J-A30013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY M. MORALES-CASTRO,

                            Appellant                No. 2110 EDA 2013


             Appeal from the Judgment of Sentence May 30, 2013
               in the Court of Common Pleas of Lehigh County
              Criminal Division at No.: CP-39-CR-0002781-2012




COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY M. MORALES-CASTRO,

                            Appellant                No. 2111 EDA 2013


             Appeal from the Judgment of Sentence May 30, 2013
               in the Court of Common Pleas of Lehigh County
              Criminal Division at No.: CP-39-CR-0005565-2012


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 17, 2015




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A30013-14


        In this consolidated appeal,1 Appellant, Anthony Morales-Castro,

appeals from the judgment of sentence imposed at case number 2781/2012

for his jury conviction of possession with intent to deliver a controlled

substance (PWID), possession of a controlled substance, and possession of

drug paraphernalia;2 and from the judgment of sentence imposed at case

number 5565/2012 for his jury conviction of delivery of a controlled

substance, PWID, possession of a controlled substance, and criminal use of a

communication facility.3 Although we affirm Appellant’s convictions, we are

constrained     to   vacate    his   judgment    of   sentence   and   remand   for

resentencing.

        The trial court aptly set forth the relevant factual background in its

June 20, 2013 opinion:

        . . . [T]he evidence [at trial] established that on April 27, 2012,
        Detective Jorge Medero of the Allentown Police Department Vice
        and Intelligence Unit, along with other agents, were conducting
        an investigation of [Appellant]. On this date, Detective Medero
        met with a confidential informant, Oscar York, in order to
        instruct [him] to arrange for a controlled purchase of cocaine
        from [Appellant].     Via telephone communications that were

____________________________________________


1
  On December 28, 2012, the trial court consolidated the cases for trial.
(See Notice of Joinder, 12/28/12). This Court consolidated Appellant’s
appeals sua sponte on March 21, 2014. (See Per Curiam Order, 3/21/14, at
1).
2
    35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
3
  35 P.S. §§ 780-113(a)(30), (a)(30), and (a)(16); and 18 Pa.C.S.A. §
7512(a), respectively.



                                           -2-
J-A30013-14


       recorded with [Appellant], the confidential informant made
       arrangements to purchase 100 grams of cocaine from [him].

              Prior to the effectuation of the controlled purchase,
       Detective Medero, Detective Jeffrey Taylor of the Drug
       Enforcement Administration Task Force of the Lehigh County
       District Attorney’s Office and Detective Kyle Hough of the
       Allentown Police Department Vice and [Intelligence] Unit
       searched the confidential informant’s vehicle for contraband or
       currency, as well as the confidential informant himself. No
       contraband or currency was located. Additionally, audio and
       video equipment were installed in the back seat of the vehicle to
       record the transaction.[4] . . . Three Thousand Nine Hundred
       ($3,900.00) Dollars in United States currency in recorded bills
       was provided to the confidential informant. The confidential
       informant drove to [Appellant’s] residence located at 734
       Genesee Street, Allentown, Lehigh County, Pennsylvania. At this
       time, the confidential informant picked up [Appellant,] and
       [conducted the controlled buy of the cocaine, which he placed in
       the vehicle’s center console, and] drove him to First Class Cuts
       Barber Shop . . . in Allentown . . . .[a] After the controlled buy
       was effectuated, the confidential informant returned to the pre-
       arranged location to meet with Detective Medero. During this
       entire process, the confidential informant was under constant
       surveillance by law enforcement personnel . . . with the aid of an
       airplane and numerous unmarked police vehicles.
              [a]
                 Detective Michael Mish of the Bethlehem Police
              Department, assigned to the [Drug Enforcement
              Agency (DEA)] local field office, conducted
              surveillance of the barber shop [and] [h]e observed
              [Appellant] exit the passenger side of the vehicle . . .
              .

              At the pre-arranged location, the confidential informant
       moved the white plastic bag containing cocaine from the center
       console to the passenger seat of the vehicle so that it could be
       collected by Detective Medero. . . . [T]he subject vehicle and the
       confidential informant were searched again. Other than the
____________________________________________


4
  At trial, in addition to hearing and viewing the audio and video recordings,
the jury was provided transcripts of same.



                                           -3-
J-A30013-14


        cocaine in the white plastic bag, no other contraband or currency
        was located.

               Subsequently, on May 21, 2012, agents conducting
        surveillance of [Appellant] observed him depart from [his
        residence at] 734 Genesee Street . . . in a vehicle that he drove
        to and parked at 810 Whittier Drive, Allentown. [Appellant] later
        was observed by agents and officers, including Detective . . .
        Hough . . . , operating a green Chevrolet Tahoe and driving it
        back to [his residence]. [Appellant] then traveled to the Bronx,
        New York and ultimately returned to the Lehigh Valley later that
        day. On the return trip, [Appellant] was stopped [in Salisbury
        Township] for motor vehicle violations which included failure to
        utilize proper turn signals and exceeding maximum speed limits
        at approximately 5:50 P.M. . . .[b] Specifically, a marked police
        cruiser was in place by the Daisy Hill Market to effectuate the
        traffic stop on I-78 in the City of Allentown.          However,
        [Appellant] unexpectedly exited I-78 into Hellertown via Route
        412 and used back roads. The officers and agents were able to
        keep track of [Appellant’s] location because[,] via [o]rder dated
        5/11/12, a mobile tracking device had been placed on the
        vehicle.
              [b]
                  Detective Hough observed the multiple motor
              vehicle violations during his mobile surveillance of
              [Appellant]. However, he was unable to effectuate
              the traffic stop because he was in an unmarked unit.

              Detective . . . Taylor . . . made contact with [Appellant]
        shortly after the traffic stop was initiated . . . in Fountain Hill.
        [Appellant] was the sole occupant of the vehicle. [Although not
        in custody or under arrest, Appellant] was verbally
        Mirandized[5] by Detective Taylor and [he] indicated that he
        understood his Miranda rights and did not have any questions.
        [Appellant] agreed to speak with the officers. In response to
        questions posed by Detective Taylor, [Appellant] stated that he
        was returning from Newark, New Jersey, and that he lived with
        his parents at 810 Whittier Drive. He also stated that he had
        nothing illegal in his vehicle and gave verbal [and written]
        consent to search the . . . Chevrolet Tahoe. . . .[c]
____________________________________________


5
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -4-
J-A30013-14



            [c]
               A Pennsylvania State Police canine was called to
            the scene to conduct a sniff search of the exterior of
            [Appellant’s vehicle]. The canine gave a positive
            alert for the presence of the odor of controlled
            substance[s].

           Despite being given both verbal and written consent, law
     enforcement personnel made the tactical decision to obtain a
     search warrant for the Chevrolet Tahoe. At approximately 8:30
     P.M. or 9:00 P.M., a search of the vehicle was subsequently
     performed . . . pursuant to the search warrant that was granted.
     . . . [Appellant] was informed that the law enforcement
     personnel would seek a search warrant for his residence.

           A search warrant for the residence located at 734 Genesee
     Street was subsequently applied for and granted. The search of
     the premises commenced at approximately 11:01 P.M., after the
     search warrant was obtained. . . . Detective Taylor again spoke
     with [Appellant] after he was transported to 734 Genesee Street
     during the execution of the search warrant on the residence. . . .
     [T]hey found approximately a kilo brick of cocaine (970 grams)
     in the wood pellet stove, a clear bag containing cocaine in the
     bedroom closet on a shelf, and a handgun magazine on the
     bedroom window ledge. . . .

           A Bursa .40 caliber semi-automatic handgun with a
     magazine with thirteen (13) rounds of ammunition was later
     located between the sheets and the mattress in [Appellant’s]
     bedroom. . . . [Appellant] was arrested immediately after the
     contraband was located and transported to the Allentown Police
     Headquarters at approximately 11:33 P.M.

(Trial Court Opinion, 6/20/13, at 4-10) (record citations and most footnotes

omitted).

     The jury trial in this matter commenced on April 29, 2013.       Before

trial, Appellant filed pre-trial motions that sought, inter alia, to suppress

evidence obtained pursuant to the search of his home, to sever the trials, to

recuse the trial judge, and to lower his bail. The court denied the motions

                                    -5-
J-A30013-14


on November 8, 2012, and on May 1, 2013, the jury convicted Appellant of

the previously stated charges. On May 30, 2013, the court sentenced him in

case number 2781/2012 to a mandatory minimum sentence of not less than

seven nor more than ten years on the PWID conviction, and to a consecutive

minimum mandatory sentence of not less than seven nor more than ten

years’ imprisonment at case number 5565/2012 on the delivery of a

controlled substance charge.6 (See N.T. Sentencing, 5/30/13, at 5, 8-10).

Appellant filed post-sentence motions, which the court denied on June 20,

2013. Appellant timely appealed on July 18, 2013.7

       Appellant raises eight questions for this Court’s review:

       1.     Whether the trial court erred in [c]ase [n]o. 2781-2012 by
       failing to suppress evidence obtained during the search of
       [Appellant’s] home requiring him to either be acquitted or
       granted a new trial?


____________________________________________


6
  At case number 2781/2012, the charge of possession of a controlled
substance merged with the PWID conviction for sentencing purposes; and
the court sentenced Appellant to a concurrent term of not less than six nor
more than twelve months on the possession of drug paraphernalia
conviction.   (See N.T. Sentencing, 5/30/13, at 8).      At case number
5565/2012, the PWID and possession of a controlled substance convictions
merged, and the court imposed a concurrent sentence of not less than six
nor more than twelve months’ imprisonment on the criminal use of a
communication facility conviction. (See id. at 9).
7
  Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on August 14, 2013. See Pa.R.A.P. 1925(b). On August 26,
2013, the court filed a Rule 1925(a) opinion in which it relied on the reasons
stated in its June 20, 2013 opinion and order denying Appellant’s post-
sentence motions. See Pa.R.A.P. 1925(a).



                                           -6-
J-A30013-14


      2.    Whether the trial court erred in [c]ase [n]o. 5565-2012 by
      either failing to suppress the cocaine obtained during the
      “controlled buy” or alternatively failing to grant the motion for
      acquittal due to reasonable doubt?

      3.    Whether the trial court erred in providing the jury with a
      summary transcript of the audio purportedly reflecting the
      contents of the conversation that occurred inside the confidential
      informant’s vehicle?

      4.    Whether the trial court improperly joined these cases
      requiring that separate new trials be granted to [Appellant]?

      5.   Whether the trial court imposed an illegal sentence when it
      sentenced [Appellant] to two mandatory minimum sentences of
      seven years?

      6.   Whether the trial court abused its discretion by considering
      non-record materials when it imposed consecutive rather than
      concurrent sentences?

      7.    Whether the trial judge should have recused herself from
      the matter after engaging in contact with the [d]istrict [a]ttorney
      in the case on January 23, 2013 in the absence of either
      [Appellant] or [Appellant’s] attorney with [the] case that led to
      an [o]rder of [c]ourt being entered?

      8.     Whether the trial court erred in raising [Appellant’s] bail in
      [c]ase [n]o. 2781-2012 case [sic] as such act violated the
      Pennsylvania Rule of Criminal Procedure and was excessive and
      effectively denied [Appellant] his right to bail?

(Appellant’s Brief, at 5-6).

      In Appellant’s first issue, he maintains that the trial court abused its

discretion in failing to suppress evidence the police recovered pursuant to a

search of his home, as fruit of the poisonous tree.           (See id. at 25).

Appellant offers five arguments in support of this issue:      (1) his stop and

detention by police was unlawful because “Allentown Police stopped [his]


                                      -7-
J-A30013-14


vehicle in Salsbury [sic] Township” without jurisdiction, (id.); (2) “[t]here

was no basis for the stop other than [Appellant] was under investigation for

drug activity,” (id. at 30-31);         (3) they “detained [him] in the back of

several different police cars over a period of more than [five] hours.” (id. at

31);” (4) “[t]he police entered and commenced the search of [Appellant’s]

home before they had a warrant,” (id. at 32); and (5) “[e]vidence used to

obtain the search warrant of the home was insufficient and stale.” (Id. at

33). Appellant’s first issue is waived in part.

       Preliminarily, a review of the record reveals that Appellant failed to

raise his first claim with the trial court or to include it in his otherwise

thorough, six-page Rule 1925(b) statement. (See Appellant’s Brief, at 25;

Rule 1925(b) Statement, 8/14/13, at 1-6).           Therefore, this argument is

waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth

v. Hill, 16 A.3d 484, 494 (Pa. 2011); Commonwealth v. Johnson, 51

A.3d 237, 247 (Pa. Super. 2012) (en banc), appeal denied, 63 A.3d 1245

(Pa. 2013).

       Appellant also failed to raise argument two about reasonable suspicion

justifying his stop with the trial court.        Therefore, we deem this issue

waived.8

____________________________________________


8
  Moreover, we observe that the police stopped Appellant on the basis of
motor vehicle violations. (See N.T. Trial, 4/29/13, at 120). Therefore, they
had reasonable suspicion to stop him. See Commonwealth v. Hilliar, 943
(Footnote Continued Next Page)


                                           -8-
J-A30013-14


      Additionally, Appellant’s fifth argument is waived for violation of Rule

302(a). The record reveals that, in the trial court, Appellant maintained that

“the information used to obtain the search warrant was factually deficient

and/or inaccurate,” because the co-affiant, Detective Hough, inaccurately

stated that none of his prior search warrants had been suppressed.9

(Omnibus Pre-Trial Motion Case No. 2781/2012, 8/31/12, at 5 ¶28; N.T.

Hearing, 10/17/12, at 9, 11).               However, here, Appellant claims that

information contained in the application for the search warrant was factually

deficient and stale because the only illegal activity it contained was

information regarding the drug sale to the confidential informant.         (See

Appellant’s Brief, at 33-34). Therefore, Appellant’s fifth argument is waived

pursuant to Rule 302(a). See Pa.R.A.P. 302(a).10

                       _______________________
(Footnote Continued)

A.2d 984, 990 (Pa. Super. 2008), appeal denied, 956 A.2d 432 (Pa. 2008)
(“Pursuant to 75 Pa.C.S.[A.] § 6308(b), a police officer may stop a vehicle
anytime the officer possesses reasonable suspicion of a motor vehicle
violation.”). In fact, as discussed infra, based on the information law
enforcement obtained in their surveillance of Appellant, they had probable
cause to custodially detain or arrest him at the time that they stopped him.
9
  In another case, the trial court had granted a motion to suppress a search
warrant in which Detective Hough was an affiant. (See N.T. Hearing,
10/17/12, at 61). However, as Detective Hough explained, this Court
concluded that the suppression was improper and reversed the trial court’s
decision. (See id.).
10
   Moreover, Appellant’s argument is disingenuous where the application for
the search warrant contained more information than that about the illegal
sale of narcotics to the informant.     (See Affidavit of Probable Cause,
5/21/12, at unnumbered pages 1-6). In fact, our independent review
(Footnote Continued Next Page)


                                            -9-
J-A30013-14


      We now turn to the merits of Appellant’s remaining arguments in

support of his first issue, that the trial court abused its discretion in denying

his motion to suppress evidence obtained pursuant to the search of his

home.    (See Appellant’s Brief, at 25-34).         Specifically, we review whether

the trial court should have suppressed evidence obtained in the search of

Appellant’s home because officers kept him in police vehicles for over five

hours, and they commenced the search before obtaining the warrant to do

so. (See id. at 31-32).

           Our standard of review of the denial of a motion to
      suppress is well-settled:

                   Our 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,
             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
                       _______________________
(Footnote Continued)

reveals that the application for the search warrant established probable
cause. See Commonwealth v. Bartee, 868 A.2d 1218, 1220-21 (Pa.
Super. 2005) (“the standard for evaluating whether probable cause exists
for a search warrant to be issued is the totality of the circumstances.”)
(citation omitted).



                                           - 10 -
J-A30013-14


           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. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013), appeal

denied, 83 A.3d 415 (Pa. 2013) (citation omitted).

     Appellant claims that he was arrested illegally when the officers

detained him in a police car for over five hours while conducting further

investigation. (See Appellant’s Brief, at 31-32). We disagree.

     It is well-settled jurisprudence that:

     A primary purpose of both the Fourth Amendment [of the U.S.
     Constitution] and Article I, Section 8 [of the Pennsylvania
     Constitution] is to protect citizens from unreasonable searches
     and seizures. . . . [The Pennsylvania Supreme] Court has noted
     that there are three basic categories of interactions between
     citizens and the police. The first category, a mere encounter or
     request for information, does not need to be supported by any
     level of suspicion, and does not carry any official compulsion to
     stop or respond.       The second category, an investigative
     detention, derives from Terry v. Ohio[, 392 U.S. 1 (1968),] and
     its progeny: such a detention is lawful if supported by
     reasonable suspicion because, although it subjects a suspect to a
     stop and a period of detention, it does not involve such coercive
     conditions as to constitute the functional equivalent of an arrest.
     The final category, the arrest or custodial detention, must be
     supported by probable cause.

Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003) (quotation marks and

some citations omitted).

           The key difference between an investigative and a
     custodial detention is that the latter involves such coercive
     conditions as to constitute the functional equivalent of an arrest.

                 The court considers the totality of the
           circumstances to determine if an encounter is

                                    - 11 -
J-A30013-14


            investigatory or custodial, but the following factors
            are specifically considered: the basis for the
            detention; the duration; the location; whether the
            suspect was transported against his will, how far,
            and why; whether restraints were used; the show,
            threat or use of force; and the methods of
            investigation used to confirm or dispel suspicions.

           An arrest or “custodial detention” must be supported by
      probable cause:

                   Probable cause is made out when the facts and
            circumstances which are within the knowledge of the
            officer at the time of the arrest, and of which he has
            reasonably trustworthy information, are sufficient to
            warrant a [person] of reasonable caution in the belief
            that the suspect has committed or is committing a
            crime. The question we ask is not whether the
            officer’s belief was correct or more likely true than
            false. Rather, we require only a probability, and
            not a prima facie showing, of criminal activity. In
            determining whether probable cause exists, we apply
            a totality of the circumstances test.

Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa. Super. 2011),

appeal denied, 49 A.3d 442 (Pa. 2012) (citations and quotation marks

omitted; emphasis in original).

      A delay for reasonable investigation does not violate due
      process. The prosecution is under no constitutional duty to file
      charges as soon as it obtains evidence of a defendant’s guilt. To
      prove a violation of due process, a defendant must show not
      only that he was prejudiced by the delay, but also that the
      Commonwealth’s action in causing or allowing the delay was
      “fundamentally unfair.”

Commonwealth v. Grazier, 570 A.2d 1054, 1057 (Pa. Super. 1990)

(citations omitted).




                                    - 12 -
J-A30013-14


         Here, on April 27, 2012, as part of an ongoing, major drug

investigation, police observed Appellant engaged in a felony drug transaction

in which he sold a confidential informant 100 grams of cocaine for

$3,900.00. (See N.T. Trial, 4/30/13, at 73-74, 128-29, 132, 175). A few

weeks later, on May, 21, 2012, law enforcement tracked Appellant going to

the Bronx, New York, in a Chevy Tahoe that the DEA had informed them was

adapted for narcotics sales, and returning to Pennsylvania shortly thereafter,

behavior indicative of illegal drug trafficking.    (See id. at 18; see also

Affidavit of Probable Cause, 5/21/12, at unnumbered page 4 ¶ 10).            The

police also had information from the confidential informant about Appellant

dealing illegal narcotics in the area.    (See Affidavit of Probable Cause,

5/21/12, at unnumbered page 4 ¶ 9). Upon stopping Appellant, he stated

that he was coming from Newark, New Jersey, and that his residence was

810 Whittier Drive, neither of which was true. (See N.T. Trial, 4/29/13, at

62).     Based on the officers’ observations, and information obtained from

other, reliable sources, police had probable cause to custodially detain or

arrest    Appellant.   See   Goldsborough,         supra   at   306;   see   also

Commonwealth v. Zook, 615 A.2d 1, 6 (Pa. 1992), cert. denied, 507 U.S.

974 (1993) (observing that police may arrest defendant without warrant

where they have probable cause to believe that defendant has committed a

felony). Moreover, Appellant fails to show that the delay between the time

of the traffic stop and the arrest was “fundamentally unfair.”          Grazier,


                                    - 13 -
J-A30013-14


supra at 1057 (concluding that nearly seven year delay in filing charges in

order to continue investigation was not fundamentally unfair).

       Therefore, based on the foregoing, the police had probable cause to

custodially detain or arrest Appellant as of April 27, 2012 when they

observed him conduct an illegal cocaine sale. See Goldsborough, supra at

306.   Hence, based on that observation of the felony, and the additional

facts and circumstances within the officers’ knowledge, they properly

custodially detained Appellant on May 21, 2012 for approximately five hours

before formally arresting him.     See Colson, supra at 817; see also

Grazier, supra at 1057.     Accordingly, the trial court did not err when it

denied Appellant’s motion to suppress the evidence seized during the search




                                   - 14 -
J-A30013-14


      2.    Whether the trial court erred in [c]ase [n]o. 5565-2012 by
      either failing to suppress the cocaine obtained during the
      “controlled buy” or alternatively failing to grant the motion for
      acquittal due to reasonable doubt?

      3.    Whether the trial court erred in providing the jury with a
      summary transcript of the audio purportedly reflecting the
      contents of the conversation that occurred inside the confidential
      informant’s vehicle?

      4.    Whether the trial court improperly joined these cases
      requiring that separate new trials be granted to [Appellant]?

      5.   Whether the trial court imposed an illegal sentence when it
      sentenced [Appellant] to two mandatory minimum sentences of
      seven years?

      6.   Whether the trial court abused its discretion by considering
      non-record materials when it imposed consecutive rather than
      concurrent sentences?

      7.    Whether the trial judge should have recused herself from
      the matter after engaging in contact with the [d]istrict [a]ttorney
      in the case on January 23, 2013 in the absence of either
      [Appellant] or [Appellant’s] attorney with [the] case that led to
      an [o]rder of [c]ourt being entered?

      8.     Whether the trial court erred in raising [Appellant’s] bail in
      [c]ase [n]o. 2781-2012 case [sic] as such act violated the
      Pennsylvania Rule of Criminal Procedure and was excessive and
      effectively denied [Appellant] his right to bail?

(Appellant’s Brief, at 5-6).

      In Appellant’s first issue, he maintains that the trial court abused its

discretion in failing to suppress evidence the police recovered pursuant to a

search of his home, as fruit of the poisonous tree.           (See id. at 25).

Appellant offers five arguments in support of this issue:      (1) his stop and

detention by police was unlawful because “Allentown Police stopped [his]


                                      -7-
J-A30013-14


vehicle in Salsbury [sic] Township” without jurisdiction, (id.); (2) “[t]here

was no basis for the stop other than [Appellant] was under investigation for

drug activity,” (id. at 30-31);         (3) they “detained [him] in the back of

several different police cars over a period of more than [five] hours.” (id. at

31);” (4) “[t]he police entered and commenced the search of [Appellant’s]

home before they had a warrant,” (id. at 32); and (5) “[e]vidence used to

obtain the search warrant of the home was insufficient and stale.” (Id. at

33). Appellant’s first issue is waived in part.

       Preliminarily, a review of the record reveals that Appellant failed to

raise his first claim with the trial court or to include it in his otherwise

thorough, six-page Rule 1925(b) statement. (See Appellant’s Brief, at 25;

Rule 1925(b) Statement, 8/14/13, at 1-6).           Therefore, this argument is

waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth

v. Hill, 16 A.3d 484, 494 (Pa. 2011); Commonwealth v. Johnson, 51

A.3d 237, 247 (Pa. Super. 2012) (en banc), appeal denied, 63 A.3d 1245

(Pa. 2013).

       Appellant also failed to raise argument two about reasonable suspicion

justifying his stop with the trial court.        Therefore, we deem this issue

waived.8

____________________________________________


8
  Moreover, we observe that the police stopped Appellant on the basis of
motor vehicle violations. (See N.T. Trial, 4/29/13, at 120). Therefore, they
had reasonable suspicion to stop him. See Commonwealth v. Hilliar, 943
(Footnote Continued Next Page)


                                           -8-
J-A30013-14


      Additionally, Appellant’s fifth argument is waived for violation of Rule

302(a). The record reveals that, in the trial court, Appellant maintained that

“the information used to obtain the search warrant was factually deficient

and/or inaccurate,” because the co-affiant, Detective Hough, inaccurately

stated that none of his prior search warrants had been suppressed.9

(Omnibus Pre-Trial Motion Case No. 2781/2012, 8/31/12, at 5 ¶28; N.T.

Hearing, 10/17/12, at 9, 11).               However, here, Appellant claims that

information contained in the application for the search warrant was factually

deficient and stale because the only illegal activity it contained was

information regarding the drug sale to the confidential informant.         (See

Appellant’s Brief, at 33-34). Therefore, Appellant’s fifth argument is waived

pursuant to Rule 302(a). See Pa.R.A.P. 302(a).10

                       _______________________
(Footnote Continued)

A.2d 984, 990 (Pa. Super. 2008), appeal denied, 956 A.2d 432 (Pa. 2008)
(“Pursuant to 75 Pa.C.S.[A.] § 6308(b), a police officer may stop a vehicle
anytime the officer possesses reasonable suspicion of a motor vehicle
violation.”). In fact, as discussed infra, based on the information law
enforcement obtained in their surveillance of Appellant, they had probable
cause to custodially detain or arrest him at the time that they stopped him.
9
  In another case, the trial court had granted a motion to suppress a search
warrant in which Detective Hough was an affiant. (See N.T. Hearing,
10/17/12, at 61). However, as Detective Hough explained, this Court
concluded that the suppression was improper and reversed the trial court’s
decision. (See id.).
10
   Moreover, Appellant’s argument is disingenuous where the application for
the search warrant contained more information than that about the illegal
sale of narcotics to the informant.     (See Affidavit of Probable Cause,
5/21/12, at unnumbered pages 1-6). In fact, our independent review
(Footnote Continued Next Page)


                                            -9-
J-A30013-14


      We now turn to the merits of Appellant’s remaining arguments in

support of his first issue, that the trial court abused its discretion in denying

his motion to suppress evidence obtained pursuant to the search of his

home.    (See Appellant’s Brief, at 25-34).         Specifically, we review whether

the trial court should have suppressed evidence obtained in the search of

Appellant’s home because officers kept him in police vehicles for over five

hours, and they commenced the search before obtaining the warrant to do

so. (See id. at 31-32).

           Our standard of review of the denial of a motion to
      suppress is well-settled:

                   Our 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,
             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
                       _______________________
(Footnote Continued)

reveals that the application for the search warrant established probable
cause. See Commonwealth v. Bartee, 868 A.2d 1218, 1220-21 (Pa.
Super. 2005) (“the standard for evaluating whether probable cause exists
for a search warrant to be issued is the totality of the circumstances.”)
(citation omitted).



                                           - 10 -
J-A30013-14


           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. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013), appeal

denied, 83 A.3d 415 (Pa. 2013) (citation omitted).

     Appellant claims that he was arrested illegally when the officers

detained him in a police car for over five hours while conducting further

investigation. (See Appellant’s Brief, at 31-32). We disagree.

     It is well-settled jurisprudence that:

     A primary purpose of both the Fourth Amendment [of the U.S.
     Constitution] and Article I, Section 8 [of the Pennsylvania
     Constitution] is to protect citizens from unreasonable searches
     and seizures. . . . [The Pennsylvania Supreme] Court has noted
     that there are three basic categories of interactions between
     citizens and the police. The first category, a mere encounter or
     request for information, does not need to be supported by any
     level of suspicion, and does not carry any official compulsion to
     stop or respond.       The second category, an investigative
     detention, derives from Terry v. Ohio[, 392 U.S. 1 (1968),] and
     its progeny: such a detention is lawful if supported by
     reasonable suspicion because, although it subjects a suspect to a
     stop and a period of detention, it does not involve such coercive
     conditions as to constitute the functional equivalent of an arrest.
     The final category, the arrest or custodial detention, must be
     supported by probable cause.

Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003) (quotation marks and

some citations omitted).

           The key difference between an investigative and a
     custodial detention is that the latter involves such coercive
     conditions as to constitute the functional equivalent of an arrest.

                 The court considers the totality of the
           circumstances to determine if an encounter is

                                    - 11 -
J-A30013-14


            investigatory or custodial, but the following factors
            are specifically considered: the basis for the
            detention; the duration; the location; whether the
            suspect was transported against his will, how far,
            and why; whether restraints were used; the show,
            threat or use of force; and the methods of
            investigation used to confirm or dispel suspicions.

           An arrest or “custodial detention” must be supported by
      probable cause:

                   Probable cause is made out when the facts and
            circumstances which are within the knowledge of the
            officer at the time of the arrest, and of which he has
            reasonably trustworthy information, are sufficient to
            warrant a [person] of reasonable caution in the belief
            that the suspect has committed or is committing a
            crime. The question we ask is not whether the
            officer’s belief was correct or more likely true than
            false. Rather, we require only a probability, and
            not a prima facie showing, of criminal activity. In
            determining whether probable cause exists, we apply
            a totality of the circumstances test.

Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa. Super. 2011),

appeal denied, 49 A.3d 442 (Pa. 2012) (citations and quotation marks

omitted; emphasis in original).

      A delay for reasonable investigation does not violate due
      process. The prosecution is under no constitutional duty to file
      charges as soon as it obtains evidence of a defendant’s guilt. To
      prove a violation of due process, a defendant must show not
      only that he was prejudiced by the delay, but also that the
      Commonwealth’s action in causing or allowing the delay was
      “fundamentally unfair.”

Commonwealth v. Grazier, 570 A.2d 1054, 1057 (Pa. Super. 1990)

(citations omitted).




                                    - 12 -
J-A30013-14


         Here, on April 27, 2012, as part of an ongoing, major drug

investigation, police observed Appellant engaged in a felony drug transaction

in which he sold a confidential informant 100 grams of cocaine for

$3,900.00. (See N.T. Trial, 4/30/13, at 73-74, 128-29, 132, 175). A few

weeks later, on May, 21, 2012, law enforcement tracked Appellant going to

the Bronx, New York, in a Chevy Tahoe that the DEA had informed them was

adapted for narcotics sales, and returning to Pennsylvania shortly thereafter,

behavior indicative of illegal drug trafficking.    (See id. at 18; see also

Affidavit of Probable Cause, 5/21/12, at unnumbered page 4 ¶ 10).            The

police also had information from the confidential informant about Appellant

dealing illegal narcotics in the area.    (See Affidavit of Probable Cause,

5/21/12, at unnumbered page 4 ¶ 9). Upon stopping Appellant, he stated

that he was coming from Newark, New Jersey, and that his residence was

810 Whittier Drive, neither of which was true. (See N.T. Trial, 4/29/13, at

62).     Based on the officers’ observations, and information obtained from

other, reliable sources, police had probable cause to custodially detain or

arrest    Appellant.   See   Goldsborough,         supra   at   306;   see   also

Commonwealth v. Zook, 615 A.2d 1, 6 (Pa. 1992), cert. denied, 507 U.S.

974 (1993) (observing that police may arrest defendant without warrant

where they have probable cause to believe that defendant has committed a

felony). Moreover, Appellant fails to show that the delay between the time

of the traffic stop and the arrest was “fundamentally unfair.”          Grazier,


                                    - 13 -
J-A30013-14


supra at 1057 (concluding that nearly seven year delay in filing charges in

order to continue investigation was not fundamentally unfair).

       Therefore, based on the foregoing, the police had probable cause to

custodially detain or arrest Appellant as of April 27, 2012 when they

observed him conduct an illegal cocaine sale. See Goldsborough, supra at

306.   Hence, based on that observation of the felony, and the additional

facts and circumstances within the officers’ knowledge, they properly

custodially detained Appellant on May 21, 2012 for approximately five hours

before formally arresting him.     See Colson, supra at 817; see also

Grazier, supra at 1057.     Accordingly, the trial court did not err when it

denied Appellant’s motion to suppress the evidence seized during the search




                                   - 14 -
J-A30013-14


of his home on the basis of the alleged illegal arrest. See Potts, supra at

1280.11

       Appellant also argues that the court erred in denying his motion to

suppress where police entered his home and conducted a search before they

obtained a warrant to do so.            (See Appellant’s Brief, at 32-33).   This

argument is belied by the record, which reflects that police applied for a
____________________________________________



11
   Appellant’s reliance on Commonwealth v. Melendez, 676 A.2d 226 (Pa.
1996), and Commonwealth v. Lovette, 450 A.2d 975 (Pa. 1982), cert.
denied, 459 U.S. 1178 (1983), is not legally persuasive. (See Appellant’s
Brief, at 29-32). In Melendez, police were conducting surveillance on
Melendez and her residence for suspected drug activity. See Melendez,
supra at 227. While the officers were waiting for a search warrant, they
stopped Melendez in her vehicle after she had left her home, searched her
purse, and transported her back to her residence. See id. Our Supreme
Court concluded that the police lacked probable cause to arrest or stop and
search Melendez merely because she was a suspect in a felony investigation
where she was not engaged in any activity at the time she was stopped that
would cause a reasonable person to believe that she was then engaged in
criminal conduct. See id. at 228-30. Here, under the totality of the
circumstances, police had probable cause to custodially detain and arrest
Appellant. Therefore, Melendez is inapposite.

      In Lovette, police were investigating a reported burglary and
observed muddy footprints at the scene. See Lovette, supra at 976.
Nearby, police saw Lovette with muddy shoes. See id. Police stopped
Lovette, found a ring and silver dime on his companion, and transported him
and the other individuals back to the scene of the burglary. On appeal, our
Supreme Court determined that the transporting of Lovette constituted an
arrest, which was not supported by probable cause. See id. at 981. Here,
under the totality of the circumstances and the evidence then-available to
the police, including the positive response of the canine to the presence of
cocaine, the observation of Appellant delivering cocaine to the confidential
informant a few weeks prior, and their own training and experience, the
police had probable cause to conduct a custodial detention/arrest.




                                          - 15 -
J-A30013-14


search warrant of Appellant’s residence at 10:35 P.M., at which time

Magisterial District Justice Robert C. Halel approved the warrant.            (See

Application for Search Warrant and Authorization, 5/21/12, at 1). The police

entered Appellant’s home at approximately 11:01 P.M. after receiving the

warrant (See N.T. Hearing, 10/17/12, at 52).             Therefore, Appellant’s

argument in this regard is wholly without merit, and his first issue fails.

       In Appellant’s second issue, he argues that “[t]he trial court erred in

failing to dismiss the charges relating to [c]ase [number] 5565-2012.”

(Appellant’s Brief, at 34).12 Specifically, he maintains that “[t]he handling of

the drug evidence by [the confidential informant] tainted the case against

[him,]” and therefore, “[r]easonable doubt exists as to [his] guilt for case

5565-2012.” (Id. at 34-35). We disagree.

       Preliminarily, we observe that, although Appellant fails to argue it as

such, the allegation regarding a gap in the chain of custody challenges the

weight of the evidence to support his conviction.13 See Commonwealth v.

____________________________________________


12
   We note that Appellant’s brief does not include a “[s]tatement of place of
raising or preservation of [this] issue[].”     Pa.R.A.P. 2117(c), 2119(e).
However, because we located Appellant’s motion for arrest of judgment in
his post-sentence motions, we will not deem this issue waived.           See
Commonwealth v. Fransen, 42 A.3d 1100, 1107 n.11 (Pa. Super. 2012),
appeal denied, 76 A.3d 538 (Pa. 2013) (declining to find issue waived in
spite of appellant’s failure to comply with Pa.R.A.P. 2119 where Court could
discern argument).
13
   Appellant raised this issue in his post-sentence motion, thus preserving it
for our review, and the trial court found that the claim, no matter how
(Footnote Continued Next Page)


                                          - 16 -
J-A30013-14


Copenhefer, 719 A.2d 242, 256 (Pa. 1998), cert. denied, 528 U.S. 830

(1999).

      Our standard of review of a challenge to the weight of the evidence is

well-settled:

                    A verdict is not contrary to the weight of the
             evidence because of a conflict in testimony or
             because the reviewing court on the same facts might
             have arrived at a different conclusion than the fact[-
             ]finder. Rather, a new trial is warranted only when
             the jury’s verdict is so contrary to the evidence that
             it shocks one’s sense of justice and the award of a
             new trial is imperative so that right may be given
             another opportunity to prevail. Where, as here, the
             judge who presided at trial ruled on the weight claim
             below, an appellate court’s role is not to consider the
             underlying question of whether the verdict is against
             the weight of the evidence. Rather, appellate review
             is limited to whether the trial court palpably abused
             its discretion in ruling on the weight claim.

           One of the least assailable reasons for granting or denying
      a new trial is the lower court’s determination that the verdict
      was or was not against the weight of the evidence and that new
      process was or was not dictated by the interests of justice.
      Thus, only where the facts and inferences disclose a palpable
      abuse of discretion will the denial of a motion for a new trial
      based on the weight of the evidence be upset on appeal.

Commonwealth v. Morales, 91 A.3d 80, 91-92 (Pa. 2014) (citations

omitted; emphasis in original).

      In this case, Appellant has not argued or demonstrated that the trial

court palpably abused its discretion when it denied his motion for a new trial
                       _______________________
(Footnote Continued)

addressed, failed. (See Post-Sentence Motion, 6/10/13, at 2 ¶ 6(b), 4 ¶¶
11, 12; see also Trial Ct. Op., 6/20/13, at 5-6, 10-11, 22-24).



                                           - 17 -
J-A30013-14


      defendant an opportunity to present necessary additional
      evidence and shall determine, by a preponderance of the
      evidence, if this section is applicable.

18 Pa.C.S.A. § 7508(a)(3)(iii), (a.1), (b).

      As recently observed by this Court:

             . . . [O]ur en banc opinion in Commonwealth v.
      Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) and the
      panel decision in Commonwealth v. Valentine, 101 A.3d 801
      (Pa. Super. 2014) mandate that we hold 18 Pa.C.S.A. § 7508
      unconstitutional in its entirety. Thus, a mandatory minimum
      sentence imposed under this statute is illegal. Specifically, . . .
      18 Pa.C.S.A. § 7508 is structured in the same manner as the
      statutes that were at issue in Newman and Valentine—and, as
      was true with the statutes at issue in Newman and Valentine,
      one particular subsection of 18 Pa.C.S.A. § 7508 is clearly
      unconstitutional under Alleyne v. United States, --- U.S. ----,
      133 S.Ct. 2151 (2013). See 18 Pa.C.S.A. § 7508(b). In
      particular,    Section    7508(b)    contains      the    following
      unconstitutional burdens and procedures: it declares that the
      substantive, “aggravating facts” contained in Section 7508(a)
      are “not . . . an element of the crime;” it declares that notice of
      either the “aggravating facts” or of the applicability of the
      mandatory minimum sentencing statute is “not . . . required
      prior to conviction;” it declares that the applicability of the
      mandatory minimum statute “shall be determined at
      sentencing;” it declares that the Commonwealth need only prove
      the “aggravating facts” by a preponderance of the evidence;
      and, it declares that a judge—and not a jury—is to act as the
      fact-finder for purposes of determining the “aggravated facts.”
      18 Pa.C.S.A. § 7508(b). Alleyne rendered all of these burdens
      and procedures unconstitutional.

            The Court in [Commonwealth v.] Fennell[,2014 WL
      6505791, at *1-8 (Pa. Super. filed Nov. 21 2014),] concluded
      that, pursuant to Newman and Valentine, the unconstitutional
      portion of 18 Pa.C.S.A. § 7508 is unseverable from the
      remainder of the statute. Thus, even though Fennell stipulated
      to the weight of the heroin at issue, the Fennell Court held that
      the trial court erred in imposing the mandatory minimum
      sentence as Section 7508 is unconstitutional in its entirety.
      Hence, as the Appellant in the case sub judice was sentenced to

                                     - 26 -
J-A30013-14


       a mandatory minimum under Section 7508, which has been
       deemed unconstitutional, we must vacate Appellant’s judgment
       of sentence and remand for resentencing, without consideration
       of the mandatory minimum sentence.

Commonwealth v. Vargas, 2014 WL 7447678, at *17 (Pa. Super. filed

Dec. 31, 2014) (en banc) (footnotes and some case citations omitted).

       Likewise here, Appellant was sentenced to the mandatory minimum

term pursuant to section 7508. (See N.T. Sentencing, 5/30/13, at 5, 8-9).

Accordingly, we must conclude that Appellant’s sentence is illegal 15 and we

therefore vacate his judgment of sentence and remand for re-sentencing,

“without consideration of the mandatory minimum sentence.”16        Vargas,

supra at *17.

       In Appellant’s sixth issue, he claims that the court abused its

discretion in imposing consecutive, rather than concurrent, sentences. (See

Appellant’s Brief, at 48-50). However, we decline to reach the merits of this



____________________________________________


15
    We do not reach the ground for Appellant’s illegal sentencing claim,
namely that the mandatory minimum sentences of seven to ten years were
illegal because he had no prior convictions. (See Appellant’s Brief, at 45-
47). Preliminarily, Appellant admits that he bases his argument on a
dissenting opinion, which is not binding precedent. (See id. at 45 n.7).
Moreover, this argument is moot where we have vacated the judgment of
sentence because section 7508 is “unconstitutional in its entirety.” Vargas,
supra at *17.
16
  The Commonwealth “acknowledges this Court’s holding in Newman and
does not oppose a remand for resentencing.” (Commonwealth’s Brief, at
44).



                                          - 27 -
J-A30013-14


discretionary sentencing issue because it is moot where the judgment of

sentence has been vacated and the case remanded for re-sentencing.

      In his seventh issue, Appellant claims that “[t]he trial judge should

have recused herself from the case[]” because “the record . . . establish[es]

clear[,] ex parte, non-permissible, contact between the trial court and the

District Attorney regarding a critical piece of evidence in this case[.]” (Id. at

50, 52). This issue does not merit relief.

             Our standard of review of a trial court’s determination not
      to recuse from hearing a case is exceptionally deferential. We
      recognize that our trial judges are honorable, fair and
      competent, and although we employ an abuse of discretion
      standard, we do so recognizing that the judge himself is best
      qualified to gauge his ability to preside impartially.

            The party who asserts that a trial judge should recuse
      bears the burden of setting forth specific evidence of bias,
      prejudice, or unfairness. Furthermore, a decision by the trial
      court against whom the plea of prejudice is made will not be
      disturbed absent an abuse of discretion.

Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009)

(citations and quotation marks omitted).

      Here, the trial court issued a protective order which provided:

“defense counsel may not provide copies of any audio, audio/video

recordings or transcripts in [this] matter to [Appellant] or anyone else.

However, [d]efense [c]ounsel may discuss the contents of these items with

[Appellant] subject to the above limitations.” (Order, 1/24/13, at 1). The

purpose of the order was “only to not make copies for [Appellant] to get

word out in the prison.     So other than that, you can do with it as you

                                     - 28 -
J-A30013-14


choose.” (N.T. Hearing, 2/27/13, at 10-11). Appellant claims that this order

was entered ex parte, requiring recusal. (See Appellant’s Brief, at 50-52);

(see also N.T. Hearing, 2/27/13, at 5-13). We disagree that the trial court

abused its discretion in denying the motion for recusal on this basis.

       First, Appellant merely states that the trial judge should have recused

herself because she entered the protective order ex parte without allowing

him the opportunity to argue against it. (See Appellant’s Brief, at 50-52).

However, he has provided absolutely no “specific evidence of bias, prejudice,

or unfairness.” Harris, supra at 391-92; (see also Appellant’s Brief, at 50-

52). In fact, an independent review of the transcript reveals that the trial

court forswore any improper ex parte communication, and stated that the

protective order was required, in part because “there is an overriding

interest, and that would be the safety of the informant.”       (N.T. Hearing,

2/27/13, at 12; see id. at 13).17

       Based on the foregoing, and, “recognizing that the judge [her]self is

best qualified to gauge [her] ability to preside impartially[,]” Harris, supra

at 392, we conclude that the trial court did not abuse its considerable



____________________________________________


17
   Appellant claims that the court signed the order based on an incorrect
recollection that he had agreed to it. (See Appellant’s Brief, at 50-52).
However, Appellant fails to argue that this faulty recollection rose to the
level of abuse of discretion requiring recusal. See Harris, supra at 391-92;
(see also Appellant’s Brief, at 50-52).



                                          - 29 -
J-A30013-14


discretion in denying Appellant’s motion for recusal.      See id. at 391-92.

Appellant’s seventh claim does not merit relief.

      In his eighth issue, Appellant maintains that “the trial court erred

when it increased [his] bail from $100,000.00 to $250,000.00[]” because

the increase “violated Rule 529 of the Rules of Criminal Procedure” and “was

excessive” in violation of the Eighth Amendment of the United States

Constitution and Article I, Section 13 of the Pennsylvania Constitution.

(Appellant’s Brief, at 52, 54; see id. at 56).

      Appellant’s issue raises questions of law, therefore our “scope of

review is plenary and [our] standard of review is limited to determining

whether the trial court committed legal error.”           Commonwealth v.

McDonough, 96 A.3d 1067, 1070 n.9 (Pa. Super. 2014) (citation omitted).

      Pennsylvania Rule of Criminal Procedure 529 provides, in pertinent

part, that:

      (C) The existing bail order may be modified by a judge of the
      court of common pleas:

            (1) at any time prior to verdict upon motion of counsel for
      either party with notice to opposing counsel and after a hearing
      on the motion; or

            (2) at trial or at a pretrial hearing in open court on the
      record when all parties are present.

Pa.R.Crim.P. 529(C).

      Additionally:    “The Eighth Amendment to the Federal Constitution

states, “[e]xcessive bail shall not be required . . . .” U.S. Const. amend. viii.


                                     - 30 -
J-A30013-14


. . . [T]he Eighth Amendment’s protection against excessive . . .

punishments flows from the basic precept of justice that punishment for [a]

crime     should     be   graduated      and   proportioned    to   [the]   offense.”

Commonwealth v. Thompson, 2014 WL 6948150, at *15 (filed Dec. 10,

2014) (citation and internal quotation marks omitted).                Similarly, the

Pennsylvania Constitution provides, in relevant part, that “[e]xcessive bail

shall not be required. . . .” Pa. Const. art. I, § 13.

        Here, on August 27, 2012, the trial court held a hearing on Appellant’s

motion to establish compliance with his bail conditions at which all parties

were present.18      After the hearing, “based on the seizure of more than a

kilogram of cocaine from [Appellant’s] residence, along with a loaded

firearm[,]”    the    court   raised    Appellant’s   bail   from   $100,000.00    to

$250,000.00. (Trial Ct. Op., 3/13/13, at 12; see also Order, 8/27/12).

        Based on the foregoing, we discern no trial court error. The trial court

raised the bail amount “in open court on the record, when all parties were

present,” Pa.R.Crim. 529(C), and the amount of bail was not “excessive,”

but instead was “proportioned to [the] offense.” U.S. Const. amend. viii; Pa.




____________________________________________


18
  A term of the order setting bail was that Appellant provide proof that any
money for a bond was not the result of illegal activity. (See Order,
6/21/12).




                                          - 31 -
J-A30013-14


Const. Art. I, § 13; Thompson, supra at *15 (citation omitted).

Appellant’s eighth issue is frivolous19 and does not merit relief.

       Therefore, to summarize our conclusions, we vacate and remand for

re-sentencing based on illegality of sentence, deem the discretionary aspects

of sentence challenge moot, and affirm the trial court on all of Appellants’

remaining claims.

       All convictions affirmed.        Judgment of sentence vacated and case

remanded for re-sentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015




____________________________________________


19
    Appellant maintains that the hearing on his motion was not a pre-trial
hearing because it did not concern an omnibus pre-trial or suppression
motion.     (See Appellant’s Brief, at 54).      We disagree.     See, e.g.,
Commonwealth v. Morales, 91 A.3d 80, 95 (Pa. 2014) (identifying
hearing on motions in limine as “pre-trial hearing”). Appellant concedes that
the Rules of Criminal Procedure do not define “pre-trial hearing.”
(Appellant’s Brief, at 54); see also Pa.R.Crim.P. 103. Therefore, giving the
term the effect of its most common usage, see Commonwealth v. Levy,
83 A.3d 457, 463 (Pa. Super. 2013), a pre-trial hearing necessarily is a
hearing that occurs before trial. Appellant’s argument to the contrary is
frivolous.



                                          - 32 -
