OPINION BY WECHT, J.:
Roberto Delvalle ("Appellant") appeals from the September 9, 2011, judgment of sentence. We affirm.
In its Pa.R.A.P. 1925(a) opinion, the trial court set forth the salient facts of this case as follows:
Trial Court Opinion ("T.C.O."), 5/4/2012, at 3-5 (references to notes of testimony and footnote omitted).
Appellant was charged with possession of a controlled substance with the intent to deliver ("PWID"),
On September 9, 2011, Appellant filed post-sentence motions alleging that the verdict was against the weight of the evidence and that the trial court erroneously applied the mandatory minimum sentence. On January 18, 2012, Appellant's post-sentence motions were denied by operation of law. On February 17, 2012, Appellant filed a notice of appeal. On March 29, 2012, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. On May 4, 2012, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises three issues for our consideration:
Brief for Appellant at 2.
Appellant first argues that the trial court erred in concluding that the police had probable cause to support Appellant's arrest and subsequent search. When reviewing a challenge to a trial court's denial of a suppression motion, our standard of review is:
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super.2012) (quoting Commonwealth
In an argument so brief that it avoids waiver by only the slimmest of margins,
Probable cause exists where the facts and circumstances within the knowledge of the officer are based upon reasonably trustworthy information and are sufficient to warrant a man of reasonable caution in the belief that the suspect "has committed or is committing a crime." Thompson, 985 A.2d at 931. "In determining whether probable cause exists, we apply a totality of the circumstances test." Id.
In Dunlap, our Supreme Court considered the impact that police training and experience had on determining whether probable cause existed to support an arrest where the police observed only a single hand-to-hand transaction of an unknown object for cash. The Court held that "police training and experience, without more, is not a fact to be added to the quantum of evidence to determine if probable cause exists, but rather a `lens' through which courts view the quantum of evidence observed at the scene." 941 A.2d at 675 (emphasis in original).
In Thompson, our Supreme Court reconsidered its Dunlap holding. In Thompson, a police officer with nine years' experience was patrolling the streets in a high crime area. The officer observed the appellant hand money to another individual in exchange for a small object. Thompson, 985 A.2d at 930. Relying upon his experience, the officer believed that a drug transaction had just transpired. The officer stopped the appellant and recovered heroin from the appellant's pocket. Id. The Supreme Court, believing that the Dunlap holding lacked clarity, reversed course and held that "a police officer's experience may fairly be regarded as a relevant factor in determining probable cause." Id. at 935. However, the Thompson Court cautioned courts that they "cannot simply conclude that probable cause existed based upon nothing more than the number of years an officer has spent on the force. Rather, the officer must demonstrate a nexus between his experience and the search, arrest, or seizure of evidence." Id. (quoting Dunlap, 941 A.2d at 676). "Indeed, a factor becomes relevant only because it has some connection to the issue at hand." Id.
Instantly, Appellant argues that his arrest was not supported by probable cause because Officer Crawford failed to establish a nexus between his extensive experience and his observations. Appellant's argument fails, for two reasons. First, Thompson involved a single hand-to-hand transaction. It was under those limited circumstances (as was also the case in Dunlap) that the value of police experience became critical to the probable cause determination. Because the officer's observation of the lone transaction, by itself, did not create probable cause, the police officer's experience was necessary to determine whether probable cause existed. Per Thompson, that experience has value only if the officer can demonstrate a nexus between the experience and the observed
Thompson, 985 A.2d at 932 (citing Commonwealth v. Lawson, 309 A.2d 391, 394, 309 A.2d 391 (1973)).
Viewing the totality of the circumstances, with an eye toward the above considerations, it is clear to us that probable cause existed to arrest and search Appellant, even without considering Officer Crawford's experience. Thompson and Dunlap pertain to single hand-to-hand transactions. Here, there is much more. Officer Crawford observed Melendez approach Appellant and hand him small objects. Appellant placed those objects in the front of his pants, which certainly is a dubious place to store non-contraband items. Appellant then worked in tandem with Melendez to facilitate suspicious transactions. An individual would approach Appellant. Appellant would then direct that individual to Melendez. That person would then hand Melendez money. Melendez would then give that person an unknown object, which she retrieved from the pocket of her hooded sweatshirt. Unlike the circumstances in Thompson and Dunlap, this sequence of events did not happen once, but instead happened four times in fewer than twenty minutes, each transaction occurring in the same exact manner. Considering the fact that the neighborhood was considered to be a high drug-transaction area, the suspicious secretion of the objects, the nature and location of the transactions, and the frequency and repetitiveness of the transactions, probable cause existed to warrant a reasonable police officer's belief that Appellant and Melendez were committing a crime, even without considering Officer Crawford's experience.
Second, even if the officer's experience was necessary to establish probable cause in this case, Officer Crawford's suppression testimony sufficiently created the nexus required by Thompson. Officer Crawford testified that he had conducted surveillance in that same location thirty to forty times, which produced seventy-five to one hundred drug arrests based upon very similar transactions. As a member of the narcotics enforcement team, Officer Crawford received training in how drugs are packaged, sold generally, and sold through the use of a partner. More importantly, in his experience, Officer Crawford had observed over one hundred people store drugs in the front of their pants, as Appellant did in the instant case. This particular experience informed his view that Appellant and Melendez were working together and selling drugs, even though Officer Crawford was unable to identify the objects being sold. Through this testimony, Officer Crawford established the requisite nexus between his experience and his observations to support the existence of probable cause.
Appellant next argues that the verdict was against the weight of the evidence. The entirety of Appellant's argument spans three sentences. Appellant does not cite a single case in support of his argument, nor does Appellant develop a factual argument in any substantive way. Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure provides that "[t]he argument shall ... have ... the particular
Finally, Appellant argues that the trial court erred in applying the mandatory minimum sentence set forth in 18 Pa. C.S. § 7508(a)(7)(i). Section 7508(a)(7)(i) requires a trial court to impose a minimum sentence of three years in prison if the defendant has been convicted of PWID and the aggregate weight of heroin that the actor possessed with the intent to deliver exceeded one gram, but was less than five grams. Id. Appellant maintains that the trial court erred by aggregating the weight of the heroin seized from his person with the weight of the heroin seized from Melendez. Appellant possessed less than one gram of heroin on his person. Thus, Appellant contends, had the trial court not improperly added the heroin found on Melendez to the heroin that Appellant possessed, section 7508(a)(7)(i) would have been inapplicable. We disagree.
Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Commonwealth v. Leverette, 911 A.2d 998, 1002 (Pa.Super.2006). Issues relating to the legality of a sentence are questions of law. Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa.Super.2006). Our standard of review over such questions is de novo, and our scope of review is plenary. See Leverette, 911 A.2d at 1002.
The Commonwealth maintains that, because Appellant was convicted of criminal conspiracy and, therefore, criminally responsible for the illicit acts of a co-conspirator, the trial court correctly aggregated the weight possessed by both Appellant and Melendez. Our Supreme Court addressed the interplay between conspiracy and section 7508(a)(7)(i) in Commonwealth v. Johnson, 611 Pa. 381, 26 A.3d 1078 (2011). In Johnson, the appellant, over the course of a few weeks, arranged three different sales of heroin and Oxycontin tablets to an undercover police officer. Johnson, 26 A.3d at 1080-82. The officer would tell the appellant what he wanted, the appellant would arrange to get those drugs from a supplier, and then the appellant would deliver the drugs to the officer. Each sale involved a different supplier. Id. After the last sale, the appellant and two of his suppliers, Stoner and Wilson, were arrested. Id., at 1082. Wilson's car was searched, revealing additional amounts of heroin. Id. No testimony was offered as to the total weight of heroin involved in the case, but the trial court estimated that the heroin the appellant sold to the officer on July 6, 2004 (the day of the arrest) was approximately 687 milligrams and that the heroin recovered from the car was 432 milligrams. Id., at 1084.
A panel of this Court affirmed the sentence on the basis that the appellant had constructive possession of the heroin in Wilson's car. Id., at 1085. Our Supreme Court reversed, holding that there was insufficient evidence to establish constructive possession of the drugs in Wilson's car. Id., at 1094-95. The Commonwealth also asserted that the Court could affirm on the basis of the appellant's conspiracy conviction; the Court accordingly addressed whether that conviction would allow imposition of the mandatory minimum. The Supreme Court rejected the argument that a conspiracy conviction, in and of itself, was sufficient to invoke the mandatory minimum, because Section 7508 by its plain language applies only to violations of 35 P.S. §§ 780-113(a)(14), (30), or (37), and does not apply to conspiracy to commit those acts. Id., at 1090-92.
More relevant to the instant case, the Johnson Court addressed the circumstances of conspiratorial culpability as they relate to the aggregation of the weight of drugs possessed by co-conspirators for mandatory minimum sentencing purposes. The Johnson Court seemingly recognized that the aggregate of weight possessed by co-conspirators may properly implicate the mandatory minimum sentence when the conspiracy is on-going. Id., at 1092-93 (citing Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super.2007)). However, the Johnson Court held that the testimony in that case demonstrated that the conspiracy between the appellant and Wilson was discontinued after the appellant delivered the heroin to the officer. Id. Thus, the Johnson Court did not find the mandatory minimum applicable. Because the conspiracy between the appellant and Wilson had concluded, the Court was able to distinguish the case from Perez, a case in which the conspiracy was on-going, enabling the aggregation of weights. Id., at 1093.
The Johnson Court's principal holding was that conspiracy alone was insufficient to support imposition of the mandatory minimum sentence. However, when a person is convicted of one of the enumerated convictions and is involved in an on-going conspiracy, the amounts of drugs attributed to all of the conspirators may be aggregated for purposes of applying the mandatory minimum. Johnson did not abrogate this general rule.
In Perez, an officer observed the appellant make three hand-to-hand sales in front of Maddox's house. 931 A.2d at 705. The officer also saw Maddox leave his house, walk to the appellant, and hand the appellant blue packets. The appellant then handed money to Maddox. After this exchange, Maddox sat in a car parked in front of his house and watched the appellant. When the appellant saw a marked police car, he walked to Maddox and handed Maddox the blue packets and money. Id. They then walked off together and were arrested soon thereafter. Id., at 706. Upon arrest, the appellant had $8.00 and Maddox had $975.00. Thirteen packets of heroin were found in Maddox's car. When Maddox's house was searched, twenty-six packets of heroin were discovered. Id. The total amount of heroin recovered was approximately 1.145 grams, which sufficed for imposition of the mandatory minimum. Id., at 706 n. 5. The appellant sold 0.3 grams in the three sales observed by the police, and 0.863 grams were recovered from Maddox's house. Id. The record did not indicate the weight of the heroin recovered from the car. Id., at 706 n. 3.
On appeal, the appellant asserted that he was not in constructive possession of the heroin recovered from the house, and that there was insufficient evidence of a conspiracy. Id., at 707. This Court held
Instantly, Appellant was convicted of conspiracy and PWID. PWID is one of the enumerated offenses to which the mandatory minimum applies. See 18 Pa. C.S. § 7508(a)(7). Thus, under Johnson and Perez, our task is to determine whether there existed an on-going conspiracy between Appellant and Melendez. If so, under Perez, conspiratorial culpability would apply and the mandatory minimum sentence was legally imposed because Appellant was responsible for all the drugs recovered, including those from his co-conspirator. Conversely, if the conspiracy had ended, then, under Johnson, Appellant would not be responsible for the drugs recovered from Melendez, and the mandatory minimum would have been applied in error.
After reviewing the record, we conclude that the record adequately showed an on-going conspiracy. Officer Crawford observed Melendez hand to Appellant objects that later were determined to be packets of heroin. The officer then observed Appellant and Melendez work in tandem to complete four separate drug transactions. When arrested, both Appellant and Melendez were found with additional heroin, suggesting that, had the arrests not occurred, the pair would have continued to distribute heroin on that same street. Additionally, the packets of heroin found on Appellant and Melendez were all stamped with the words "Moon Dust," further proving that Appellant and Melendez were working together. This evidence clearly indicated that the conspiracy was on-going. As such, the trial court properly aggregated the weight of the heroin found on Appellant with that found on Melendez. See Johnson; Perez, supra.
Judgment of sentence affirmed.