Opinion

Com. v. Mendez, E.

Court: Superior Court of Pennsylvania
Filed: Oct 24, 2023
Status: Unpublished
On the bench: King, J.
Cited by: 0 cases
Authority: More cited than 14.1%

The contention that an expert should Commonwealth v. Daniels, 390 A.2d 172, 178 (Pa. 1978) (The contention that an expert should never be permitted to express an opinion on an "ultimate issue" is similarly misconceived.

How later courts described this case

The contention that an expert should Commonwealth v. Daniels, 390 A.2d 172, 178 (Pa. 1978) (The contention that an expert should never be permitted to express an opinion on an "ultimate issue" is similarly misconceived.
The contention that an expert should never be permitted to express an opinion on an "ultimate issue" is similarly misconceived.
holding defendant’s claim that court failed to consider factors set forth under Section 9721(b) and focused solely on seriousness of defendant’s offense raised substantial question
noting that motion in limine is procedure for obtaining ruling on admissibility of evidence prior to trial

Written by the judges who cited it.

The opinion

J-S11037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

v. :

EDUARDO MENDEZ :

Appellant : No. 2568 EDA 2022

Appeal from the Judgment of Sentence Entered July 15, 2022

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0001707-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED OCTOBER 24, 2023

Appellant, Eduardo Mendez, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas, following his jury trial

convictions for two counts of possession with intent to deliver a controlled

substance (“PWID”), possession of a controlled substance, possession of drug

paraphernalia, and criminal conspiracy.1 We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. (See Trial Court Opinion, filed 12/15/22, at 1-5).

Appellant raises the following issues for our review:

Were the verdicts of guilty not supported by sufficient

evidence?

____________________________________________

1 35 P.S. §§ 780-113(a)(30), (16), (32), and 18 Pa.C.S.A. § 903, respectively.

J-S11037-23

Did the [trial] court err in holding that Appellant’s arrest was

supported by probable cause?

Did the trial court err in precluding Appellant from

presenting evidence that he was represented by the Bucks

County Public Defender’s Office?

Did the trial court abuse its discretion in sentencing

Appellant by imposing a manifestly excessive sentence at

the high end of the aggravated range, relying on improper

factors and the nature of the offense and failing to consider

all relevant factors?

(Appellant’s Brief at 10) (reordered for purposes of disposition).

Our standard of review for sufficiency claims is as follows:

The standard we apply in reviewing the sufficiency of the

evidence is whether viewing all the evidence admitted at

trial in the light most favorable to the verdict winner, there

is sufficient evidence to enable the fact-finder to find every

element of the crime beyond a reasonable doubt. In

applying [the above] test, we may not weigh the evidence

and substitute our judgment for the fact-finder. In addition,

we note that the facts and circumstances established by the

Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant’s guilt may

be resolved by the fact-finder unless the evidence is so weak

and inconclusive that as a matter of law no probability of

fact may be drawn from the combined circumstances. The

Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means

of wholly circumstantial evidence. Moreover, in applying the

above test, the entire record must be evaluated and all

evidence actually received must be considered. Finally, the

[trier] of fact while passing upon the credibility of witnesses

and the weight of the evidence produced, is free to believe

all, part or none of the evidence.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal

denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.

Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

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J-S11037-23

Additionally, the following principles govern our review of an order

denying a motion to suppress:

An appellate court’s 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, the appellate court is bound by

[those] findings and may reverse only if the court’s legal

conclusions are erroneous. Where the appeal of the

determination of the suppression court turns on allegations

of legal error, the suppression court’s legal conclusions are

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 plenary review.

Commonwealth v. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal

denied, 647 Pa. 522, 190 A.3d 580 (2018).

Our standard of review of a trial court’s admission or exclusion of

evidence is well established and very narrow:

Admission of evidence is a matter within the sound

discretion of the trial court, and will not be reversed absent

a showing that the trial court clearly abused its discretion.

Not merely an error in judgment, an abuse of discretion

occurs when the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill-will, as shown by

the evidence on record.

Commonwealth v. M. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),

cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal

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J-S11037-23

citations and quotation marks omitted). When reviewing the denial of a

motion in limine, we apply the same standard as to other evidentiary rulings.

Commonwealth v. Sami, 243 A.3d 991, 997 (Pa.Super. 2020) (noting that

motion in limine is procedure for obtaining ruling on admissibility of evidence

prior to trial).

“The threshold inquiry with the admission of evidence is whether the

evidence is relevant.” Commonwealth v. Stokes, 78 A.3d 644, 654

(Pa.Super. 2013), appeal denied, 625 Pa. 636, 89 A.3d 661 (2014). “Evidence

is relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable, or supports a reasonable inference

or presumption regarding the existence of a material fact.” Id. See also

Pa.R.E. 401 (defining relevant evidence). Nevertheless, “[t]he court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.E. 403.

Further, “[c]hallenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right.” Commonwealth v. Phillips,

946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct.

2450, 174 L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary

aspects of sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether

appellant has filed a timely notice of appeal, see Pa.R.A.P

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J-S11037-23

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. [720]; (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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)). When appealing the

discretionary aspects of a sentence, an appellant must invoke this Court’s

jurisdiction by including in his brief a separate concise statement

demonstrating a substantial question as to the appropriateness of the

sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa.

419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f).

This Court reviews discretionary sentencing challenges based on the

following standard:

Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on

appeal absent a manifest abuse of discretion. An abuse of

discretion is more than just an error in judgment and, on

appeal, the trial court will not be found to have abused its

discretion unless the record discloses that the judgment

exercised was manifestly unreasonable, or the result of

partiality, bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting

Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Brian T.

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J-S11037-23

McGuffin, we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.

Regarding Appellant’s sufficiency of the evidence claims, the court

initially found that Appellant waived these claims by failing to specify in his

Rule 1925(b) statement the elements of each crime that he alleges was

insufficient to sustain each conviction, particularly where Appellant raised

sufficiency challenges to multiple offenses. (See Trial Court Opinion at 8).

The court further found that even if Appellant had properly preserved his

claims, Appellant’s sufficiency arguments lacked merit. Specifically, the

Commonwealth presented sufficient evidence to establish the existence of a

conspiracy between Appellant and his co-conspirator, Giovanni Rosales, where

Appellant travelled approximately 1,500 miles from Texas to Pennsylvania

with Mr. Rosales, drove Mr. Rosales to the “sample buy,” carried the black

backpack in which the drugs were found into a hotel room that Mr. Rosales

rented for the day, remained in the room with Mr. Rosales for hours while Mr.

Rosales set up a subsequent “bulk buy,” and left the room with Mr. Rosales at

approximately the time when the “bulk buy” was scheduled to occur. The

court noted that proof of a conspiracy between Appellant and Mr. Rosales

negates the need to prove that Appellant constructively possessed the

controlled substances and paraphernalia to sustain his remaining convictions.

In any event, the court found that the Commonwealth presented sufficient

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J-S11037-23

evidence to establish Appellant’s constructive possession of the drugs because

a surveillance video showed Appellant carrying an air compressor and the

backpack containing the drugs into the hotel room. Viewed in the light most

favorable to the Commonwealth as the verdict winner, Appellant’s physical

handling of the drugs and the surrounding circumstances of Appellant’s

involvement with Mr. Rosales throughout the day was sufficient to

demonstrate that Appellant had the ability and intent to exercise control over

the contraband.2 (See id. at 9-14).

Regarding Appellant’s claim that the court erred in denying his motion

to suppress evidence of his flight prior to arrest and the $3,300.00 found on

his person, the court found that the police officers had probable cause to arrest

Appellant. Prior to his arrest, police observed Appellant drive Mr. Rosales to

the “sample buy,” remain with him for the remainder of the day while an

additional transaction was set up, carry a bag and an air compressor into a

hotel room with Mr. Rosales, look up and down the hallway with Mr. Rosales

multiple times, and leave the room together at approximately the time of the

second sale. Here, the circumstances clearly demonstrate that police had

____________________________________________

2 Additionally, the Commonwealth presented the testimony of Detective Jarrod

Eisenhauer, who was qualified as an expert in the field of drug trafficking

investigations. Detective Eisenhauer testified that typically when there are

two individuals involved in a transaction, the higher-ranking individual will

attempt to insulate himself from exposure and the lower-ranking individual

will handle the drugs during the sale and undertake tasks such as securing

lodging.

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J-S11037-23

probable cause to suspect that Appellant was not merely present but

participating in the criminal activity.3 (Id. at 15-16).

With respect to Appellant’s claim that the court erred in denying his

motion in limine seeking to present evidence that Appellant’s counsel was a

public defender, the court determined that Appellant failed to establish that

he was entitled to introduce such evidence for the purpose of suggesting to

the jury that he was indigent. The court further found that introduction of

such evidence risked confusing the jury and increased the likelihood that the

verdict would not be based on the facts presented but rather on Appellant’s

perceived economic status. (See Trial Court Opinion at 16-17).

The court further explained that it acted within its discretion in

____________________________________________

3 Appellant cites to United States v. Butts, 704 F.2d 701 (3rd Cir. 1983) and

Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978) to support his

claim that the police did not have probable cause. In Butts, the U.S. Court

of Appeals for the Third Circuit determined that probable cause did not exist

to arrest the defendant who was merely sitting in the backseat of a car that

the individuals being surveilled were about to enter. The Court noted that at

the time of the arrest, the police officers who arrested the defendant had no

other information about him and did not know what connection he had to the

individuals who the police suspected of criminal activity. In Shaw, our

Supreme Court found that probable cause did not exist where the only

information the police had about the defendant was a general statement that

he associated with the perpetrators of the crime. Our Supreme Court noted

that police officers did not have any information to indicate that the defendant

was at the scene of the crime or involved with the criminal activity. Here,

Appellant was present at the first sale, remained with Mr. Rosales the whole

day while Mr. Rosales set up the second sale, and left with Mr. Rosales in time

for the second sale. Accordingly, the instant case is factually distinguishable

from both Butts and Shaw.

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J-S11037-23

sentencing Appellant.4 At the sentencing hearing, the court stated that it took

into consideration Appellant’s personal history, his rehabilitative needs, and

the letters from his mother and sister but ultimately found that Appellant’s

criminal history, his refusal to take accountability and the impact of his actions

on the community warranted a sentence in the aggravated range. (See Trial

Court Opinion at 20-22). Accordingly, we affirm on the basis of the trial court’s

opinion.

Judgment of sentence affirmed.

Date: 10/24/2023

____________________________________________

4 Appellant filed a timely notice of appeal, preserved his claim in a timely post-

sentence motion, and included in his brief a Rule 2119(f) statement. As

presented, Appellant’s claim concerning an excessive sentence in combination

with the court’s failure to consider certain mitigating factors and reliance on

impermissible factors arguably raises a substantial question. See

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal

denied, 629 Pa. 636, 105 A.3d 736 (2014) (stating: ““[A]n excessive sentence

claim—in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question”). See also

Commonwealth v. Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding

defendant’s claim that court failed to consider factors set forth under Section

9721(b) and focused solely on seriousness of defendant’s offense raised

substantial question).

-9-

Circulated 09/26/2023 03:01 PM

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA No.:

No.: CP-09-CR-0001707-2021

CP-.09-CR-0001707-2021

Appellate No.:

No.. 2568 EDA 2022

.. .,.

EDUARDO

EDUARDO MENDEZ

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OPINION

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Appellant Eduardo Mendez appeals from this Court's Judgement

Judgement of Sentetibe enbered on

Sentence entered

L-

July

July 15,

15, 2022, following

following this Court's September

September 9, 2022

2022 Denial of Appellant's Post-Sentence

Appellant's Post-Sentence

Motions filed July 22, 2022. Appellant filed this appeal on October 6, 2022. This Court files this

opinion in

in accordance

accordance with

with Pa.R.A.P.

Pa.R.A.P. 1925(a).

1925(a).

PROCEDURAL & FACTUAL

PROCEDURAL & FACTUAL BACKGROUND

BACKGROUND

This case arises from a

a series of incidents that occurred on December 4,

4, 2020,

2020, in

Philadelphia,

Philadelphia, Philadelphia

Philadelphia County,

County, Pennsylvania and

and Bensalem,

Bensalem, Bucks

Bucks County,

County, Pennsylvania.

Pennsylvania, On

tthe

he morning of December 3, 2020, Appellant Eduardo Mendez, aaresident of El Paso,

Paso, Texas, met

with Giovanni Rosales' and the pair of them drove over the course of around twenty

twenty (20)

(20) hours

the approximately one-and-a-half-thousand

one-and-a-half-thousand (1,500) miles from El Paso to Bensalem,

Bensalem, Pennsylvania

Pennsylvania

for the purpose of selling bulk ''uncut'

uncut' quantities

quantities of both

both heroin and methamphetamine.

methamphetamine. N.T.

4/12/2022, p.

4/12/2022, p. 72, passim; N.T. 4/13/2022,

passim; N.T. 4/13/2022, passim.

passim. Upon arriving at

Upon arriving at a

a Holiday

Holiday Inn Express in

Express in

Bensalem Township

Bensalem Township on

on December

December 4, 2020, Mr.

4, 2020, Mr. Rosales

Rosales rented

rented Room

Room 348 for only

348 for one day,

only one day, using

using

his Passport

Passport issued

issued from Mexico, as

from Mexico, as identification.

identification. N.T.

N.T. 4/11/2022,

4/11/2022, p. 54. Both

p. 54. Both Appellant and Mr

Appellant and Mr.

'While referred

While referred to throughout the Notes

Notes of Testimony C'N.T.")

(N.T.") as Appellant's

Appellant's co-defendant,

co-defendant, Giovanni Rosales pled

pled

guilty before

guilty before Appellant's

Appellant's trial, including to

trial, including to one

one count

count of

of Conspiracy.

Conspiracy.

Rosales

Rosales retrieved

retrieved items including ablack

including a black backpack, compressor, and a

backpack, an air compressor, alarge

large toolbox

toolbox from

from a

silver GMC pickup truck registered to Mr. Rosales and carried them up

up to Room 348 at

348 at

approximately 8.24

8:24 A.M. on December 4, 2020. N.T. 4/12/2022,

4/12/2022, pp.

pp. 129,

129, 225.

225. Mr.

Mr. Rosales

Rosales

wheeled the

wheeled the large tool chest

large tool chest behind

behind him,

him, while

while Appellant

Appellant transported the air

transported the air compressor

compressor with

with the

the

black

black backpack on his

backpack on his right

right shoulder. N.T. 4/12/2022,

shoulder. N.T. 4/1 2/

2022, p.

p. 225.

225.

A short time later, both Appellant and Mr. Rosales left Room 348 and returned

A returned to

to Mr

Mr.

Rosales' silver GMC pickup truck in the parking Appellant got

parking lot. Appellant got in the driver's seat

the driver's seat and drove

and drove

of them

both of them to

to aaDunkin'

Dunkin' Donuts parking lot

Donuts parking located in

lot located in the

the Roosevelt

Roosevelt Mall

Mall at

at Cottman and

Cottman and

Roosevelt Boulevard in Northeast Philadelphia arriving

arriving around noon. N.T. 4/11/2022 p.

N.T. 4/11/2022 42; N.T.

p. 42; N.T,

4/1 2/

2022, p. 97. Appellant pulled the pickup into a

4/12/2022, parking space,

a parking space, whereupon

whereupon Mr. Rosales exited

Rosales exited

passenger door,

the passenger door, walked down a

walked down afew

few parking spaces and

parking spaces and past one parked

past one parked vehicle, and got

vehicle, and got into

into

the passenger door

door of aaparked vehicle.

vehicle. N.T. 4/12/2022, pp.

N.T, 4/12/2022, pp. 104

104— 105.

105. Unbeknownst to ye

Unbeknownst to Mr.

Rosales, the driver of the vehicle he entered was aaConfidential Human Source ("CHS")

Human Source (CHS") — an

informant

informant -— for the Federal Bureau

Bureau of Investigation.

Investigation. N.T. 4/12/2022, p.

N.T. 4/12/2022, p. 105.

105. Mr.

Mr. Rosales

Rosales spoke

spoke

with the CHS for approximately 90 seconds and handed them two small bundles, one containing

bundles, one containing

heroin and

heroin and the other methamphetarnine.

the other methamphetamine. N.T.

N.T. 4/12/2022, p.

4/12/2022, p. 106;

106; C-1; C-4; C-5.

C-I; C-4; C-5. The

The CHS

CHS did

did not

not

provide

provide compensation for

for the

the controlled

controlled substances provided

provided in

in this

this `'sample

sample transaction.'

transaction.' Mr.

Mr.

Rosales then

then exited the

the CHS's

CHS's vehicle,

vehicle, returned to

to his pickup truck, and Appellant

pickup truck, Appellant drove

drove them

them

both

both to aaLiberty

Liberty Gas Station. N.T. 4/12/2022,

4/12/2022, p.

p. 147.

147. A

A short time

time later,

later, Appellant

Appellant drove

drove from

from the

gas station to a

a Bob Evans restaurant located next to the Holiday

Holiday Inn Express Bensalem. NT

Express in Bensalem. N.T.

4/1 2/

2022, p.

4/12/2022, p. 128.

128. Afer

After spending

spending approximately

approximately 30

30 minutes

minutes inside

inside the

the Bob

Bob Evans,

Evans, Appellant and

Appellant and

Mr.

Mr. Rosales exited

exited the restaurant, returned to

to Mr. pickup truck,

Mr, Rosales's pickup truck, and drove

drove back to the

back to the

Holiday Inn

Holiday Inn Express

Express parking

parking lot

lot next door. N.T.

next door. N.T. 4/12/2022,

4/12/2022, p.

p. 149.

149

.. j

Appellant Mr. Rosales

Appellant and Mr. returned to

Rosales returned to Room

Room 348.

348. N.T. 4/12/2022, pp.

N,T, 4/12/2022, pp. 149

149 -— 150.

150. They

They

both remained inside for the next few hours, with both Appellant

Appellant and Mr. Rosales exiting

exiting briefly

briefly

to look up and down the hallway,

hallway, and

and Appellant leaving

leaving to purchase

purchase an item

item at 3rd floor

at the 3" floor vending

vending

machine. N.T.

machine. 4/11/2022, p.

N.T. 4/11/02022, p. 41;

41; N.T. 4/12/2022, p.

N.T. 4/12/2022, p. 244.

244. During

During this

this time, while both

time, while both Appellant

Appellant

Mr. Rosales

and Mr. Rosales were

were inside Room 348,

inside Room 348, Mr.

Mr. Rosales

Rosales was

was communicating

communicating with the CHS

with the CHS over

over text

text

messaging

messaging and

and via phone calls.

calls. N.T. 4/12/2022,

4/12/2022, pp.

pp. 124

124-— 125. Mr. Rosales and the CHS arranged

arranged

another transaction: the

the CHS was to

to purchase two

two kilograms

kilograms of heroin

heroin at

at a

a price

price of $50,000 per

of $50,000 per

kilogram

kilogram and

and one

one pound

pound of methamphetamine

methamphetamine at

at aaprice

price of

of $8,500,

$ 8,500, for

for a

a total

total price

price of $ 108,500.

of $108,500.

N.T. 4/12/2022, p. 198. The deal was scheduled to occur in the parking

NT, parking lot of the Holiday

Holiday Inn

Inn

Express. N.T.

N.T. 4/12/2022, pp. 126 — 127. 'The

pp. 126 The deal was later

later modified to occur

occur between

between 5:00 and

5:30 P.M.

5.30 P.M. in

in the parking lot of a

a nearby

nearby Texas Roadhouse

Roadhouse restaurant

restaurant in

in Bensalem. N.T. 4/11/2022,

N.T, 4/11/2022,

p. 46.

p.46.

From approximately 2:30 P.M. until approximately P.M., Officer Farnan of

approximately 4:55 P.M., the

of the

Bensalem Police Department

Bensalem Police was inside

Department was in Room

inside in 347 with

Room 347 with other

other law enforcement officers,

law enforcement officers,

watching the door to Room 348 through

through the peephole.

peephole. N.T. pp. 200 -204.

N.T, 4/12/2022, pp.200 — 204. No one other

than Appellant

Appellant and Mr. Rosales entered

entered or during that time,

or exited the room during time, and luggage

luggage was

carried in or

or out of Room

Room 348.

348. N.T. 4/12/2022 pp. — 204. At roughly

pp. 203 --204. roughly 4:55 P.M.

P.M. on December

December

4, 2020,

4, 2020, Appellant and Mr.

Appellant and Rosales exited

Mr. Rosales exited their

their hotel

hotel room exited to

room and exited to the

the parking

parking lot.

lot. N.T.

N.T.

4/12/2022, p.

p. 204.

204. As

As they started to

to walk towards

towards Mr.

Mr. Rosales'

Rosales' pickup,

pickup, members

members of the Violent

Violent

Gang Safe Streets

Streets Task Force

Force of F.B.I.'s Philadelphia field

FE.B.I's Philadelphia field office, Bensalem Township

Township Police

officers, and Philadelphia attempted to

Philadelphia Police officers attempted to arrest Appellant and Mr.

arrest Appellant Mr. Rosales.

Rosales. N.T.

4/12/2022, p.

p. 143.

I43. As law attempted to arrest both Appellant

law enforcement officers attempted Appellant and Mr.

Mr. Rosales,

Rosales,

Appellant turned and attempted

turned and attempted to

to run to aa wooded area

area at the

the end of the

the parking

parking lot.

lot. N.T.

NT,

4/12/2022, p. 65. F.B.I. Special A

p.65.F.B.I. Agent

gent William Wickman, driving

driving an unmarked

unmarked vehicle

vehicle with active

I 3

emergency lights, drove next to the fleeing Appellant and commanded him to stop

stop from an open

open

window. N.T. 4/12/2022, p. 66. Appellant kept running,

p. 66. running, before tripping

tripping and was then tackled

tackled by

agents on foot,

foot, taking

taking him N.T. 4/12/2022, p.

him into custody. N,T, p. 67. When searched, Appellant

When searched, Appellant had

had no

controlled substances and $3,300.00 in United States currency

currency on him. N.T.

N.T, 4/12/2022,

4/12/2022, p.

p. 68.

68.

Mr. Rosales had neither controlled substances nor money

money on his person. Id.

person. I

A search warrant

A search warrant was executed on

was executed on Room

Room 348

348 of

of the

the Holiday

Holiday Inn

Inn Express

Express in

in Bensalem, and

Bensalem, and

aablack

black bookbag

bookbag was found

found within

within the locked

locked large tool

tool chest. N.T.

N.T, 4/1 2/

2022, pp.

4/12/2022, — 208; C-

pp. 205 --208;C-

12. Inside

12. the bookbag

Inside the was aaclear

bookbag was clear Ziploc

Ziploc bag of heroin

bag of weighing approximately

heroin weighing 90 to

approximately 90 to 100

100 grams

grams

and two half kilograms of methamphetamine. N.T. 4/12/2022,

4/12/2022, p. A large

p. 213. A large digital scale was

digital scale was

found inside the Husky toolbox underneath the bookbag.

bookbag. N.T. 4/12/2022, p.

N.T. 4/12/2022, 216; C-18.

p. 216; C-18. Residue

Residue

found on the digital scale was determined to be composed

composed of controlled

controlled substances. N.T.

substances. NT

4/12/2022, p. 255. Plastic film was discovered in a

a nearby

nearby trashcan similar to what was

to what was covering

covering

the controlled substances. N.T. 4/13/2022, pp. 28 -— 29; C-21. Mr. Rosales' DNA was recovered

recovered

from the covering

from the covering of

of the

the controlled substances. N.T.

controlled substances. N.T. 4/1 2/

2022, p.

4/12/2022, p. 212; C-14. No

212; C-14. controlled

No controlled

substances were recovered from Mr. Rosales's vehicle when it was searched. N.T. 4/12/2022,

4/12/2022, pp.

pp.

217 -

217 — 218.

218. Notably,

Notably, in

in order

order to

to fulfill

fulfill the quantity of

the quantity of the

the controlled substances that

controlled substances that had

had been

been

negotiated in the deal with the CHS, and there was every

every indication that was their intent,

intent, the

the

Appellant and Mr. Rosales would have had to secure an additional quantity from

quantity of heroin from

someone or

someone or somewhere,

somewhere, as

as the

the quantity of controlled

quantity of controlled substances recovered from

substances recovered from their

their hotel

hotel room

room

would have been insufficient to meet the quantity of the controlled substances they

they had agreed

agreed to

sel. Thus

sel. the Conspiracy

Thus the Conspiracy would

would have

have then

then necessarily

necessarily involved other people

involved other or the

people or acquisition of

the acquisition of

more controlled substances by the Appellant and Mr. Rosales.. N.T. 4/12/2022, pp.

N.T, 4/12/2022, pp. 241,

241, 294-295.

Appellant was subsequently charged with the following: 1, Possession with Intent

following: Count I,

to Deliver

Deliver aaControlled Substance—Heroin,

Substance-Heroin, an

an ungraded

ungraded felony 2,

felony', Possession

Possession with

with Intent

Intent to Deliver

aa Controlled Substance

Substance—Methamphetamine,

Methamphetamine, an ungraded

ungraded felony',

felony', Criminal Conspiracy,

Conspiracy, an

ungraded

ungraded misdemeanor,

misdemeanor, Possession

Possession of

of a

a Controlled

Controlled Substance—Heroin

Substance-Heroin and/or

and/or

Methamphetamine, an ungraded misdemeanor,

misdemeanors, Possession of Paraphernalia,

Paraphernalia, an ungraded

ungraded

misdemeanor6,

misdemeanor, and Criminal

and Criminal Use of a

Use of aCommunication

Communication Facility,

Facility, aafelony of the

felony of the third degree. Count

third degree'. Count

6, Criminal Use of a

a Communication Facility,

Facility, was nolle prossed

prossed at Appellant's

Appellant's Arraignment

Arraignment and

was

was not aacomponent

component of the

the trial.

MATTERS

MATTERS COMPLAINED

COMPLAINED OF ON APPEAL

APPEAL OF

Appellant

Appellant filed

filed aatimely Notice

Notice of Appeal

Appeal to

to the Superior

Superior Court 6, 2022.

Court on October 6, 2022, On

October 7, 2022, this Court issued an Order directing Appellant to file aaConcise Statement of

Matters Complained of on Appeal within twenty-one

twenty-one (21) days of the date of the Order

(21) days Order. On

18, 2022, Appellant filed a

October I8, a Motion for an extension of time to file his Concise Statement

Statement.

On October 24, 2022, this Court issued an Order granting

granting Appellant's

Appellant's motion for an extension of

time to file and granted Appellant an extension until November 18, 2022, to file his Concise

Statement. Appellant

Statement. filed a

Appellant filed timely Concise

a timely Concise Statement

Statement of

of Matters Complained of

Matters Complained of on

on Appeal on

Appeal on

November 17, 2022, which raises the following issues verbatim:

17,2022,

1. The conviction for possession with intent to deliver aacontrolled substance,

heroin, was not supported

supported by sufficient evidence.

35 P.S. §$ 780-113()030)

35PS.

2 780-113(x)(30)

' 35 P.S. §$ 780-113(a)(30)

35P.$. 780-113()030)

4 18

18 Pa.C.S. § 903

Pa.C.S. $903

' 35 P.S. §$ 780-1136a)015)

'3$P.5. 780-113(a)(15)

6 35 P.S. §

'35P.$. 780-113(a)(32)

$ 780-113(8)032)

'18 Pa.C.S. $7512(a)

'18PCS § 7512(a)

2. The conviction for possession with intent to deliver a

a controlled

controlled substance,

substance,

by sufficient evidence.

methamphetamine, was not supported by

3.3. The conviction for criminal conspiracy

conspiracy was not supported

supported by

by sufficient

sufficient

evidence.

4.4. The conviction for possession of a

a controlled substance was not

not supported

supported

by sufficient evidence.

5, The conviction

conviction for

for possession of paraphernalia

paraphernalia was not supported by

not supported by

sufficient evidence.

6. The

6. The trial court erred

trial court erred in denying the

in denying the Motion to Suppress

Motion to Suppress the search of

the search of

Appellant because there was no probable cause to arrest Appellant.

Appellant.

7. The trial

trial court erred

erred in denying

denying Appellant's

Appellant's motion

motion in

in limine

limine to refer to his

his

trial counsel as

trial counsel as a

a public defender.

public defender.

S. The trial court erred in permitting Officer Faman

8. testify regarding

Faran to testify regarding the

the

contents of surveillance video whish was not preserved

preserved in violation of the

the best

evidence rule.

9, The trial court erred in permitting

permitting testimony

testimony of Detective Eisenhauer

because

because it went

went beyond the

the scope

scope of expert testimony usurped the fact-finding

testimony and usurped fact-finding

function

function of the jury.

the jury.

10. The trial court abused its discretion in sentencing Appellant because the

sentencing Appellant

sentence exceeds what is

sentence is necessary

necessary to

to protect

protect the public.

public.

11.

IL. The trial court abused its discretion in sentencing

sentencing Appellant

Appellant because

because the

sentence exceeds

sentence exceeds what is necessary

what is to rehabilitate

necessary to Appellant.

rehabilitate Appellant

12.

12. The

The trial court

court abused its

its discretion in sentencing Appellant

in sentencing Appellant because the

sentence fails

sentence to take into

fails to into consideration

consideration Appellant's

Appellant's Age, conduct, character,

Age, conduct, character,

criminal history, the impact of Appellant's actions on the

the community,

community, Appellate

Appellant's

rehabilitative needs, and the Sentencing Guidelines.

13. The trial court abused its discretion in sentencing

3. sentencing Appellant

Appellant because the trial

court relied

relied on improper factors.

factors.

14.

14. The trial court

The trial abused its

court abused its discretion

discretion in

in sentencing

sentencing Appellant because the

Appellant because the trial

trial

court failed to

court failed adequately state

to adequately state the reasons for

the reasons for the sentence on

the sentence on the

the record

record.

15.

15. The trial

trial court

court abused

abused its discretion in

its discretion in sentencing

sentencing Appellant

Appellant because

because the

the trial

trial

court failed

failed to

to consider mitigating

mitigating factors.

factors.

16. The trial court abused its discretion in sentencing

sentencing Appellant

Appellant because the trial

court relied on factors already contemplated by the Sentencing

Sentencing Guidelines.

17. The trial court abused its discretion in sentencing

17.The sentencing Appellant

Appellant because the

sentence was manifestly

manifestly excessive.

18. The trial court abused its discretion in sentencing Appellant in the high

8.The high end

of the aggravated range of the Sentencing

Sentencing Guidelines.

DISCUSSION$

DISCUSSION'

I. Sufficient evidence was

was presented at trial to find Appellant

Appellant guilty

guilty beyond

beyond aa

reasonable doubt for all Counts

Appellant first

first challenges the

the sufficiency of the

the evidence supporting the

evidence supporting the verdict for Counts

l through

through 5. The standard of review in assessing

assessing a

achallenge

challenge to the sufficiency

sufficiency of evidence is well

settled in Pennsylvania. See Commonwealth v.

Y. Hunzer,

Huner, 868 A.2d 498, 505

505 (Pa. Super. 2005).

(Pa. Super. 2005). The

standard to

to be applied

applied in reviewing the

in reviewing the sufficiency

sufficiency of

of evidence "is whether viewing

viewing all the

evidence admitted at trial in the light

light most favorable to the verdict winner, there is sufficient

Due to factual and legal interrelationships, some of the grounds for appeal are responded to collectively for

Due

efficiently explaining this Court's reasoning.

Court'sreasoning.

evidence to enable the fact-finder to find every

every element of the crime

erime beyond

beyond aareasonable

reasonable doubt."

doubt."

Commonwealth

Commonwealth v.

v, Distefano, 782 A.24

A.2d 574, 582

582 (Pa. Super. 2001).

(Pa. Super. 2001).

In reviewing this Court's determination that the evidence adduced at trial was sufficient to

sufficient to

support aaverdict of guilty on all charges,

charges, it must be noted "that the facts and circumstances

circumstances

established by the

the Commonwealth need every possibility

need not preclude every possibility of innocence.

innocence. Any

Any doubts

doubts

regarding aadefendant's guilt may be resolved by the fact-finder unless the evidence is

is so weak

and inconclusive that as a

a matter of law no probability of fact may

may be drawn from the combined

circumstances.

circumstances. The Commonwealth may sustain its

its burden

burden of proving every element of the crime

proving every crime

beyond a

a reasonable doubt by means of wholly

wholly circumstantial evidence. Moreover...the

Moreover ... the entire

entire

record must

record be evaluated

must be evaluated and all evidence

and all actually received

evidence actually received must

must be considered. Finally,

be considered. Finally, the

the trier

trier

of fact while passing upon

upon the credibility of witnesses and

and the weight

weight of the produced, is

the evidence produced, is

free to believe all, part or none of the evidence." See Id

Id.

However, Appellant's bare assertion that each conviction

conviction "was not supported

supported by

by sufficient

sufficient

evidence" fails to provide the requisite specificity for this Court to respond speculating on

respond without speculating on

what

what Appellant's claim v. Flores, 921 A.2d 517,

claim is. See Commonwealth v, 522 (Pa.

517, 522 (Pa. Super. 2007) ("If

Super, 2007) (If

Appellant wants to preserve aaclaim that the evidence was insufficient,

insufficient, then the 1925(b)

1925(b) statement

needs to specify the element or elements upon which the evidence was insufficient. This Court can

then analyze the element or elements on appeal. ").

appeal.").

A non-specific statement may be sufficient in simple

simple trials where there are only

only few

elements at issue.

issue. However, each

each determination

determination that Appellant committed

that Appellant committed the charged

charged crimes

crimes

established. This Court cannot assume

required that multiple separate elements of the offence be established.

to know

to know what

what elements or factors

elements or factors that

that Appellant

Appellant believes were not

believes were not sufficiently

sufficiently established, other

established, other

than Appellant's identity

than Appellant's identity as

as the

the perpetrator.

perpetrator. As

As such,

such, Appellant's

Appellant's claim

claim for

for insufficient evidence

insufficient evidence

is waived due to

waived due the inadequate

to the inadequate 1925(b)

1925(b) statement.

statement.

In the event that these issues are not considered waived, this Court will address the issues

issues

and

and finds that each of Counts I1through

through 5S5was fully

fully established

established at trial.

a. Sufficient evidence was presented at trial to find Appellant

Appellant guilty

guilty beyond

beyond a

reasonable doubt of Possession with the Intent to Distribute a

a Controlled

Substance

Appellant was found guilty in Counts 1

I and 2

2 of violating

violating 35 P.S.

P,S. §$ 780-113(a)(30),

780-113(a)(30), which

states:

(a) The following acts and the causing thereof within the Commonwealth are

hereby prohibited:

(30) Except

Except as authorized

...

authorized byby this act,

act, the manufacture, delivery,

the manufacture, delivery, or

possession

possession with intent to manufacture or deliver, a

intent to acontrolled substance by by

a person not

not registered under this

this act,

act, or

or aapractitioner

practitioner not

not registered

registered or

licensed by the appropriate State board, or knowingly creating, delivering

creating, delivering

or possessing with intent to deliver, aacounterfeit controlled substance.

At trial, Appellant did not dispute that: (a) the compounds recovered by

by the police

police from

Room 348 of the Holiday Inn Express in Bensalem were controlled substances pursuant

pursuant to

to The

Controlled Substance,

Controlled Substance, Drug, Device,

Device, and Cosmetic

Cosmetic Act,

Aet, 35

35 P.S. §§ 780-1

P.S. $$ 780-1 -780.144,

— 780-144, ("the Act");

(the Act")y;

was not

(b) Appellant was not aaperson

person entitled under the

the Act to possess

Act to possess said controlled substances;

substances; and

on the

the amount

amount of

of the controlled substances

the controlled substances and

and their

their packaging, whomever possessed

packaging, whomever possessed

them did so with the intent to deliver. In fact Appellant conceded the above in argument

argument to the

N.T. 4/13/2022, p.

jury. N.T p. 43. As such, for determining

determining whether

whether Appellant

Appellant committed the

the crimes

charged in

in Counts 1

I and 2,

2, the jury was

the question for the jury was solely Appellant "possessed"

solely whether Appellant "possessed" the

substances.

controlled substances

Actual, physical,

physical, possession is

is not

not the

the only

only method

method in

in which

which aaparty

party can

can "possess"

"possess" narcotics

narcotics

with the

the intent to

to distribute. Contraband can be actually/physically possessed by

actually/physically possessed by aa person,

person,

constructively

constructively possessed by a

a person, constructively possessed

person, or jointly constructively possessed amongst

amongst multiple

multiple people.

people

As our Supreme Court has explained:

explained:

[T]he tripartite

[The legal requirements

tripartite legal requirements for

for aafinding,

finding, beyond

beyond aareasonable doubt, that

reasonable doubt, that a

defendant constructively possessed illegal substance[

possessed an illegal substance[ are:] 1) the

are:] I) defendant's

the defendatg

ability to

ability to exercise

exercise a a conscious dominion over the illegal substance;

the illegal substance; 2) the

2) the

defendant's power to control the illegal substance; and 3)

3) the defendant's intent

intent to

exercise that

that control.

v. Johnson, 26 A.3d 1078, 1086(Pa.

Commonwealth v, 1086 (Pa. 2011)

2011) (citing

(citing Commonwealth

Commonwealth v. Valette, 613

v. Valerte, 613

548 (Pa.

A.2d 548 (Pa. 1992)).

1992)). A

A person's ability *to

person's ability to have

have conscious dominion over illegal

illegal substances

substances and

and

their

their intent

intent to

to exercise

exercise control

control over the same may

may be examining the totality

be inferred from examining of the

totality of the

circumstances. Commonwealth

circumstances. v,

Commonwealth v.Cash,

Cash, 367

367 A.2d

A.2d 726, 729 (Pa.

726, 729 Super. 1976);

(Pa. Super. 1976); Commonwealth v,

Commonwealth v.

Macolino, 469

Macolino, 469 A.2d

4.24 132, 134 (Pa.

132, 134 1983).

(Pa. 1983)

This

This court is aware that

that a

a person's mere

mere equal access

access to

to the

the area where illegal contraband

illegal contraband

is found does not establish that person's per

per se power

power or intent to control said contraband.

said contraband.

Commonwealth v.

v, Heidler, 741

741 A.2d 213, 216 (Pa.

213,216 (Pa. Super.

Super. 1999).

1999). However,

However, neither is

is it irrelevant:

irrelevant:

aajury need not ignore presence, proximity

proximity and association when presentedpresented in

conjunction with other evidence of guilt. Indeed, presence

conjunction presence at the drugs

the scene where drugs

are

are being

being processed

processed and

and packaged

packaged is amaterial

is a material and

and probative

probative factor

factor which

which the

the jury

jury

may

may consider.

consider. Drug

Drug dealers of

of any and [illegal

any size and [illegal drug]

drug] manufacturers

manufacturers probably

probably

are reticent about

are about allowing

allowing the

the unknowing

unknowing toto take

take view

view of

of or

or assist

assist in

in the

the operation.

operation.

Commonwealth •

Commonwealth v. Vargas, 108 A.3d 858, 869

869 (Pa. Super. 2014)

(Pa. Super. 2014) (citing United

(citing United States

States v. Robinson,

v Robinson,

F.2d 1554,

978 F24 1557-1558 ((10th

1554, 1557-1558 10th Cir.

Cir. 1992)). And Appellant merely nearby

Appellant was not merely nearby Mr. Rosales

Rosales

during these events. Appellant travelled approximately one-and-a-half-thousand ((1,500)

travelled approximately 1,500) miles

miles

from Fort

Fort Worth, Texas to Bensalem,

Bensalem, Pennsylvania,

Pennsylvania, aatrip

trip which

which took

took roughly

roughly twenty

twenty (20)

(20) hours.

hours.

N.T. 4/12/2022, p. 72.

72. Appellant carried the black backpack

backpack in which the drugs

drugs were found into

into

the hotel

hotel room

room Mr.

Mr. Rosales

Rosales rented for

for only one

one day.

day, N.T. 4/11/2022, p.

4/11/2022, p. 54. Appellant

Appellant was

was with

Rosales throughout

Mr. Rosales throughout the entire day. N.T.

entire day. 4/11/2022 passim;

N.T. 4/11/2022 passim; N.T.

N.T. 4/12/2022,

4/12/2022, passim;

passim; N.T.

N.T,

4/13/2022,

4/13/2022, passim.

passim. Appellant

Appellant drove Mr. Rosales to the initial "sample" transaction,

initial "sample" transaction, lasting

lasting only

only

90 seconds and two of minutes, before turning

between 0 turning around and driving

driving to a

a restaurant

restaurant located

located

adjacent to the hotel they had left. 4/12/2022, p. 97 -

— 128. Even further,

further, Appellant

Appellant was

was inside

inside the

the

hotel room

hotel while Mr.

room while Mr. Rosales

Rosales spent

spent hours

hours setting

setting up the bulk

up the bulk narcotics sale, not

narcotics sale, not only via text

only via text

messages, but also aloud via

via phone calls. N.T. 4/12/2022, pp.

N.T, 4/12/2022, pp. 124 -— 125. This is

125. This is not

not an

an instance

instance

where Appellant's ability to have conscious dominion over the contraband

contraband or

or Appellant's

Appellant's intent

intent to

exercise control over the same is merely inferred by operation of

by operation of law, but rather

law, but rather both are

both are

inextricable conclusions stemming from an examination of the circumstances.

circumstances. Further, the

Further, the

evidence presented showed that Appellant had the power

power to exercise control over both

control over both the

the heroin

heroin

and the methamphetamine recovered from

methamphetamine recovered from the

the black

black book

bookbag

bag recovered from inside

recovered from inside the

the toolbox in

toolbox in

Room 348

348 of

of the

the Holiday

Holiday Inn

Inn Express in Bensalem.

Express in Bensalem.

Moreover, in cases involving Possession with Intent to Distribute and related

related Conspiracy

Conspiracy

charges, "successful proof

proof of

of aaconspiracy makes

makes each

each co-conspirator

co-conspirator fully

fully liable

liable for all of

for all of the

the

drugs recovered, without

drugs recovered, necessity of

without the necessity of proving

proving constructive possession." Commonwealth

constructive possession." Commonwealth v.

Perez,

Perez, 931 A.2d 703,

703, 709

709 (Pa.

(Pa. Super. ( Commonwealth v. Holt,

citing Commonwealth

Super. 2007) (citing Holt, 711 A.2d

A.2d 1011,

1011, 1017

1017

(Pa. Super.

(Pa. Super. 1998)).

1998)). A

A conspiracy

conspiracy can

can be established

established by the "web

by the "web of evidence" established

of evidence" established by

by the

the

conduct of the co-conspirators along with the circumstances surrounding

surrounding said conduct.

conduct

Commonwealth y, Morton, 512

Commonwealth v. 512 A2d

A.2d 1273,

1273, 1275

1275 (Pa. Super. 1986).

(Pa. Super. 1986). Resultingly, both of

Resultingly, both of

by establishing

Appellant's Possession with the Intent to Distribute convictions are established by establishing

Count 3, the Criminal Conspiracy between Appellant

Appellant and Mr. Rosales,

Rosales, discussed

discussed infra.

infra.

When this

this evidence,

evidence, and the reasonable

and the inferences drawn

reasonable inferences therefrom, is

drawn therefrom, is viewed in the

viewed in the light

light

most favorable to the Commonwealth as the verdict winner,

winner, the existence of aaconspiracy

conspiracy between

between

Appellant

Appellant and

and Mr.

Mr. Rosales

Rosales to distribute the

to distribute the drugs establishes

establishes that Appellant possessed

that Appellant possessed the is

the is

I11I

sufficient to establish that Appellant possessed the controlled substances with the intent to

distribute them beyond a

a reasonable doubt.

Therefore, sufficient evidence

evidence was

was provided

provided at

at trial

trial to establish the violations

violations of

of Counts

Counts 1

and

and 2.

b. Sufficient evidence was presented at trial to find

fid Appellant guilty beyond

Appellant guilty beyond a

reasonable doubt of Criminal Conspiracy

Conspiracy

Appellant was found guilty in Count 33of violating

violating 18

I8 Pa.C.S.

Pa.C.S. §$ 903

903 (in

(in reference to Counts

l and 2), which states:

(a) Definition

(a) Definition of

of conspiracy.

conspiracy. — A A person

person is guilty of

is guilty of conspiracy

conspiracy with another

with another

person or persons to commit aacrime if with the intent of promoting

promoting or facilitating

facilitating

its commission he:he

(1) agrees

(I) agrees with such other

with such other person or persons

person or persons that

that they or one

they or one or

or more

more of

of them

them

will engage in conduct which constitutes such crime or an attempt

attempt or solicitation

to commit such crime;

crime; or

(2) agrees to aid such other person

person or persons

persons in the planning

planning or commission of

such crime or of an attempt

attempt or solicitation to commit such crime.

... (e) Overt act.

crime

act. --— No person may be convicted of conspiracy

conspiracy to commit a a

act in

crime unless an overt act in pursuance of such

such conspiracy alleged and

conspiracy is alleged and

proved to have been done by him or by aaperson with whom he conspired.

conspired.

Appellant and Mr. Rosales's long drive from Texas to Bensalem—

Bensalem-- over twenty hours --—

followed immediately by a

a drug sample transaction, a

a subsequent negotiation for aabulk narcotics

sale, renting

renting a

a hotel

hotel room for

for a

a single

single day, and

and attempted

attempted flight

flight before

before his

his arrest create

create the sort

sort of

"web of evidence"

"web of evidence" that

that establishes

establishes Appellant

Appellant and

and Mr.

Mr. Rosales

Rosales conspired

conspired for

for the purpose of

the purpose of the

the

illegal sale of controlled substances in Pennsylvania. N.T. 4/13/2022, pp. — 173. Mr. Rosales

pp. 172 --173.

provided the CHS with sample drugs and Mr. Rosales' D.N.A. was found on the drug

drug packaging

packaging

recovered from Room 348. N.T. 4/12/2022, p.

p. 212; C-14. Beyond

Beyond Mr. Rosales' overt acts,

Appellant personally

Appellant personally drove

drove his co-conspirator

co-conspirator to the sample drug

the sample drug transaction.

transaction. N.T. 4/12/2022, pp.

N.T. 4/12/2022, pp

104 — 147. When this evidence, and the reasonable inferences drawn therefrom, is viewed in the

104

light most favorable to the Commonwealth as the verdict winner,

winner, it is sufficient to establish that

both Appellant and Mr. Rosales conspired to travel to Pennsylvania

Pennsylvania for the purpose

purpose of distributing

distributing

bulk narcotics and committed multiple overt acts in furtherance thereof.

Therefore, sufficient evidence was provided at trial to establish the violation of Count 3.

e. Sufficient evidence was presented at trial to find Appellant

Appellant guilty

guilty beyond

beyond a

reasonable doubt of Possession of aaControlled Substance

Appellant was found guilty in Count 4

4 of violating

violating 35 P.S. $§ 780-113(a)(16),

780-113(a)(16), which states:

(a) The following acts and the causing thereof within the Commonwealth are

hereby prohibited:

•••

(16) Knowingly or intentionally possessing

possessing aa controlled or counterfeit

substance by a a person not registered

registered under this act,

act, or aapractitioner

practitioner not

registered or licensed by the appropriate State board, unless the substance

was

was obtained directly from, or pursuant to, aavalid prescription

prescription order or

order of a

a practitioner, or except as otherwise authorized by

by this act.

Appellants Possession of a

a Controlled Substance was established supra, Discussion

Section I(a). Therefore, sufficient evidence was provided at trial to

to establish the violation of Count

44.

d. Sufficient evidence was presented at trial to find Appellant guilty beyond

beyond aa

reasonable doubt of Possession of Paraphernalia

Paraphernalia

Appellant was found guilty in Count 5

5 of violating

violating 35 P.S. $§ 780-113(a)(32),

780-113(a)632), which states:

(a) The following acts and the causing thereof within the Commonwealth are

hereby prohibited:

prohibited:

•••

(32) The

The use of, or possession with intent to use, drug paraphernalia for the

purpose

purpose of planting,

planting, propagating, cultivating, growing,

propagating, cultivating, growing, harvesting,

harvesting,

manufacturing, compounding, converting, producing, processing,

processing, preparing,

preparing,

testing, analyzing, packing, repacking, storing, containing,

containing, concealing,

injecting, ingesting, inhaling or otherwise introducing into the human body

body aa

controlled substance in violation of this act.

"Drug

Drug paraphernalia" is defined under the Act as:

"Drug paraphernalia"

paraphernalia" means

means all

all equipment, products

products and materials of of any

any kind

kind

which are used, intended for use or designed for use in planting,planting, propagating,

propagating,

cultivating, growing, harvesting, manufacturing,

manufacturing, compounding, converting,

compounding, converting,

producing, processing, preparing, testing,

testing, analyzing,

analyzing, packaging,

packaging, repackaging,

repackaging,

storing, containing, concealing, injecting,

injecting, ingesting,

ingesting, inhaling

inhaling or otherwise

otherwise

introducing into

into the

the human

human body

body a a controlled

controlled substance

substance in

in violation act. It

violation of this act. It

includes, but is not limited to:

...

(5) Scales and balances used, intended for use or designed use in

designed for use in

weighing or measuring controlled substances

substances.

35 P.S. §$ 780-102.

35PS. 780-102

To convict Appellant for Possession of Paraphernalia, the Commonwealth was required to

was required to

establish that Appellant possessed drug paraphernalia and

and "the use of,

of, or possession with intent

possession with intent to

use, drug paraphernalia

use, drug paraphernalia for the purpose

for the purpose of... compounding, ...

of ... compounding, ... processing, preparing, ...

processing, preparing, . . packing,

packing,

repacking,

repacking,...

... or otherwise introducing into the human body

body aacontrolled substance in

in violation of

violation of

this act". 35P.S.

35 P.S. $§ 780-113(a)(32). Among the items recovered from Room 348 was a

adigital

digital scale

scale

with residue on it that tested positive for controlled substances, proximity to

substances, found in close proximity to the

the

bulk drugs. N.T. 4/12/2022, p. 255. Further, thin plastic

4/12/2022, plastic found

found inside a

a nearby

nearby trashcan suggested

trashcan suggested

further

further that

that the

the bulk

bulk drugs

drugs had been repackaged

repackaged into samples inside the

into the samples hotel room.

the hotel room. N.T.

4/1 3/

2022, pp. 28 -29;C-21.

4/13/2022, — 29; C-21. When this evidence, and the reasonable inferences therefrom,

inferences drawn therefrom,

is viewed

viewed in

in the light most

most favorable to

to the Commonwealth as the verdict

verdict winner,

winner, it is sufficient

it is sufficient

to establish that Appellant possessed paraphernalia in contravention of the Act,

Act, and, therefore,

and, therefore,

sufficient evidence was

was produced at

at trial to

to find

find Appellant guilty beyond

Appellant guilty beyond a

areasonable

reasonable doubt of

doubt of

committing the

the crime as alleged in

as alleged in Count

Count 5.

Accordingly, this Court submits that Appellant's first five allegations

allegations of error are without

merit and should be dismissed.

II. The trial court did not abuse its discretion in denying

denying Appellant's

Appellant's Motion to

Suppress

Suppress the

the $3,300

$3,300 found

found on Appellant and

and Appellant's flight incident

Appellant's flight incident to his

his

Arrest as Probable Cause Existed to

to Arrest

Arrest Appellant

Appellant

"Probable cause exists if the facts and circumstances within the knowledge

Probable knowledge of the police

police

officer at the time of the arrest are sufficient to justify

justify a person of reasonable caution in believing

a person believing

the

the suspect has

has committed or is committing a

a crime." Commonwealth v. Burnside,

Burnside, 625 678,

625 A.2d 678,

681

681 (Pa. Super. 1993).

(Pa. Super, 1993). If someone is

is arrested

arrested without probable

probable cause the

the "fruits"

"fruits" of that

that search

must be suppressed and disregarded in aacriminal proceeding, and no

no "good faith exception"

exception"exists

exists

in the state of

the state of Pennsylvania to the

Pennsylvania to requirement. Commonwealth

the requirement. Commonwealth v. Hopkins,

Hopkins, 164

164 A.3d

A.3d 1133,

1133, 1137

1137

(Pa.

(Pa. 2017).

2017). Moreover, this

this Court is

is aware that

that probable

probable cause for requires more than

for an arrest requires than

merely being near

near aaperson to which there

there exists probable suspected criminal activity

probable cause of suspected activity (but

(but

U.S, v. Butts, 704 F.2d 701,

such is not what the evidence in this case demonstrates.) U.S. 704 (3d

701, 704 (3d Cir.

1983); see also Ybarra v.

v, Ill.,

ILL,, 444 U.S. 85, 91 ((1979)

1979) ("[A]

([A] aaperson's

person's mere propinquity

propinquity to others

independently

independently suspected

suspected of

of criminal activity does

criminal activity not, without

does not, without more,

more, give

give rise to probable

rise to probable cause

cause

to search that person. ").

person.").

Before

Before police Appellant as he

police arrested Appellant he exited the Holiday

Holiday Inn Express in Bensalem,

Inn Express Bensalem, they

they

had observed

observed him drive Mr. Rosales'

Rosales' truck to

to Philadelphia,

Philadelphia, Mr. Rosales leave

leave the

the passenger seat

passenger seat

of the truck, enter another vehicle, hand narcotics to aaConfidential Human Source of the Federal

Investigation ("CHS"),

Bureau of Investigation (CHS"), Appellant drive the

the vehicle back

back to the

the Holiday

Holiday Inn in

in Bensalem

Bensalem

where

where Mr. Rosales had rented aaroom

mom after making two

two stops, both Appellant and Mr. Rosales exit

the truck and enter Room 348, both Appellant

Appellant and Mr. Rosales leave Room 348 to look up

up and

down the hallway

hallway over the next few hours, and Appellant

Appellant and Mr.

Mr, Rosales leave Room 348 in time

to get

get to aanarcotics transaction as scheduled between Mr. Rosales and the CHS. Appellant

Appellant was

inside the hotel

hotel room

room with co-conspirator as Mr.

with his co-conspirator Mr. Rosales made phone

phone calls setting up the

setting up the bulk

drug transaction, N,T. 4/12/2022, pp. 124 - 125. Under these circumstances, it strains credulity to

12/2022, pp. 124 — 125. Under these circumstances, it strains credulity to

drug transaction. N.T. 4/

suggest that Appellant was somehow not participating in the narcotics transaction but that he was

also wholly unaware that it was to occur. The police not only had probable cause to arrest Appellant

for the planned bulk drug transaction, they had probable cause to arrest Appellant for the prior

"sample" drug transaction in Philadelphia.

Accordingly, this Court submits that Appellant's sixth allegation of error is without merit

and should be dismissed.

IHI. The trial court did not abuse its discretion in denying Appellant's Motion in

III. The trial court did not abuse its discretion in denying Appellant's Motion in

Limine to Refer to Defense Counsel as a Publie Defender

Limine to Refer to Defense Counsel as aPublic Defender

The standard practice of courts in his Commonwealth is to avoid references to defense

counsel as a public defender if possible. Whatever the rationale, be it fear of the jury making

counsel as apublic defender if possible. Whatever the rationale, be it fear of the jury making

decisions based on the defendant's perceived economic status, a societal assumption that an

innocent individual would hire a private attorney, or otherwise, the understanding that this Court

innocent individual would hire aprivate attorney, or otherwise, the understanding that this Court

has is that the defense counsel's status as a public defender or private counsel is, at best, irrelevant

has is that the defense counsel's status as apublic defender or private counsel is, at best, irrelevant

to the determination of the ultimate case.

This Court is aware that the courts of Pennsylvania have held that the inadvertent

disclosure of defense counsel as a public defender has been held to be "insignificant and does not

disclosure of defense counsel as apublic defender has been held to be "insignificant and does not

violate equal protection". Commonwealth v, Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006) (citing

violate equal protection". Commonwealth v. Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006) (citing

Commonwealth v. Dunson, 11 Pila. 339 (Pa. Com, PI, 1984)). However, in this case, defense

Commonwealth v. Dunson, 11 Phila. 339 (Pa. Corn. Pl. 1984)). However, in this case, defense

counsel filed a Motion in Limine for permission to actively inform the jury of their status,

seemingly for the purpose of having the jury assume that Appellant cannot be a drug dealer, as he

seemingly for the purpose of having the jury assume that Appellant cannot be adrug dealer, as he

would then have the funds to hire private counsel.

Defense counsel did not provide, and this Court is unaware of, any law in this

Commonwealth establishing that such an action is permissible. Further, this Court found that

stating to the jury that defense counsel was a public defender risked confusion and the jury making

stating to the jury that defense counsel was apublic defender risked confusion and the jury making

a finding based not on the facts presented, but rather Appellant's perceived economic status. Even

afinding based not on the facts presented, but rather Appellant's perceived economic status. Even

beyond this Court's concerns, Appellant himself seemed reluctant to proceed down this route.

When asked by the court "do you want me to allow [Defense Counsel] to tell the jury that he's a

public defender?", Appellant replied, I mean, do we have to?" N.T, 4/11/22, p. 7.

public defender?", Appellant replied, "Imean, do we have to?" N.T. 4/11/22, p. 7.

Accordingly, this Court submits that Appellant's seventh allegation of error is without

merit andshould

meritand dismissed.

shouldbebedismissed.

IV. The trial court did not abuse its discretion in permitting Officer Farnan to testify

regarding the contents of surveillance videos

During the suppression hearing, defense counsel objected to Bensalem Township Police

Department Officer Connor Farnan testifying as to what he observed on surveillance videos from

the Holiday Inn Express as violative of the Best Evidence Rule in that certain surveillance videos

were not preserved and provided to the defense. N.T. 4/11/22 p. 23. Specifically, Defense counsel

22p. 23. Specifically, Defense counsel

were not preserved and provided to the defense. N.T. 4/1 1/

was not provided videos from December 4, 2020 at approximately 9:00 A.M. to approximately

L00 P.M.. N.T. 4/11/22 pp. 23 - 25. The objection was overruled and the question rephrased to

1:00 P.M.. N.T. 4/11/22 pp. 23 — 25. The objection was overruled and the question rephrased to

elicit answers from Officer Farnan regarding surveillance videos from roughly 8:30 A.M. to 9.00

elicit answers from Officer Farnan regarding surveillance videos from roughly 8:30 A.M. to 9:00

A.M.

A.M..

At trial, the Commonwealth introduced Commonwealth Exhibit C-6 and C-10, containing

surveillance videos of the Holiday Inn lobby and 3" floor, respectively. Exhibit C-6 contains five

surveillance videos of the Holiday Inn lobby and 3rd floor, respectively. Exhibit C-6 contains five

videos with visible timestamps" from 08:1101 08:14:25, 08:IE:01 - 08:14.18, 08:16.34 -

videos with visible timestamps 9 from 08:11:01 — 08:14:25, 08:11:01 — 08:14:18, 08:16:34 —

08-1711, 08:2220 -- 08.25.00 and 08:23:14 - 0824.06. See C-6. Mr. Rosales checks in to the

08:17:11, 08:22:20 — 08:25:00 and 08:23:14 — 08:24:06. See C-6. Mr. Rosales checks in to the

hotel, and then Appellant and Mr. Rosales enter the elevator, carrying various items. Appellant is

pe video timestamps re in 24-hour time format, often referred to as military time."

'The video timestamps are in 24-hour time format, often referred to as "military time."

seen carrying a black back pack while wheeling an air compressor, while Mr. Rosales maneuvers

seen carrying ablack backpack while wheeling an air compressor, while Mr. Rosales maneuvers

a large, wheeled toolbox into the elevator. See C-6. One black backpack was recovered during the

alarge, wheeled toolbox into the elevator. See C-6. One black backpack was recovered during the

search of Room 348, which contained approximately 100 grams of heroin and I kilogram of

search of Room 348, which contained approximately 100 grams of heroin and 1kilogram of

methamphetamine. N.T, 4/12/2022,p. 225; C-6. Exhibit C-10 contains body-camera recordings of

methamphetamine. N.T. 4/ 2022, p. 225; C-6. Exhibit C-10 contains body-camera recordings of

12/

a screen, presumably the surveillance computer's, playing three videos with visible timestamps

ascreen, presumably the surveillance computer's, playing three videos with visible timestamps

from 12-56.30- 12:57:16, 13:00.09 - 13.00:15, and 16:55:12 - 16:55:40. See C-10. These videos

from 12:56:30 — 12:57:16, 13:00:09 — 13:00:15, and 16:55:12 — 16:55:40. See C-10. These videos

show Appellant and/or Mt. Rosales walking to and/or from the 3" floor elevator, and neither

show Appellant and/or Mr. Rosales walking to and/or from the 3rd floor elevator, and neither

Appellant nor Mr. Rosales appear to be carrying any objects in their hands. Defense counsel did

not object to the introduction and playing of these videos on the grounds that they were not in the

defense's possession. Officer Farnan did not testify regarding surveillance videos ranging from

approximately 9.00 A.M. to approximately 1.00 P.M. on December 4, 2020. This is unsurprising,

approximately 9:00 A.M. to approximately 1:00 P.M. on December 4, 2020. This is unsurprising,

seeing as during that time Appellant and Mr. Rosales were being surveilled by the FBI Task force.

N.T. 4/1202022, pp. 104 - 147. Appellant and Mr. Rosales were engaged in the sample narcotics

N.T. 4/12/2022, pp. 104 — 147. Appellant and Mr. Rosales were engaged in the sample narcotics

transaction and then went to the Bob Evans restaurant. N.T. 4/12/2022, p. 128. Officer Farman did

2 022, p. 128. Officer Farnan did

transaction and then went to the Bob Evans restaurant. N.T. 4/12/

not testify regarding any surveillance videos that were not preserved or not handed over to the

defense. As such, Appellant's claim that Officer Farnan's testimony was in contravention of the

Best Evidence Rule is meritless

Best Evidence Rule is meritless.

Accordingly, this Court submits that Appellant's eighth allegation of error is without merit

and should be dismissed.

V, The trial court did not abuse its discretion in permitting testimony of Detective

V. The trial court did not abuse its discretion in permitting testimony of Detective

Eisenhauer

The purpose of expert testimony is to provide the jury with information requiring special

expertise or knowledge helpful to their determination of a fact at issue. Pa.R.E. 702. If valuable to

expertise or knowledge helpful to their determination of afact at issue. Pa.R.E. 702. If valuable to

the trier of fact, an expert witness may even express an opinion on an ultimate issue of fact. See

Commonwealth v, Daniels, 390 A.2d 172, 178 (Pa. 1978) (The contention that an expert should

Commonwealth v. Daniels, 390 A.2d 172, 178 (Pa. 1978) (The contention that an expert should

never be permitted to express an opinion on an "ultimate issue" is similarly misconceived.). [fa

never be permitted to express an opinion on an " ultimate issue" is similarly misconceived.). If a

witness testifies improperly, potential prejudice can be cured by a timely curative instruction, as

witness testifies improperly, potential prejudice can be cured by atimely curative instruction, as

"when an objection is sustained and a cautionary instruction is given, and the defendant fails to

"when an objection is sustained and acautionary instruction is given, and the defendant fails to

object to the cautionary instruction or to request any further instruction, counsel is presumed to be

satisfied with the cautionary instruction and any prejudice is cured, because we further presume

that the jury follows the court's instructions." MountOlivet Tabernacle v, Edwin L. Wiegand Div,,

that the jury follows the court's instructions." Mount Olivet Tabernacle v. Edwin L. Wie and Div.

Emerson Elec. Co,, 781 A.24 1263, 1275 n.12 (Pa. Super. 2001) (citing Commonwealth v. Jones,

citing Commonwealth v. Jones,

Emerson Elec. Co., 781 A.2d 1263, 1275 n.12 (Pa. Super. 200 1) (

668 A.24 491, 508 (Pa. 1995),cert denied, 519 U.S. 826 (1996))

668 A.2d 491, 508 (Pa. 1995), cert denied, 519 U.S. 826 ( 1996)).

Detective Eisenhauer was offered as an expert witness without defense voir dire or

objection. See N.T. 4/122022, p. 266. At trial, defense counsel objected to Detective Eisenhauer's

objection. See N.T. 4/12/2022, p. 266. At trial, defense counsel objected to Detective Eisenhauer's

testimony suggesting that there was likely another party who would come to deliver drugs as the

narcotics sale orchestrated by the CHS and Mr. Rosales involved drugs in quantities beyond what

was recovered from Room 348, which was offered in response to the question "how - is that

was recovered from Room 348, which was offered in response to the question "how — is that

consistent with the way a drug trafficking organization would operate?" N.T. 4/12/2022, pp. 288

consistent with the way adrug trafficking organization would operate?" N.T. 4/ 2022, pp. 288

12/

- 291. As the narcotics recovered from Room 348 included 95.89 grams of heroin, but the

— 291. As the narcotics recovered from Room 348 included 95.89 grams of heroin, but the

transaction as negotiated was for two kilograms - 2,000 grams - of heroin, there is an inherent

transaction as negotiated was for two kilograms — 2,000 grams — of heroin, there is an inherent

incongruity between the deal as designed and the deal that could actually be satisfied with the

contraband already in Appellant and Mr. Rosales's possession. See C-17. Defense counsel objected

further that Detective Eisenhauer's use of "they" in testifying "I feel very confident that they were

further that Detective Eisenhauer's use of "they" in testifying "Ifeel very confident that they were

going to attempt to set up a distribution hub right in this area from this organization." N.T.

4/12/2022, pp. 295 - 296. This Court gave a curative instruction to the jury, and upon defense

12/2022, pp.

4/ 295 — 296. This Court gave acurative instruction to the jury, and upon defense

counsel's motion, ruled that "[t]Jo the extent that the word they was brought up, it will be stricken."

counsel's motion, ruled that "t]o the extent that the word they was brought up, it will be stricken."

N.T, 4/12/2022, p. 298. Defense Counsel expressed their satisfaction with this resolution. N.T.

N.T. 4/

12/

2022, p. 298. Defense Counsel expressed their satisfaction with this resolution. N.T.

4/12/2022, p. 298.

12/

2022, p. 298.

Appellant did not identify what portion of Detective Eisenhauer's testimony exceeded the

scope of proper expert testimony in his 1925(b) statement. However, as this court struck the

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