Com. v. Mendez, E.

• Court: Superior Court of Pennsylvania
• Decided: October 24, 2023
• Docket: 2568 EDA 2022
• Status: Unpublished

Opinion

J-S11037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : EDUARDO MENDEZ : : Appellant : No. 2568 EDA 2022

Appeal from the Judgment of Sentence Entered July 15, 2022 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0001707-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED OCTOBER 24, 2023

Appellant, Eduardo Mendez, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas, following his jury trial

convictions for two counts of possession with intent to deliver a controlled

substance (“PWID”), possession of a controlled substance, possession of drug

paraphernalia, and criminal conspiracy.1 We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. (See Trial Court Opinion, filed 12/15/22, at 1-5).

Appellant raises the following issues for our review:

Were the verdicts of guilty not supported by sufficient evidence?

____________________________________________

1 35 P.S. §§ 780-113(a)(30), (16), (32), and 18 Pa.C.S.A. § 903, respectively. J-S11037-23

Did the [trial] court err in holding that Appellant’s arrest was supported by probable cause?

Did the trial court err in precluding Appellant from presenting evidence that he was represented by the Bucks County Public Defender’s Office?

Did the trial court abuse its discretion in sentencing Appellant by imposing a manifestly excessive sentence at the high end of the aggravated range, relying on improper factors and the nature of the offense and failing to consider all relevant factors?

(Appellant’s Brief at 10) (reordered for purposes of disposition).

Our standard of review for sufficiency claims is as follows:

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 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 evidence actually received must be considered. Finally, the [trier] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal

denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.

Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

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Additionally, the following principles govern our review of an order

denying a motion to suppress:

An appellate court’s standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may 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. Where the suppression court’s factual findings are supported by the record, the appellate court is bound by [those] findings and may reverse only if the court’s legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review.

Commonwealth v. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal

denied, 647 Pa. 522, 190 A.3d 580 (2018).

Our standard of review of a trial court’s admission or exclusion of

evidence is well established and very narrow:

Admission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court clearly abused its discretion. Not merely an error in judgment, an abuse of discretion occurs when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence on record.

Commonwealth v. M. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),

cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal

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citations and quotation marks omitted). When reviewing the denial of a

motion in limine, we apply the same standard as to other evidentiary rulings.

Commonwealth v. Sami, 243 A.3d 991, 997 (Pa.Super. 2020) (noting that

motion in limine is procedure for obtaining ruling on admissibility of evidence

prior to trial).

“The threshold inquiry with the admission of evidence is whether the

evidence is relevant.” Commonwealth v. Stokes, 78 A.3d 644, 654

(Pa.Super. 2013), appeal denied, 625 Pa. 636, 89 A.3d 661 (2014). “Evidence

is relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable, or supports a reasonable inference

or presumption regarding the existence of a material fact.” Id. See also

Pa.R.E. 401 (defining relevant evidence). Nevertheless, “[t]he court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.E. 403.

Further, “[c]hallenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right.” Commonwealth v. Phillips,

946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct.

2450, 174 L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary

aspects of sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P

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902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)). When appealing the

discretionary aspects of a sentence, an appellant must invoke this Court’s

jurisdiction by including in his brief a separate concise statement

demonstrating a substantial question as to the appropriateness of the

sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa.

419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f).

This Court reviews discretionary sentencing challenges based on the

following standard:

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. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting

Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Brian T.

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McGuffin, we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.

Regarding Appellant’s sufficiency of the evidence claims, the court

initially found that Appellant waived these claims by failing to specify in his

Rule 1925(b) statement the elements of each crime that he alleges was

insufficient to sustain each conviction, particularly where Appellant raised

sufficiency challenges to multiple offenses. (See Trial Court Opinion at 8).

The court further found that even if Appellant had properly preserved his

claims, Appellant’s sufficiency arguments lacked merit. Specifically, the

Commonwealth presented sufficient evidence to establish the existence of a

conspiracy between Appellant and his co-conspirator, Giovanni Rosales, where

Appellant travelled approximately 1,500 miles from Texas to Pennsylvania

with Mr. Rosales, drove Mr. Rosales to the “sample buy,” carried the black

backpack in which the drugs were found into a hotel room that Mr. Rosales

rented for the day, remained in the room with Mr. Rosales for hours while Mr.

Rosales set up a subsequent “bulk buy,” and left the room with Mr. Rosales at

approximately the time when the “bulk buy” was scheduled to occur. The

court noted that proof of a conspiracy between Appellant and Mr. Rosales

negates the need to prove that Appellant constructively possessed the

controlled substances and paraphernalia to sustain his remaining convictions.

In any event, the court found that the Commonwealth presented sufficient

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evidence to establish Appellant’s constructive possession of the drugs because

a surveillance video showed Appellant carrying an air compressor and the

backpack containing the drugs into the hotel room. Viewed in the light most

favorable to the Commonwealth as the verdict winner, Appellant’s physical

handling of the drugs and the surrounding circumstances of Appellant’s

involvement with Mr. Rosales throughout the day was sufficient to

demonstrate that Appellant had the ability and intent to exercise control over

the contraband.2 (See id. at 9-14).

Regarding Appellant’s claim that the court erred in denying his motion

to suppress evidence of his flight prior to arrest and the $3,300.00 found on

his person, the court found that the police officers had probable cause to arrest

Appellant. Prior to his arrest, police observed Appellant drive Mr. Rosales to

the “sample buy,” remain with him for the remainder of the day while an

additional transaction was set up, carry a bag and an air compressor into a

hotel room with Mr. Rosales, look up and down the hallway with Mr. Rosales

multiple times, and leave the room together at approximately the time of the

second sale. Here, the circumstances clearly demonstrate that police had

2 Additionally, the Commonwealth presented the testimony of Detective Jarrod

Eisenhauer, who was qualified as an expert in the field of drug trafficking investigations. Detective Eisenhauer testified that typically when there are two individuals involved in a transaction, the higher-ranking individual will attempt to insulate himself from exposure and the lower-ranking individual will handle the drugs during the sale and undertake tasks such as securing lodging.

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probable cause to suspect that Appellant was not merely present but

participating in the criminal activity.3 (Id. at 15-16).

With respect to Appellant’s claim that the court erred in denying his

motion in limine seeking to present evidence that Appellant’s counsel was a

public defender, the court determined that Appellant failed to establish that

he was entitled to introduce such evidence for the purpose of suggesting to

the jury that he was indigent. The court further found that introduction of

such evidence risked confusing the jury and increased the likelihood that the

verdict would not be based on the facts presented but rather on Appellant’s

perceived economic status. (See Trial Court Opinion at 16-17).

The court further explained that it acted within its discretion in

3 Appellant cites to United States v. Butts, 704 F.2d 701 (3rd Cir. 1983) and

Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978) to support his claim that the police did not have probable cause. In Butts, the U.S. Court of Appeals for the Third Circuit determined that probable cause did not exist to arrest the defendant who was merely sitting in the backseat of a car that the individuals being surveilled were about to enter. The Court noted that at the time of the arrest, the police officers who arrested the defendant had no other information about him and did not know what connection he had to the individuals who the police suspected of criminal activity. In Shaw, our Supreme Court found that probable cause did not exist where the only information the police had about the defendant was a general statement that he associated with the perpetrators of the crime. Our Supreme Court noted that police officers did not have any information to indicate that the defendant was at the scene of the crime or involved with the criminal activity. Here, Appellant was present at the first sale, remained with Mr. Rosales the whole day while Mr. Rosales set up the second sale, and left with Mr. Rosales in time for the second sale. Accordingly, the instant case is factually distinguishable from both Butts and Shaw.

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sentencing Appellant.4 At the sentencing hearing, the court stated that it took

into consideration Appellant’s personal history, his rehabilitative needs, and

the letters from his mother and sister but ultimately found that Appellant’s

criminal history, his refusal to take accountability and the impact of his actions

on the community warranted a sentence in the aggravated range. (See Trial

Court Opinion at 20-22). Accordingly, we affirm on the basis of the trial court’s

opinion.

Judgment of sentence affirmed.

Date: 10/24/2023

4 Appellant filed a timely notice of appeal, preserved his claim in a timely post-

sentence motion, and included in his brief a Rule 2119(f) statement. As presented, Appellant’s claim concerning an excessive sentence in combination with the court’s failure to consider certain mitigating factors and reliance on impermissible factors arguably raises a substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal denied, 629 Pa. 636, 105 A.3d 736 (2014) (stating: ““[A]n excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question”). See also Commonwealth v. Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding defendant’s claim that court failed to consider factors set forth under Section 9721(b) and focused solely on seriousness of defendant’s offense raised substantial question).

-9- Circulated 09/26/2023 03:01 PM

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY CRIMINAL DIVISION CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA No.: No.: CP-09-CR-0001707-2021 CP-.09-CR-0001707-2021

Appellate No.: No.. 2568 EDA 2022 V. .. .,. EDUARDO EDUARDO MENDEZ i -., " ,., <-, .. id '

.. s ¢ e cf [

OPINION ' .. ' u y- ....• K

ij! - w p U Appellant Eduardo Mendez appeals from this Court's Judgement Judgement of Sentetibe enbered on Sentence entered L- July July 15, 15, 2022, following following this Court's September September 9, 2022 2022 Denial of Appellant's Post-Sentence Appellant's Post-Sentence

Motions filed July 22, 2022. Appellant filed this appeal on October 6, 2022. This Court files this

opinion in in accordance accordance with with Pa.R.A.P. Pa.R.A.P. 1925(a). 1925(a).

PROCEDURAL & FACTUAL PROCEDURAL & FACTUAL BACKGROUND BACKGROUND

This case arises from a a series of incidents that occurred on December 4, 4, 2020, 2020, in

Philadelphia, Philadelphia, Philadelphia Philadelphia County, County, Pennsylvania and and Bensalem, Bensalem, Bucks Bucks County, County, Pennsylvania. Pennsylvania, On On

tthe he morning of December 3, 2020, Appellant Eduardo Mendez, aaresident of El Paso, Paso, Texas, met

with Giovanni Rosales' and the pair of them drove over the course of around twenty twenty (20) (20) hours

the approximately one-and-a-half-thousand one-and-a-half-thousand (1,500) miles from El Paso to Bensalem, Bensalem, Pennsylvania Pennsylvania

for the purpose of selling bulk ''uncut' uncut' quantities quantities of both both heroin and methamphetamine. methamphetamine. N.T.

4/12/2022, p. 4/12/2022, p. 72, passim; N.T. 4/13/2022, passim; N.T. 4/13/2022, passim. passim. Upon arriving at Upon arriving at a a Holiday Holiday Inn Express in Express in

Bensalem Township Bensalem Township on on December December 4, 2020, Mr. 4, 2020, Mr. Rosales Rosales rented rented Room Room 348 for only 348 for one day, only one day, using using

his Passport Passport issued issued from Mexico, as from Mexico, as identification. identification. N.T. N.T. 4/11/2022, 4/11/2022, p. 54. Both p. 54. Both Appellant and Mr Appellant and Mr.

'While referred While referred to throughout the Notes Notes of Testimony C'N.T.") (N.T.") as Appellant's Appellant's co-defendant, co-defendant, Giovanni Rosales pled pled guilty before guilty before Appellant's Appellant's trial, including to trial, including to one one count count of of Conspiracy. Conspiracy. I1 Rosales Rosales retrieved retrieved items including ablack including a black backpack, compressor, and a backpack, an air compressor, alarge large toolbox toolbox from from a %

silver GMC pickup truck registered to Mr. Rosales and carried them up up to Room 348 at 348 at

approximately 8.24 8:24 A.M. on December 4, 2020. N.T. 4/12/2022, 4/12/2022, pp. pp. 129, 129, 225. 225. Mr. Mr. Rosales Rosales

wheeled the wheeled the large tool chest large tool chest behind behind him, him, while while Appellant Appellant transported the air transported the air compressor compressor with with the the

black black backpack on his backpack on his right right shoulder. N.T. 4/12/2022, shoulder. N.T. 4/1 2/ 2022, p. p. 225. 225.

A short time later, both Appellant and Mr. Rosales left Room 348 and returned A returned to to Mr Mr.

Rosales' silver GMC pickup truck in the parking Appellant got parking lot. Appellant got in the driver's seat the driver's seat and drove and drove

of them both of them to to aaDunkin' Dunkin' Donuts parking lot Donuts parking located in lot located in the the Roosevelt Roosevelt Mall Mall at at Cottman and Cottman and , Roosevelt Boulevard in Northeast Philadelphia arriving arriving around noon. N.T. 4/11/2022 p. N.T. 4/11/2022 42; N.T. p. 42; N.T,

4/1 2/ 2022, p. 97. Appellant pulled the pickup into a 4/12/2022, parking space, a parking space, whereupon whereupon Mr. Rosales exited Rosales exited

passenger door, the passenger door, walked down a walked down afew few parking spaces and parking spaces and past one parked past one parked vehicle, and got vehicle, and got into into

the passenger door door of aaparked vehicle. vehicle. N.T. 4/12/2022, pp. N.T, 4/12/2022, pp. 104 104— 105. 105. Unbeknownst to ye Unbeknownst to Mr.

Rosales, the driver of the vehicle he entered was aaConfidential Human Source ("CHS") Human Source (CHS") — an an

informant informant -— for the Federal Bureau Bureau of Investigation. Investigation. N.T. 4/12/2022, p. N.T. 4/12/2022, p. 105. 105. Mr. Mr. Rosales Rosales spoke spoke

with the CHS for approximately 90 seconds and handed them two small bundles, one containing bundles, one containing

heroin and heroin and the other methamphetarnine. the other methamphetamine. N.T. N.T. 4/12/2022, p. 4/12/2022, p. 106; 106; C-1; C-4; C-5. C-I; C-4; C-5. The The CHS CHS did did not not

provide provide compensation for for the the controlled controlled substances provided provided in in this this `'sample sample transaction.' transaction.' Mr. Mr.

Rosales then then exited the the CHS's CHS's vehicle, vehicle, returned to to his pickup truck, and Appellant pickup truck, Appellant drove drove them them

both both to aaLiberty Liberty Gas Station. N.T. 4/12/2022, 4/12/2022, p. p. 147. 147. A A short time time later, later, Appellant Appellant drove drove from from the

gas station to a a Bob Evans restaurant located next to the Holiday Holiday Inn Express Bensalem. NT Express in Bensalem. N.T.

4/1 2/ 2022, p. 4/12/2022, p. 128. 128. Afer After spending spending approximately approximately 30 30 minutes minutes inside inside the the Bob Bob Evans, Evans, Appellant and Appellant and

Mr. Mr. Rosales exited exited the restaurant, returned to to Mr. pickup truck, Mr, Rosales's pickup truck, and drove drove back to the back to the

Holiday Inn Holiday Inn Express Express parking parking lot lot next door. N.T. next door. N.T. 4/12/2022, 4/12/2022, p. p. 149. 149

.. j Appellant Mr. Rosales Appellant and Mr. returned to Rosales returned to Room Room 348. 348. N.T. 4/12/2022, pp. N,T, 4/12/2022, pp. 149 149 -— 150. 150. They They

both remained inside for the next few hours, with both Appellant Appellant and Mr. Rosales exiting exiting briefly briefly

to look up and down the hallway, hallway, and and Appellant leaving leaving to purchase purchase an item item at 3rd floor at the 3" floor vending vending

machine. N.T. machine. 4/11/2022, p. N.T. 4/11/02022, p. 41; 41; N.T. 4/12/2022, p. N.T. 4/12/2022, p. 244. 244. During During this this time, while both time, while both Appellant Appellant

Mr. Rosales and Mr. Rosales were were inside Room 348, inside Room 348, Mr. Mr. Rosales Rosales was was communicating communicating with the CHS with the CHS over over text text

messaging messaging and and via phone calls. calls. N.T. 4/12/2022, 4/12/2022, pp. pp. 124 124-— 125. Mr. Rosales and the CHS arranged arranged

another transaction: the the CHS was to to purchase two two kilograms kilograms of heroin heroin at at a a price price of $50,000 per of $50,000 per

kilogram kilogram and and one one pound pound of methamphetamine methamphetamine at at aaprice price of of $8,500, $ 8,500, for for a a total total price price of $ 108,500. of $108,500.

N.T. 4/12/2022, p. 198. The deal was scheduled to occur in the parking NT, parking lot of the Holiday Holiday Inn Inn

Express. N.T. N.T. 4/12/2022, pp. 126 — 127. 'The pp. 126 The deal was later later modified to occur occur between between 5:00 and

5:30 P.M. 5.30 P.M. in in the parking lot of a a nearby nearby Texas Roadhouse Roadhouse restaurant restaurant in in Bensalem. N.T. 4/11/2022, N.T, 4/11/2022,

p. 46. p.46.

From approximately 2:30 P.M. until approximately P.M., Officer Farnan of approximately 4:55 P.M., the of the

Bensalem Police Department Bensalem Police was inside Department was in Room inside in 347 with Room 347 with other other law enforcement officers, law enforcement officers,

watching the door to Room 348 through through the peephole. peephole. N.T. pp. 200 -204. N.T, 4/12/2022, pp.200 — 204. No one other

than Appellant Appellant and Mr. Rosales entered entered or during that time, or exited the room during time, and luggage luggage was

carried in or or out of Room Room 348. 348. N.T. 4/12/2022 pp. — 204. At roughly pp. 203 --204. roughly 4:55 P.M. P.M. on December December

4, 2020, 4, 2020, Appellant and Mr. Appellant and Rosales exited Mr. Rosales exited their their hotel hotel room exited to room and exited to the the parking parking lot. lot. N.T. N.T.

4/12/2022, p. p. 204. 204. As As they started to to walk towards towards Mr. Mr. Rosales' Rosales' pickup, pickup, members members of the Violent Violent

Gang Safe Streets Streets Task Force Force of F.B.I.'s Philadelphia field FE.B.I's Philadelphia field office, Bensalem Township Township Police

officers, and Philadelphia attempted to Philadelphia Police officers attempted to arrest Appellant and Mr. arrest Appellant Mr. Rosales. Rosales. N.T.

4/12/2022, p. p. 143. I43. As law attempted to arrest both Appellant law enforcement officers attempted Appellant and Mr. Mr. Rosales, Rosales,

Appellant turned and attempted turned and attempted to to run to aa wooded area area at the the end of the the parking parking lot. lot. N.T. NT, 'i 4/12/2022, p. 65. F.B.I. Special A p.65.F.B.I. Agent gent William Wickman, driving driving an unmarked unmarked vehicle vehicle with active

I 3 l

I emergency lights, drove next to the fleeing Appellant and commanded him to stop stop from an open open

window. N.T. 4/12/2022, p. 66. Appellant kept running, p. 66. running, before tripping tripping and was then tackled tackled by by

agents on foot, foot, taking taking him N.T. 4/12/2022, p. him into custody. N,T, p. 67. When searched, Appellant When searched, Appellant had had no no

controlled substances and $3,300.00 in United States currency currency on him. N.T. N.T, 4/12/2022, 4/12/2022, p. p. 68. 68.

Mr. Rosales had neither controlled substances nor money money on his person. Id. person. I

A search warrant A search warrant was executed on was executed on Room Room 348 348 of of the the Holiday Holiday Inn Inn Express Express in in Bensalem, and Bensalem, and

aablack black bookbag bookbag was found found within within the locked locked large tool tool chest. N.T. N.T, 4/1 2/ 2022, pp. 4/12/2022, — 208; C- pp. 205 --208;C-

12. Inside 12. the bookbag Inside the was aaclear bookbag was clear Ziploc Ziploc bag of heroin bag of weighing approximately heroin weighing 90 to approximately 90 to 100 100 grams grams

and two half kilograms of methamphetamine. N.T. 4/12/2022, 4/12/2022, p. A large p. 213. A large digital scale was digital scale was

found inside the Husky toolbox underneath the bookbag. bookbag. N.T. 4/12/2022, p. N.T. 4/12/2022, 216; C-18. p. 216; C-18. Residue Residue

found on the digital scale was determined to be composed composed of controlled controlled substances. N.T. substances. NT

4/12/2022, p. 255. Plastic film was discovered in a a nearby nearby trashcan similar to what was to what was covering covering

the controlled substances. N.T. 4/13/2022, pp. 28 -— 29; C-21. Mr. Rosales' DNA was recovered recovered

from the covering from the covering of of the the controlled substances. N.T. controlled substances. N.T. 4/1 2/ 2022, p. 4/12/2022, p. 212; C-14. No 212; C-14. controlled No controlled

substances were recovered from Mr. Rosales's vehicle when it was searched. N.T. 4/12/2022, 4/12/2022, pp. pp.

217 - 217 — 218. 218. Notably, Notably, in in order order to to fulfill fulfill the quantity of the quantity of the the controlled substances that controlled substances that had had been been

negotiated in the deal with the CHS, and there was every every indication that was their intent, intent, the the

Appellant and Mr. Rosales would have had to secure an additional quantity from quantity of heroin from

someone or someone or somewhere, somewhere, as as the the quantity of controlled quantity of controlled substances recovered from substances recovered from their their hotel hotel room room

would have been insufficient to meet the quantity of the controlled substances they they had agreed agreed to to

sel. Thus sel. the Conspiracy Thus the Conspiracy would would have have then then necessarily necessarily involved other people involved other or the people or acquisition of the acquisition of

more controlled substances by the Appellant and Mr. Rosales.. N.T. 4/12/2022, pp. N.T, 4/12/2022, pp. 241, 241, 294-295.

4 4

1 Appellant was subsequently charged with the following: 1, Possession with Intent following: Count I,

to to Deliver Deliver aaControlled Substance—Heroin, Substance-Heroin, an an ungraded ungraded felony 2, felony', Possession Possession with with Intent Intent to Deliver

aa Controlled Substance Substance—Methamphetamine, Methamphetamine, an ungraded ungraded felony', felony', Criminal Conspiracy, Conspiracy, an

ungraded ungraded misdemeanor, misdemeanor, Possession Possession of of a a Controlled Controlled Substance—Heroin Substance-Heroin and/or and/or

Methamphetamine, an ungraded misdemeanor, misdemeanors, Possession of Paraphernalia, Paraphernalia, an ungraded ungraded

misdemeanor6, misdemeanor, and Criminal and Criminal Use of a Use of aCommunication Communication Facility, Facility, aafelony of the felony of the third degree. Count third degree'. Count

6, Criminal Use of a a Communication Facility, Facility, was nolle prossed prossed at Appellant's Appellant's Arraignment Arraignment and

was was not aacomponent component of the the trial.

MATTERS MATTERS COMPLAINED COMPLAINED OF ON APPEAL APPEAL OF Appellant Appellant filed filed aatimely Notice Notice of Appeal Appeal to to the Superior Superior Court 6, 2022. Court on October 6, 2022, On On

October 7, 2022, this Court issued an Order directing Appellant to file aaConcise Statement of

Matters Complained of on Appeal within twenty-one twenty-one (21) days of the date of the Order (21) days Order. On

18, 2022, Appellant filed a October I8, a Motion for an extension of time to file his Concise Statement Statement.

On October 24, 2022, this Court issued an Order granting granting Appellant's Appellant's motion for an extension of

time to file and granted Appellant an extension until November 18, 2022, to file his Concise

Statement. Appellant Statement. filed a Appellant filed timely Concise a timely Concise Statement Statement of of Matters Complained of Matters Complained of on on Appeal on Appeal on

November 17, 2022, which raises the following issues verbatim: 17,2022,

1. The conviction for possession with intent to deliver aacontrolled substance,

heroin, was not supported supported by sufficient evidence.

35 P.S. §$ 780-113()030) 35PS. 2 780-113(x)(30) ' 35 P.S. §$ 780-113(a)(30) 35P.$. 780-113()030) 4 18 18 Pa.C.S. § 903 Pa.C.S. $903 ' 35 P.S. §$ 780-1136a)015) '3$P.5. 780-113(a)(15) 6 35 P.S. § '35P.$. 780-113(a)(32) $ 780-113(8)032) '18 Pa.C.S. $7512(a) '18PCS § 7512(a)

55 2. The conviction for possession with intent to deliver a a controlled controlled substance, substance,

by sufficient evidence. methamphetamine, was not supported by

3.3. The conviction for criminal conspiracy conspiracy was not supported supported by by sufficient sufficient

evidence. evidence.

4.4. The conviction for possession of a a controlled substance was not not supported supported by sufficient evidence.

5. 5, The conviction conviction for for possession of paraphernalia paraphernalia was not supported by not supported by sufficient evidence. sufficient evidence.

6. The 6. The trial court erred trial court erred in denying the in denying the Motion to Suppress Motion to Suppress the search of the search of

Appellant because there was no probable cause to arrest Appellant. Appellant.

7. 7. The trial trial court erred erred in denying denying Appellant's Appellant's motion motion in in limine limine to refer to his his

trial counsel as trial counsel as a a public defender. public defender.

S. The trial court erred in permitting Officer Faman 8. testify regarding Faran to testify regarding the the

contents of surveillance video whish was not preserved preserved in violation of the the best

evidence rule.

9. 9, The trial court erred in permitting permitting testimony testimony of Detective Eisenhauer

because because it went went beyond the the scope scope of expert testimony usurped the fact-finding testimony and usurped fact-finding

function function of the jury. the jury.

10. The trial court abused its discretion in sentencing Appellant because the sentencing Appellant

sentence exceeds what is sentence is necessary necessary to to protect protect the public. public.

11. IL. The trial court abused its discretion in sentencing sentencing Appellant Appellant because because the

sentence exceeds sentence exceeds what is necessary what is to rehabilitate necessary to Appellant. rehabilitate Appellant

12. 12. The The trial court court abused its its discretion in sentencing Appellant in sentencing Appellant because the

sentence fails sentence to take into fails to into consideration consideration Appellant's Appellant's Age, conduct, character, Age, conduct, character,

66 criminal history, the impact of Appellant's actions on the the community, community, Appellate Appellant's

rehabilitative needs, and the Sentencing Guidelines.

13. The trial court abused its discretion in sentencing 3. sentencing Appellant Appellant because the trial

court relied relied on improper factors. factors.

14. 14. The trial court The trial abused its court abused its discretion discretion in in sentencing sentencing Appellant because the Appellant because the trial trial

court failed to court failed adequately state to adequately state the reasons for the reasons for the sentence on the sentence on the the record record.

15. 15. The trial trial court court abused abused its discretion in its discretion in sentencing sentencing Appellant Appellant because because the the trial trial

court failed failed to to consider mitigating mitigating factors. factors.

16. The trial court abused its discretion in sentencing sentencing Appellant Appellant because the trial

court relied on factors already contemplated by the Sentencing Sentencing Guidelines.

17. The trial court abused its discretion in sentencing 17.The sentencing Appellant Appellant because the

sentence was manifestly manifestly excessive.

18. The trial court abused its discretion in sentencing Appellant in the high 8.The high end

of the aggravated range of the Sentencing Sentencing Guidelines.

DISCUSSION$ DISCUSSION'

I. Sufficient evidence was was presented at trial to find Appellant Appellant guilty guilty beyond beyond aa

reasonable doubt for all Counts

Appellant first first challenges the the sufficiency of the the evidence supporting the evidence supporting the verdict for Counts

1 l through through 5. The standard of review in assessing assessing a achallenge challenge to the sufficiency sufficiency of evidence is well

settled in Pennsylvania. See Commonwealth v. Y. Hunzer, Huner, 868 A.2d 498, 505 505 (Pa. Super. 2005). (Pa. Super. 2005). The

standard to to be applied applied in reviewing the in reviewing the sufficiency sufficiency of of evidence "is whether viewing viewing all the

evidence admitted at trial in the light light most favorable to the verdict winner, there is sufficient

Due to factual and legal interrelationships, some of the grounds for appeal are responded to collectively for Due 8

efficiently explaining this Court's reasoning. Court'sreasoning. 7 7

I evidence to enable the fact-finder to find every every element of the crime erime beyond beyond aareasonable reasonable doubt." doubt."

Commonwealth Commonwealth v. v, Distefano, 782 A.24 A.2d 574, 582 582 (Pa. Super. 2001). (Pa. Super. 2001).

In reviewing this Court's determination that the evidence adduced at trial was sufficient to sufficient to

support aaverdict of guilty on all charges, charges, it must be noted "that the facts and circumstances circumstances

established by the the Commonwealth need every possibility need not preclude every possibility of innocence. innocence. Any Any doubts doubts

regarding aadefendant's guilt may be resolved by the fact-finder unless the evidence is is so weak

and inconclusive that as a a matter of law no probability of fact may may be drawn from the combined

circumstances. circumstances. The Commonwealth may sustain its its burden burden of proving every element of the crime proving every crime

beyond a a reasonable doubt by means of wholly wholly circumstantial evidence. Moreover...the Moreover ... the entire entire

record must record be evaluated must be evaluated and all evidence and all actually received evidence actually received must must be considered. Finally, be considered. Finally, the the trier trier

of fact while passing upon upon the credibility of witnesses and and the weight weight of the produced, is the evidence produced, is

free to believe all, part or none of the evidence." See Id Id.

However, Appellant's bare assertion that each conviction conviction "was not supported supported by by sufficient sufficient

evidence" fails to provide the requisite specificity for this Court to respond speculating on respond without speculating on

what what Appellant's claim v. Flores, 921 A.2d 517, claim is. See Commonwealth v, 522 (Pa. 517, 522 (Pa. Super. 2007) ("If Super, 2007) (If

Appellant wants to preserve aaclaim that the evidence was insufficient, insufficient, then the 1925(b) 1925(b) statement

needs to specify the element or elements upon which the evidence was insufficient. This Court can

then analyze the element or elements on appeal. "). appeal.").

A A non-specific statement may be sufficient in simple simple trials where there are only only few

elements at issue. issue. However, each each determination determination that Appellant committed that Appellant committed the charged charged crimes crimes

established. This Court cannot assume required that multiple separate elements of the offence be established.

to know to know what what elements or factors elements or factors that that Appellant Appellant believes were not believes were not sufficiently sufficiently established, other established, other

than Appellant's identity than Appellant's identity as as the the perpetrator. perpetrator. As As such, such, Appellant's Appellant's claim claim for for insufficient evidence insufficient evidence

is is waived due to waived due the inadequate to the inadequate 1925(b) 1925(b) statement. statement.

I In the event that these issues are not considered waived, this Court will address the issues issues

and and finds that each of Counts I1through through 5S5was fully fully established established at trial.

a. Sufficient evidence was presented at trial to find Appellant Appellant guilty guilty beyond beyond a a

reasonable doubt of Possession with the Intent to Distribute a a Controlled

Substance

Appellant was found guilty in Counts 1 I and 2 2 of violating violating 35 P.S. P,S. §$ 780-113(a)(30), 780-113(a)(30), which

states:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: hereby prohibited:

(30) Except Except as authorized ... authorized byby this act, act, the manufacture, delivery, the manufacture, delivery, or or possession possession with intent to manufacture or deliver, a intent to acontrolled substance by by a a person not not registered under this this act, act, or or aapractitioner practitioner not not registered registered or licensed by the appropriate State board, or knowingly creating, delivering creating, delivering or possessing with intent to deliver, aacounterfeit controlled substance.

At trial, Appellant did not dispute that: (a) the compounds recovered by by the police police from

Room 348 of the Holiday Inn Express in Bensalem were controlled substances pursuant pursuant to to The

Controlled Substance, Controlled Substance, Drug, Device, Device, and Cosmetic Cosmetic Act, Aet, 35 35 P.S. §§ 780-1 P.S. $$ 780-1 -780.144, — 780-144, ("the Act"); (the Act")y;

was not (b) Appellant was not aaperson person entitled under the the Act to possess Act to possess said controlled substances; substances; and

(c) based (c) based on on the the amount amount of of the controlled substances the controlled substances and and their their packaging, whomever possessed packaging, whomever possessed

them did so with the intent to deliver. In fact Appellant conceded the above in argument argument to the

N.T. 4/13/2022, p. jury. N.T p. 43. As such, for determining determining whether whether Appellant Appellant committed the the crimes

charged in in Counts 1 I and 2, 2, the jury was the question for the jury was solely Appellant "possessed" solely whether Appellant "possessed" the

substances. controlled substances

Actual, physical, physical, possession is is not not the the only only method method in in which which aaparty party can can "possess" "possess" narcotics narcotics

with the the intent to to distribute. Contraband can be actually/physically possessed by actually/physically possessed by aa person, person,

99 constructively constructively possessed by a a person, constructively possessed person, or jointly constructively possessed amongst amongst multiple multiple people. people As our Supreme Court has explained: explained:

[T]he tripartite [The legal requirements tripartite legal requirements for for aafinding, finding, beyond beyond aareasonable doubt, that reasonable doubt, that a a defendant constructively possessed illegal substance[ possessed an illegal substance[ are:] 1) the are:] I) defendant's the defendatg ability to ability to exercise exercise a a conscious dominion over the illegal substance; the illegal substance; 2) the 2) the defendant's power to control the illegal substance; and 3) 3) the defendant's intent intent to to exercise that that control.

v. Johnson, 26 A.3d 1078, 1086(Pa. Commonwealth v, 1086 (Pa. 2011) 2011) (citing (citing Commonwealth Commonwealth v. Valette, 613 v. Valerte, 613

548 (Pa. A.2d 548 (Pa. 1992)). 1992)). A A person's ability *to person's ability to have have conscious dominion over illegal illegal substances substances and and

their their intent intent to to exercise exercise control control over the same may may be examining the totality be inferred from examining of the totality of the

circumstances. Commonwealth circumstances. v, Commonwealth v.Cash, Cash, 367 367 A.2d A.2d 726, 729 (Pa. 726, 729 Super. 1976); (Pa. Super. 1976); Commonwealth v, Commonwealth v. Macolino, 469 Macolino, 469 A.2d 4.24 132, 134 (Pa. 132, 134 1983). (Pa. 1983)

This This court is aware that that a a person's mere mere equal access access to to the the area where illegal contraband illegal contraband

is found does not establish that person's per per se power power or intent to control said contraband. said contraband.

Commonwealth v. v, Heidler, 741 741 A.2d 213, 216 (Pa. 213,216 (Pa. Super. Super. 1999). 1999). However, However, neither is is it irrelevant: irrelevant:

aajury need not ignore presence, proximity proximity and association when presentedpresented in conjunction with other evidence of guilt. Indeed, presence conjunction presence at the drugs the scene where drugs are are being being processed processed and and packaged packaged is amaterial is a material and and probative probative factor factor which which the the jury jury may may consider. consider. Drug Drug dealers of of any and [illegal any size and [illegal drug] drug] manufacturers manufacturers probably probably are reticent about are about allowing allowing the the unknowing unknowing toto take take view view of of or or assist assist in in the the operation. operation. Commonwealth • Commonwealth v. Vargas, 108 A.3d 858, 869 869 (Pa. Super. 2014) (Pa. Super. 2014) (citing United (citing United States States v. Robinson, v Robinson,

F.2d 1554, 978 F24 1557-1558 ((10th 1554, 1557-1558 10th Cir. Cir. 1992)). And Appellant merely nearby Appellant was not merely nearby Mr. Rosales Rosales

during these events. Appellant travelled approximately one-and-a-half-thousand ((1,500) travelled approximately 1,500) miles miles

from Fort Fort Worth, Texas to Bensalem, Bensalem, Pennsylvania, Pennsylvania, aatrip trip which which took took roughly roughly twenty twenty (20) (20) hours. hours.

N.T. 4/12/2022, p. 72. 72. Appellant carried the black backpack backpack in which the drugs drugs were found into into

the hotel hotel room room Mr. Mr. Rosales Rosales rented for for only one one day. day, N.T. 4/11/2022, p. 4/11/2022, p. 54. Appellant Appellant was was with

Rosales throughout Mr. Rosales throughout the entire day. N.T. entire day. 4/11/2022 passim; N.T. 4/11/2022 passim; N.T. N.T. 4/12/2022, 4/12/2022, passim; passim; N.T. N.T,

4/13/2022, 4/13/2022, passim. passim. Appellant Appellant drove Mr. Rosales to the initial "sample" transaction, initial "sample" transaction, lasting lasting only only

10 90 seconds and two of minutes, before turning between 0 turning around and driving driving to a a restaurant restaurant located located

adjacent to the hotel they had left. 4/12/2022, p. 97 - — 128. Even further, further, Appellant Appellant was was inside inside the the

hotel room hotel while Mr. room while Mr. Rosales Rosales spent spent hours hours setting setting up the bulk up the bulk narcotics sale, not narcotics sale, not only via text only via text

messages, but also aloud via via phone calls. N.T. 4/12/2022, pp. N.T, 4/12/2022, pp. 124 -— 125. This is 125. This is not not an an instance instance

where Appellant's ability to have conscious dominion over the contraband contraband or or Appellant's Appellant's intent intent to to

exercise control over the same is merely inferred by operation of by operation of law, but rather law, but rather both are both are

inextricable conclusions stemming from an examination of the circumstances. circumstances. Further, the Further, the

evidence presented showed that Appellant had the power power to exercise control over both control over both the the heroin heroin

and the methamphetamine recovered from methamphetamine recovered from the the black black book bookbag bag recovered from inside recovered from inside the the toolbox in toolbox in

Room 348 348 of of the the Holiday Holiday Inn Inn Express in Bensalem. Express in Bensalem.

Moreover, in cases involving Possession with Intent to Distribute and related related Conspiracy Conspiracy

charges, "successful proof proof of of aaconspiracy makes makes each each co-conspirator co-conspirator fully fully liable liable for all of for all of the the

drugs recovered, without drugs recovered, necessity of without the necessity of proving proving constructive possession." Commonwealth constructive possession." Commonwealth v.

Perez, Perez, 931 A.2d 703, 703, 709 709 (Pa. (Pa. Super. ( Commonwealth v. Holt, citing Commonwealth Super. 2007) (citing Holt, 711 A.2d A.2d 1011, 1011, 1017 1017

(Pa. Super. (Pa. Super. 1998)). 1998)). A A conspiracy conspiracy can can be established established by the "web by the "web of evidence" established of evidence" established by by the the conduct of the co-conspirators along with the circumstances surrounding surrounding said conduct. conduct

Commonwealth y, Morton, 512 Commonwealth v. 512 A2d A.2d 1273, 1273, 1275 1275 (Pa. Super. 1986). (Pa. Super. 1986). Resultingly, both of Resultingly, both of

by establishing Appellant's Possession with the Intent to Distribute convictions are established by establishing

Count 3, the Criminal Conspiracy between Appellant Appellant and Mr. Rosales, Rosales, discussed discussed infra. infra.

When this this evidence, evidence, and the reasonable and the inferences drawn reasonable inferences therefrom, is drawn therefrom, is viewed in the viewed in the light light

most favorable to the Commonwealth as the verdict winner, winner, the existence of aaconspiracy conspiracy between between

Appellant Appellant and and Mr. Mr. Rosales Rosales to distribute the to distribute the drugs establishes establishes that Appellant possessed that Appellant possessed the is the is

I11I sufficient to establish that Appellant possessed the controlled substances with the intent to

distribute them beyond a a reasonable doubt.

Therefore, sufficient evidence evidence was was provided provided at at trial trial to establish the violations violations of of Counts Counts 1 t and and 2.

b. Sufficient evidence was presented at trial to find fid Appellant guilty beyond Appellant guilty beyond a a

reasonable doubt of Criminal Conspiracy Conspiracy

Appellant was found guilty in Count 33of violating violating 18 I8 Pa.C.S. Pa.C.S. §$ 903 903 (in (in reference to Counts

1 l and 2), which states:

(a) Definition (a) Definition of of conspiracy. conspiracy. — A A person person is guilty of is guilty of conspiracy conspiracy with another with another person or persons to commit aacrime if with the intent of promoting promoting or facilitating facilitating its commission he:he (1) agrees (I) agrees with such other with such other person or persons person or persons that that they or one they or one or or more more of of them them will engage in conduct which constitutes such crime or an attempt attempt or solicitation to commit such crime; crime; or or (2) agrees to aid such other person person or persons persons in the planning planning or commission of such crime or of an attempt attempt or solicitation to commit such crime. ... (e) Overt act. crime

act. --— No person may be convicted of conspiracy conspiracy to commit a a act in crime unless an overt act in pursuance of such such conspiracy alleged and conspiracy is alleged and proved to have been done by him or by aaperson with whom he conspired. conspired.

Appellant and Mr. Rosales's long drive from Texas to Bensalem— Bensalem-- over twenty hours --—

followed immediately by a a drug sample transaction, a a subsequent negotiation for aabulk narcotics

sale, renting renting a a hotel hotel room for for a a single single day, and and attempted attempted flight flight before before his his arrest create create the sort sort of

"web of evidence" "web of evidence" that that establishes establishes Appellant Appellant and and Mr. Mr. Rosales Rosales conspired conspired for for the purpose of the purpose of the the

illegal sale of controlled substances in Pennsylvania. N.T. 4/13/2022, pp. — 173. Mr. Rosales pp. 172 --173.

provided the CHS with sample drugs and Mr. Rosales' D.N.A. was found on the drug drug packaging packaging

recovered from Room 348. N.T. 4/12/2022, p. p. 212; C-14. Beyond Beyond Mr. Rosales' overt acts,

Appellant personally Appellant personally drove drove his co-conspirator co-conspirator to the sample drug the sample drug transaction. transaction. N.T. 4/12/2022, pp. N.T. 4/12/2022, pp

104 — 147. When this evidence, and the reasonable inferences drawn therefrom, is viewed in the 104

12 light most favorable to the Commonwealth as the verdict winner, winner, it is sufficient to establish that

both Appellant and Mr. Rosales conspired to travel to Pennsylvania Pennsylvania for the purpose purpose of distributing distributing

bulk narcotics and committed multiple overt acts in furtherance thereof.

Therefore, sufficient evidence was provided at trial to establish the violation of Count 3.

c. e. Sufficient evidence was presented at trial to find Appellant Appellant guilty guilty beyond beyond a a

reasonable doubt of Possession of aaControlled Substance

Appellant was found guilty in Count 4 4 of violating violating 35 P.S. $§ 780-113(a)(16), 780-113(a)(16), which states:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: ••• (16) Knowingly or intentionally possessing possessing aa controlled or counterfeit substance by a a person not registered registered under this act, act, or aapractitioner practitioner not registered or licensed by the appropriate State board, unless the substance was was obtained directly from, or pursuant to, aavalid prescription prescription order or order of a a practitioner, or except as otherwise authorized by by this act. Appellants Possession of a a Controlled Substance was established supra, Discussion

Section I(a). Therefore, sufficient evidence was provided at trial to to establish the violation of Count

44.

d. Sufficient evidence was presented at trial to find Appellant guilty beyond beyond aa

reasonable doubt of Possession of Paraphernalia Paraphernalia

Appellant was found guilty in Count 5 5 of violating violating 35 P.S. $§ 780-113(a)(32), 780-113(a)632), which states:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: prohibited: ••• (32) The The use of, or possession with intent to use, drug paraphernalia for the purpose purpose of planting, planting, propagating, cultivating, growing, propagating, cultivating, growing, harvesting, harvesting, manufacturing, compounding, converting, producing, processing, processing, preparing, preparing, testing, analyzing, packing, repacking, storing, containing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body body aa controlled substance in violation of this act. "Drug Drug paraphernalia" is defined under the Act as:

13 "Drug paraphernalia" paraphernalia" means means all all equipment, products products and materials of of any any kind kind which are used, intended for use or designed for use in planting,planting, propagating, propagating, cultivating, growing, harvesting, manufacturing, manufacturing, compounding, converting, compounding, converting, producing, processing, preparing, testing, testing, analyzing, analyzing, packaging, packaging, repackaging, repackaging, storing, containing, concealing, injecting, injecting, ingesting, ingesting, inhaling inhaling or otherwise otherwise introducing into into the the human human body body a a controlled controlled substance substance in in violation act. It violation of this act. It includes, but is not limited to: ... (5) Scales and balances used, intended for use or designed use in designed for use in weighing or measuring controlled substances substances. 35 P.S. §$ 780-102. 35PS. 780-102

To convict Appellant for Possession of Paraphernalia, the Commonwealth was required to was required to

establish that Appellant possessed drug paraphernalia and and "the use of, of, or possession with intent possession with intent to to

use, drug paraphernalia use, drug paraphernalia for the purpose for the purpose of... compounding, ... of ... compounding, ... processing, preparing, ... processing, preparing, . . packing, packing,

repacking, repacking,... ... or otherwise introducing into the human body body aacontrolled substance in in violation of violation of

this act". 35P.S. 35 P.S. $§ 780-113(a)(32). Among the items recovered from Room 348 was a adigital digital scale scale

with residue on it that tested positive for controlled substances, proximity to substances, found in close proximity to the the

bulk drugs. N.T. 4/12/2022, p. 255. Further, thin plastic 4/12/2022, plastic found found inside a a nearby nearby trashcan suggested trashcan suggested

further further that that the the bulk bulk drugs drugs had been repackaged repackaged into samples inside the into the samples hotel room. the hotel room. N.T. NT

4/1 3/ 2022, pp. 28 -29;C-21. 4/13/2022, — 29; C-21. When this evidence, and the reasonable inferences therefrom, inferences drawn therefrom,

is is viewed viewed in in the light most most favorable to to the Commonwealth as the verdict verdict winner, winner, it is sufficient it is sufficient

to establish that Appellant possessed paraphernalia in contravention of the Act, Act, and, therefore, and, therefore,

sufficient evidence was was produced at at trial to to find find Appellant guilty beyond Appellant guilty beyond a areasonable reasonable doubt of doubt of

committing the the crime as alleged in as alleged in Count Count 5. 5.

Accordingly, this Court submits that Appellant's first five allegations allegations of error are without

merit and should be dismissed.

14 14 II. The trial court did not abuse its discretion in denying denying Appellant's Appellant's Motion to

Suppress Suppress the the $3,300 $3,300 found found on Appellant and and Appellant's flight incident Appellant's flight incident to his his

Arrest as Probable Cause Existed to to Arrest Arrest Appellant Appellant

"Probable cause exists if the facts and circumstances within the knowledge Probable knowledge of the police police

officer at the time of the arrest are sufficient to justify justify a person of reasonable caution in believing a person believing

the the suspect has has committed or is committing a a crime." Commonwealth v. Burnside, Burnside, 625 678, 625 A.2d 678,

681 681 (Pa. Super. 1993). (Pa. Super, 1993). If someone is is arrested arrested without probable probable cause the the "fruits" "fruits" of that that search

must be suppressed and disregarded in aacriminal proceeding, and no no "good faith exception" exception"exists exists

in in the state of the state of Pennsylvania to the Pennsylvania to requirement. Commonwealth the requirement. Commonwealth v. Hopkins, Hopkins, 164 164 A.3d A.3d 1133, 1133, 1137 1137

(Pa. (Pa. 2017). 2017). Moreover, this this Court is is aware that that probable probable cause for requires more than for an arrest requires than

merely being near near aaperson to which there there exists probable suspected criminal activity probable cause of suspected activity (but (but

U.S, v. Butts, 704 F.2d 701, such is not what the evidence in this case demonstrates.) U.S. 704 (3d 701, 704 (3d Cir.

1983); see also Ybarra v. v, Ill., ILL,, 444 U.S. 85, 91 ((1979) 1979) ("[A] ([A] aaperson's person's mere propinquity propinquity to others

independently independently suspected suspected of of criminal activity does criminal activity not, without does not, without more, more, give give rise to probable rise to probable cause cause

to search that person. "). person.").

Before Before police Appellant as he police arrested Appellant he exited the Holiday Holiday Inn Express in Bensalem, Inn Express Bensalem, they they

had observed observed him drive Mr. Rosales' Rosales' truck to to Philadelphia, Philadelphia, Mr. Rosales leave leave the the passenger seat passenger seat

of the truck, enter another vehicle, hand narcotics to aaConfidential Human Source of the Federal

Investigation ("CHS"), Bureau of Investigation (CHS"), Appellant drive the the vehicle back back to the the Holiday Holiday Inn in in Bensalem Bensalem

where where Mr. Rosales had rented aaroom mom after making two two stops, both Appellant and Mr. Rosales exit

the truck and enter Room 348, both Appellant Appellant and Mr. Rosales leave Room 348 to look up up and

down the hallway hallway over the next few hours, and Appellant Appellant and Mr. Mr, Rosales leave Room 348 in time

to get get to aanarcotics transaction as scheduled between Mr. Rosales and the CHS. Appellant Appellant was

inside the hotel hotel room room with co-conspirator as Mr. with his co-conspirator Mr. Rosales made phone phone calls setting up the setting up the bulk 15 drug transaction, N,T. 4/12/2022, pp. 124 - 125. Under these circumstances, it strains credulity to 12/2022, pp. 124 — 125. Under these circumstances, it strains credulity to drug transaction. N.T. 4/ suggest that Appellant was somehow not participating in the narcotics transaction but that he was suggest that Appellant was somehow not participating in the narcotics transaction but that he was also wholly unaware that it was to occur. The police not only had probable cause to arrest Appellant also wholly unaware that it was to occur. The police not only had probable cause to arrest Appellant for the planned bulk drug transaction, they had probable cause to arrest Appellant for the prior for the planned bulk drug transaction, they had probable cause to arrest Appellant for the prior "sample" drug transaction in Philadelphia. "sample" drug transaction in Philadelphia.

Accordingly, this Court submits that Appellant's sixth allegation of error is without merit Accordingly, this Court submits that Appellant's sixth allegation of error is without merit and should be dismissed. and should be dismissed.

IHI. The trial court did not abuse its discretion in denying Appellant's Motion in III. The trial court did not abuse its discretion in denying Appellant's Motion in Limine to Refer to Defense Counsel as a Publie Defender Limine to Refer to Defense Counsel as aPublic Defender The standard practice of courts in his Commonwealth is to avoid references to defense The standard practice of courts in his Commonwealth is to avoid references to defense counsel as a public defender if possible. Whatever the rationale, be it fear of the jury making counsel as apublic defender if possible. Whatever the rationale, be it fear of the jury making decisions based on the defendant's perceived economic status, a societal assumption that an decisions based on the defendant's perceived economic status, a societal assumption that an innocent individual would hire a private attorney, or otherwise, the understanding that this Court innocent individual would hire aprivate attorney, or otherwise, the understanding that this Court has is that the defense counsel's status as a public defender or private counsel is, at best, irrelevant has is that the defense counsel's status as apublic defender or private counsel is, at best, irrelevant to the determination of the ultimate case. to the determination of the ultimate case.

This Court is aware that the courts of Pennsylvania have held that the inadvertent This Court is aware that the courts of Pennsylvania have held that the inadvertent disclosure of defense counsel as a public defender has been held to be "insignificant and does not disclosure of defense counsel as apublic defender has been held to be "insignificant and does not violate equal protection". Commonwealth v, Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006) (citing violate equal protection". Commonwealth v. Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006) (citing Commonwealth v. Dunson, 11 Pila. 339 (Pa. Com, PI, 1984)). However, in this case, defense Commonwealth v. Dunson, 11 Phila. 339 (Pa. Corn. Pl. 1984)). However, in this case, defense counsel filed a Motion in Limine for permission to actively inform the jury of their status, counsel filed a Motion in Limine for permission to actively inform the jury of their status, seemingly for the purpose of having the jury assume that Appellant cannot be a drug dealer, as he seemingly for the purpose of having the jury assume that Appellant cannot be adrug dealer, as he would then have the funds to hire private counsel. would then have the funds to hire private counsel.

Defense counsel did not provide, and this Court is unaware of, any law in this Defense counsel did not provide, and this Court is unaware of, any law in this Commonwealth establishing that such an action is permissible. Further, this Court found that Commonwealth establishing that such an action is permissible. Further, this Court found that 16 16 ' I

stating to the jury that defense counsel was a public defender risked confusion and the jury making stating to the jury that defense counsel was apublic defender risked confusion and the jury making a finding based not on the facts presented, but rather Appellant's perceived economic status. Even afinding based not on the facts presented, but rather Appellant's perceived economic status. Even beyond this Court's concerns, Appellant himself seemed reluctant to proceed down this route. beyond this Court's concerns, Appellant himself seemed reluctant to proceed down this route. When asked by the court "do you want me to allow [Defense Counsel] to tell the jury that he's a When asked by the court "do you want me to allow [Defense Counsel] to tell the jury that he's a public defender?", Appellant replied, I mean, do we have to?" N.T, 4/11/22, p. 7. public defender?", Appellant replied, "Imean, do we have to?" N.T. 4/11/22, p. 7. Accordingly, this Court submits that Appellant's seventh allegation of error is without Accordingly, this Court submits that Appellant's seventh allegation of error is without

merit andshould meritand dismissed. shouldbebedismissed.

IV. The trial court did not abuse its discretion in permitting Officer Farnan to testify IV. The trial court did not abuse its discretion in permitting Officer Farnan to testify regarding the contents of surveillance videos regarding the contents of surveillance videos During the suppression hearing, defense counsel objected to Bensalem Township Police During the suppression hearing, defense counsel objected to Bensalem Township Police Department Officer Connor Farnan testifying as to what he observed on surveillance videos from Department Officer Connor Farnan testifying as to what he observed on surveillance videos from the Holiday Inn Express as violative of the Best Evidence Rule in that certain surveillance videos the Holiday Inn Express as violative of the Best Evidence Rule in that certain surveillance videos were not preserved and provided to the defense. N.T. 4/11/22 p. 23. Specifically, Defense counsel 22p. 23. Specifically, Defense counsel were not preserved and provided to the defense. N.T. 4/1 1/ was not provided videos from December 4, 2020 at approximately 9:00 A.M. to approximately was not provided videos from December 4, 2020 at approximately 9:00 A.M. to approximately L00 P.M.. N.T. 4/11/22 pp. 23 - 25. The objection was overruled and the question rephrased to 1:00 P.M.. N.T. 4/11/22 pp. 23 — 25. The objection was overruled and the question rephrased to elicit answers from Officer Farnan regarding surveillance videos from roughly 8:30 A.M. to 9.00 elicit answers from Officer Farnan regarding surveillance videos from roughly 8:30 A.M. to 9:00 A.M. A.M..

At trial, the Commonwealth introduced Commonwealth Exhibit C-6 and C-10, containing At trial, the Commonwealth introduced Commonwealth Exhibit C-6 and C-10, containing surveillance videos of the Holiday Inn lobby and 3" floor, respectively. Exhibit C-6 contains five surveillance videos of the Holiday Inn lobby and 3rd floor, respectively. Exhibit C-6 contains five videos with visible timestamps" from 08:1101 08:14:25, 08:IE:01 - 08:14.18, 08:16.34 - videos with visible timestamps 9 from 08:11:01 — 08:14:25, 08:11:01 — 08:14:18, 08:16:34 — 08-1711, 08:2220 -- 08.25.00 and 08:23:14 - 0824.06. See C-6. Mr. Rosales checks in to the 08:17:11, 08:22:20 — 08:25:00 and 08:23:14 — 08:24:06. See C-6. Mr. Rosales checks in to the hotel, and then Appellant and Mr. Rosales enter the elevator, carrying various items. Appellant is hotel, and then Appellant and Mr. Rosales enter the elevator, carrying various items. Appellant is

I

I I pe video timestamps re in 24-hour time format, often referred to as military time." 'The video timestamps are in 24-hour time format, often referred to as "military time." 17 17

i seen carrying a black back pack while wheeling an air compressor, while Mr. Rosales maneuvers seen carrying ablack backpack while wheeling an air compressor, while Mr. Rosales maneuvers a large, wheeled toolbox into the elevator. See C-6. One black backpack was recovered during the alarge, wheeled toolbox into the elevator. See C-6. One black backpack was recovered during the search of Room 348, which contained approximately 100 grams of heroin and I kilogram of search of Room 348, which contained approximately 100 grams of heroin and 1kilogram of methamphetamine. N.T, 4/12/2022,p. 225; C-6. Exhibit C-10 contains body-camera recordings of methamphetamine. N.T. 4/ 2022, p. 225; C-6. Exhibit C-10 contains body-camera recordings of 12/

a screen, presumably the surveillance computer's, playing three videos with visible timestamps ascreen, presumably the surveillance computer's, playing three videos with visible timestamps from 12-56.30- 12:57:16, 13:00.09 - 13.00:15, and 16:55:12 - 16:55:40. See C-10. These videos from 12:56:30 — 12:57:16, 13:00:09 — 13:00:15, and 16:55:12 — 16:55:40. See C-10. These videos show Appellant and/or Mt. Rosales walking to and/or from the 3" floor elevator, and neither show Appellant and/or Mr. Rosales walking to and/or from the 3rd floor elevator, and neither Appellant nor Mr. Rosales appear to be carrying any objects in their hands. Defense counsel did Appellant nor Mr. Rosales appear to be carrying any objects in their hands. Defense counsel did not object to the introduction and playing of these videos on the grounds that they were not in the not object to the introduction and playing of these videos on the grounds that they were not in the defense's possession. Officer Farnan did not testify regarding surveillance videos ranging from defense's possession. Officer Farnan did not testify regarding surveillance videos ranging from approximately 9.00 A.M. to approximately 1.00 P.M. on December 4, 2020. This is unsurprising, approximately 9:00 A.M. to approximately 1:00 P.M. on December 4, 2020. This is unsurprising, seeing as during that time Appellant and Mr. Rosales were being surveilled by the FBI Task force. seeing as during that time Appellant and Mr. Rosales were being surveilled by the FBI Task force. N.T. 4/1202022, pp. 104 - 147. Appellant and Mr. Rosales were engaged in the sample narcotics N.T. 4/12/2022, pp. 104 — 147. Appellant and Mr. Rosales were engaged in the sample narcotics transaction and then went to the Bob Evans restaurant. N.T. 4/12/2022, p. 128. Officer Farman did 2 022, p. 128. Officer Farnan did transaction and then went to the Bob Evans restaurant. N.T. 4/12/ not testify regarding any surveillance videos that were not preserved or not handed over to the not testify regarding any surveillance videos that were not preserved or not handed over to the defense. As such, Appellant's claim that Officer Farnan's testimony was in contravention of the defense. As such, Appellant's claim that Officer Farnan's testimony was in contravention of the Best Evidence Rule is meritless Best Evidence Rule is meritless.

Accordingly, this Court submits that Appellant's eighth allegation of error is without merit Accordingly, this Court submits that Appellant's eighth allegation of error is without merit and should be dismissed. and should be dismissed.

V, The trial court did not abuse its discretion in permitting testimony of Detective V. The trial court did not abuse its discretion in permitting testimony of Detective Eisenhauer Eisenhauer

The purpose of expert testimony is to provide the jury with information requiring special The purpose of expert testimony is to provide the jury with information requiring special expertise or knowledge helpful to their determination of a fact at issue. Pa.R.E. 702. If valuable to expertise or knowledge helpful to their determination of afact at issue. Pa.R.E. 702. If valuable to the trier of fact, an expert witness may even express an opinion on an ultimate issue of fact. See the trier of fact, an expert witness may even express an opinion on an ultimate issue of fact. See 18 18 Commonwealth v, Daniels, 390 A.2d 172, 178 (Pa. 1978) (The contention that an expert should Commonwealth v. Daniels, 390 A.2d 172, 178 (Pa. 1978) (The contention that an expert should never be permitted to express an opinion on an "ultimate issue" is similarly misconceived.). [fa never be permitted to express an opinion on an " ultimate issue" is similarly misconceived.). If a witness testifies improperly, potential prejudice can be cured by a timely curative instruction, as witness testifies improperly, potential prejudice can be cured by atimely curative instruction, as "when an objection is sustained and a cautionary instruction is given, and the defendant fails to "when an objection is sustained and acautionary instruction is given, and the defendant fails to object to the cautionary instruction or to request any further instruction, counsel is presumed to be object to the cautionary instruction or to request any further instruction, counsel is presumed to be satisfied with the cautionary instruction and any prejudice is cured, because we further presume satisfied with the cautionary instruction and any prejudice is cured, because we further presume that the jury follows the court's instructions." MountOlivet Tabernacle v, Edwin L. Wiegand Div,, that the jury follows the court's instructions." Mount Olivet Tabernacle v. Edwin L. Wie and Div. Emerson Elec. Co,, 781 A.24 1263, 1275 n.12 (Pa. Super. 2001) (citing Commonwealth v. Jones, citing Commonwealth v. Jones, Emerson Elec. Co., 781 A.2d 1263, 1275 n.12 (Pa. Super. 200 1) ( 668 A.24 491, 508 (Pa. 1995),cert denied, 519 U.S. 826 (1996)) 668 A.2d 491, 508 (Pa. 1995), cert denied, 519 U.S. 826 ( 1996)). Detective Eisenhauer was offered as an expert witness without defense voir dire or Detective Eisenhauer was offered as an expert witness without defense voir dire or objection. See N.T. 4/122022, p. 266. At trial, defense counsel objected to Detective Eisenhauer's objection. See N.T. 4/12/2022, p. 266. At trial, defense counsel objected to Detective Eisenhauer's testimony suggesting that there was likely another party who would come to deliver drugs as the testimony suggesting that there was likely another party who would come to deliver drugs as the narcotics sale orchestrated by the CHS and Mr. Rosales involved drugs in quantities beyond what narcotics sale orchestrated by the CHS and Mr. Rosales involved drugs in quantities beyond what was recovered from Room 348, which was offered in response to the question "how - is that was recovered from Room 348, which was offered in response to the question "how — is that consistent with the way a drug trafficking organization would operate?" N.T. 4/12/2022, pp. 288 consistent with the way adrug trafficking organization would operate?" N.T. 4/ 2022, pp. 288 12/

- 291. As the narcotics recovered from Room 348 included 95.89 grams of heroin, but the — 291. As the narcotics recovered from Room 348 included 95.89 grams of heroin, but the transaction as negotiated was for two kilograms - 2,000 grams - of heroin, there is an inherent transaction as negotiated was for two kilograms — 2,000 grams — of heroin, there is an inherent incongruity between the deal as designed and the deal that could actually be satisfied with the incongruity between the deal as designed and the deal that could actually be satisfied with the contraband already in Appellant and Mr. Rosales's possession. See C-17. Defense counsel objected contraband already in Appellant and Mr. Rosales's possession. See C-17. Defense counsel objected further that Detective Eisenhauer's use of "they" in testifying "I feel very confident that they were further that Detective Eisenhauer's use of "they" in testifying "Ifeel very confident that they were going to attempt to set up a distribution hub right in this area from this organization." N.T. going to attempt to set up a distribution hub right in this area from this organization." N.T. 4/12/2022, pp. 295 - 296. This Court gave a curative instruction to the jury, and upon defense 12/2022, pp. 4/ 295 — 296. This Court gave acurative instruction to the jury, and upon defense counsel's motion, ruled that "[t]Jo the extent that the word they was brought up, it will be stricken." f counsel's motion, ruled that "t]o the extent that the word they was brought up, it will be stricken."

- N.T, 4/12/2022, p. 298. Defense Counsel expressed their satisfaction with this resolution. N.T. N.T. 4/ 12/ 2022, p. 298. Defense Counsel expressed their satisfaction with this resolution. N.T.

4/12/2022, p. 298. 4/ 12/ 2022, p. 298.

Appellant did not identify what portion of Detective Eisenhauer's testimony exceeded the Appellant did not identify what portion of Detective Eisenhauer's testimony exceeded the scope of proper expert testimony in his 1925(b) statement. However, as this court struck the scope of proper expert testimony in his 1925(b) statement. However, as this court struck the disputed testimony and provided a curative instruction to the Defense Counsel's satisfaction, any disputed testimony and provided acurative instruction to the Defense Counsel's satisfaction, any potential prejudice was cured. potential prejudice was cured.

Accordingly, this Court submits that Appellant's ninth allegation of error is without merit Accordingly, this Court submits that Appellant's ninth allegation of error is without merit and should be dismissed. and should be dismissed.

VI The trial court did not abuse its discretion when sentencing Appellant VI. The trial court did not abuse its discretion when sentencing Appellant Appellant had a prior record score of 5, stemming from prior convictions in the State of Appellant had aprior record score of 5, stemming from prior convictions in the State of Texas. N.T. 7/15/2022, p. 7. Appellant had a 2007 conviction for a misdemeanor analogous to Texas. N.T. 7/15/2022, P. 7. Appellant had a2007 conviction for amisdemeanor analogous to Then from a Motor Vehicle, two simultaneous 2008 convictions for the same, a 2010 conviction Theft from aMotor Vehicle, two simultaneous 2008 convictions for the same, a2010 conviction for DUI, a 2013 conviction for a crime analogous to second-degree felony Aggravated Assault, for DUI, a2013 conviction for acrime analogous to second-degree felony Aggravated Assault, and a 2017 conviction for second-degree felony Aggravated Assault. N.T. 7/15/2022, pp. 7- 10. and a2017 conviction for second-degree felony Aggravated Assault. N.T. 7/15/2022, pp. 7 — 10. Appellant was completed his sentence for the 2017 conviction roughly 8 months prior to his Appellant was completed his sentence for the 2017 conviction roughly 8 months prior to his behavior incident to his arrest. N,T, 7/15/2022, p. 10, behavior incident to his arrest. N.T. 7/15/ 2022, p. 10.

The guidelines for Count I, Possession with Intent to Deliver a Controlled Substance- The guidelines for Count 1, Possession with Intent to Deliver aControlled Substance— Heroin had a standard range sentence of 60 to 72 months and an aggravated range of 84 months Heroin had astandard range sentence of 60 to 72 months and an aggravated range of 84 months for possession of slightly over 95 grams of heroin. N.T. 7/15/2022, pp. 29 - 30. These guidelines for possession of slightly over 95 grams of heroin. N.T. 7/15/2022, pp. 29 — 30. These guidelines were for possession of between 50 and IO0 grams of heroin. Appellant was sentenced on Count L were for possession of between 50 and 100 grams of heroin. Appellant was sentenced on Count 1 to not less than 7 years, no more than I5 years, within the aggravated range. N.T. 7/15/2022, p. to not less than 7years, no more than 15 years, within the aggravated range. N.T. 7/ 15/2022, p.

43. 43.

The guidelines for Count 2, Possession with Intent to Deliver a Controlled Substance- The guidelines for Count 2, Possession with Intent to Deliver aControlled Substance— Methamphetamine, were for 60 months to 60 months as the amount possessed was between 100 Methamphetamine, were for 60 months to 60 months as the amount possessed was between 100 20 20 and 1,000 grams of methamphetamine. N,T, 7/15/2022, p. 29. Appellant possessed 957+ grams of and 1,000 grams of methamphetamine. N.T. 7/1 5/ 2 022, p. 29. Appellant possessed 957+ grams of

met hamphetamine, just below the top end of the range. The standard range for the methamphetamine, just below the top end of the range. The standard range for the methamphetamine charge is the maximum permitted by law on that count. N.T. 7/15/2022, p. 29. methamphetamine charge is the maximum permitted by law on that count. N.T. 7/1 5/ 2022, p. 29.

Appellant was sentenced on Count 2 to not less than 5 years, no more than I0 years, concurrent to Appellant was sentenced on Count 2to not less than 5years, no more than 10 years, concurrent to Count I, within the standard range. N.T, 7/15/2022, p. 43, Count 1, within the standard range. N.T. 7/ 15/ 2022, p. 43.

Appellant was sentenced on Count to S years of probation running consecutive to Count Appellant was sentenced on Count 3to 5years of probation running consecutive to Count I. N.T. 7/15/2022, p. 44. This was below the standard range of 60 months and the mitigated range 1. N.T. 7/ 15/2022, p. 44. This was below the standard range of 60 months and the mitigated range

of 60 months. of 60 months.

Appellant was sentenced to no further penalties on Counts 4 and S as they either merged Appellant was sentenced to no further penalties on Counts 4and 5as they either merged or any sentence imposed would have been redundant, N,T, 7/15/2022, p. 44. or any sentence imposed would have been redundant. N.T. 7/1 5/ 2 022, p. 44.

Throughout the Sentencing Hearing, this court explained the how it took into consideration Throughout the Sentencing Hearing, this court explained the how it took into consideration Appellant's Age, conduct, character, criminal history, the impact of Appellant's actions on the Appellant's Age, conduct, character, criminal history, the impact of Appellant's actions on the community, Appellant's rehabilitative needs, the Sentencing Guidelines, the mitigating and community, Appellant's rehabilitative needs, the Sentencing Guidelines, the mitigating and aggravating factors present, Appellant's behavior at trial, and the letters from his mother and sister. aggravating factors present, Appellant's behavior at trial, and the letters from his mother and sister. See NT. 7/15/2022, pp. 4 - 13, 36 46; Sentencing D-I and D.-2. This Court also considered See N.T. 7/15/2022, pp. 4 — 13, 36 — 46; Sentencing D-1 and D-2. This Court also considered Appellant's two prior convictions for crimes of violence and that he was arrested only roughly 8 Appellant's two prior convictions for crimes of violence and that he was arrested only roughly 8 months after completing supervision for his second aggravated assault conviction in Texas. See months after completing supervision for his second aggravated assault conviction in Texas. See N.T. 7/1502022, pp. 10, 40. Further, the impact these drugs have had in the local community, N.T. 7/15/2022, pp. 10, 40. Further, the impact these drugs have had in the local community, Appellant's boldness in driving up from Texas to distribute bulk quantities, the fact that the Appellant's boldness in driving up from Texas to distribute bulk quantities, the fact that the quantities of drugs recovered were just undereath the next level of the guidelines for both Counts quantities of drugs recovered were just underneath the next level of the guidelines for both Counts l and 2, and his continued lack of any acceptance of responsibility were considered. N.T 1 and 2, and his continued lack of any acceptance of responsibility were considered. N.T. 7/15/2022, pp. 36, 39, 42. Only after considering all of these factors, this Court found that 7/15/2022, pp. 36, 39, 42. Only after considering all of these factors, this Court found that Appellant's actions required a sentence be imposed in the aggravated range. N.T. 7/15/2022, p. Appellant's actions required asentence be imposed in the aggravated range. N.T. 7/15/2022, p. 42. 42. 21 21 --- -

Accordingly, this Court submits that Appellant's Appellant's tenth through eighteenth allegations through eighteenth allegations of of

error are without merit and should be dismissed.

CONCLUSION CONCLUSION

Based on Based on all all of of the the forgoing, forgoing, this this Court respectfully submits Court respectfully submits that that Appellant's Appellant's eighteen eighteen

issues on appeal are without merit. Furthermore, this Court respectfully submits that respectfully submits the Guilty that the Guilty

Verdict of April 13, 2022 by a a jury of Appellant's peers, following an exceedingly peers, following exceedingly fair fair Trial, Trial, with with

Lastly, it qualified Trial Counsel representing his interests, should be affirmed. Lastly, it is is respectfully respectfully submitted that this Court's July 15, 2022, Sentencing Order, which followed followed aacomprehensive comprehensive

review of all relevant sentencing information, and which had followed the Appellant's Appellant's conviction conviction

based on overwhelming evidence of guilt that Appellant committed the erimes crimes of Possession with Possession with

Intent to Deliver aaControlled Substance-Heroin", Substance—Heroin' °, Possession with Intent to to Deliver Deliver a a Controlled Controlled

Substance—Methamphetamine• 1,Criminal Conspiracy Substance-Methamphetamine!', Conspiracy— Possession with Intent to Deliver Intent to Deliver aa

Substance--(a) Heroin and (b) Controlled Substance-{a) (b) Methamphetamine 12 ,Possession of a Methamphetamine', Controlled a Controlled

Substance--(a) -(a) Heroin and Substance and (b) Methamphetamine 13 , Methamphetamine", and Possession of Paraphernalia Paraphernalia"14 should should also also

be affirmed. Accordingly, this Court respectfully requests that all issues raised by Appellant be by Appellant be

determined to be without merit and that Appellant's appeal appeal be dismissed in its entirety. its entirety.

Date: ld ll• U •

10 35 P.S. 3$PS. §$ 780-113(x)(30) 780-113(a)030) 11 35 P.S. 3$PS. §$780-113(a)830) 780-113(a)(30) 18 Pa.C.S. §$903 1218PCS. 903 35 P.S. $780-113(a)015 1)3$PS. § 780-113(a)(15) 35 P.S. §$ 780-113(a)(32) 1°35P.$. 780-1136832) 22 PROOF OF SERVICE PROOF OF SERVICE

I hereby certify that I served this day the foregoing Ihereby certify that Iserved this day the foregoing documents upon the persons and in the manner indicated below, which documents upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: service satisfies the requirements of Pa. R.A.P. 121:

Service in person Service in person as follows: as follows:

Hon. Brian T. McGuffi Hon. Brian T. McGuffin (215) 348-6606 (215) 348-6606 Judges Chambers Judges Chambers Bucks County Justice Center Bucks County Justice Center Doylestown, PA 18901 Doylestown, PA 18901

Matthew Weintraub Matthew Weintraub District District Attorney Attorney (215) 348-6344 (215) 348-6344 District Attorney's Office District Attorney's Office Bucks County Justice Center Bucks County Justice Center Doylestown, PA 18901 Doylestown, PA 18901 Attorney for Appellee Attorney for Appellee

DATED: BY: . £ / CR1sis. CHRISTA DUNLEAVY S. DUNLEAVY CHIEF DEPUTY PUBLIC DEFENDER CHIEF DEPUTY ATTORNEY 476134DEFENDER IDPUBLIC ATTORNEY ID # 76134 PUBLIC DEFENDER'S OFFICE PUBLIC BUCKS DEFENDER'S OFFICECENTER COUNTY JUSTICE BUCKS COUNTY JUSTICE DOYLESTOWN, PA 18901 CENTER DOYLESTOWN, (215) 348-6473PA 18901 (215) 348-6473 EMAIL: slspickler@buckscounty.org EMAIL: slspickler@buckscounty.org ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLANT