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[U] Commonwealth v. Sanchez

Superior Court of Pennsylvania

February 7, 2014



Appeal from the PCRA Order of September 27, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0008774-2009.




Justino Sanchez appeals the September 27, 2012 order dismissing his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We affirm.

On April 29, 2010, following a non-jury trial, Sanchez was convicted of possession of a controlled substance with intent to deliver ("PWID")[1] and possession of a controlled substance ("simple possession").[2] On direct appeal, we summarized the evidence underlying Sanchez's convictions as follows:

At about 8:00 p.m. on June 12, 2009, two Philadelphia Highway Patrol officers, on routine patrol, made a traffic stop of a minivan for careless driving on East Elkhart Street in Philadelphia. When the police officers approached the minivan, they smelled a very strong chemical odor. Officer Bruce Cleaver recognized this smell as a cutting agent used in the preparation of cocaine for distribution. A computer check also showed that the minivan was registered to Evilissa Fred, who lived at the same address as [Sanchez]. Based on these facts, the officers arrested both [Sanchez], who was the driver of the minivan, and a passenger. During the search incident to arrest, the police did not find drugs on the body of [Sanchez], however, three $100 notes and thirteen $20 notes (totaling $560) were found on his person.
The police transported the minivan to headquarters, and thereafter they obtained and executed a search warrant. The officer who conducted the search immediately detected the same strong chemical odor noticed by the arresting officers. In fact, Officer Michael Keenan testified that "this was some of the strongest [cocaine] that I've ever smelled." The smell was noticeable "[a]s soon as Officer Kelly opened the driver side door[.]" The odor became so intense that the searching officers filled out a contact memo (confirming officer contact with a controlled substance) because "the smell was burning [their] throats." Investigating the source of the smell, the searching officer found a black canvas bag on the back seat of the minivan. Inside the canvas bag police found a kilo brick of cocaine wrapped in heavy plastic, which a police expert testified is done to keep the cocaine smell from "emanating." The police also found a letter addressed to [Sanchez] in the glove box of the van.

Commonwealth v. Sanchez, No. 3189 EDA 2012, slip op. at 1-3 (Pa.Super. July 7, 2011) (footnotes and citations to notes of testimony omitted). On October 29, 2010, Sanchez was sentenced to forty-eight to ninety-six months' incarceration on the PWID conviction. Sanchez received no penalty for the simple possession conviction.

On July 7, 2011, we affirmed Sanchez' judgment of sentence in an unpublished opinion. Id. at 8. On July 8, 2011, Sanchez filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on November 29, 2011. See Commonwealth v. Sanchez, 34 A.3d 829 (Pa. 2011) (per curiam).

On February 8, 2012, Sanchez filed a timely pro se PCRA petition. Thereafter, counsel was appointed. Following a review of the case, appointed counsel determined that the issues that Sanchez proffered in his pro se petition were meritless. Thus, counsel filed a comprehensive no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), as well as a motion to withdraw as counsel for Sanchez. After a review of the materials submitted by counsel and Sanchez, the PCRA court concurred with counsel's assessment of the issues that Sanchez raised in his pro se petition. Consequently, the PCRA court issued a notice of its intention to dismiss the pro se petition without a hearing pursuant to Pa.R.Crim.P. 907(1). On September 10, 2012, Sanchez filed a written response to the PCRA court's Rule 907 notice. On September 27, 2012, the PCRA court entered an order dismissing Sanchez's petition without a hearing, and granting counsel's petition to withdraw as counsel.

On October 18, 2012, Sanchez filed a notice of appeal. In response, the PCRA court directed Sanchez to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On December 31, 2012, Sanchez filed a timely statement. On February 8, 2013, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a). Sanchez presents five issues for our review:

1. Whether the prosecutor violated [Sanchez's] Sixth and Fourteenth Amendment rights when the Commonwealth suppressed tests, reports and forensic evidence, in disregard to [Sanchez's] request made by defense counsel, including exculpatory or inculpatory evidence?
2. Whether trial counsel was ineffective for failing to seek and obtain an expert witness to testify to the scientific fact that the police officer cannot smell cocaine when it is wrapped in plastic[?] Counsel's inaction violated [Sanchez's] right to effective assistance of counsel under the Sixth Amendment. PCRA counsel was equally ineffective for failure to seek [an] expert at ...

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