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Commonwealth v. Vargas

Superior Court of Pennsylvania

December 31, 2014

JOSE VARGAS, Appellant

Page 859

Appeal from the Judgment of Sentence of the Court of Common Pleas, Bucks County, Criminal Division Docket No: CP-09-CR-0001895-2011.

Lloyd E. Long, III, Philadelphia, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA, DONOHUE, ALLEN, LAZARUS, MUNDY, OLSON, JJ.  P.J.E. Ford Elliott and Judges Allen and Mundy join this opinion. P.J.E. Ford Elliott filed a Concurring Statement in which Judges Panella, Donohue and Lazarus joined. P.J. Gantman and Judge Panella Concurred in the Result. P.J.E. Bender filed a Concurring and Dissenting Opinion in which Judges Donohue and Lazarus join.


Page 860


Appellant, Jose Vargas, appeals from the judgment of sentence entered on February 6, 2012, as made final by the denial of Appellant's post-sentence motion on April 13, 2012. Although we affirm Appellant's convictions, we must vacate Appellant's

Page 861

judgment of sentence and remand for resentencing.

The trial court has provided us with a thorough and well-written summary of the underlying facts. As the trial court explained:[1]

On November 3, 2010, at approximately 10:00 p.m., Officers David Clee and Matthew Tobie of the Bensalem Township Police Department were patrolling the Route 1 corridor in Bensalem. [N.T. Trial, 10/17/11, at 9]. The Route 1 corridor is considered a high-crime area, [and has an] extensive history of arrests for offenses including narcotics, robberies, prostitution[,] and other crimes at the various hotels in the region. [Id. at 12].
In the course of their regular patrol, the [o]fficers pulled [their marked patrol car] into the parking lot of the Sunrise Inn on Route 1. . . . Officer Clee is specifically assigned to patrol the Route 1 corridor. As such, he is personally familiar with the crime that takes place in the area and has made numerous arrests along the corridor, including arrests at the Sunrise Inn. [Id. at 12]. Upon pulling into the parking lot, the [o]fficers noticed a car with darkly tinted windows parked in the parking lot. Officer Clee immediately recognized that the tint was a violation of [75 Pa.C.S.A. § 4524(e)(1)[2]]. [Id. at 15-16].
As they approached the car, a Chevrolet Impala, Officer Clee saw movement inside the vehicle[,] which he described as someone moving from the front passenger's side of the vehicle to the driver's side. [Id. at 15. Officer Clee decided to investigate the vehicle. Id.] . . .
[Officer Clee] parked his patrol car[, exited his vehicle, and approached the Chevrolet Impala. Id. at 15-16]. Officer Clee then . . . began to question the driver. As [Officer Clee was questioning the driver,] Officer Clee observed a baseball cap sitting on the rear floor of the car. Inside the baseball cap were several pieces of jewelry. From his experience, Officer Clee recognized that a baseball cap full of jewelry left in a safe place means the owner of the jewelry anticipated one of two things: [that] he was about to engage in a fight[] or that[,] as a drug dealer[,] he had a fear of being robbed. [Id. at 18-19].
The occupant of the vehicle [was] later identified as Melvin Torres [from Camden, New Jersey. During their conversation, Torres] informed Officer Clee that he was not the owner of the vehicle. [Id. at 14-16]. Officer Clee questioned Torres in an attempt to ascertain the location of the vehicle's owner[] and to determine [Torres'] connection to the hotel. Despite being questioned only about the ownership of the vehicle, Torres appeared [" extremely nervous" ] and was evasive in his responses. . . . Id. at 16-17].
After repeated questioning, Torres eventually told Officer Clee that the vehicle's owner . . . was in Room 161 of the hotel.

Page 862

[Id. at 17]. . . . After Torres informed [Officer Clee] that the owner of the [Chevrolet] Impala was in Room 161, an individual opened the door to [Room 161] from within, locked eyes with Officer Clee[,] and[, when Officer Clee began to walk towards the room, the individual] quickly closed the door. [Id. at 20]. While Officer Tobie remained with Torres, . . . Officer Clee approached Room 161[, " knocked on the door several times[,] and then made an announcement outside that [he] was the police and [he] was inquiring about the owner or operator of the Chevrolet Impala that was occupied in the parking lot." Id.] Approximately [45] seconds passed before the door was opened by a person later identified as . . . [Francisco] Saldana. [Id. at 21].
Standing outside the room, Officer Clee observed [Saldana,] Appellant[,] and [an individual who was later identified as Raymer Carrasco] standing just inside the doorway. [Id.] Officer Clee requested that each of the men produce identification. [Officer Clee] noted that all three [men] were from Camden, New Jersey. [Id. at 27]. None of the men identified themselves as the owner of the [Chevrolet] Impala, and none would claim responsibility for renting the hotel room. [Id. at 21-22]. . . .
From the doorway, Officer Clee looked around the room[ and observed " a Tupperware container, two trash bags, and [] a black, . . . wheeled Tupperware container. Additionally, the trash can was . . . full of items, and just between the trash can and the wall was a small apple baggie." [3] Id. at 23]. . . .
Acting on the belief, based on his experience, that there might be other people [in the rear bathroom], and the fact that the presence of the [a]pple bag[] indicated there might be illegal activity occurring inside the hotel room, Officer Clee entered the room [and] walk[ed] through the room[ towards the rear] hotel bathroom. [Id. at 26]. . . . As he crossed the room, Officer Clee . . . observed at least one portable lamp sticking out of a Tupperware container, in addition to another Tupperware container and a large trash bag. As he passed the trash bag, [Officer Clee] identified more [a]pple bag[s]. Id. at 50. . . . [Further, Officer Clee observed a trail of small rubber bands on the floor, with the trail leading to the toilet, and then " two or three small rubber[] bands in the toilet." Id. at 26-27. Officer Clee also noticed that the window in the bathroom was open, but that the window was " extremely small, so [the officer] knew that [none] of the three people standing at the door could have got out of it." Id. at 27]. . . .
Based on his observations, Officer Clee made the decision to detain all four suspects: the individual from the [Chevrolet] Impala and the three men from the hotel room. Once the men were secured, the[ men] were searched[] and Raymer Carrasco was found to be in possession of [heroin. The heroin in Carrasco's possession was packaged in " clear plastic baggies wrapped in small rubber[] bands" and was later determined to weigh 0.22 grams. Id. at 68; Berks County Crime Laboratory Report, dated 11/23/10, at 1].
[A search of Appellant's person revealed that Appellant possessed car keys to a Honda vehicle; the police discovered this Honda vehicle parked next to the

Page 863

Chevrolet Impala in the Sunrise Inn lot. N.T. Trial, 10/17/11, at 29. Further, when questioned as to whether Appellant had any money on his person when he was searched, Officer Clee testified: " I don't recall any money being recovered in this case." Id. at 49-50.]
Officer Clee then applied for a search warrant for the hotel room, the [Chevrolet] Impala[,] and [the] Honda [automobile that was parked next to the Chevrolet Impala (and to which Appellant possessed the keys)]. The four suspects were transported to the police station and the room was secured until a search warrant was obtained. [Id. at 30].
Once the search warrant was obtained, all the evidence located in the hotel room was brought back to the police station to be inventoried. Inside the containers and garbage bag located in the hotel room, police found [six coffee] grinders [that were used to grind heroin], [coffee filters that were used in the heroin-grinding process,] three lamps, thousands of glassine baggies, several digital scales, rubber stamps, wax paper[s that were stamped with brand insignia and that are ordinarily used to bag heroin], and other items of drug paraphernalia. [Id. at 43-49]. All of the grinders[, filters,] and scales tested positive for residue of heroin or cocaine. [Id.; see also Bucks County Crime Laboratory Report, dated 12/13/10, at 1. Moreover, e]mpty condom[s] . . . were found in the hotel trash can. [N.T. Trial, 10/17/11, at 47]. [None of the four individuals were the named renter of the hotel room; none of the four individuals possessed any " luggage or overnight bags." Id. at 21-22, 31, and 50].
The cars were [] transported to the [police] station so [that] they could be searched. The officers located a concealed compartment in the dashboard of the [Chevrolet] Impala that contained a .40-caliber handgun and [377.73 grams of uncut heroin, some of which was packaged in rubber condoms " for transportation in a human body." Id. at 32-35; see also Bucks County Crime Laboratory Report, dated 11/23/10, at 1. Officer Clee testified that the heroin-filled condoms were " extremely similar" to the empty condoms that were found in the hotel room trash can. N.T. Trial, 10/17/11, at 47. In like fashion, Commonwealth expert, Detective Timothy Carroll, also testified that the heroin-filled condoms found in the Chevrolet Impala were " very similar, if not identical" to the " used empty condom[s]" that were found in the hotel room. Id. at 90-91. Further, within the Chevrolet Impala, the police discovered an " owe sheet" [4] in the vehicle's trunk, as well as an additional ledger that was sitting on the vehicle's front seat. Id. at 36]. . . .
[Saldana] was identified as the person responsible for the [Chevrolet] Impala. [Id. at 22]. Although no illegal substances or contraband of any sort were found in the Honda [to which Appellant possessed the keys], when Officer Clee introduced his trained narcotics dog to the [Honda, the dog] alerted to the presence of an illegal substance. [Id. at 28-30]. The K-9 also alerted to the presence of an illegal substance in the [Chevrolet] Impala, which was consistent with the findings of the search. [Id.]

Page 864

On November 4, 2010, Appellant was charged with [a number of crimes, including possession of a controlled substance with the intent to deliver (hereinafter " PWID" ), possession of a controlled substance, possession of drug paraphernalia, and criminal conspiracy.]

Trial Court Opinion, 7/10/12, at 1-6 (internal citations omitted).

On August 18, 2011, Commonwealth provided Appellant with notice that, in the event Appellant was convicted of PWID, the Commonwealth intended to seek the five-year mandatory minimum sentence under 18 Pa.C.S.A. § 7508(a)(7)(iii), because " the aggregate weight of the compound or mixture containing the heroin [was] 50 grams or greater." 18 Pa.C.S.A. § 7508(a)(7)(iii).

On October 17, 2011, Appellant proceeded to a bench trial, where the Commonwealth presented the above-summarized evidence. Moreover, during trial, Appellant stipulated to the authenticity and accuracy of a Bucks County Crime Laboratory report, which declared that the substance in Mr. Saldana's vehicle was heroin and that the heroin in Mr. Saldana's vehicle weighed 377.73 grams.[5] N.T. Trial, 10/17/11, at 39-41; Bucks County Crime Laboratory Report, dated 11/23/10, at 1.

During trial, the Commonwealth presented the testimony of Detective Timothy Carroll, whom the trial court accepted as an expert in the field of narcotics trafficking. Detective Carroll testified that -- based upon his training, education, and experience, and upon the evidence of the case -- all of the heroin in this case was possessed with the intent to deliver. N.T. Trial, 10/17/11, at 87. Indeed, Detective Carroll testified that the operation in the hotel room constituted a " mobile heroin mill," where the defendants cut raw heroin and proceeded to weigh and package the cut heroin into the small wax baggies. Id. at 87-88. As Detective Carroll testified:

This is a matter, your Honor, really of a portable or mobile heroin mill. This heroin was possessed with the intent to package into these wax paper bags. It's also obvious that some of it had been packaged and probably had left the room prior to that. The pellets are evidence of the actual raw heroin that was brought to the room. There is mannitol present, which would be used as cut to adulterate the heroin before it's packaged in those small blue wax baggies, and there's presence of actual new unstamped bags as well as stamped bags that are packaged and unpackaged and there's the presence of the actual stamps and heat sealers.
There is a plethora of evidence, really . . . that shows this is really a heroin mill.

N.T. Trial, 10/17/11, at 87-88.

Detective Carroll testified that, judging from the paraphernalia and residue that was discovered in the hotel room, the defendants had probably cut and packaged " thousands of bags of heroin" before the police arrived; the detective testified that the bags of cut heroin had then " left the [hotel] room" for ultimate sale " at the street level." Id. at 87, 89, and 90.

With respect to the remaining 377.73 grams of raw, uncut heroin that was discovered in Mr. Saldana's vehicle, Detective Carroll testified:

A gram of heroin is usually broken down into about 35 of these heroin packets. Those heroin packets retail for about

Page 865

$10[.00] a piece. Of course, they discount by quantity; if you buy a bundle you pay maybe 60 percent on the dollar.
I believe there were 376[6] grams [of uncut heroin left]. If you do the math, you're talking about 13,000 baggies that possibly could have been produced here in this mill from what was left, what was discovered by the police, not counting the cut and not counting what was apparently already packaged.

Id. at 92.

Detective Carroll testified that the approximate street value of the seized heroin was " well over a hundred thousand dollars." Id.

During trial, the Commonwealth also introduced a surveillance video of the hotel parking lot, which was recorded on November 3, 2010. N.T. Trial, 10/17/11, at 41-42. As the video showed, at 10:03 p.m. on the night in question, Mr. Saldana drove his Chevrolet Impala into Sunrise Inn parking lot.[7] See N.T. Suppression Hearing, 6/6/11, at 13.[8] After parking his vehicle, Mr. Saldana exited the car carrying nothing, and walked empty-handed towards Room 161. Id. at 13-14. Mr. Saldana then knocked on the door to Room 161, and someone from inside Room 161 opened the door to allow Mr. Saldana entry into the hotel room. Id. Approximately one minute later, Officers Clee and Tobie drove their patrol car into the Sunrise Inn parking lot, and the above-summarized events transpired. Id. at 14-18.

The trial court found Appellant guilty of PWID, possession of a controlled substance, possession of drug paraphernalia, and criminal conspiracy.[9] Id. at 111. On February 6, 2012, the trial court sentenced Appellant to serve the mandatory minimum sentence of five to ten years in prison for PWID, in accordance with 18 Pa.C.S.A. § 7508(a)(7)(iii).[10] N.T. Sentencing, 2/6/12, at 32.

On February 16, 2012, Appellant filed a timely post-sentence motion. Following a hearing, the trial court denied Appellant's motion and Appellant filed a timely notice of appeal to this Court.

Within Appellant's initial brief on appeal, Appellant claimed that the evidence was insufficient to support his convictions and that the trial court erred when it sentenced him to serve the mandatory minimum term under 18 Pa.C.S.A. § 7508(a)(7)(iii). Over the dissent of the Honorable Mary Jane Bowes, a three-judge panel of this Court initially concluded that the evidence was insufficient to sustain Appellant's convictions. Commonwealth v. Vargas, 1415 EDA 2012 (Pa. Super. filed July 8, 2013) (unpublished memorandum) (withdrawn) at 15-19. According to the panel majority, the Commonwealth had not proven that Appellant constructively possessed the contraband in either

Page 866

the hotel room or Mr. Saldana's vehicle. The panel majority also held that the Commonwealth had failed to prove that Appellant conspired to commit any crime. Rather, the panel majority held, the Commonwealth had merely proven Appellant's " presence in the hotel room" and Appellant's " shared access to [the] drug-packaging paraphernalia" in the hotel room. Id. at 19.

In her comprehensive and well-written dissent, Judge Bowes argued that, in reaching its decision, the panel majority had disregarded our standard of review, taken a myopic view of the Commonwealth's evidence, failed to draw all reasonable inferences from the evidence in favor of the Commonwealth as the verdict winner, and re-weighed the evidence in Appellant's favor. As Judge Bowes wrote:

This is not a case where the evidence is so weak and inconclusive that no probability of fact can be drawn from the combined circumstances. . . . Here, viewing the evidence in a light most favorable to the Commonwealth, thereby giving it the benefit of the reasonable inferences derived therefrom, the pertinent proof is sufficient to establish the aforementioned crimes. Appellant was inside a [hotel] room with two other individuals while a third person remained outside in a Chevy Impala with a New Jersey license plate. The person in the Impala had indicated to police that the owner of the car was in the [hotel] room where police located Appellant. Police secured a search warrant for the [hotel] room and found four bags of heroin on another individual who was in the hotel room with Appellant. Also, police observed a large [Ziploc] bag that ordinarily contains smaller [Ziploc] bags, which one officer described as being used almost exclusively for the packaging of narcotics. Rubber bands, frequently used in packaging drugs, were found floating in the toilet, which appeared to have been flushed just before police arrived. Drug sniffing dogs performed a sniff on the outside of both Appellant's car and the Impala, which belonged to Francisco Saldana, one of the men who was inside the [hotel] room with Appellant. The dog alerted on both cars. Police then obtained a search warrant for the vehicles. Inside Mr. Saldana's car, police found a bag containing over 370 grams of heroin and a loaded .40 caliber semi-automatic pistol. These items were located in a secret compartment in the vehicle. Part of the drugs found in Mr. Saldana's vehicle were packaged in balloon and condom-like wrappers. . . .
Inside the hotel room, an industrial-sized trash bag and large blue plastic containers were seized. The bag and containers as well as a trash can in the room contained numerous items used to package heroin, including rubber stamps, wax paper, digital scales, empty condom wrappers similar if not identical to those used to package the drugs in Mr. Saldana's car, thousands of one-inch-by-one-inch [Ziploc] bags, grinders, and lamps. The trash bag and plastic containers were on the floor of the [hotel] room and were not hidden. Six grinders and two scales tested positive[] for either cocaine or heroin residue. Additional packaging in the room tested positive[] for heroin residue. A surveillance video of Mr. Saldana entering the [hotel] room showed that he had arrived at the hotel shortly before [the] police and had entered the [hotel] ...

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