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[U] Commonwealth v. Lopez

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN LOPEZ Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence February 2, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007573-2008

BEFORE: PANELLA, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

PANELLA, J.

Appellant, John Lopez, appeals from the judgment of sentence entered February 2, 2010, by the Honorable Robert P. Coleman, Court of Common Pleas of Philadelphia County. After careful review, we affirm.

The trial court summarized the undisputed facts of the case as follows:

On November 8, 2007, at approximately 4 P.M., [Philadelphia Police Officer Brian Myers] met with a confidential informant ["CI"] and obtained information that a Hispanic male by the name of Props was selling heroin using a special two-way speakerphone number, 168 star 667 star 9859. Officer Myers searched this informant for any illegal contraband and United States currency [hereinafter "USC"] prior to contacting Props. The CI called the two-way number and the [Appellant], while on speakerphone, agreed to sell a bundle of heroin for $100 USC in the area of Jasper and Cambria [Streets]. During this communication, Officer Myers and his partner, Officer Woertz, were inside the vehicle with the CI and could hear its content.
Ten minutes after the call was made, the officers arrived at the area of Jasper and Cambria [Streets]. Officer Myers supplied the CI with $100 prerecorded USC. The CI proceeded to the agreed upon location and called [Appellant] to let him know he was there. From 75 feet away, Officer Myers observed [Appellant] engaged [in] a hand-to-hand transaction where the CI handed [Appellant] the prerecorded buy money. After taking the buy money, Officer Myers followed [Appellant] to 1834 East Monmouth Street. Five minutes later, [Appellant] exited the property and returned to the CI where Officer Myers observed [Appellant] hand the CI an object. Soon thereafter, the CI returned to Officer Woertz and turned over 14 blue glassine packets containing heroin.
On December 12, 2007, a similar chain of events took place where the officers met with the CI to set up a drug transaction. While Officer Myers, Officer Woertz, and the CI were inside a vehicle, the CI called the same two-way number and [Appellant], while on speakerphone, agreed to sell a bundle of heroin for $120 USC in the area of Jasper and Cambria Street[s]. Officer Myers searched the CI for illegal contraband and USC before handing the CI $120 prerecorded buy money. The CI went to the intersection of Jasper and Cambria while Officer Myers set up surveillance at 1834 Monmouth Street. Approximately 5 to 10 minutes later, Officer Myers observed [Appellant] leaving the residence to meet up with the CI. Officer Myers, from 75 feet away, observed a hand-to-hand transaction where the CI handed [Appellant] the prerecorded buy money. Afterwards, Officer Myers followed [Appellant] back to 1834 East Monmouth Street. Minutes later, [Appellant] returned to the CI and handed the CI an object. Afterwards, the CI returned to Officer Woertz and turned over 14 blue glassine packets containing heroin.
On December 13, 2007, at approximately 5:30 P.M., Officer Myers executed a search and seizure warrant on 1834 East Monmouth Street. Officer Myers and Officer Keenan went to the second floor where they observed [Appellant] coming out of a bedroom. Officer Keenan immediately placed [Appellant] under arrest after Officer Myers identified him as the seller. Recovered from [Appellant's] person was $440 USC along with $40 prerecorded money that was used on the December 12th transaction. In the bedroom, Officer Myers recovered a letter addressed to Johnny Props Lopes. In addition, Officer Myers recovered the cell phone used to set up the transactions, a coffee grinder with heroin residue, and a clear baggy containing 8.5 grams of heroin.

Trial Court Opinion, 4/9/13 at 2-4 (record citations omitted).

Lopez was charged with Possession with Intent to Deliver a Controlled Substance, [1] Possession of a Controlled Substance, [2] and Criminal Use of a Communication Facility.[3] On April 28, 2009, Lopez filed a Motion to Suppress Evidence as an illegal interception of a wire communication pursuant to 18 Pa.Cons.Stat.Ann. § 5721.1.[4] A suppression hearing was conducted on November 18, 2009, after which the trial court denied Lopez's motion on December 10, 2009. Following a non-jury trial, Lopez was convicted of all charges. On February 2, 2010, the trial court sentenced Lopez to an aggregate term of four to eight years' imprisonment, to be followed by nine years' reporting probation. This timely appeal followed.

On appeal, Lopez raises the following issues for our review:

1. Did the suppression court err by denying Appellant's motion to suppress because the Commonwealth failed to prove at the suppression hearing that the evidence sought to be suppressed was not the product of a violation of Pennsylvania's Wiretap Act, i.e., a lawful interception, where the evidence adduced at the suppression hearing established that police had a confidential informant twice contact Appellant by cell phone to ...

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