Commonwealth v. Curet-Sanchez

COMMONWEALTH OF PENNSYLVANIA v. ROBERT CURET-SANCHEZ Appellant

J-S31026-20

No. 1743 MDA 2019

SUPERIOR COURT OF PENNSYLVANIA

SEPTEMBER 29, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered September 11, 2019

In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001680-2018

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:

Appellant, Robert Curet-Sanchez, appeals from the Judgment of Sentence of one to three years of incarceration, entered on September 11, 2019, following a bench trial resulting in his conviction for one count of Possession with Intent to Deliver ("PWID").¹ Appellant challenges the suppression court's denial of his Motion to Suppress; the sufficiency and weight of the evidence introduced at trial; and the timeliness with which the trial court imposed sentence. After careful review, we affirm.

On July 16, 2018, Lackawanna County Detective Harold Zech initiated a traffic stop after observing Appellant fail to use a turn signal while exiting from the highway. Upon approaching Appellant's vehicle, Detective Zech observed numerous air fresheners—hanging from the rearview mirror, in the air vents,and from the passenger seat. Because the traffic stop occurred on a busy street, Detective Zech asked Appellant to exit the vehicle and speak with him at a safer location off the roadway. Appellant complied with this request.

Detective Zech informed Appellant that he would issue Appellant a written warning. While drafting the warning, and running Appellant's name and vehicle information for warrants, Detective Zech observed that Appellant was extremely nervous, visibly shaking and sweating. After he noticed that Appellant had an active call on his cell phone, Appellant stated that he had his girlfriend on the line in case police officers arrested him. When Detective Zech asked Appellant where he was heading in his vehicle, Appellant stated that he was on his way to meet a longtime friend, but he was unable to remember his friend's last name.

Based on these observations—the air fresheners, Appellant's nervousness and fear of arrest, and his inability to provide his longtime friend's last name—Detective Zech believed that Appellant was engaged in criminal activity and, therefore, asked Appellant for consent to search his car. Appellant refused, and Detective Zech then informed Appellant that he would request a canine officer to search the exterior of the vehicle. Within two to three minutes, before Detective Zech had completed the written warning, the canine officer arrived, performed the search of the vehicle, and indicated the positive presence of narcotics odors.

Detective Zech then searched the interior of the vehicle and discovered nine zip-lock baggies and two cigar blunts containing suspected syntheticmarijuana. He arrested Appellant, and the Commonwealth charged Appellant with PWID and related crimes.

Appellant filed a Motion to Suppress the narcotics, asserting that Detective Zech lacked reasonable suspicion to detain him until the canine officer had searched the exterior of Appellant's vehicle. Following a hearing, at which Detective Zech testified, the suppression court denied Appellant's Motion.

On January 23, 2019, the court held a bench trial at which Detective Zech testified that he seized approximately 50 grams of synthetic marijuana from a secret compartment cut by a serrated knife by hand into the space behind the gearshift in the center console of Appellant's vehicle. He also testified that "it's common for some drug traffickers to leave a small amount of product visibly apparent to the police officer so that they can find it, seize it, [and] conclude the search [without discovering the larger quantity hidden]." N.T. Trial, 1/23/19, at 33.² Based on the amount of marijuana seized, its packaging and manner of concealment, Detective Zech opined that Appellant possessed the narcotics with intent to distribute them.

Appellant testified and acknowledged that the marijuana was his but asserted that it was for his personal consumption. He also denied that he had created the hidden compartment in the vehicle, claiming that it came from the factory in that condition.

The court found Appellant guilty of one count of PWID on January 23, 2019, but did not immediately order a Pre-Sentence Investigation ("PSI"). After delay caused by administrative error,³ the court ordered an expedited pre-sentence investigation ("PSI"), which was completed on August 28, 2019, and subsequently sentenced Appellant on September 11, 2019. Appellant timely filed Post-Sentence Motions on September 20, 2019, inter alia challenging the weight of the evidence, which the trial court denied on September 23, 2019.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. The trial court issued a responsive Opinion.

Appellant raises the following issues, edited for clarity:

1. Whether the suppression court erred in denying his Motion to Suppress, as Detective Zech lacked reasonable suspicion to request a canine officer conduct a search of the exterior of Appellant's vehicle;

2. Whether there was sufficient evidence of Appellant's intent to distribute the narcotics found in his possession;

3. Whether the verdict was against the weight of the evidence, as the evidence indicated the narcotics were intended for Appellant's personal use; and

4. Whether the trial court's delay in sentencing Appellant was prejudicial such that his discharge is appropriate.

See Appellant's Br. at 4.

Denial of Appellant's Motion to Suppress In his first issue, Appellant contends that the suppression court erred in denying his Motion to Suppress. Appellant's Br. at 17.

We review the suppression court's decision to deny a motion to suppress to determine "whether [its] factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Milburn, 191 A.3d 891, 897 (Pa. Super. 2018) (citation omitted). "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." Commonwealth v. Freeman, 150 A.3d 32, 34 (Pa. Super. 2016) (citation omitted). We are bound by the suppression court's factual findings where they are supported by the record, and we may reverse only if the court's legal conclusions are erroneous. Id. at 35.

"Where . . . the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, 'whose duty it is to determine if the suppression court properly applied the law to the facts.'" Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted). "Thus, the conclusions of law of the courts below are subject to our plenary review." Id. (citations omitted).

Here, Appellant contends that the Commonwealth failed to demonstrate that Detective Zech had reasonable suspicion to detain Appellant until the canine search occurred. Id. at 24-26.⁴, ⁵

Because a canine search of the exterior of a vehicle is "inherently less intrusive upon an individual's privacy than other searches[,]" police officers may detain an individual based upon reasonable suspicion that narcotics would be found in the place subject to the canine sniff rather than the more stringent standard of probable cause. Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 2004) (citation omitted).

In order to determine whether an officer had reasonable suspicion that criminal activity was afoot, we examine the totality of the circumstances to determine if "the detaining officer ha[d] a particularized and objective basis for suspecting legal wrongdoing." Commonwealth v. Freeman, 150 A.3d 32, 41 (Pa. Super. 2016) (citation omitted). We need not limit our inquiry to those facts that unmistakably indicate criminal activity. "Rather, even a combination of innocent facts, when taken together, may warrant furtherinvestigation by the police officer." Rogers, 849 A.2d at 1189 (citation omitted).

In this case, the suppression court determined that Detective Zech, who had advanced training and experience in narcotics investigations, had reasonable suspicion to believe "criminal activity was afoot." Suppression Ct. Op. at 7. According to the court, "[t]he abundance of air fresheners, [Appellant]'s nervousness, his fear of arrest despite only receiving a written warning, and the information about [his] travel plans, considered together, rise[] to the level of reasonable suspicion." Id.

We agree with the suppression court's conclusions. These facts, combined with Detective Zech's training and experience, support the suppression court's conclusion that Detective Zech had a particularized and objective basis for suspecting that Appellant was engaged in criminal activity. We further conclude that the court did not err in its legal conclusion that Appellant's detention was supported by reasonable suspicion. Thus, no relief is due.

Sufficiency of the Evidence

In his second issue, Appellant contends there was insufficient evidence to establish that he possessed the synthetic marijuana with intent to distribute. See Appellant's Br. at 26-29. Appellant's claim is without merit.

"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). We review a sufficiency challenge de novo; our scope of review is limited to the evidenceof record. Commonwealth v. Robinson, 128 A.3d 261, 264 (Pa. Super. 2015) (en banc).

The Commonwealth must establish each element of the crimes charged beyond a reasonable doubt. Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015). The fact-finder is tasked with determining the weight to be given the evidence and the credibility of the witnesses;...