Commonwealth v. Delvalle

• Decision Date: 28 August 2013
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Roberto DELVALLE, Appellant.
• Court: Pennsylvania Superior Court

74 A.3d 1081

2013 PA Super 244

COMMONWEALTH of Pennsylvania, Appellee

v.Roberto DELVALLE, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 22, 2013.

Filed Aug. 28, 2013.

Richard T. Brown, Jr., Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OLSON, J., WECHT, J., and COLVILLE, J.^*

OPINION BY WECHT, J.:

Roberto Delvalle (“Appellant”) appeals from the September 9, 2011, judgment of sentence. We affirm.

In its Pa.R.A.P. 1925(a) opinion, the trial court set forth the salient facts of this case as follows:

On October 30, 2010, two undercover Philadelphia police officers in “plainclothes” conducted a surveillance for drug sales beginning at approximately 3:45 p.m. From a confidential location, officer Eric Crawford used binoculars to observe [Appellant] from a distance of 50 to 55 feet.

The officer observed co-defendant Maria Melendez walk up to [Appellant], speak with [Appellant], and hand [Appellant] small items retrieved from the pocket of her hooded sweatshirt.

[Appellant] immediately placed those items down the front of his pants. Melendez walked 20 to 30 feet away from [Appellant] and stood in front of a rowhouse.

Officer Crawford saw a woman walk up to [Appellant] and speak with [Appellant]. As they spoke, [Appellant] pointed to Melendez. The woman immediately walked to Melendez where she spoke with Melendez, handed Melendez money, and was given small items by Melendez[,] which Melendez retrieved from the pocket of her hooded sweatshirt. During the next 17 minutes, the officer saw three more individuals have identical interactions with [Appellant] and Melendez. Each person walked up to [Appellant] and spoke with [Appellant]. As they spoke, [Appellant] pointed to Melendez. Each person then immediately walked to Melendez where they spoke with Melendez, handed Melendez money, and were given small items by Melendez[,] which Melendez retrieved from the pocket of her hooded sweatshirt.

Officer Crawford was unable to leave his confidential location because he was working as back up to his partner, Officer Torres,¹ who was observing other narcotic transactions from the same confidentiallocation. Officer Crawford was also unable to have other officers stop the people interacting with Melendez and [Appellant] because those officers were backing up Officer Torres in his simultaneous drug investigation. When Officer Torres ended his investigation, Officer Crawford had two officers stop [Appellant] and Melendez. [Appellant] had two “bundles” of heroin in the front of his pants. Each bundle contained 14 packets of heroin with the word “Moon Dust” written on the packet. Melendez also had two “bundles” of heroin in the pocket of her hooded sweatshirt. One bundle contained 14 packets of heroin and the other bundle contained seven packets of heroin. Each packet had the word “Moon Dust” written on it. Melendez also had $59 in her possession.

On the day that Officer Crawford watched [Appellant] and Melendez, he was assigned to the narcotic enforcement team. He had been assigned there for four years. Officer Crawford knew the block where [Appellant] was arrested to be “a high drug traffic area for specifically heroin and crack cocaine.”

Officer Crawford conducted 30 to 40 surveillances for narcotic transactions at the location where [Appellant] was arrested prior to [Appellant's] arrest. Those surveillances led to 75 to 100 arrests as a result of drug transactions “very similar” to the interactions which [Appellant] and Melendez were a part of. Prior to [Appellant's] arrest, Officer Crawford received training regarding the manner in which drugs are packaged, and the manner in which street level drug dealers distribute narcotics. Officer Crawford observed groups of two or more people working together to sell drugs approximately 100 times prior to arresting [Appellant]. Finally, Officer Crawford saw drug dealers stash narcotics in the front of their pants, i.e., where heroin was recovered from [Appellant], well over 100 times.

[Appellant] testified at trial. He largely corroborated the Commonwealth's evidence. [Appellant] confirmed that: he was standing in the area testified to by police; he knew [Melendez]; he spoke with people while standing on the sidewalk; he gestured with his hands while speaking to people; and that he had drugs when the police stopped and searched him. Notably, [Appellant] first stated during cross-examination, “No, I didn't have drugs on me.” [Appellant] then stated, “I want to tell the truth. I had drugs.”

Trial Court Opinion (“T.C.O.”), 5/4/2012, at 3–5 (references to notes of testimony and footnote omitted).

Appellant was charged with possession of a controlled substance with the intent to deliver (“PWID”),² possession of a controlled substance, ³ and criminal conspiracy.⁴ Appellant appeared for trial on these charges on September 9, 2011. Prior to trial, Appellant moved to suppress the heroin recovered from his October 30, 2010, arrest, contending that the police lacked probable cause to arrest him. Following a hearing, the trial court denied the motion. Appellant then waived his right to a jury trial, and proceeded with a non-jury trial. At the trial's conclusion, the trial court found Appellant guilty of all of the charges. Thereafter, Appellant was sentenced to three to six years' incarceration pursuant to the mandatory minimum sentence set forth in 18 Pa.C.S. § 7508(a)(7)(i), and a consecutive five-year period of probation.

On September 9, 2011, Appellant filed post-sentence motions alleging that the verdict was against the weight of the evidence and that the trial court erroneously applied the mandatory minimum sentence. On January 18, 2012, Appellant's post-sentence motions were denied by operation of law. On February 17, 2012, Appellant filed a notice of appeal. On March 29, 2012, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. On May 4, 2012, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises three issues for our consideration:

1. Did the court err in denying the motion to suppress, as the police were observing some other activity and officers did not stop the people they alleged to have been buyers, and they seized [Appellant] without any reason to believe that he had committed any crime?

2. Did the court err in denying the motion for a new trial because the verdict was against the weight of the evidence? The evidence that [Appellant] was no more than a buyer from Ms. Melendez was more credible than that [Appellant] was needed as any kind of carnival barker to attract buyers to Ms. Melendez, when Ms. Melendez was fully visible to potential buyers on the street and there is no evidence of any conversation or written agreement between the two. [Appellant] never accepted money or delivered any controlled substance to any of the other alleged buyers.

3. Did the court err in imposing the mandatory minimum sentence based on controlled substances allegedly possessed by Ms. Melendez, where there is no evidence [Appellant] ever controlled the heroin of Ms. Melendez? The heroin allegedly possessed solely by [Appellant] was less than one gram, and thus a guideline sentence (lower than the mandatory minimum) would have been the proper sentence.

Brief for Appellant at 2.

Appellant first argues that the trial court erred in concluding that the police had probable cause to support Appellant's arrest and subsequent search. When reviewing a challenge to a trial court's denial of a suppression motion, our standard of review 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 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. Hoppert, 39 A.3d 358, 361–62 (Pa.Super.2012) (quoting

Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654–56 (2010)).

In an argument so brief that it avoids waiver by only the slimmest of margins,⁵ Appellant contends that the police lacked probable cause to arrest and search him. Relying upon Commonwealth v. Dunlap, 596 Pa. 147, 941 A.2d 671 (2007), and Commonwealth v. Thompson, 604 Pa. 198, 985 A.2d 928 (2009), Appellant essentially maintains that the police in this case observed behavior that was not immediately identifiable as unlawful, and that the trial court improperly bootstrapped this behavior with the officer's experience to find probable cause. We disagree.

Probable cause exists where the facts and circumstances within the knowledge of the officer are based upon reasonably trustworthy information and are sufficient to warrant a man of reasonable caution in the belief that the suspect “has committed or is committing a crime.” Thompson, 985 A.2d at 931. “In determining whether probable cause exists, we apply a totality of the circumstances test.” Id.

In Dunlap, our Supreme Court considered the impact that police training and experience had on determining whether probable cause existed to support an arrest where the police observed only a single hand-to-hand transaction of an unknown...