March 10, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
HECTOR MORALES, Appellant
Appeal from the Judgment of Sentence Entered May 29, 2012, In the Court of Common Pleas of Delaware County, Criminal Division, at No. CP-23-CR-0005957-2011.
BEFORE: SHOGAN, OTT and PLATT [*] , JJ.
Appellant, Hector Morales, appeals from the judgment of sentence entered after a jury convicted him of possession of a controlled substance with intent to deliver (cocaine) ("PWID"), possession of a controlled substance, possession of drug paraphernalia, and false identification to law enforcement. We affirm.
In its opinion, the trial court recounted the factual and procedural history of this case, which we adopt as though fully restated herein. Trial Court Opinion, 7/25/13, at 1–3. On appeal, Appellant presents three questions for our consideration:
1. Is [Appellant] entitled to a new trial because the trial court violated [his] rights under the Fourth Amendment by admitting the narcotics that [were] seized from [A]ppellant's person during a warrantless search, because the testimony showed that the arresting officer did not have reasonable [sic] cause to search?
2. Was the sentence illegal under the applicable statute and did the trial court abuse its discretion when it sentenced [A]ppellant outside of the sentencing guidelines?
3. Did the trial court commit reversible error when it stated that the Commonwealth had produced circumstantial evidence for possession with intent, and was that error prejudicial?
Appellant's Brief at 8.
Appellant's first question raises a suppression issue. In reviewing the denial of a motion to suppress, we must determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Harrell, 65 A.3d 420, 433 (Pa. Super. 2013) (citation omitted). Where the suppression court finds in favor of the prosecution:
[o]ur scope of review is limited; we may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Wormley, 949 A.2d 946, 948 (Pa. Super. 2008) (quoting Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (en banc)). It is a well-settled principle that appellate courts must defer to the credibility determinations of the trial court, which observed the demeanor of the witnesses and heard them testify. Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004).
Here, due to a scheduling conflict, the suppression hearing was bifurcated. The Commonwealth presented the following evidence at the January 24, 2012 suppression hearing: Officer Righter of the Tinicum Township Police Department observed a maroon Honda Accord with a non-functioning rear brake light and a cracked windshield traveling along Industrial Highway at approximately 12:58 a.m. on July 4, 2011. The officer activated his emergency lights, and the driver stopped at the side of the road. N.T., 1/24/12, at 10–12, 21.
Officer Righter approached the vehicle and made contact with the driver, using his flashlight to illuminate the interior. When the officer asked for documentation, the driver explained that he did not have a valid driver's license. The officer then asked Appellant, who was sitting in the front passenger seat, for a valid driver's license or identification, in the event he could drive the vehicle. N.T., 1/24/12, at 12–13, 21–24, 28, 30. After identifying himself as "William" Morales, Appellant retrieved paperwork from the glove compartment. As Appellant leaned over to speak with the officer, Officer Righter observed the top of a plastic sandwich bag protruding from the side pocket of Appellant's right leg. Id. at 14–15, 25–28. The officer proceeded to the passenger side of the vehicle and asked Appellant what was in the sandwich bag. Appellant took the sandwich bag from his pocket and handed it to the officer. Id. at 15–17, 26–27, 30.
Officer Righter observed a white powdery substance inside the sandwich bag, which he suspected to be a controlled substance. N.T., 1/24/12, at 17, 30. The sandwich bag contained three baggies of cocaine, totaling 8.9 grams, and six or seven unused small plastic baggies. As a veteran narcotics officer, Officer Righter associated the small baggies with drug packaging. Id. at 15, 17–19. The officer removed Appellant from the vehicle and handcuffed him. Id. at 18. Officer Righter did not issue any citations to the driver. Id. at 21.
At the January 31, 2012 suppression hearing, Appellant presented the testimony of the driver, Martin Johnson. Mr. Johnson's testimony was consistent with Officer Righter's description of the traffic stop and Appellant's arrest. N.T., 1/31/12, at 5–6, 9. With regard to the sandwich bag, however, Mr. Johnson described Officer Righter as grabbing the sandwich bag from Appellant's pocket. Appellant tried to retrieve it, telling the officer it was candy. Mr. Johnson suggested that, because he could not see the sandwich bag in Appellant's pocket from where he was sitting, Officer Righter could not have seen it either. Id. at 5–9.
Crediting the testimony of Officer Righter, the trial court denied suppression. On appeal, Appellant challenges the denial of suppression because "Officer Righter did not have any reasonable suspicion that any criminal activity was afoot on the part of Appellant." Appellant's Brief at 17.
The suppression court made the following findings of fact:
(1) The officer saw the baggie.
Although counsel commends to this Court the testimony of Martin Johnson, who testified that it would have been impossible for the officer to have seen the baggie while standing at the driver's side of the car, this Court rejects that testimony and credits the officer's account based upon the demeanor of the witnesses. This Court finds that while [Appellant] leaned over to retrieve information from [the] glove compartment, the officer could see the top of a sandwich bag sticking out of the side pocket of a right pant leg, even though he was standing at the driver's window. This Court also rejects Johnson's assertion that the officer reached his hand into [Appellant's] pocket and removed an object without [Appellant's] permission.
(2) [Appellant] voluntarily gave the bag containing drugs to the officer during an "investigative detention" in response to a question that the officer properly posed to him.
This Court denied the suppression motion because [Appellant] voluntarily incriminated himself by giving the bag containing controlled substances to the officer during an "investigative detention" in response to a question that the officer properly posed to him.
[T]he testimony shows that the officer did not request that [Appellant] remove the baggie. Rather, he merely inquired about its contents. In response to that question, [Appellant] voluntarily gave up the baggie and the drugs found therein and, thereby, incriminated himself.
Trial Court Opinion, 7/25/13, at 4, 6.
Having carefully reviewed the certified record, we conclude that it supports the suppression court's factual findings that Officer Righter saw the sandwich bag and that Appellant voluntarily surrendered it. N.T. (Suppression), 1/24/12, at 10–30. Thus, our focus shifts to the propriety of the legal conclusions drawn from those facts.
The suppression court concluded that, upon stopping the vehicle, Officer Righter had the authority to check for, inter alia, a valid driver's license and vehicle registration. Trial Court Opinion, 7/25/13, at 5 (citing 75 Pa.C.S.A. § 6308(b) (Authority of police officer)). The suppression court further concluded that Officer Righter's encounter with Appellant was an investigative detention based on the officer's observation of "an incriminating baggie" in Appellant's pants pocket. Id. at 4–5.
Dispositive of Appellant's suppression challenge is the level of interaction between Officer Righter and Appellant. There are three distinct levels of interaction between law enforcement and the general public: a mere encounter, which need not be supported by any level of suspicion and carries no official compulsion to stop or respond; an investigative detention, which must be supported by reasonable suspicion; and an arrest or custodial detention, which must be supported by probable cause. Commonwealth v. Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006) (citation omitted).
A forcible stop of a motor vehicle by the police constitutes a second-level seizure, or "investigative detention, " triggering the constitutional protections of the Fourth Amendment. Commonwealth v. Campbell, 862 A.2d 659, 663 (Pa. Super. 2004). During a traffic stop, "the police officer may check 'vehicle registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or secure such other information as the officer may reasonably believe necessary to enforce the provisions of [the Vehicle Code].'" Clinton, 905 A.2d at 1030 (citing 75 Pa.C.S.A. § 6308(b)). The police may inquire of a passenger's identity in a lawfully stopped vehicle without triggering any constitutional protections. Commonwealth v. Reed, 19 A.3d 1163, 1166–1167 (Pa. Super. 2011) (citing Campbell, 862 A.2d at 665). An officer may also order a passenger out of a lawfully stopped vehicle as a matter of course, without the need for reasonable suspicion of criminal activity. Commonwealth v. Brown, 654 A.2d 1096 (1995); Maryland v. Wilson, 519 U.S. 408 (1997). Generally, a traffic stop concludes after the officer addresses the motor vehicle violation. Commonwealth v. Van Winkle, 880 A.2d 1280, 1285 (Pa. Super. 2005).
In the case at hand, Officer Righter stopped the Honda for vehicle code violations that he witnessed. The traffic stop constituted an investigatory detention. Campbell, 682 A.2d at 663. During his investigation, Officer Righter learned that the driver did not have a valid license and neither the driver nor Appellant owned the Honda. Anticipating that Appellant could drive the Honda away upon completion of the traffic stop, Officer Righter acted within his authority when he asked Appellant for a driver's license or vehicle information. 75 Pa.C.S.A. § 6308(b); Reed, 19 A.3d at 1166–1167. As Appellant leaned over from the passenger seat toward the officer, Officer Righter saw in plain view a plastic sandwich bag sticking out of the pocket on the side of Appellant's right pant leg. Based on his eleven years as a police officer and participation in more than 100 drug arrests, the sandwich bag was significant as possible drug paraphernalia. N.T., 1/24/12, at 15–16.
Without resolving the motor vehicle violations, Officer Righter redirected his investigation, moving to the passenger side of the vehicle to question Appellant. Van Winkle, 880 A.2d at 1285. Officer Righter could have asked Appellant to exit the vehicle as a matter of course. Brown, 654 A.2d 1096. Instead, Officer Righter approached Appellant and asked him what was in the sandwich bag. Appellant responded by voluntarily surrendering the bag, thereby incriminating himself. N.T., 1/24/12, at 15– 17. In light of the totality of the circumstances and the suppression court's credibility determinations, we conclude that this police interaction did not violate Appellant's Fourth Amendment rights.
Next, Appellant raises a two-part sentencing challenge. First, Appellant claims that his sentence "on the PWID conviction is illegal in that it exceeds the statutory permissible maximum sentence of (10) years." Appellant's Brief at 21 (citing 35 P.S. § 780-113(f)(1.1) and Commonwealth v. Cruz Ortega, 539 A.2d 849 (Pa. Super. 1998) (stating the maximum sentence for PWID is ten years)). Second, Appellant claims the sentencing court abused its discretion by "double counting" his prior convictions, "factors already included in the Sentencing Guidelines under [his] [p]rior record score." Appellant's Brief at 22 (citing Commonwealth v. Whitmore, 860 A.2d 1032 (Pa. Super. 2004), reversed on other grounds, 912 A.2d 827 (Pa. 2006)). Neither of Appellant's claims warrants relief.
Issues relating to the legality of sentence are questions of law and, thus, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013). Reviewing the challenged sentence pursuant to these standards, we agree with Appellant that the maximum penalty for PWID is ten years. See Commonwealth v. Griffin, 804 A.2d 1, 15 (Pa. Super. 2002) ("Pennsylvania law authorizes a judge to impose a maximum sentence of ten years upon a conviction for possession of cocaine with intent to deliver." 35 P.S. § 780–113(f)(1.1)). However, as we have explained:
Section 780–115 of Title 35 permits, but does not require, the sentencing court to impose a doubled sentence upon conviction of a second or subsequent offense:
Any person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act [pertaining to possession of contraband substances with intent to deliver] or of a similar offense under any statute of the United States or of any state, may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized or both.
35 P.S. § 780–115(a). Section 115(a) is phrased permissively in that it authorizes, without requiring, the trial court to double the ten-year term that otherwise would constitute the maximum allowable sentence for possession with intent to deliver. Id. Nevertheless, whether the trial court elects to apply the recidivist provision or not, the fact that the defendant is eligible for an enhanced sentence doubles the maximum legal sentence that otherwise would have applied if the defendant were convicted of possession with intent to delivery [sic] as a first offense. Commonwealth v. Diaz, 442 Pa.Super. 238, 659 A.2d 563, 572–73 (1995), appeal denied, 542 Pa. 658, 668 A.2d 1123 (1995).
Griffin, at 15 (bracketed description in original). Section 780–115(a) is a discretionary sentencing enhancement statute. Commonwealth v. Warren, __ A.3d __, 2014 WL 309643 at *1 (Pa. Super. 2014).
Here, relying on 35 P.S. § 780-115(a), the trial court enhanced Appellant's maximum sentence: "The maximum penalty was, therefore, 20 years." Trial Court Opinion, 7/25/13, at 8 (emphasis in original). Given Appellant's prior PWID convictions, the trial court was permitted to impose the sentencing enhancement. Thus, we discern no error.
The second component of Appellant's sentencing challenge implicates the sentencing court's exercise of discretion. It is well-settled law that there is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). Rather, an appellant's appeal should be considered to be a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 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. ; (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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001). As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the sentencing court's actions violated the sentencing code. Id.
Herein, the first three requirements of the four-part test are met, those being that Appellant brought an appropriate appeal, raised the challenge in his post-sentence motion,  and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court.
Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that:
[t]he trial court incorrectly considered the prior convictions in assessing whether Appellant would be affected by a standard punishment and rehabilitation effort. Whether or not Appellant had demonstrated no regard for the law and public safety was a factor already determined by his prior record score and should not have been considered by the trial court.
Appellant's Brief at 12. Shorthand for Appellant's issue is "double counting, " which, he contends, Commonwealth v. Whitmore, 860 A.2d 1032 (Pa. Super. 2004), has held "impermissible and requires vacating of sentence." Id . at 22.
We have recognized an allegation of double counting as an issue of potential deviation from the sentencing code, which raises a substantial question. Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000). Thus, we grant allowance of an appeal on this claim and reiterate the applicable standard of review:
It has been stated that [s]entencing is a matter vested in the sound discretion of the sentencing judge, and that the sentencing court has broad discretion in choosing the range of permissible confinements which best suits a particular defendant and the circumstances surrounding his crime. However, it has also been stated that broad discretion does not mean unfettered or unchecked discretion; rather the sentence must be consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.
Commonwealth v. Walls, 846 A.2d 152, 154-55 (Pa.Super.2004) (internal quotation marks and citations omitted). "The court must also consider the statutory Sentencing Guidelines, which were promulgated in order to address the problems associated with disparity in sentencing." Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 620 (2002) (plurality) (emphasis added). In imposing sentence, the record must demonstrate "with clarity that the court considered the sentencing guidelines in a rational and systematic way and made a dispassionate decision to depart from them." [Commonwealth v.] Rodda, 723 A.2d  at 216 [(Pa. Super. 1999)]. It is not enough for the court to pay "token lip service" to the sentencing guidelines simply as a prerequisite to impose whatever sentence it may choose. Commonwealth v. Gause, 442 Pa.Super. 329, 659 A.2d 1014, 1017 (1995). As we have previously noted, "unless the particular facts of the case in question are distinguishable from the typical case of that same offense, a sentence in the standard range would be called for." Walls, 846 A.2d at 158.
Whitmore, 860 A.2d at 1037.
Upon review of the record pursuant to the above-stated standards, we discern no abuse of the sentencing court's discretion. Appellant's sentence was within the statutory limits. Appellant was sentenced on the PWID conviction under 35 P.S. § 780-113(f)(1.1), which requires a term of imprisonment not to exceed ten (10) years. Because Appellant had prior PWID convictions, 35 P.S. § 115(a) authorized the trial court to enhance Appellant's sentence by doubling the term of imprisonment.
Additionally, we conclude that the trial court did not abuse its discretion by imposing the enhancement. Appellant's sentence was consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. As the sentencing court opined:
All right, well, it looks to me from his record that he has spent his life selling cocaine, for the most part, that even a heavy duty prison sentence in a state prison wasn't enough to change his ways. He may be one of those people that instead of looking for some kind of rehabilitation or some kind of change in his life it just will never happen, and the only thing that can be done is to save the public from his continued activity. That's the way I view him. And it's certainly peculiar, in my opinion, to ask for a jury trial and then confess on the stand. To me there's something so blatant about that that doesn't quite make sense to me. I don't think he thinks about – what it makes me think is that he doesn't feel that what he does really should be against the law because it's okay, it's the law that's out of whack.
Right, all right. Well, I think that this case warrants a sentence in the aggravated range. Who can say how long it should be? I don't know. I'm going to adopt the suggestion of the prosecutor. I'm going to sentence him to nine to 20 years in a state correctional institution. And the reasons for that are that, number one, it does not appear to me that any lesser sentence would be sufficient to stop him in [his] career of selling cocaine. And the history that he's compiled for himself is off the charts, literally. If they [the legislature] cut the chart at five, he's off that chart. He's a six right now, and if he got convicted of the other crime he'll be even further off the chart. So I think that the sentence is the only sentence that is rational under the circumstances of his career. The idea is that to give the public as much of a break from his activities as possible.
N.T., 5/29/12, at 20, 28.
The underlying PWID conviction is Appellant's sixth PWID conviction. His career began in 1988 with a possession conviction and culminated with the underlying arrest for PWID on July 4, 2011. After serving a thirty-three to sixty-six month state sentence beginning in 1995, Appellant was arrested on another PWID charge in 1999. N.T., 5/29/12, at 13–14, Exhibit C-5 (Stipulation). A previous state sentence did not rehabilitate Appellant. Appellant admitted on the witness stand to possessing the drugs, but claimed someone gave them to him and he did not "intend to deliver [them]." Id. at 122–124, 134–139. In sum, the record demonstrates "with clarity that the court considered the sentencing guidelines in a rational and systematic way and made a dispassionate decision to depart from them." Rodda, 723 A.2d at 216. The particular facts of this case support an aggravated range sentence for Appellant's rehabilitative needs and the protection of society. Therefore, we discern no abuse of the sentencing court's discretion.
As stated above, Appellant relies on Whitmore for his argument that the sentencing court improperly relied on factors already included in his prior record score. Appellant's Brief at 22. At trial, Whitmore was convicted of possession and PWID; it was his second PWID conviction. Whitmore, 860 A.2d at 1034. The Pennsylvania Sentencing Guidelines suggested a standard range minimum sentence of twenty-seven to forty months of incarceration; the aggravated minimum range adds six months, and the mitigated minimum range subtracts six months. Applying the recidivist enhancement of 35 P.S. § 780-115(a), the trial judge sentenced Whitmore to an aggregate sentence of ten to twenty years of imprisonment. Id. On direct appeal, Whitmore raised his double counting issue, but we deemed it waived because Whitmore failed to preserve it in his Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Commonwealth v. Whitmore, 782 A.2d 1061 (Pa. Super. 2001) (unpublished memorandum).
On collateral appeal, Whitmore alleged counsel's ineffectiveness for failing to challenge the aggravated range sentence as the product of improper double counting. We reversed Whitmore's sentence and remanded for several reasons. First and foremost, there was "no indication of record that Whitmore's prior conviction was not already factored into his prior record score under the sentencing guidelines. In fact, the record reveals that the Commonwealth was aware of Whitmore's prior conviction and in accord with [the trial court's] recitation of the suggested standard range sentence." Whitmore, 860 A.2d at 1038 (citing Commonwealth v. Johnson, 758 A.2d 1214 (Pa. Super. 2000)). Second, the trial court "gave the sentencing guidelines only cursory mention rather than serious deliberation." Id. Third, "it [was] equally disturbing that [the trial court's] primary reason in imposing Whitmore's initial statutory maximum sentence was the seriousness of the crime." Id. (citing Commonwealth v. Walls, 846 A.2d 152 (Pa. Super. 2004)). Finally, there was "nothing in the record to indicate that Whitmore received an individualized sentence tailored to him and the attendant facts of his case." Id. (citing In re R.W., 855 A.2d 107 (Pa. Super. 2004)).
Upon review, we conclude that Whitmore is not dispositive. Therein, we reversed the judgment of sentence because deficiencies in the record resulted in a lack of support for the sentence. Whitmore, 860 A.2d at 1037–1038. Here, the record indicates that the sentencing court imposed a deliberated, individualized sentence, supported by facts of record and reasons that considered Appellant's rehabilitative needs and the public's safety.
Appellant's final issue concerns the trial court's jury instructions. According to Appellant, the trial court erred when it twice "instructed the jury that there was circumstantial evidence of Intent to Deliver and that there was expert testimony regarding the same." Appellant's Brief at 23 (citing N.T., 2/1/12, at 181, 183). The trial court concluded that Appellant "waived this issue by failing to raise it at trial." Trial Court Opinion, 7/25/13, at 10. We agree.
As the trial court opined:
Under Criminal Procedural Rules 603 and 647(B), there must be a specific objection or exception to the charge. Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005). This rule "serves the salutary purpose of affording the court an opportunity to avoid or remediate potential error, thereby eliminating the need for appellate review of an otherwise correctable issue." Id. at 225.
Trial Court Opinion, 7/25/13, at 10–11. Additionally, for purposes of appellate review, "[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a).
Our review of the record confirms that Appellant did not preserve an objection to the trial court's jury instruction regarding the presence of circumstantial evidence and expert testimony. N.T., 2/1/12, at 170–192. Thus, Appellant has waived this issue.
Judgment of sentence affirmed.