J-A27008-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CEDRIC YOUNG,

                        Appellant                  No. 1288 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-0000532-2012

BEFORE: BOWES, OLSON, AND STABILE, JJ.

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

     Cedric Young appeals from the 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”), possession of

a controlled substance, and conspiracy to commit PWID.       Since Appellant

was sentenced under mandatory minimum statutes that have been declared

unconstitutionally void, we are constrained to vacate his judgment of

sentence and remand for resentencing. We affirm in all other respects.

     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
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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

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 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

black 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

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

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

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, which were marked “Juliette,” and also

recovered a syringe and spoon.

     Agent Speranza consulted with a deputy attorney general regarding

procuring a search warrant for Rooms 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 was

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

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

shoulder.

     Upon entering the room, police encountered Appellant and three other

individuals, Anthony Williams, Gerald Lee, and Darryl Nelson. 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 Appellant’s

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

also possessed $1400. Nelson 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 stolen

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

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property and conspiracy to commit PWID. Appellant adopted a suppression

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

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

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

his jury trial rights.   The court conducted a bench trial.   After granting

Appellant’s motion for judgment of acquittal on the receiving stolen property

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

possession of heroin, and conspiracy. On April 19, 2013, the Commonwealth

informed Appellant that it intended to seek mandatory minimum sentences

under 18 Pa.C.S. § 7508 and 42 Pa.C.S. § 9712.1.

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

sentenced Appellant to a mandatory term of incarceration of five to ten

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

conspiracy.    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 presents two issues for our consideration.

   A. Under Pennsylvania law, does the Commonwealth survive a
      sufficiency challenge to the charges of possession with intent to
      deliver narcotics and conspiracy to receiving stolen property

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       when the Appellant is merely present in a hotel room that is
       rented by one of multiple co-defendants where large amounts of
       drugs are found on the bed, a stolen gun is retrieved from under
       a mattress, a fingerprint to the gun is linked to the renter of the
       same room and the Appellant is only found to have a small
       amount of drugs and cash on his person that is consistent with
       personal use?

    B. Under Pennsylvania and United States’ law, did the trial court
       commit error by denying a pre-trial motion to suppress evidence
       seized from a warrantless search of a hotel room, when agents
       failed to articulate probable cause for a warrant, obtain a
       passkey from the hotel desk for a specific room, use the pass
       key on the room, break the latch on the door after the door
       would not open, seize evidence from a room then later attempt
       to get ‘voluntary consent to search’ from the renter while he is in
       handcuffs, plainly asserted his right to remain silent and [was]
       surrounded by agents?

Appellant’s brief at 5.1

       Appellant’s initial claim pertains to the sufficiency of the evidence. 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.”
____________________________________________


1
 In the argument portion of his brief, Appellant inverts the order in which he
addresses his claims, arguing his suppression issue first. However, since a
successful sufficiency challenge warrants discharge, we address that
contention first.



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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

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

fact-finder.” Id.

       Appellant argues that because he only possessed a small amount of

cash and that the amount of heroin on his person was consistent with

personal use, insufficient evidence was introduced to show that he

committed both PWID and conspiracy to commit PWID.          He continues by

asserting that his mere presence at the crime scene is not sufficient to show

a conspiracy. Appellant contends that the Commonwealth did not prove that

he actually possessed the large amount of drugs in the room or the firearm

and that it did not show that he constructively possessed the heroin not

recovered on his person.

       The Commonwealth relies on this Court’s decision in Commonwealth

v. Vargas, 108 A.3d 858 (Pa.Super. 2014) (en banc), to counter Appellant’s

positions. In Vargas,

       [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

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     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.

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

that the evidence was sufficient to establish PWID and conspiracy.




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      In the instant case, viewing the evidence in a light most favorable to

the Commonwealth and thereby giving it the benefit of the reasonable

inferences derived therefrom, the pertinent proof is sufficient to establish the

aforementioned crimes.    Only by setting aside our standard of review can

this evidence be viewed as Appellant merely being present while others were

packaging heroin for purposes of distribution.

      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). 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).

      Here, Appellant not only possessed thirty-seven bags of heroin on his

person, bags which were marked the same as those recovered from a



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vehicle that had just left the Days Inn, but a vast quantity of stamp bags

were also located inside the room. Appellant did not possess a syringe or

spoon when arrested.        Huge amounts of cash were inside the hotel room.

Appellant’s cohorts also possessed either drugs and money or large amounts

of cash on their person. Stamp bags of heroin were inside both a toilet and

trash can.     This case is not close to being akin to a situation where the

evidence is so weak and inconclusive that no probability of fact could be

drawn therefrom. Appellant’s sufficiency argument is entirely without merit.

       We now consider Appellant’s suppression issue, and in light of our

recent decision in Commonwealth v. Haynes, 116 A.3d 640 (Pa.Super.

2015), find he is entitled to no relief.2          Appellant contends that neither

probable cause nor exigent circumstances existed in this matter. He asserts

that Agent Yesho could not state with certainty that he saw drug

transactions outside the hotel room, and used a key to enter without a

warrant.     Appellant contends that Agent Sepic did not witness a drug

transaction, but simply observed individuals leave a stairwell.           Further,

Appellant maintains that even if a drug transaction did occur outside, it

would not give rise to probable cause to search Appellant’s room.

____________________________________________


2
  Appellant fails to meaningfully confront the Haynes decision in his brief
and does not acknowledge its existence. We are aware that Haynes was
decided after the suppression motion was filed in this matter. However, it
was filed before the briefs in this case were submitted.



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Additionally, Appellant submits that there were no exigent circumstances in

this matter and that any exigency was created by the police.

        The Commonwealth responds that both probable cause and exigent

circumstances existed and that this case is controlled by Haynes, supra.

As it relates to probable cause, the Commonwealth sets forth that “probable

cause    exists   where   there   is    a   probability   of   criminal   activity.”

Commonwealth’s brief at 25 (quoting Commonwealth v. Dukeman, 917

A.2d 338, 341 (Pa.Super. 2007)). It posits that law enforcement personnel

witnessed seven instances of unusual activity in which persons exited a

room at the Days Inn and would meet in a stairwell with other persons who

drove to the Days Inn.    These meetings would last for approximately one

minute before the individuals from the hotel would return to their room and

those who had arrived would leave.          It highlights that after one of these

incidents, a person was observed injecting another individual with what was

believed to be heroin. The Days Inn in question was noted as a high drug

trafficking area and police stopped a vehicle after observing the suspected

drug transactions. The individuals in that car possessed heroin.

        With respect to exigent circumstances, the Commonwealth relies

extensively on Haynes, supra.           Therein, state police 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

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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 by improperly creating their own

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

to Haynes, police observed suspicious activity that they believed involved

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 here then approached a room

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

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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 then entered and found drugs and money in plain view. For

reasons fully delineated in Haynes, Appellant’s claim fails.

      However, as in Haynes, Appellant was also sentenced to a mandatory

minimum sentence.       The statutory authority for that sentence has been

declared to be unconstitutional in its entirety and to present a legality of

sentence question. See Haynes, supra (discussing cases). Therefore, we

are constrained to find that Appellant’s sentence must be vacated.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




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