Commonwealth v. Rosario

1

COMMONWEALTH OF PENNSYLVANIA v. ISMAEL FELIX ROSARIO Appellant

No. 371 MDA 2023

No. J-S45021-23

Superior Court of Pennsylvania

January 18, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered February 7, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002772-2021

Benjamin D. Kohler, Esq.

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

LAZARUS, J.

Ismael Felix Rosario appeals from the judgment of sentence, entered in the Court of Common Pleas of Lancaster County, following his convictions of one count each of delivery,^[1] carrying a firearm without a license,^[2] persons not to possess,^[3] possession of a small amount of marijuana,^[4] and possession of drug paraphernalia,^[5] and two counts of possession with intent to deliver (PWID).^[6] After review, we affirm on the well-written opinion authored by the Honorable Merrill M. Spahn, Jr.

We adopt the trial court's full factual summary set forth in its opinion, see Trial Court Opinion, 5/3/23, at 3-8, but, nevertheless, provide a shortened version here. On June 22, 2021, the Lancaster City Bureau of Police's Selective Enforcement Unit (SEU), was operating a "Buy/Walk"^[7] sting targeting street-level drug dealing in Lancaster City. An undercover officer made contact with a known low-level drug dealer, Dominic Padurano, and arranged to buy narcotics. Padurano and his roommate, William McCall, met with the undercover officer, got into his vehicle, and directed him to the 400 block of South Christian Street in Lancaster City.

Once there, McCall exited the vehicle with $100.00 in documented police funds, approached and entered a white Acura, and eventually exited the white Acura. Upon returning to the undercover officer, McCall revealed he had none of the $100.00 documented funds, and instead had $80 worth of heroin and $20 worth of crack cocaine. Shortly thereafter, Officer Matthew Deibler, uniformed and in a marked police cruiser, approached the white Acura and informed the two men, later identified as Rosario and Ernie Vega, that they were parked in a "no parking zone." Neither occupant had a driver's license and, in response, Officer Deibler asked for their names, birth dates, and home addresses. Initially, Officer Deibler had issues identifying both men, as Vega had provided a false name, and Officer Deibler had misspelled Rosario's name. During this time, additional police officers arrived on the scene and observed, in plain view, a clear corner-tied baggie under Rosario's leg. As a result of the entire interaction and the plain view observation, the officers ordered the men out of the white Acura and performed a pat down for officer safety.

During the pat down, one of the officers observed a firearm on the floor of the vehicle, and two clear corner-tied baggies, one containing crack cocaine and one containing forty-two pills of methamphetamine. Rosario was placed under arrest and charged with the above-mentioned offenses. Police then secured a search warrant for the vehicle and discovered a firearm with an accompanying magazine, 125 pills containing methamphetamine, 17 blue wax sleeves containing heroin and fentanyl, three foil packs of THC gummies, one gram of marijuana, sandwich bags, a scale, various paperwork, IDs, and Visa cards belonging to both men.

On November 24, 2021, Rosario filed an omnibus pre-trial motion in which he raised a motion to sever and a motion to suppress evidence. Rosario sought severance of his persons not to possess charge. Additionally, Rosario sought to suppress all evidence from the police encounter as fruits of the poisonous tree where the police lacked either the requisite reasonable suspicion or probable cause for the stop, his arrest, and the subsequent search warrant.

On March 10, 2022, and March 30, 2022, the trial court conducted a bifurcated suppression hearing.^[8] After the hearing, the trial court granted Rosario's motion to sever, and denied Rosario's motion to suppress. In particular, the trial court found that the police had reasonable suspicion when they detained Rosario and that no undue amount of time occurred during Rosario's detention. See N.T. Suppression Hearing, 3/30/22, at 20-21.

On November 16-17, 2022, Rosario proceeded to a jury trial on the severed charge of person not to possess. After the jury trial, Rosario was convicted of person not to possess, and the trial court postponed the bench trial on the remaining offenses and ordered a pre-sentence investigation report. On February 7, 2023, the trial court conducted a bench trial on Rosario's remaining offenses and found Rosario guilty.

On February 7, 2023, the same day of the bench trial, the trial court conducted a sentencing hearing and sentenced Rosario to one to two years in prison for his conviction of delivery - cocaine; two to five years in prison for his first conviction PWID; five to ten years in prison for his second conviction of PWID; three-and-one-half to seven years in prison for his conviction of carrying a firearm without a license; seven-and-one-half to fifteen years in prison for his conviction of person not to possess; and to pay costs of prosecution on his remaining convictions. The trial court imposed Rosario's sentences at his first conviction of PWID and person not to possess consecutively. Rosario's remaining sentences were imposed concurrently, resulting in an aggregate sentence of 9½ to 20 years' incarceration plus costs. Rosario did not file a post-sentence motion.

Rosario filed a timely notice of appeal, and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Rosario now raises the following claims for our review:

1.Did the suppression court err in denying suppression of illegally seized evidence after [a] warrantless, illegal seizure and search of [a] motor vehicle and of [Rosario,] who was a passenger in the vehicle, where neither seizure and search of the vehicle, nor seizure and search of [Rosario] were supported by reasonable suspicion or probable cause?

2. Did the [c]ourt err in answering a jury question, thereby[] lowering the standard of proof required of the Commonwealth from "beyond a reasonable doubt" to "more likely than not?"

Brief for Appellant, at 4.

In his first claim, Rosario argues that the trial court erred in denying suppression. See id. at 12-15. Rosario contends that when Officer Deibler approached the car and informed him that he was in a "no parking zone," Rosario was no longer free to leave and, therefore, was under arrest. Id. at 14. Rosario asserts that because he was under arrest, the entire subsequent search was fruit of the poisonous tree. Id. at 14-15.

In reviewing the denial of a suppression motion,

[w]e may consider only the Commonwealth's evidence 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 record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. An appellate court, of course, is not bound by the suppression court's conclusions of law.

Commonwealth v. Hampton, 204 A.3d 452, 456 (Pa. Super. 2019). Such an inquiry must take into account the totality of the circumstances. Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013).

We rely on and adopt the thorough and well-reasoned opinion authored by the trial court. See Trial Court Opinion, 5/3/23, at 8-12. We emphasize that the trial court addressed the moment of detention as follows:

The SEU officers observed McCall leave the undercover officer's vehicle, enter the white Acura with $100[.00] in documented buy money, and return to the undercover officer's vehicle moments later with a quantity of drugs worth $100[.00] and none of the buy money. Padurano and McCall had specifically instructed the undercover officer to drive to the street on which the white Acura was located to obtain drugs, and at no point did McCall interact with anyone but the occupants of the white Acura before returning with drugs in hand. Importantly, the officers were unable to view the exchange within the Acura, requiring further investigation to ascertain the identity of the dealer in the Acura. As such, as soon as [the undercover officer] confirmed that a successful drug purchase had occurred, the SEU officers possessed reasonable suspicion to initiate an investigatory detention of the Acura's occupants.

Trial Court Opinion, 5/3/23, at 11-12.

We further observe that Detective Timothy Sinnott followed the undercover officer in a separate car and observed the entire interaction. See N.T. Suppression Hearing, 3/10/22, at 42-46 (Detective Sinnott detailing he operated "surveillance car" and followed undercover officer; observed McGall enter and exit white Acura; observed white Acura remain in place throughout events and contact with Officer Deibler). After careful review, we conclude that the trial court's findings of fact are supported by the record, and its legal conclusions are sound. See Hampton, supra. Having adopted the trial court's analysis, we afford Rosario no relief on this claim.

In his second issue, Rosario argues that the trial court erred in issuing a jury instruction about constructive possession, in which it told the jury that the Commonwealth needed to prove it was "more likely than not" that Rosario constructively possessed the firearm. See Brief for Appellant, at 15-17. Rosario contends that this phrasing misled the jury from the proper standard of "beyond reasonable doubt." Id. Rosario acknowledges that the trial court reiterated several times that the Commonwealth must prove...