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[U] Commonwealth v. Vargas

Superior Court of Pennsylvania

July 8, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSE VARGAS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered January 12, 2012 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0001895-2011

BEFORE: BENDER, J., BOWES, J., and LAZARUS, J.

MEMORANDUM

BENDER, J.

Appellant, Jose Vargas, appeals from the judgment of sentence of five to ten years' incarceration, followed by ten years' probation, imposed after he was convicted of possession with intent to deliver a controlled substance (PWID), criminal conspiracy, possession of a controlled substance, and possession of drug paraphernalia. Appellant challenges the sufficiency of the evidence to sustain his convictions, as well as the legality of his sentence. After careful review, we are compelled to reverse Appellant's judgment of sentence.

Appellant was arrested and charged with the above-stated crimes on November 3, 2010, after police executed a search warrant on a hotel room occupied by Appellant and two other individuals, Francisco Saldana and Raymer Carrasco. Inside that room, officers discovered drug-packaging paraphernalia. Police also obtained search warrants for Appellant's and

Saldana's vehicles, which were parked in the hotel lot. While no contraband was found in Appellant's Honda Accord, police discovered a large quantity of heroin inside Saldana's Chevrolet Impala. Accordingly, Appellant and his cohorts were arrested and searched. Carrasco was found to be in possession of heroin, but Saldana and Appellant had no contraband on their persons.

Appellant proceeded to a non-jury trial on October 17, 2011, and was ultimately convicted of the offenses stated supra. On February 6, 2012, Appellant was sentenced to a mandatory minimum term of five to ten years' incarceration for his PWID conviction based on the amount of heroin found in Saldana's vehicle. 18 Pa.C.S. § 7508(a)(7)(iii) (directing that where a PWID conviction involves heroin with an aggregate weight of 50 grams or more, a mandatory five-year term of imprisonment is imposed). Appellant filed a timely post-sentence motion challenging his sentence, which was denied. He then filed a timely notice of appeal, as well as a timely concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, Appellant presents two issues for our review:

I. Where the evidence at trial established only that [] [A]ppellant was merely present in a hotel room where drug-packaging paraphernalia was recovered, was the evidence insufficient to sustain the verdicts?
II. Did the [] [trial] court err by imposing the mandatory minimum [sentence] under 18 Pa.C.S. § 7508 where the controlled substance in question was not in the actual or constructive possession of [] [A]ppellant?

Appellant's Brief at 5.

For the reasons stated infra, we need only address Appellant's first issue, in which he alleges that the evidence was insufficient to sustain his convictions. We begin by noting our standard of review:

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

The evidence presented by the Commonwealth at Appellant's trial established the following facts, which are not in dispute:[1]

On the evening of November 3, 2010, Officers David Clee and Matthew Tobie of the Bensalem Township Police Department were patrolling the Route 1 corridor in Bensalem Township, Bucks County. Officer Clee is [an eighteen (18)] year member of the Bensalem Police Department who had been assigned to the special investigations unit for [the] past ten [(10)] years. With the special investigations unit, Officer Clee focuses [] on narcotics[]-related crimes. N.T. 10/17/11, pp. 7-9. The Route 1 corridor in Bensalem consists of numerous motels and is recognized as a "high crime area." N.T. 6/6/11, pp. 92-96[;] N.T. 10/17/11, pp. 11-14. The corridor is known to have a high concentration of criminal activity, including issues in particular with narcotics trafficking, robberies and prostitution. Id. Officer Clee's primary responsibility is to patrol the Route 1 corridor and he has personally received requests from the hotel owners in the area, including the owner of the Sunrise Motel, to provide constant patrol. Id. In particular, hotel owners have concerns about individuals who are not patrons of the hotels loitering in the hotels and engaging in criminal activity. Id.
Shortly after 10:00 p.m., Officers Clee and Tobie drove into the parking lot of the Sunrise Motel on Route 1 in Bensalem. Upon entering the parking lot, Officer Clee observed a 2000 [Chevrolet] Impala with a New Jersey license plate in the parking lot of the motel. N.T. 6/6/11, p. 96[;] N.T. 10/17/11, p. 15. He immediately noticed that the vehicle had heavily tinted windows – to the degree that he determined the vehicle was in violation of both the Pennsylvania and New Jersey vehicle codes. N.T. 10/17/11, p. 16. Officer Clee also observed that there was an individual in the passenger compartment of the vehicle and that the individual was attempting to move from the passenger seat into the driver's seat. N.T. 10/17/11, p. 15. Officer Clee explained that sitting in a parked vehicle outside of a motel on the Route 1 corridor is consistent with numerous types of criminal activity, including prostitution (a "pimp" waiting for a prostitute inside of a hotel), the ingestion of narcotics, called "doming, " and the sale of narcotics. N.T. 6/6/11, p. 100. The use or sale of narcotics in parked cars – or individuals waiting in parked cars while a sale of narcotics is taking place inside a room – is something Officer Clee has seen "hundreds" of times along the Route 1 corridor. Id. At that point, Officer Clee determined he was going to investigate further. As he was exiting his vehicle and calling in the Impala's license plate to his headquarters, Officer Tobie turned on the police overhead lights. N.T. 6/6/11, p. 97.
When Officer Clee approached the vehicle, he made contact with the individual moving around inside the vehicle, Melvin Torres. Officer Clee immediately noted that Torres was nervous. N.T. 10/17/11, p. 16. Specifically, Torres was sweating, his carotid artery was pulsating and his hands were visibly shaking. N.T. 6/6/11, pp. 37, 101; N.T. 10/17/11, pp. 63-67. When speaking with Torres, Officer Clee observed a baseball cap with a "large amount of jewelry" on the back seat of the vehicle. N.T. 10/17/11, pp. 17-18. Through his experience with the special investigations unit, Officer Clee knows that it is common for drug dealers to remove valuable personal items, including jewelry, from their person prior to engaging in a drug transaction. … Id. … During his conversation with Torres, Officer Clee asked numerous times who owned the Impala and why Torres was sitting in the parking lot. N.T. 10/17/11, pp. 16-17. Torres initially did not provide the information requested, saying only that he came to the hotel with his cousin. Id. After being asked numerous times, Torres advised Officer Clee that the owner of the vehicle was located in Room 161 of the motel. Id.
Upon learning that the owner was in Room 161, Officer Clee went back to his patrol vehicle to turn the overhead lights off. As he did, he looked in the direction of Room 161. He observed someone in Room 161 open the door and "stick his head out." N.T. 10/17/11, pp. 19-20. Officer Clee made eye contact with the individual and the individual then quickly shut the door. Id. Officer Clee then moved towards Room 161 and knocked on the door. It took the individuals inside the room approximately 45 seconds to open the door and they only did so after Officer Clee knocked on the door "several times, " knocking on the window and made an announcement that he was the police and was looking for somebody that owned the Impala. N.T. 10/17/11, pp. 20-21; N.T. 6/6/11, pp[.] 106-107, 140.
Co-defendant Francisco Saldana was the individual who opened the door, while co-defendant[s] Raymer Carasco and Appellant were standing behind him. N.T. 10/17/11, pp. 21-22. Once the door was open, Officer Clee stood in the doorway and asked the three (3) individuals who owned the Impala and who rented the motel room. Id. Initially, nobody answered [] either question. Eventually, Saldana indicated that the person who actually rented the room was not present. Id.
While standing in the doorway, Officer Clee was able to see inside the room. He noted that the light from the bathroom was illuminated. He also observed a portable lighting system sticking out of a large black box as well as a large "apple" bag.[2] N.T. 10/17/11, pp. 23-24, 50. The large apple bag was positioned on the floor of the hotel room between the doorjamb and a trash can. Id. Through his training and experience, Officer Clee knew that a large "apple" bag when purchased contains hundreds [of] smaller baggies. The smaller bags are almost exclusively used for storing narcotics and packaging them for sale. N.T. 10/17/11, pp. 48-49. In seventeen (17) years as a police officer, Officer Clee had only come into contact with "apple" baggies on one (1) occasion when they were not being used to store narcotics. Id. … Officer Clee [further] explained that the portable lighting system was significant to him since an enhanced lighting system is necessary for measuring heroin into exact small doses and then placing the heroin inside the smaller "apple" bags. N.T. 6/6/11, p. 181.
Based on his observations, including his knowledge that the vehicle had come from Camden, New Jersey[, ] and his observations of known drug paraphernalia in plain view inside the hotel room, Officer Clee made the decision to secure the hotel room and apply for a search warrant for the room. He also made application for a search warrant for the Impala. Once that decision was made, Officer Clee entered the room for the purposes of clearing it – assuring that other individuals were not present – and securing it so nothing inside could be tampered with. N.T. 6/6/11, p. 118. He went inside the bathroom to assure no other individuals were attempting to escape out of the bathroom window. In ...

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