled substance. i The fine imposed on the possession with intent to deliver is $50,000.00. Given the fact that this trade of which you were involved in, the distribution of

---------'----------------·---------..--------.. --..----·-·----·-..--..- narcotics valued in excess of a million dollars, hopefully thatwon't be too difficult for you. . In addition, I impose the restitution amount as requested, $2, 145.00, for the drug analysis reports to be completed. And I no other fines on the Conspiracy. All fines and costs are to be paid during the period of parole. It is a condition of your parole, if you are granted the ability to remain in this country, that you are to have random drug and alcohol testing, random home visits. That you are to seek and maintain legitimate employment and pay your fines and cost. .. " (See N.T. 08/30/2016, JPages 36-41.)

' Likewise, pursuantto 42 Pa. C.S.4,. § 978l(d)(l) and (3), this Court was well within its l discretionary right to impose the sentences consecutively. The sentencing court's exercise of ' oppbsed discretion by imposing consecutive as to concurrent sentences is not viewed as raising a

substantial question that would allow the granting of allowance of appeal in our Commonwealth.

Commonwealth v. Marts, 889 A.2d 608 (P�. Super. 2005).

In the instant matter, individualized consecutive standard sentences upon the Defendant

were imposed only after careful consideration of a11 relevant sentencing factors including the

paramount need for protection of the public, the gravity ofthe offense, and the Defendant's poor

prospect of rehabilitation. Thus, the Defendant has not raised any substantial question that the

consecutive sentences imposed were inapP;ropriate or contrary to a fundamental norm underlying

the sentencing code.

Discretion in Weight of Factors

Additionally, the weight given by t*e Court to the individual relevant sentencing factors is

not a substantial question because this is simply a disagreement about this Court's determination

of facts and the weight of those factors. Again, the sentencing court is given broad discretion in !

formulating a sentence, with no automatic right of review available. Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa. Super; Ct. 20 l 0). Ah appeal can only be granted if there is a

26 substantial question as to a violation of a specific sentencing code ora fundamental norm, 42 Pa. l CS.A.§ 9781; Mouzon, 812 A.2d at 62.7. i .' Appellant's claim amounts only t� his mere disagreement with the recorded findings of

fact by this Court. The record demonstrates that this Court's took into consideration all relevant ! <

mitigating and aggravating factors from thf evidence presented (N. T., 9/30/2016, pp.42-44 ). Thus,

Appellant has failed to present a substanti'l question.

Appellate Review: Applying Stantjard of Abuse in Discretion ' . .

Even if the reviewing court finds a substantial question, the sentencing court's

determination can only be overturned for) an abuse of discretion. Commonwealth v Walls, 926

A.2d 957, 961 (Pa. 2007). Such an abuse isjnotjust a mere disagreement.Id. It must be "manifestly

unreasonable, or the result of partiality, pr�judice, bias, or Ht-will." Id. This standard is embodied

in the language of section 9781 (c), which jdictates that when sentencing outside the guidelines, a !

sentencing court's determination must stand unless the sentence was unreasonable; 42 Pa. C.S.A.

§ 9781(c).

This Court specifically evidenced! its comprehensive understanding of the Appellant's

difficulties through its imposition of the rehabilltative conditions within the Order of Sentence.

These conditions were aimed to prevent future harm. Therefore, Appellant has failed to assert any

colorable claim, as this Court appropriate}y exercised its discretion in sentencing the Appellant

after considering the Appellant's circumstances and characteristics in incredible detail.

Within the Supplemental Statement only, Appellant raised a challenge to the legality ofhis

sentence where he posits that the two offenses for which he was convicted merge for sentencing

purposes. This claim fails because the statutory elements of the two crimes substantially differ,

--- . --·------·-----------------------·---- --------'-------------- "A claim that the trial court imposed an illegal sentence by failing to merge sentences is a

question of law," Commonwealth v. One, ?8 A.3d 983, 1020 (Pa. Super. 2014). Accordingly, the 1 Court's standard of review is de novo andlourscope of review is plenary; See Commonwealth v,

Brougher, 978 A.2d 373, 377 (Pa. Super. !009). ! <

Section 9765 provides in pertinenf part: No crimes shall merge for sentencing purposes

unless the crimes arise from a single criminal act and all of the statutory elements ofone offense

are included in the statutory elements of �he other offense. Where crimes merge for sentencing i purposes, the court may sentence the defendant only on the higher graded offense. 42 Pa.C.S.A. §

9765. "Accordingly, merger is appropriate only when two distinct criteria are satisfied: (1) the

crimes arise from a single criminal act; an� (2) all of the statutory elements of one of the offenses

are included within the statutory elements iof the other." Commonwealthv. Raven, 97 A.3d 1244,

1249 (Pa. Super. 2014).

The felony offense of Manufacture, Delivery or Possession With Intent to Manufacture or §780-113 Deliver Controlled Substance, 35 P.S. §§A30 required proof that the perpetrator

participated either singularly . or as .part of� conspiracy in the manufacturing, delivery or attempted !

delivery or possession with intent to deliver, manufacture or transfer of illegal narcotics. The ' separate charge of Conspiracy - Manutacture, Delivery or Possession With Intent to Manufacture

or Deliver Controlled Substance, pursuant to 18 P.S. §903 required proof however that that the

offender agreed and acted in concert with �t least one other person to deal, manufacture, distribute,

deliver or possess with intent to deliver enumerated controlled substances such as heroin.

Additionally one of the members of a conspiracy must actually perform some overt act to facilitate

the goal of the conspiracy.

''''"'"---------··----·--·--- While the crimes in the instant case arise from the criminal episodes occurring over the ! course of hours during a: single day, the stanrtory elements of each offense are plainly different, as i each crime requires proof of one element that the other did not. See, e.g., Commonwealth v. Walls,

950A.2d 1028, 1030·32 (Pa. Super. 2008)((holding sentences for robbery at Section 370l(a)(l)(ii) ! <

and aggravate assault at Section 2702(a)(?) arising from same facts do not merge because each

requires proof of an element which the other does not); see also Commonwealth v. Payne, 868 ' ' ! A.2d 1257, 1263 (Pa. Super. 2005) (Concluding crimes of aggravated assault and robbery "do not the�, merge, for robbery requires proof of which aggravated assault does not, and aggravated

assault as a felony of the first degree requires proof of circumstances manifesting extreme

indifference to the value of human life, w�ich robbery does not.").

ln the instant matter, trial evidence proved beyond a reasonable doubt that Appellant

actively and singularly participated in the heroin manufacturing and distribution business. !

Evidence also convincingly demonstrated !that Appellant acted in concert with at least two other

persons in the commission of multiple overt acts designed to facilitate the overall goal of the

conspiracy which was to manufacture, deliver or transfer heroin for profit. Dissimilar elements of ! .

each offense were independently and competently sustained. Hence this claim fails. '

IV. Appellant's previously observed operation of the confiscated Chrysler ' Minivan was admissible and the disposition of cases concerning co- conspirators was inadmisJible. '

Appellant complained within the. initial Statement of Errors that this court should not have

permitted the admission of testimony th�t Appellant had been observed by law enforcement

approximately two years earlier operating the same Chrysler minivan that had contained the

29 confiscated processed heroin and distribution tools on the date of arrest. This testimony was

properly admitted because it provided a direct nexus establishing Appellant's intention to possess .' and control the same automobile that was] utilized to hide and transport the illegal contraband at

issue. Clearly this data was probative and not unduly prejudicial particularly since the resulting ! <

previous arrest of Appellant was not admitted.

Alternatively, Appellant complain9d within the initial Statement of Errors that this court

should have permitted his trial counsel t4 cross-examine one of the arresting law enforcement . officers concerning the subsequent disposition of the cases against Appellant's co-conspirators.

This testimony was not permitted because it was not probative of Appellant's complicity and it

was irnpermissibly seeking the introduction . ! of hearsay evidence from the witness. The trial court

rulings were sound exercises of discretion. Thus, each claim failed for lack of merit.

CONCLUSION

In reviewing the entire record, this! Court finds no harmful, prejudicial, or reversible error.

Accordingly, the judgment of the trial court should be affirmed.

· By the Court,

DATE: ,4 !cut r Anne Marie"]f Coyle, {

JO

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