Commonwealth v. Malone

245 A.3d 1065 (Table)

COMMONWEALTH of Pennsylvania v. Terry MALONE, Appellant

No. 1491 MDA 2019

Superior Court of Pennsylvania.

Filed December 14, 2020

Reargument Denied: February 3, 2021

MEMORANDUM BY FORD ELLIOTT, P.J.E.:

Terry Malone appeals, pro se , from the August 14, 2019 judgment of sentence entered by the Court of Common Pleas of Berks County following his conviction of two counts each of manufacture of a controlled substance, possession of a controlled substance with intent to deliver ("PWID"), possession of a controlled substance, and possession of drug paraphernalia. The trial court sentenced appellant to an aggregate term of 17-42 years' incarceration. After careful review, we affirm.

The trial court set forth the following factual and procedural history:

On July 26, 2017, patrol units with the Reading Police Department arrived at 428 West Windsor Street in Reading, Pennsylvania to serve an arrest warrant for an individual named Miguel Carrasquillo, living at that residence who was wanted for a felony burglary involving a firearm and were granted entrance to the residence. While serving the arrest warrant, officers observed firearms and suspected bulk amounts of synthetic marijuana in plain view.

During the search, officers were informed by neighbors that the residents frequently utilize[d] a white, 2005 Ford Explorer that was parked outside of the residence. A large container that would attach to an air compressor and firearms could be seen on the floor board and in the back seat of the Ford Explorer. Based on these observations, a search warrant was issued and a search conducted of the Ford Explorer. Though the Ford Explorer was not registered to appellant, inside the vehicle, officers found a cardboard box addressed to appellant originally from China and routed through Germany prior to arriving in the [United States.] A powder substance wrapped in a foil envelope was also found inside the Ford Explorer. Packaging with the powder indicated that it was shipped from China to appellant at a post office box.

On July 26, 2017, a lawful search warrant was executed on storage unit 1027 located at 1252 North 9 ^th Street in Reading, Pennsylvania ("Unit 1027") by members of law enforcement, including Criminal Investigator Matthew Niebel ("C.I. Niebel"), who testified for the Commonwealth at the trial of this matter. Upon entering Unit 1027, law enforcement found four large cardboard boxes — some marked with a specific brand — and a large, black plastic bin. One of the cardboard boxes contained approximately nineteen, one-pound packages of a green, leafy substance suspected to be synthetic marijuana. Each was packaged in a one-gallon Ziploc bag. C.I. Niebel testified that, based on his training and experience, controlled substances, such as synthetic marijuana, [are] often packaged in bulk for sale or distribution. Other boxes contained blue tarps with approximately sixty pounds of unpackaged substance suspected to be synthetic cannabinoid. Tarps are commonly used and [are] an essential tool in the manufacturing of large quantities of synthetic marijuana. The black plastic bin contained some synthetic marijuana residue.

A packaging slip on one of the boxes indicated that the box was packed with twenty-five pounds of damiana leaf, which is an herbal substance known to be used in the processing of synthetic marijuana. [Footnote 1] Some of the boxes still had shipping labels with appellant's name and a Reading post office box address printed on them. Another receipt from [an] herb company in Oregon also had appellant's name printed on it with an address at 165 Main Street, Building 27 in Wernersville, Pennsylvania and indicated that the receipt was for fifty pounds of damiana leaf. Law enforcement contacted the management office of the storage center and obtained a copy of the lease for Unit 1027, which identified appellant as the lessee of Unit 1027 with an address at 1 Rockview Place in Bellefonte, Pennsylvania.

[Footnote 1] While damiana leaf is known to be used in the processing of synthetic marijuana, it is not itself a controlled substance and the purchase of which is not illegal in Pennsylvania.

The substances found inside both Unit 1027 and in the Ford Explorer were then sent to the Pennsylvania State Police ("PSP") Laboratory for analysis. Upon analysis of the substances, the PSP forensic drug analyst concluded that the substance materials contained FUB-AMB, an indole carboxamide, which is a Schedule I controlled substance.

Law enforcement began surveillance on appellant. On July 27, 2017, at approximately 10:00 a.m., officers observed appellant exit 839 North 8 ^th Street in Reading, Pennsylvania and enter a gray 2011 Infiniti and drive to 428 Windsor Street. Appellant then traveled to a secondary location and on to the post office on 5th Street in Reading.

Later in the day, at approximately 2:30 p.m., investigators observed appellant enter the 2011 Infiniti, after having placed a black garbage bag into the trunk. Appellant traveled to 851 North 3rd Street in Reading, Pennsylvania, went into that address with the garbage bag and reemerged with a brown paper bag that he also placed into the trunk of the Infiniti. Appellant drove to Storage World, located at 211 North Wyomissing Boulevard in Reading, Pennsylvania and accessed storage unit 3B007 ("Unit 3B007"). Appellant returned to 851 North 3rd Street, pulled an object from the trunk, which appeared to be a rifle wrapped in a garbage bag, and enter the residence again.

After appellant left 851 North 3 ^rd Street, officers obtained consent from the residents of the second-floor apartment — Talaura Gonzalez and Kevin Jacquez — to search the apartment. In the second-floor bedroom, a black garbage bag was found under [a] plastic container. Inside of the garbage bag was an AR-15 rifle and an Intratec .22 caliber Tech-22 with the serial number filed down. In another closet, officers found a second garbage bag with a small purse inside and a scale. Inside of the purse were a Ruger 9mm handgun, which was loaded with ten bullets, a pink Cobra .380 handgun and forty bullets. Ms. Gonzalez informed officers that appellant owned or possessed the firearms.

Law enforcement then prepared and executed search warrants on both 839 North 8 ^th Street and the 2011 Infiniti vehicle. A search warrant for Unit 3B007 was also authorized and executed.

Upon searching the 2011 Infiniti registered to appellant, officers found a brown paper bag in the trunk of the vehicle containing $25,100 in [United States] currency and a black garbage bag containing synthetic marijuana. Inside the vehicle, officers found a jeweler's receipt for a watch with appellant's name on it and a receipt for [a] $1,500 money order sent to a location in China. The watch indicated on the jeweler's receipt matches a watch found on appellant upon his arrest.

A search warrant on [Unit 3B007] was likewise executed. Unit 3B007 was essentially empty except for a paper bag on the floor containing $89,893 in United States currency.

A search was authorized and executed by law enforcement on appellant's residence located at 839 North 8th Street in Reading. During the search, officers found two digital scales, packaging materials and Ziploc bags and a gun box. Criminal Investigator Kevin Haser ("C.I. Haser"), who was called by the Commonwealth both as a fact witness and an expert at the trial of this matter, testified that based on the amount of synthetic cannabinoid found during the searches, that the drugs were possessed with the intent to distribute, as opposed to merely for personal use. C.I. Haser also testified as to the process and materials used during the production of synthetic cannabinoids[.]

Thereafter, on July 27, 201[7], appellant was taken into custody. The keys for the post office box listed on the shipping label and the keys for the locks on both Unit 1027 and Unit 3B007 were found on appellant's person.

Officers also searched post office boxes at the 5 ^th Street Post Office in Reading relative to keys seized upon appellant's person. Officers also obtained the application for the post office box, which indicated that appellant had applied for and his identity was verified on the form with his driver's license. A second post office box key found on appellant's person corresponded with a box leased by appellant's known paramour. Law enforcement confirmed that these were the post office boxes where the damiana leaf shipments were being sent to appellant.

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On September 29, 2017, appellant was charged[Footnote 2] with, inter alia , one count of possession of a firearm with altered manufacturer's number[Footnote 3] at count five, one count of receiving stolen property[Footnote 4] at count six, two counts of manufacture of a controlled substance[Footnote 5] at counts seven and eight, two counts of [PWID][Footnote 6] at counts nine and ten, two counts of possession of a controlled substance[Footnote 7] at counts eleven and twelve and two counts of possession of drug paraphernalia[Footnote 8] at counts thirteen and fourteen. On September 15, 2017, all charges were held over for court.

[Footnote 2] [The trial court] note[s] that appellant was likewise charged with four counts of unlawful possession of a firearm pursuant to 18 Pa.C.S.A. § 6105(a)(1), which were severed from the instant charges and later withdrawn after sentencing pursuant to the instant convictions.

[Footnote 3] 18 Pa.C.S.A. § 6110.2(a) [.]

[Footnote 4] 18 Pa.C.S.A. § 3925(a) [.]

[Footnote 5] 35 P.S. § 780-113(a)(30) [.]

[Footnote 6] 35 P.S. § 780-113(a)(30) [.]

[Footnote 7] 35 P.S. § 780-113(a)(16) [.]

[Footnote 8] 35 P.S. § 780-113(a)(32) [.]

Appellant, [although represented by counsel], filed various pro se pre-trial motions which were denied by [the trial] court. On August 16, 2018, appellant filed counseled omnibus pretrial motions seeking habeas corpus relief challenging the classification of FUB-AMB as a

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