J-S04027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

NOEL CALA LELIEBRE,

                            Appellant                       No. 904 MDA 2014


        Appeal from the Judgment of Sentence entered March 21, 2014,
               in the Court of Common Pleas of Luzerne County,
             Criminal Division, at No(s): CP-40-CR-0000050-2011


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                                   FILED MARCH 26, 2015

        Noel Cala Laliebre, (“Appellant”), appeals from the judgment of

sentence imposed after a jury convicted him of possession with intent to

deliver a controlled substance, possession of a controlled substance, and

possession of drug paraphernalia.1             We affirm Appellant’s convictions but

remand for re-sentencing for the reasons discussed below.

        The charges against Appellant arose after a confidential informant

reported to Detective Darryl Ledger of the Hazleton City Police Department

that a Hispanic male known as “Noel” who lived at 583 Carson Street in

Hazleton, Pennsylvania, was selling large amounts of heroin.             Affidavit of
____________________________________________


1
    35 P.S. § 780-113(a)(30), (a)(16) and (a)(32).




*Retired Senior Judge assigned to the Superior Court.
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Probable Case, 11/10/10.    Detective Ledger arranged for the confidential

informant to make two controlled purchases of heroin from Appellant’s

residence, resulting in Appellant’s arrest.   Id.    A search of Appellant’s

residence yielded a large amount of unpackaged heroin and 75 baggies of

heroin packaged for sale. Id.

     The trial court summarized the procedural history as follows:


          On February 17, 2011, an information was filed charging
     [Appellant] with [the aforementioned crimes].

                                       ***

           [Appellant] filed a Motion to Suppress Evidence and
     Supplemental Motion to Suppress Evidence. Both Motions were
     heard by [the Honorable Tina Polachek Gartley] and were denied
     in an Order dated June 28, 2012. Shortly after this case was
     reassigned for trial, [the Honorable Michael T. Vough] received a
     Motion to Dismiss Pursuant to Rule 600 [filed on January 6,
     2014]. This Motion was denied on January 21, 2014 and the
     case proceeded to trial. On January 23, 2014, the jury found
     [Appellant] guilty ...

           Sentencing took place on March 21, 2014, and [Appellant]
     received 36 to 120 months on Count 1, possession with intent to
     deliver, which was the mandatory minimum pursuant to 18
     Pa.C.S.A. Section 7508(a)(7)(ii).  Count 2, possession of a
     controlled substance, merged. One year probation concurrent to
     Count 1 was imposed on Count 3, possession of drug
     paraphernalia.

          [Appellant] appealed on April 1, 2014 and his Statement of
     Matters Complained of on Appeal was filed on April 23, 2014.

Trial Court Opinion, 5/28/14, at 1-2 (unnumbered).

     Appellant presents the following issues for our review:




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      I.    Whether the charges against Appellant should have been
      dismissed pursuant to Pa.R.C.P. 600.



      II.  Whether the Trial Court erred in dismissing Appellant’s
      Motion to Suppress Evidence.

Appellant’s Brief at 1.

      In his first issue, Appellant argues that the trial court erred in denying

his motion to dismiss the charges against him pursuant to Pa.R.Crim.P. 600.

Rule 600 was designed “to prevent unnecessary prosecutorial delay in

bringing a defendant to trial.”   Commonwealth v. Brock, 61 A.3d 1015,

1021 (Pa. 2013). “In evaluating Rule 600 issues, our standard of review of

a trial court’s decision is whether the trial court abused its discretion.”

Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en

banc), appeal denied, 875 A.2d 1073 (Pa. 2005) (citations and internal

quotations omitted).      “The proper scope of review … is limited to the

evidence on the record of the Rule 600 evidentiary hearing, and the findings

of the trial court. An appellate court must view the facts in the light most

favorable to the prevailing party.”   Id. at 1238-39 (internal citations and

quotation marks omitted).      Importantly, a court will grant a motion to

dismiss on Rule 600 grounds only if a defendant has a valid Rule 600 claim

at the time the motion is filed. Id. at 1243.

      Rule 600 provides, in pertinent part:

         (A)   Commencement of Trial; Time for Trial


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            (1)   For the purpose of this rule, trial shall be deemed to
                  commence on the date the trial judge calls the case
                  to trial, or the defendant tenders a plea of guilty or
                  nolo contendere.

            (2)   Trial shall commence within the following time
                  periods.


            (a)   Trial in a court case in which a written complaint is
                  filed against the defendant shall commence within
                  365 days from the date on which the complaint is
                  filed.

                                        ***

      (C) Computation of Time

            (1)   For purposes of paragraph (A), periods of delay at
                  any stage of the proceedings caused by the
                  Commonwealth when the Commonwealth has failed
                  to exercise due diligence shall be included in the
                  computation of the time within which trial must
                  commence. Any other periods of delay shall be
                  excluded from the computation.

      The Comments to Rule 600(C)(1) explain that “[w]hen the defendant

or the defense has been instrumental in causing the delay, the period of

delay will be excluded from computation of time.”      See Pa.R.Crim.P. 600

comment. The comments cite as an example of excludable delay caused by

the defendant “such period of delay at any stage of the proceedings as

results from ... the defendant's attorney or any continuance granted at the

request of the defendant or the defendant's attorney.” Id.

      In the present case, Rule 600 required the Commonwealth to bring

Appellant to trial within 365 days of the filing of the criminal complaint. See

Pa.R.Crim.P., Rule 600(A)(2)(a). The complaint was filed on November 24,

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2010, and the mechanical run date was November 24, 2011 — 365 days

after the complaint against Appellant was filed. See Pa.R.Crim.P. 600(A)(3).

Appellant’s trial did not commence until January 22, 2014, which was well

after the expiration of the 365-day period.

      Appellant in his brief does not dispute any of the delay in the

commencement of trial, except for the continuances requested by his trial

counsel on May 20, 2013, June 10, 2013, and September 9, 2013.

Appellant’s Brief at 6-7.      Appellant argues that although his counsel

requested the continuances, he was not notified of the continuances and did

not consent to them.     Accordingly, Appellant argues that delay caused by

those continuances should not be attributed to him, and he is therefore

entitled to Rule 600 relief. Id.

      As previously explained, the comments to Rule 600(C)(1) make clear

that in determining the period for commencement of trial, any continuance

granted at the request of the defendant or the defendant's attorney is

considered    excludable.     Therefore,   the   continuances   requested   by

Appellant’s counsel, here, are properly excluded from the Rule 600

calculation. Moreover, Appellant’s claim that trial counsel acted without his

authorization when he requested continuances on May 20, 2013, June 10,

2013, and September 9, 2013 constitutes, in essence, a claim that his trial

counsel’s stewardship of his case was ineffective.    In Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior


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holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent

certain circumstances, claims of ineffective assistance of counsel should be

deferred until collateral review under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. § 9541-46.        Holmes, 79 A.3d at 576.           The specific

circumstances under which ineffectiveness claims may be addressed on

direct appeal are not present in the instant case.     Id. at 577-78 (holding

that the trial court may address claim(s) of ineffectiveness where they are

“both meritorious and apparent from the record so that immediate

consideration and relief is warranted,” or where the appellant’s request for

review of “prolix” ineffectiveness claims is “accompanied by a knowing,

voluntary, and express waiver of PCRA review”).        Accordingly, Appellant

must raise his ineffectiveness claim alleging that trial counsel filed

continuances without his consent in a PCRA petition.

      In his second issue, Appellant argues that the trial court erred in

denying his suppression motion.    In reviewing Appellant’s challenge to the

denial of his suppression motion, we recognize:

      Our standard of review of a denial of suppression is whether the
      record supports the trial court's factual findings and whether the
      legal conclusions drawn therefrom are free from error. Our
      scope of review is limited; we may consider only the evidence of
      the prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the court erred in reaching its legal conclusions based
      upon the facts.




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Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)

(citations omitted).   “It is within the suppression court's sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

to their testimony.    The suppression court is free to believe all, some or

none    of   the   evidence   presented    at   the   suppression   hearing.”

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003)

(citations omitted).   However, the suppression court's conclusions of law,

which are not binding on an appellate court, are subject to plenary review.

Commonwealth v. Johnson, 969 A.2d 565, 567 (Pa. Super. 2009)

(citations omitted).

       Appellant claims that the search warrant for his residence should have

been dismissed for lack of probable cause because the Commonwealth was

unable to corroborate the information provided by the confidential informant

regarding sales of heroin from Appellant’s residence. Appellant’s Brief at 8-

11.    Specifically, Appellant argues that the confidential informant was

unreliable, had not previously worked with the Hazleton police, and was a

drug user with a criminal record. Id.

       Preliminarily, we note that the certified record on appeal does not

contain the search warrant and affidavit of probable cause.         “It is the

obligation of the appellant to make sure that the record forwarded to an

appellate court contains those documents necessary to allow a complete and

judicious assessment of the issues raised on appeal”, and “without these


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documents, we are in no position to review the conclusion reached by the

trial court.”   Commonwealth v. Walker, 874 A.2d 667, 677 (Pa. Super.

2005) (finding waiver where defendant challenged the propriety of the

authorization of a search warrant but failed to include in the certified record

the warrant and affidavit of probable cause).

      Even absent waiver, the trial court, in its order denying suppression

explained that the information obtained from the confidential informant

regarding sales of heroin from Appellant’s residence was independently

corroborated by two separate controlled purchases of heroin, which provided

the Hazleton police with the requisite probable cause for the issuance of a

search warrant of Appellant’s residence. Trial Court Order, 6/28/12, at 1.

Accordingly, Appellant’s claim that the search warrant was unsupported by

probable cause lacks merit. See Commonwealth v. Dean, 693 A.2d 1360

(Pa. Super. 1997) (where informant told police that the defendant was

selling drugs from his home and in response the police conducted a

controlled buy which corroborated the initial information, a magistrate could

have concluded by a fair probability that drug selling was taking place at

appellant's residence to support issuance of a search warrant) citing

Commonwealth v. Baker, 532 615 A.2d 23 (Pa. 1992) (facts sufficient to

establish probable cause for issuance of search warrant where informant's

information implicating defendant as seller was corroborated by police

officer's first-hand observations when he gave informant money to purchase


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cocaine and saw informant enter residence and return from residence with

cocaine); Commonwealth v. Luton, 672 A.2d 819 (Pa. Super. 1996)

(police-conducted      “controlled    buy”     sufficiently   corroborated   neighbors'

observations alleging drug operations from defendant's home).

       However, because the mandatory minimum sentence which the trial

court applied at Count 1 (possession with intent to deliver), pursuant to 18

Pa.C.S.A. Section 7508(a)(7)(ii) has been held to be unconstitutional, we

remand this case to the trial court for re-sentencing.2 Commonwealth v.

Fennell, 105 A.3d 13 (Pa. Super. 2014) (concluding that § 7508 is facially

unconstitutional); Commonwealth v. Vargas, --- A.3d ----, 2014 WL

7447678 (Pa. Super. 2014); Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (en banc) (applying Alleyne v. United States, 133 S.Ct.

2151 (2013) and its progeny retroactively); Here, sentencing occurred on

March 21, 2014, prior to our express finding on November 21, 2014 in

Fennel that § 7508 is unconstitutional.            Therefore, given the retroactivity

ruling in Newman, we are constrained to remand for re-sentencing.




____________________________________________


2
  Although Appellant has not raised this issue, “we are empowered, if not
compelled”, to address it sua sponte. Commonwealth v. Donahue, 516
A.2d 373, 374 (Pa. Super. 1986)(citation omitted); see also
Commonwealth v. Wolfe, --- A.3d ----, 2014 WL 7331915,
Pa.Super.,2014 (a challenge to the legality of a sentence can never be
waived and may be raised by the reviewing court sua sponte).



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     Convictions affirmed.   Judgment of sentence vacated and remanded

for re-sentencing without the application of the mandatory minimum

prescribed in 42 Pa.C.S.A. § 9718. Jurisdiction relinquished.

     Judge Strassburger joins in the Memorandum.

     Judge Bowes files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2015




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