HomeMy WebLinkAboutCP-21-CR-2602-2006
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.:
:
JOEL MARRERO : CP-21-CRIMINAL 2602 – 2006
:
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., April , 2008
After trial by jury the defendant was found guilty of possession with intent to
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deliver a controlled substance, false identification to law enforcement authorities and
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driving under suspension. On December 18, 2007 he was sentenced. Thereafter he filed
this timely appeal in which he alleges 1) the suppression court erred in failing to grant his
omnibus pretrial motion to suppress evidence; 2) the evidence was insufficient to sustain
the verdicts and 3) this court erred in failing to grant his motion in limine to preclude
certain evidence. The Honorable J. Wesley Oler, Jr. dealt with the pretrial motions. He
has authored a 1925 opinion in connection therewith. We will address the remaining
issues in the opinion that follows.
Sufficiency of the Evidence
The standard of review in assessing a sufficiency of the evidence challenge is well
settled and has been articulated by the Superior Court as follows:
The standard we apply in reviewing the sufficiency of evidence is whether,
viewing all the evidence admitted at trial in the light most favorable to the verdict
1
35 Pa. C.S.A. § 780-113 (a) (30).
2
18 Pa. C.S.A. § 4914.
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75 Pa. C.S.A. § 1543 (a). We entered the guilty verdict on this last charge.
CP-21-CRIMINAL 2602 - 2006
winner, there is a sufficient evidence to enable the fact finder to find every
element of the crime beyond a reasonable doubt. Commonwealth v. Heberling,
451 Pa.Super. 119, 678 A.2d 794, 795 (Pa.Super. 1996) (citing Commonwealth v.
Williams, 539 Pa. 61, 650 A.2d 420 (1994)). In applying [the above] test, we may
not weight the evidence and substitute our judgment for that of the fact finder. In
addition, we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence. Any doubts
regarding a defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no probability of fact
may be drawn from the combined circumstances. Commonwealth v. Cassidy, 447
Pa.Super. 192, 668 A.2d 1143, 1144 (Pa.Super. 1995) (citations omitted). The
Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the weight of the evidence produced
is free to believe all, part or none of the evidence. Commonwealth v. Valette, 531
Pa. 384 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted).
Commonwealth v. Marinez, 777 A.2d 1121, 1126 Pa.Super. (2001), quoting from
Commonwealth v. Vetrini, 734 A.2d 404, 406-7, Pa.Super. (1999). Applying this
standard to the current case, we were satisfied that the evidence was sufficient to sustain
the verdicts.
We will begin by recounting the facts in the light most favorable to the
Commonwealth as the verdict winner. A little after 1:00 a.m. on the morning of August
26, 2006 Officer Daniel Parsons was on routine patrol in the Borough of Carlisle. As his
marked patrol vehicle came to the 200 block of West North Street he noticed the
defendant’s vehicle blocking both lanes of the intersection and partially blocking the
sidewalk. The defendant was seated behind the steering wheel and engaged in a yelling
match with several people on the street. Officer Parsons stopped to investigate.
When the officer asked for his name, the defendant replied that he was Joes
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Marrero. When asked to spell his first name, the defendant replied “J-0-E-S”. He also
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Trial Transcript, p. 17.
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gave several different addresses in the Borough as his place of residence. When the
officer asked for his driver’s license he said he was from Harrisburg and did not have his
license with him.
The officer then tried to determine who owned the vehicle. The defendant gave
conflicting statements. The officer described what happened next:
. . .
I started to note that he became very nervous. He started
sweating. He was visibly shaking. He was looking back and forth,
forward and behind him. He said - - he had indicated his name as a partial
owner. Upon receiving that insurance information from him, he was not a
partial owner of the vehicle. The vehicle was owned by Angela Cabrera
and Michael Swartz.
At the point that we started figuring out that he did not own the vehicle, he
. . .
became even more nervous. I thought that he was going to take off
running.
At the last - - I tried one last time to make sure that maybe it was
not my mistake, to find out if I was not hearing his name properly or
maybe with an accent that he was saying it to me the wrong way. So, I
wrote: Based on the above, I requested that the Hispanic male spell his
name again, at which time he told me, sometimes I forget how I spell my
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name.
At that point the defendant was detained. Shortly thereafter he identified himself
correctly as Joel (J-o-e-l) Marrerro.
During a search of the vehicle a pair of adult gray sweatpants was recovered from
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the front passenger seat. Two dozen individually wrapped baggies of crack cocaine and
several baggies of powdered cocaine were found in those pants. The crack cocaine
weighed 9.58 grams. The powered cocaine weighed 1.82 grams. The sweatpants also
contained $499 in cash, as well as the defendant’s New York identification card.
Detective Kurtz is a member of the Cumberland County Drug Task Force. He has
years of experience working on drug investigations. He has testified in the past as an
5
Trial Transcript, p. 19.
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Detective Kurtz could not tell if they were men’s or women’s sweatpants, only that they were adult size.
See Trial Transcript, p. 40.
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expert in “(d)rug identification, drug pricing and drug trafficking as it relates to Carlisle
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and Cumberland County, Pennsylvania.” In his professional opinion both the powder
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and crack cocaine “were “individually packaged for distribution.” Likewise, the head of
the Cumberland County drug task force opined that the cocaine was meant to be
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delivered to others.
Angela Cabrera was called as a Commonwealth witness. She was the owner of
the vehicle in question. She testified that the defendant was using the vehicle with her
permission. However, she denied any knowledge of the sweatpants or the drugs
contained therein.
The Commonwealth presented a certified copy of the defendant’s N.Y. driving
record which showed his license to have been suspended for six months effective, March
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27, 2001. It had never been reinstated. The following exchange between the Assistant
District Attorney and the defendant sums up the evidence.
Q.Did you ever have a conviction which would have a suspension of
a license associated with it?
A.Yes, I have. They suspended my license from 2001 for six
months, but I never had a license, so I didn’t worry about the
suspension.
. . .
Q.After this conviction, you never made any attempt to get a driver’s
license, is that your testimony?
A.That’s my testimony, yes.
Q.And you were told in 2001 that your privileges had been
suspended?
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A.Yes, sir.
7
Trial Transcript, p. 34.
8
Trial Transcript, p. 43.
9
Trial Transcript, p. 112.
10
Evidence relating to the summary offense of driving under suspension was received outside the presence
of the jury.
11
Trial Transcript, pp. 124 - 125.
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CP-21-CRIMINAL 2602 - 2006
We were satisfied that the above evidence is sufficient to sustain the verdicts for
possession with intent to deliver, false identification to law enforcement and driving
under suspension. The convictions for possession with intent to deliver and driving under
suspension are so clearly sustainable that no further discussion is necessary in connection
therewith. However, since the name the defendant gave the police was only 1 letter
different than his actual name. We will address that issue in more detail.
Section 4914 of the Crimes Code provides:
A person commits an offense if he furnishes law enforcement
authorities with false information about his identity after being
informed by a law enforcement officer who is in uniform or who
has identified himself as a law enforcement officer that the person
is the subject of an official investigation of a violation of law.
(18 Pa. C.S.A. § 4914). Officer Parsons was in full uniform and in a marked patrol
vehicle. He activated his emergency lights as he stopped to investigate obvious
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violations of the law. When asked for his name, the defendant identified himself as
“Joes” Marrerro. He intentionally used an incorrect first name to conceal his true
identity. On cross examination the following exchange took place between the officer
and defense counsel:
Q.It is your testimony today that a person who is trying to
conceal his identity would give you the name of – their true
last name as well as a first name that is only one letter
different than their true first name?
A. Have people done that? Yes, that’s my testimony. People
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have done that.
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The officer had reasonable articulable suspicion that the defendant was in violation of several provisions
of the law, including 18 Pa. C.S.A. § 5503 (disorderly conduct) 75 Pa. C.S.A. § 3309 (driving on roadways
lined for traffic), 75 Pa. C.S.A. § 3351 (stopping, standing, and parking outside business and residence
districts); 75 Pa. C.S.A. § 3353 (prohibitions on stopping or parking vehicle); or 75 Pa. C.S.A. § 3354
(additional parking regulations).
13
Trial Transcript, p. 27.
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On redirect the officer was even more specific, stating that the defendant “admitted to
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lying to me about his name to avoid us finding out his name”. Taken as a whole, the
evidence is sufficient to sustain the conviction for violating Section 4914 of the Crimes
Code.
Motion in Limine
On his concise Statement of Matters Complained of on appeal the defendant
contends that:
The Court erred in denying the appellant’s Motion in Limine to preclude
reference to Appellant’s alleged street name of “Dollar,” testimony
regarding there being a warrant for Appellant from New York, and
testimony regarding any reference to the drugs, money, and identification
card being found in a pair of sweatpants the Commonwealth claims were
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in the vehicle.
We start by noting that we granted his motion in limine with regard to the warrant from
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New York. We did, however, deny the remaining requests.
As part of his motion in limine the defendant asked us to exclude any reference to
his alleged street name of “Dollar” because the prejudice outweighed any probative
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value. We could not see any prejudice to the defendant by allowing the Commonwealth
to use the defendant‘s nickname in explaining its efforts to identify his true identity.
Therefore, we denied his request.
The defendant also asked us to exclude any evidence with regard to the
sweatpants in which the drugs, money and his identification card were found. He
14
Trial Transcript, pp. 30-31.
15
See “Concise Statement of Matters Complained of on Appeal”, # 2.
16
See Trial Transcript, p. 4 where we stated “Number 3 is granted. There will be no testimony regarding
an outstanding warrant from New York.”
17
See Motion in Limine, paragraph 1.
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claimed that the Commonwealth’s failure to produce the pants for inspection, or as an
exhibit at trial, should preclude any reference to them. We disagreed. While we allowed
the Commonwealth to present testimony with regard to the sweatpants, we also allowed
the defendant to fully explore the reasons for the Commonwealth’s failure to preserve
them as evidence. We were of the opinion that the jury should be assigned the task of
deciding what weight, if any, it would give to the sweatpants as well as the
Commonwealth’s failure to produce them.
_____________________ ____________________________
DATE Edward E. Guido, J.
Derek R. Clepper, Esquire
For the Commonwealth
Stacy B. Wolf, Esquire
For the Defendant
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