Opinion

Com. v. Morales-Castro, A.

Court: Superior Court of Pennsylvania
Filed: Feb 17, 2015
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.1%

identifying hearing on motions in limine as “pre-trial hearing”

How later courts described this case

identifying hearing on motions in limine as “pre-trial hearing”
“the standard for evaluating whether probable cause exists for a search warrant to be issued is the totality of the circumstances.”

Written by the judges who cited it.

The opinion

J-A30013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

ANTHONY M. MORALES-CASTRO,

Appellant No. 2110 EDA 2013

Appeal from the Judgment of Sentence May 30, 2013

in the Court of Common Pleas of Lehigh County

Criminal Division at No.: CP-39-CR-0002781-2012

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

ANTHONY M. MORALES-CASTRO,

Appellant No. 2111 EDA 2013

Appeal from the Judgment of Sentence May 30, 2013

in the Court of Common Pleas of Lehigh County

Criminal Division at No.: CP-39-CR-0005565-2012

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 17, 2015

____________________________________________

Retired Senior Judge assigned to the Superior Court.

J-A30013-14

In this consolidated appeal,1 Appellant, Anthony Morales-Castro,

appeals from the judgment of sentence imposed at case number 2781/2012

for his jury conviction of possession with intent to deliver a controlled

substance (PWID), possession of a controlled substance, and possession of

drug paraphernalia;2 and from the judgment of sentence imposed at case

number 5565/2012 for his jury conviction of delivery of a controlled

substance, PWID, possession of a controlled substance, and criminal use of a

communication facility.3 Although we affirm Appellant’s convictions, we are

constrained to vacate his judgment of sentence and remand for

resentencing.

The trial court aptly set forth the relevant factual background in its

June 20, 2013 opinion:

. . . [T]he evidence [at trial] established that on April 27, 2012,

Detective Jorge Medero of the Allentown Police Department Vice

and Intelligence Unit, along with other agents, were conducting

an investigation of [Appellant]. On this date, Detective Medero

met with a confidential informant, Oscar York, in order to

instruct [him] to arrange for a controlled purchase of cocaine

from [Appellant]. Via telephone communications that were

____________________________________________

On December 28, 2012, the trial court consolidated the cases for trial.

(See Notice of Joinder, 12/28/12). This Court consolidated Appellant’s

appeals sua sponte on March 21, 2014. (See Per Curiam Order, 3/21/14, at

1).

35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.

35 P.S. §§ 780-113(a)(30), (a)(30), and (a)(16); and 18 Pa.C.S.A. §

7512(a), respectively.

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recorded with [Appellant], the confidential informant made

arrangements to purchase 100 grams of cocaine from [him].

Prior to the effectuation of the controlled purchase,

Detective Medero, Detective Jeffrey Taylor of the Drug

Enforcement Administration Task Force of the Lehigh County

District Attorney’s Office and Detective Kyle Hough of the

Allentown Police Department Vice and [Intelligence] Unit

searched the confidential informant’s vehicle for contraband or

currency, as well as the confidential informant himself. No

contraband or currency was located. Additionally, audio and

video equipment were installed in the back seat of the vehicle to

record the transaction.[4] . . . Three Thousand Nine Hundred

($3,900.00) Dollars in United States currency in recorded bills

was provided to the confidential informant. The confidential

informant drove to [Appellant’s] residence located at 734

Genesee Street, Allentown, Lehigh County, Pennsylvania. At this

time, the confidential informant picked up [Appellant,] and

[conducted the controlled buy of the cocaine, which he placed in

the vehicle’s center console, and] drove him to First Class Cuts

Barber Shop . . . in Allentown . . . .[a] After the controlled buy

was effectuated, the confidential informant returned to the pre-

arranged location to meet with Detective Medero. During this

entire process, the confidential informant was under constant

surveillance by law enforcement personnel . . . with the aid of an

airplane and numerous unmarked police vehicles.

[a]

Detective Michael Mish of the Bethlehem Police

Department, assigned to the [Drug Enforcement

Agency (DEA)] local field office, conducted

surveillance of the barber shop [and] [h]e observed

[Appellant] exit the passenger side of the vehicle . . .

At the pre-arranged location, the confidential informant

moved the white plastic bag containing cocaine from the center

console to the passenger seat of the vehicle so that it could be

collected by Detective Medero. . . . [T]he subject vehicle and the

confidential informant were searched again. Other than the

____________________________________________

At trial, in addition to hearing and viewing the audio and video recordings,

the jury was provided transcripts of same.

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cocaine in the white plastic bag, no other contraband or currency

was located.

Subsequently, on May 21, 2012, agents conducting

surveillance of [Appellant] observed him depart from [his

residence at] 734 Genesee Street . . . in a vehicle that he drove

to and parked at 810 Whittier Drive, Allentown. [Appellant] later

was observed by agents and officers, including Detective . . .

Hough . . . , operating a green Chevrolet Tahoe and driving it

back to [his residence]. [Appellant] then traveled to the Bronx,

New York and ultimately returned to the Lehigh Valley later that

day. On the return trip, [Appellant] was stopped [in Salisbury

Township] for motor vehicle violations which included failure to

utilize proper turn signals and exceeding maximum speed limits

at approximately 5:50 P.M. . . .[b] Specifically, a marked police

cruiser was in place by the Daisy Hill Market to effectuate the

traffic stop on I-78 in the City of Allentown. However,

[Appellant] unexpectedly exited I-78 into Hellertown via Route

412 and used back roads. The officers and agents were able to

keep track of [Appellant’s] location because[,] via [o]rder dated

5/11/12, a mobile tracking device had been placed on the

vehicle.

[b]

Detective Hough observed the multiple motor

vehicle violations during his mobile surveillance of

[Appellant]. However, he was unable to effectuate

the traffic stop because he was in an unmarked unit.

Detective . . . Taylor . . . made contact with [Appellant]

shortly after the traffic stop was initiated . . . in Fountain Hill.

[Appellant] was the sole occupant of the vehicle. [Although not

in custody or under arrest, Appellant] was verbally

Mirandized[5] by Detective Taylor and [he] indicated that he

understood his Miranda rights and did not have any questions.

[Appellant] agreed to speak with the officers. In response to

questions posed by Detective Taylor, [Appellant] stated that he

was returning from Newark, New Jersey, and that he lived with

his parents at 810 Whittier Drive. He also stated that he had

nothing illegal in his vehicle and gave verbal [and written]

consent to search the . . . Chevrolet Tahoe. . . .[c]

____________________________________________

Miranda v. Arizona, 384 U.S. 436 (1966).

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[c]

A Pennsylvania State Police canine was called to

the scene to conduct a sniff search of the exterior of

[Appellant’s vehicle]. The canine gave a positive

alert for the presence of the odor of controlled

substance[s].

Despite being given both verbal and written consent, law

enforcement personnel made the tactical decision to obtain a

search warrant for the Chevrolet Tahoe. At approximately 8:30

P.M. or 9:00 P.M., a search of the vehicle was subsequently

performed . . . pursuant to the search warrant that was granted.

. . . [Appellant] was informed that the law enforcement

personnel would seek a search warrant for his residence.

A search warrant for the residence located at 734 Genesee

Street was subsequently applied for and granted. The search of

the premises commenced at approximately 11:01 P.M., after the

search warrant was obtained. . . . Detective Taylor again spoke

with [Appellant] after he was transported to 734 Genesee Street

during the execution of the search warrant on the residence. . . .

[T]hey found approximately a kilo brick of cocaine (970 grams)

in the wood pellet stove, a clear bag containing cocaine in the

bedroom closet on a shelf, and a handgun magazine on the

bedroom window ledge. . . .

A Bursa .40 caliber semi-automatic handgun with a

magazine with thirteen (13) rounds of ammunition was later

located between the sheets and the mattress in [Appellant’s]

bedroom. . . . [Appellant] was arrested immediately after the

contraband was located and transported to the Allentown Police

Headquarters at approximately 11:33 P.M.

(Trial Court Opinion, 6/20/13, at 4-10) (record citations and most footnotes

omitted).

The jury trial in this matter commenced on April 29, 2013. Before

trial, Appellant filed pre-trial motions that sought, inter alia, to suppress

evidence obtained pursuant to the search of his home, to sever the trials, to

recuse the trial judge, and to lower his bail. The court denied the motions

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on November 8, 2012, and on May 1, 2013, the jury convicted Appellant of

the previously stated charges. On May 30, 2013, the court sentenced him in

case number 2781/2012 to a mandatory minimum sentence of not less than

seven nor more than ten years on the PWID conviction, and to a consecutive

minimum mandatory sentence of not less than seven nor more than ten

years’ imprisonment at case number 5565/2012 on the delivery of a

controlled substance charge.6 (See N.T. Sentencing, 5/30/13, at 5, 8-10).

Appellant filed post-sentence motions, which the court denied on June 20,

2013. Appellant timely appealed on July 18, 2013.7

Appellant raises eight questions for this Court’s review:

1. Whether the trial court erred in [c]ase [n]o. 2781-2012 by

failing to suppress evidence obtained during the search of

[Appellant’s] home requiring him to either be acquitted or

granted a new trial?

____________________________________________

At case number 2781/2012, the charge of possession of a controlled

substance merged with the PWID conviction for sentencing purposes; and

the court sentenced Appellant to a concurrent term of not less than six nor

more than twelve months on the possession of drug paraphernalia

conviction. (See N.T. Sentencing, 5/30/13, at 8). At case number

5565/2012, the PWID and possession of a controlled substance convictions

merged, and the court imposed a concurrent sentence of not less than six

nor more than twelve months’ imprisonment on the criminal use of a

communication facility conviction. (See id. at 9).

Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)

statement on August 14, 2013. See Pa.R.A.P. 1925(b). On August 26,

2013, the court filed a Rule 1925(a) opinion in which it relied on the reasons

stated in its June 20, 2013 opinion and order denying Appellant’s post-

sentence motions. See Pa.R.A.P. 1925(a).

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2. Whether the trial court erred in [c]ase [n]o. 5565-2012 by

either failing to suppress the cocaine obtained during the

“controlled buy” or alternatively failing to grant the motion for

acquittal due to reasonable doubt?

3. Whether the trial court erred in providing the jury with a

summary transcript of the audio purportedly reflecting the

contents of the conversation that occurred inside the confidential

informant’s vehicle?

4. Whether the trial court improperly joined these cases

requiring that separate new trials be granted to [Appellant]?

5. Whether the trial court imposed an illegal sentence when it

sentenced [Appellant] to two mandatory minimum sentences of

seven years?

6. Whether the trial court abused its discretion by considering

non-record materials when it imposed consecutive rather than

concurrent sentences?

7. Whether the trial judge should have recused herself from

the matter after engaging in contact with the [d]istrict [a]ttorney

in the case on January 23, 2013 in the absence of either

[Appellant] or [Appellant’s] attorney with [the] case that led to

an [o]rder of [c]ourt being entered?

8. Whether the trial court erred in raising [Appellant’s] bail in

[c]ase [n]o. 2781-2012 case [sic] as such act violated the

Pennsylvania Rule of Criminal Procedure and was excessive and

effectively denied [Appellant] his right to bail?

(Appellant’s Brief, at 5-6).

In Appellant’s first issue, he maintains that the trial court abused its

discretion in failing to suppress evidence the police recovered pursuant to a

search of his home, as fruit of the poisonous tree. (See id. at 25).

Appellant offers five arguments in support of this issue: (1) his stop and

detention by police was unlawful because “Allentown Police stopped [his]

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vehicle in Salsbury [sic] Township” without jurisdiction, (id.); (2) “[t]here

was no basis for the stop other than [Appellant] was under investigation for

drug activity,” (id. at 30-31); (3) they “detained [him] in the back of

several different police cars over a period of more than [five] hours.” (id. at

31);” (4) “[t]he police entered and commenced the search of [Appellant’s]

home before they had a warrant,” (id. at 32); and (5) “[e]vidence used to

obtain the search warrant of the home was insufficient and stale.” (Id. at

33). Appellant’s first issue is waived in part.

Preliminarily, a review of the record reveals that Appellant failed to

raise his first claim with the trial court or to include it in his otherwise

thorough, six-page Rule 1925(b) statement. (See Appellant’s Brief, at 25;

Rule 1925(b) Statement, 8/14/13, at 1-6). Therefore, this argument is

waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth

v. Hill, 16 A.3d 484, 494 (Pa. 2011); Commonwealth v. Johnson, 51

A.3d 237, 247 (Pa. Super. 2012) (en banc), appeal denied, 63 A.3d 1245

(Pa. 2013).

Appellant also failed to raise argument two about reasonable suspicion

justifying his stop with the trial court. Therefore, we deem this issue

waived.8

____________________________________________

Moreover, we observe that the police stopped Appellant on the basis of

motor vehicle violations. (See N.T. Trial, 4/29/13, at 120). Therefore, they

had reasonable suspicion to stop him. See Commonwealth v. Hilliar, 943

(Footnote Continued Next Page)

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Additionally, Appellant’s fifth argument is waived for violation of Rule

302(a). The record reveals that, in the trial court, Appellant maintained that

“the information used to obtain the search warrant was factually deficient

and/or inaccurate,” because the co-affiant, Detective Hough, inaccurately

stated that none of his prior search warrants had been suppressed.9

(Omnibus Pre-Trial Motion Case No. 2781/2012, 8/31/12, at 5 ¶28; N.T.

Hearing, 10/17/12, at 9, 11). However, here, Appellant claims that

information contained in the application for the search warrant was factually

deficient and stale because the only illegal activity it contained was

information regarding the drug sale to the confidential informant. (See

Appellant’s Brief, at 33-34). Therefore, Appellant’s fifth argument is waived

pursuant to Rule 302(a). See Pa.R.A.P. 302(a).10

_______________________

(Footnote Continued)

A.2d 984, 990 (Pa. Super. 2008), appeal denied, 956 A.2d 432 (Pa. 2008)

(“Pursuant to 75 Pa.C.S.[A.] § 6308(b), a police officer may stop a vehicle

anytime the officer possesses reasonable suspicion of a motor vehicle

violation.”). In fact, as discussed infra, based on the information law

enforcement obtained in their surveillance of Appellant, they had probable

cause to custodially detain or arrest him at the time that they stopped him.

In another case, the trial court had granted a motion to suppress a search

warrant in which Detective Hough was an affiant. (See N.T. Hearing,

10/17/12, at 61). However, as Detective Hough explained, this Court

concluded that the suppression was improper and reversed the trial court’s

decision. (See id.).

Moreover, Appellant’s argument is disingenuous where the application for

the search warrant contained more information than that about the illegal

sale of narcotics to the informant. (See Affidavit of Probable Cause,

5/21/12, at unnumbered pages 1-6). In fact, our independent review

(Footnote Continued Next Page)

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We now turn to the merits of Appellant’s remaining arguments in

support of his first issue, that the trial court abused its discretion in denying

his motion to suppress evidence obtained pursuant to the search of his

home. (See Appellant’s Brief, at 25-34). Specifically, we review whether

the trial court should have suppressed evidence obtained in the search of

Appellant’s home because officers kept him in police vehicles for over five

hours, and they commenced the search before obtaining the warrant to do

so. (See id. at 31-32).

Our standard of review of the denial of a motion to

suppress is well-settled:

Our standard of review in addressing a

challenge to the denial of a suppression motion is

limited to determining whether the suppression

court’s factual findings are supported by the record

and whether the legal conclusions drawn from those

facts are correct. Because the Commonwealth

prevailed before the suppression court, we may

consider only the evidence of the Commonwealth

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 suppression

court’s factual findings are supported by the record,

we are bound by these findings and may reverse

only if the court’s legal conclusions are erroneous.

Where, as here, the appeal of the determination of

the suppression court turns on allegations of legal

error, the suppression court’s legal conclusions are

_______________________

(Footnote Continued)

reveals that the application for the search warrant established probable

cause. See Commonwealth v. Bartee, 868 A.2d 1218, 1220-21 (Pa.

Super. 2005) (“the standard for evaluating whether probable cause exists

for a search warrant to be issued is the totality of the circumstances.”)

(citation omitted).

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not binding on an appellate court, whose duty it is to

determine if the suppression court properly applied

the law to the facts. Thus, the conclusions of law of

the courts below are subject to our plenary review.

Commonwealth v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013), appeal

denied, 83 A.3d 415 (Pa. 2013) (citation omitted).

Appellant claims that he was arrested illegally when the officers

detained him in a police car for over five hours while conducting further

investigation. (See Appellant’s Brief, at 31-32). We disagree.

It is well-settled jurisprudence that:

A primary purpose of both the Fourth Amendment [of the U.S.

Constitution] and Article I, Section 8 [of the Pennsylvania

Constitution] is to protect citizens from unreasonable searches

and seizures. . . . [The Pennsylvania Supreme] Court has noted

that there are three basic categories of interactions between

citizens and the police. The first category, a mere encounter or

request for information, does not need to be supported by any

level of suspicion, and does not carry any official compulsion to

stop or respond. The second category, an investigative

detention, derives from Terry v. Ohio[, 392 U.S. 1 (1968),] and

its progeny: such a detention is lawful if supported by

reasonable suspicion because, although it subjects a suspect to a

stop and a period of detention, it does not involve such coercive

conditions as to constitute the functional equivalent of an arrest.

The final category, the arrest or custodial detention, must be

supported by probable cause.

Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003) (quotation marks and

some citations omitted).

The key difference between an investigative and a

custodial detention is that the latter involves such coercive

conditions as to constitute the functional equivalent of an arrest.

The court considers the totality of the

circumstances to determine if an encounter is

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investigatory or custodial, but the following factors

are specifically considered: the basis for the

detention; the duration; the location; whether the

suspect was transported against his will, how far,

and why; whether restraints were used; the show,

threat or use of force; and the methods of

investigation used to confirm or dispel suspicions.

An arrest or “custodial detention” must be supported by

probable cause:

Probable cause is made out when the facts and

circumstances which are within the knowledge of the

officer at the time of the arrest, and of which he has

reasonably trustworthy information, are sufficient to

warrant a [person] of reasonable caution in the belief

that the suspect has committed or is committing a

crime. The question we ask is not whether the

officer’s belief was correct or more likely true than

false. Rather, we require only a probability, and

not a prima facie showing, of criminal activity. In

determining whether probable cause exists, we apply

a totality of the circumstances test.

Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa. Super. 2011),

appeal denied, 49 A.3d 442 (Pa. 2012) (citations and quotation marks

omitted; emphasis in original).

A delay for reasonable investigation does not violate due

process. The prosecution is under no constitutional duty to file

charges as soon as it obtains evidence of a defendant’s guilt. To

prove a violation of due process, a defendant must show not

only that he was prejudiced by the delay, but also that the

Commonwealth’s action in causing or allowing the delay was

“fundamentally unfair.”

Commonwealth v. Grazier, 570 A.2d 1054, 1057 (Pa. Super. 1990)

(citations omitted).

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Here, on April 27, 2012, as part of an ongoing, major drug

investigation, police observed Appellant engaged in a felony drug transaction

in which he sold a confidential informant 100 grams of cocaine for

$3,900.00. (See N.T. Trial, 4/30/13, at 73-74, 128-29, 132, 175). A few

weeks later, on May, 21, 2012, law enforcement tracked Appellant going to

the Bronx, New York, in a Chevy Tahoe that the DEA had informed them was

adapted for narcotics sales, and returning to Pennsylvania shortly thereafter,

behavior indicative of illegal drug trafficking. (See id. at 18; see also

Affidavit of Probable Cause, 5/21/12, at unnumbered page 4 ¶ 10). The

police also had information from the confidential informant about Appellant

dealing illegal narcotics in the area. (See Affidavit of Probable Cause,

5/21/12, at unnumbered page 4 ¶ 9). Upon stopping Appellant, he stated

that he was coming from Newark, New Jersey, and that his residence was

810 Whittier Drive, neither of which was true. (See N.T. Trial, 4/29/13, at

62). Based on the officers’ observations, and information obtained from

other, reliable sources, police had probable cause to custodially detain or

arrest Appellant. See Goldsborough, supra at 306; see also

Commonwealth v. Zook, 615 A.2d 1, 6 (Pa. 1992), cert. denied, 507 U.S.

974 (1993) (observing that police may arrest defendant without warrant

where they have probable cause to believe that defendant has committed a

felony). Moreover, Appellant fails to show that the delay between the time

of the traffic stop and the arrest was “fundamentally unfair.” Grazier,

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supra at 1057 (concluding that nearly seven year delay in filing charges in

order to continue investigation was not fundamentally unfair).

Therefore, based on the foregoing, the police had probable cause to

custodially detain or arrest Appellant as of April 27, 2012 when they

observed him conduct an illegal cocaine sale. See Goldsborough, supra at

306. Hence, based on that observation of the felony, and the additional

facts and circumstances within the officers’ knowledge, they properly

custodially detained Appellant on May 21, 2012 for approximately five hours

before formally arresting him. See Colson, supra at 817; see also

Grazier, supra at 1057. Accordingly, the trial court did not err when it

denied Appellant’s motion to suppress the evidence seized during the search

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