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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DARRYL MATTHEW NELSON,

                         Appellant                  No. 1391 WDA 2013


            Appeal from the Judgment of Sentence July 10, 2013
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000529-2012

BEFORE: BOWES, OLSON, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 19, 2015

       Darryl Matthew Nelson appeals from the aggregate judgment of

sentence of five to ten years incarceration to be followed by five years

probation after the court found him guilty of possession with intent to deliver

(“PWID”) heroin, possession of heroin, and conspiracy to commit PWID.

After careful review, we affirm.

       Monroeville Police and agents from the Office of the Attorney General

were conducting an undercover narcotics operation at a Days Inn in

Monroeville on December 12, 2011.       That investigation was unrelated to

Appellant. However, during the course of that operation, law enforcement

observed suspicious activity involving two hotel rooms, Room 319 and Room

329.   Specifically, OAG agents Timothy Yesho and Ronald Sepic witnessed

numerous incidents between 3:00 p.m. and 4:30 p.m. that were consistent
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with possible drug transactions. Five of the occurrences happened between

3:13 p.m. and 3:20 p.m. Two more instances happened between 4:15 and

4:30. In each case, an individual would arrive on foot or in a vehicle and

proceed to one of two rear stairwells. One or two African American males

would then exit Room 319 and meet the other person in the stairwell for

thirty seconds to a minute. The person who arrived at the Days Inn would

then leave and the males would return to Room 319. Police did not actually

witness any transactions.    Another agent, Francis Speranza, also saw a

male, later identified as Robert Smiley, exit Room 329, and walk to Room

319.    Smiley and another African American male entered one of the

stairwells and met two individuals who had driven to the Days Inn.

       During one of these suspected drug transactions, at approximately

3:15 p.m., Agent Sepic saw a Hyundai vehicle enter the parking lot. There

were three occupants in the vehicle. A white male left the car and entered

one of the stairwells.   An African American male exited Room 319 and

entered the same stairwell. The white male then returned to the car and the

other male to the hotel room. Agent Sepic provided Agent Speranza with a

description and license number of the Hyundai.

       Agent Speranza observed the car pull to the front of the Days Inn and

park. The driver of the car, a woman, exited the vehicle and opened a rear

door. The woman then injected the back seat passenger with a substance.

Agent Speranza believed that the person had just used heroin and radioed


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Detective John Trukla of the Monroeville Police.   Police then effectuated a

traffic stop of the Hyundai and arrested the individuals.   Police discovered

twelve stamp bags of heroin, marked “Juliette,” and also recovered a syringe

and spoon.

      Agent Speranza consulted with a deputy attorney general regarding

procuring a search warrant for Room 319 and 329.       The deputy attorney

general agreed that probable cause existed and instructed the agent to

secure the rooms if any individuals were observed leaving the rooms while

the search warrant application was being prepared.     Police secured room

keys for Room 319 and 329.      Shortly thereafter, Smiley was seen exiting

Room 329. Officers detained him and Agent Yesho, Detective Trukla, Agent

Andrew Sakmar, and an additional Monroeville police officer went to secure

Room 319.       When they approached the hotel room door, they detected a

strong marijuana odor coming from inside.

      Agent Yesho knocked and announced twice, “Police.”             No one

answered the door, but the officers could hear movement and muffled voices

inside. Detective Trukla then used a pass key to open the door. The door

was opened several inches, and a haze of smoke emanated from the room.

The door could not be opened completely because the security latch had

been secured.     Agent Yesho saw a person run from the door toward what

turned out to be the restroom. Detective Trukla forced the door open using

his shoulder.


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     Upon entering the room, police encountered Appellant and three other

individuals, Anthony Williams, Gerald Lee, and Cedric Young. Williams had

run into the bathroom and was followed by Agent Yesho and Detective

Trukla.   Detective Trukla discovered fifty-six stamp backs of heroin in the

toilet. Also inside the room, in plain view, were bricks of suspected heroin,

plastic baggies, and cash on the beds, floor, and dressers.     Thirty-seven

stamp bags of heroin, marked “Juliette”, and $119 were on Young’s person.

Police also recovered 257 stamps bags of heroin from Williams, who also

possessed $1,400. Appellant was found in possession of $567. Police also

discovered $940 from a nightstand, $405 on a bed, $75 on another bed, and

$1,200 in a cigar box. In addition, fifty stamp bags were found in a trash

basket and 310 bags of heroin were located on a bed. Police did not find

any syringes or other paraphernalia used to ingest heroin.

     Marijuana blunts were in an ashtray, ten cellphones were in the room,

and a loaded .45 caliber pistol was found under one of the mattresses. Lee’s

fingerprint was on that weapon. In Room 329, police also located a loaded

9mm Glock pistol, two magazines for the weapon, a box of 9mm ammunition

and two boxes of .45 caliber ammunition.

     The Commonwealth charged Appellant with two counts each of PWID

heroin and possession of heroin, and one count each of receiving stolen

property and conspiracy to commit PWID. Appellant adopted a suppression

motion filed by co-defendant Williams.        The trial court conducted a

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suppression hearing on March 25, 2013, relative to Appellant, Williams, Lee,

and Young. The court denied the suppression motion and Appellant waived

his jury trial rights. A bench trial ensued. After granting Appellant’s motion

for judgment of acquittal relevant to the receiving stolen property count, the

court found Appellant guilty of one count each of PWID, possession of

heroin, and conspiracy.

      The court conducted a sentencing hearing on July 10, 2013.            It

sentenced Appellant to a term of incarceration of three to six years to be

followed by a consecutive period of five years probation for PWID and a

consecutive sentence of two to four years imprisonment for the conspiracy

charge. The possession charge merged with the PWID count and therefore

the court imposed no sentence on that charge. This timely appeal ensued.

The trial court directed that Appellant file and serve a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.     Appellant complied,

and the trial court authored its Rule 1925(a) opinion.    The matter is now

ready for this Court’s review.      Appellant raises three issues for our

consideration.

      I.    Did the trial court err in denying Mr. Nelson’s motion to
            suppress evidence that was the product of a warrantless
            search, which was not justified under any recognized
            exception to the warrant requirement?

      II.   Was the evidence sufficient to support Mr. Nelson’s
            convictions for possession of a controlled substance and
            possession of a controlled substance with intent to deliver
            where the Commonwealth merely established that Mr.

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              Nelson was present in a hotel room where drugs were
              found?

       III.   Was the evidence sufficient to support Mr. Nelson’s
              conviction for conspiracy to commit the crime of
              possession of a controlled substance with intent to deliver
              where the Commonwealth merely established that Mr.
              Nelson was present in a hotel room where drugs were
              found?

Appellant’s brief at 6.

       Appellant’s second and third issues pertain to the sufficiency of the

evidence. Since sufficiency claims warrant discharge rather than retrial, we

address those claims at the outset. In performing a sufficiency review, we

consider all of the evidence admitted, even improperly admitted evidence.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

We view the evidence in a light most favorable to the Commonwealth as the

verdict winner, drawing all reasonable inferences from the evidence in favor

of the Commonwealth. Id.

       The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim

will fail.    Id.   In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances[,]” a defendant is entitled to relief. Id. This Court

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does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id.

      Determining whether a person possessed a drug with an intent to

deliver is based upon the totality of circumstances.    Commonwealth v.

Ratsamy, 934 A.2d 1233 (Pa. 2007).        Necessarily, if a person possesses

narcotics with intent to deliver, he or she is guilty of possession.    As it

relates to conspiracy, we have outlined that

      “To sustain a conviction for criminal conspiracy, the
      Commonwealth must establish the defendant: 1) entered into an
      agreement to commit or aid in an unlawful act with another
      person or persons; 2) with a shared criminal intent; and 3) an
      overt act was done in furtherance of the conspiracy.”
      Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa.Super.
      2011). “The conduct of the parties and the circumstances
      surrounding such conduct may create a web of evidence linking
      the accused to the alleged conspiracy beyond a reasonable
      doubt.” Id. The conspiratorial agreement “can be inferred from
      a variety of circumstances including, but not limited to, the
      relation between the parties, knowledge of and participation in
      the crime, and the circumstances and conduct of the parties
      surrounding the criminal episode.” Id.

Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa.Super. 2013) (en

banc).

      Appellant argues that the evidence in this case is insufficient to

establish more than mere presence and possession of money. He contrasts

his case with our recent decision in Commonwealth v. Vargas, 108 A.3d

858 (Pa.Super. 2014) (en banc). In Vargas,




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     [defendant] was inside a hotel room with two other individuals
     while a third person remained outside in a Chevy Impala with a
     New Jersey license plate. The person in the Impala had indicated
     to police that the owner of the car was in the [hotel] room where
     police located Appellant. Police secured a search warrant for the
     [hotel] room and found four bags of heroin on another individual
     who was in the hotel room with Appellant. Also, police observed
     a large Ziploc bag that ordinarily contains smaller Ziploc bags,
     which one officer described as being used almost exclusively for
     the packaging of narcotics. Rubber bands, frequently used in
     packaging drugs, were found floating in the toilet, which
     appeared to have been flushed just before police arrived. Drug
     sniffing dogs performed a sniff on the outside of both Appellant's
     car and the Impala, which belonged to Francisco Saldana, one of
     the men who was inside the hotel room with Appellant. The dog
     alerted on both cars. Police then obtained a search warrant for
     the vehicles. Inside Mr. Saldana's car, police found a bag
     containing over 370 grams of heroin and a loaded .40 caliber
     semi-automatic pistol. These items were located in a secret
     compartment in the vehicle. Part of the drugs found in Mr.
     Saldana's vehicle were packaged in balloon and condom-like
     wrappers. . . .

            Inside the hotel room, an industrial-sized trash bag and
     large blue plastic containers were seized. The bag and containers
     as well as a trash can in the room contained numerous items
     used to package heroin, including rubber stamps, wax paper,
     digital scales, empty condom wrappers similar if not identical to
     those used to package the drugs in Mr. Saldana's car, thousands
     of one-inch-by-one-inch Ziploc bags, grinders, and lamps. The
     trash bag and plastic containers were on the floor of the [hotel]
     room and were not hidden. Six grinders and two scales tested
     positive for either cocaine or heroin residue. Additional
     packaging in the room tested positive for heroin residue. A
     surveillance video of Mr. Saldana entering the hotel room
     showed that he had arrived at the hotel shortly before the police
     and had entered the hotel room without any of the plastic
     containers or trash bag. No luggage or bags were located in
     Appellant's vehicle. Expert testimony was introduced that the
     materials recovered indicated a mobile heroin packaging mill.




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Vargas, supra at 866 (internal citation omitted). The Vargas Court found

the evidence sufficient for both PWID and conspiracy.

     Appellant maintains that, although drugs, cash, and a significant

amount of baggies used for packaging heroin were found either in the room

or on persons present inside the room, the “hotel room in this case was not

filled with the vast quantity of drug paraphernalia found in Vargas.”

Appellant’s brief at 29. In addition, Appellant contends that there was more

compelling evidence in Vargas that the occupants of the room were

attempting to destroy evidence.

     According to Appellant, this case is more akin to Commonwealth v.

Ocasio, 619 A.2d 352 (Pa.Super. 1993), which the Vargas Court

distinguished. In Ocasio, the defendant lived at a house where police found

a large amount of cocaine, packaging materials, and the defendant had $422

in cash on his person. Therein, police were executing a search warrant at

the home when Ocasio returned home.          The home contained multiple

bedrooms and Ocasio was not the only resident.     In the kitchen trashcan,

police discovered 567 vials of cocaine. They also recovered a large chunk of

cocaine and close to $6,000 in a third floor bedroom.      In the basement,

police found a scale, a bag containing empty plastic vials, and another

baggie containing multiple empty clear packets.     Police also recovered a

plastic grinder commonly used for diluting cocaine.     This Court found the

evidence in Ocasio insufficient to convict him of PWID and conspiracy.

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      We find this case is more analogous to Vargas. Unlike Ocasio, this

matter did not involve the defendant arriving at his home. Here, Appellant

was already inside a hotel room with numerous other individuals when police

arrived.   The Court in Ocasio noted that the Commonwealth needed to

establish a nexus between the rooms were the drugs were kept and the

defendant or that he participated in the drug activity. In this case, Appellant

was directly connected to the room where the drugs were stored. Not only

were those drugs in plain view, but packaging material and money were also

clearly evident.    Further, police had the room under surveillance for an

extended period. There is no indication that Appellant recently arrived inside

the room.     Moreover, our standard of review requires us to give the

Commonwealth all reasonable inferences from the evidence. Aside from the

narcotics located in the room and on other individuals present, those inside

the room had also attempted to discard drugs in the bathroom, just as in

Vargas.    Appellant’s contention that it is possible that he arrived to play

video games and that others were engaged in the drug business ignores our

standard of review. The evidence is sufficient to establish PWID, possession

of heroin, and conspiracy. See Vargas, supra; see also Feliciano, supra.

Appellant is entitled to no relief.

      Having addressed Appellant’s sufficiency claims, we now consider his

suppression issue and find that our recent decision in Commonwealth v.

Haynes, 116 A.3d 640 (Pa.Super. 2015), controls.         Therein, state police

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were conducting surveillance outside an apartment complex.              Police

observed what appeared to be drug sale activity and effectuated a traffic

stop of a vehicle in which an occupant was believed to have purchased

drugs. The driver of the car was found with heroin and admitted to buying

heroin from a woman at the apartment complex. A woman was seen leaving

one of the buildings in the complex and meeting a series of persons in the

parking lot and taking part in what appeared to be hand-to-hand drug

transactions. This activity occurred on three occasions. Police followed the

woman, but were unable to intercept her before she entered the apartment.

Officers then knocked and asked to speak to the renter.          Police heard

rumbling inside, identified themselves as police, and asked for the door to be

opened. No one responded, and after approximately thirty seconds, police

forced entry.   They found in plain view nine bricks of heroin, money, and

burnt marijuana blunts. On appeal, Haynes alleged that the warrantless

entry was unlawful and violated his Fourth Amendment and Article I, § 8

rights.

      This Court undertook a lengthy discussion of the historical meaning

and purpose of the constitutional warrant protections and the common law

authority to conduct warrantless entry into a residence. We concluded that

police therein did not act unconstitutionally and improperly create their own

exigency.   Haynes is directly analogous to the present case. Here, similar

to Haynes, police observed suspicious activity that they believed involved

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narcotics transactions.   In each case, police stopped a vehicle in which

occupants were suspected of engaging in the purchase of narcotics.      That

stop resulted in the recovery of heroin.       Police then approached a room

where it was suspected that the drug dealers were operating and knocked

and announced their presence. In both Haynes and this case, the smell of

marijuana was emanating from the room and those inside refused to open

the door.   Police thereafter entered and found drugs and money in plain

view. For reasons fully delineated in Haynes, Appellant’s claim that police

lacked exigent circumstances fails.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




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