Com. v. Kuhn, C. ( 2018 )

J-S04013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAITLYN CHANTEL KUHN :
:
Appellant : No. 960 MDA 2017
Appeal from the Judgment of Sentence May 17, 2017
In the Court of Common Pleas of Adams County Criminal Division at No(s):
CP-01-CR-0000714-2016
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 27, 2018
Appellant, Caitlyn Chantel Kuhn, appeals from the judgment of
sentence imposed on May 17, 2017, following her nonjury conviction of
various drug offenses. We affirm.
The trial court, sitting as the suppression judge, entered the following
findings of fact:
1. On May 27, 2016, [Appellant] resided at 344 South
Washington Street, Apartment 1, Gettysburg, Adams
County, Pennsylvania, with [Appellant’s] boyfriend,
Walter Brown.
2. This residence was an approved residence for Walter Brown,
who was under the supervision of the Adams County
Department of Probation Services on or about May 27,
2016. Walter Brown was on supervision for possession with
intent to deliver crack cocaine and DUI.
3. Walter Brown signed Adams County Department of
Probation Services Standard Rules of Supervision for
Probation, Intermediate Punishment and Parole in the
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presence of Probation Officer Livelsberger on December 14,
2015. Included was Rule 4 which stated “you must agree to
permit any probation/parole officer, to search your person,
enter into and search your residence, vehicle or any other
property under your control without warrant at any time
upon reasonable suspicion of violation and to ensure
compliance with all conditions of your sentence.”
4. On or about May 27, 2016[, Appellant] allowed
Walter Brown to live with her at the above address.
[Appellant] knew that Walter Brown was on probation
supervision.
5. Probation Officer Clayton McKim received information from a
confidential informant (hereinafter CI) several days to a
week prior to the search on May 27, 2016. The CI bought
drugs from [Appellant] at her residence, 344 South
Washington Street, Apartment 1. The CI also advised
Officer McKim that the CI was aware that on multiple
occasions over a period of several months prior to May 27,
2016, other individuals bought drugs at the apartment of
[Appellant] and Walter Brown, including heroin, crack
cocaine and pain killers.
6. Officer McKim received additional information from an
unidentified informant concerning drug dealing at
[Appellant’s] and Walter Brown’s apartment within a month
prior to the search on May 27, 2016.
7. Several days prior to May 27, 2016, Officer McKim provided
the above information to Probation Officer
Matthew Livelsberger who was supervising Walter Brown.
8. Officer Matthew Livelsberger had been supervising
Walter Brown since December 2015. Walter Brown was on
supervision with the Department of Probation Services for
possession with intent to deliver crack cocaine and DUI.
9. Between December 2015 and May 27, 2016,
Officer Livelsberger had attempted visits with Walter Brown
at 344 South Washington Street, Apartment 1, Gettysburg
on numerous occasions at different times throughout the
day and each time no one at the residence would answer
the door.
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10. On May 26, 2016, Officer Livelsberger obtained permission
from his supervisor to conduct a warrantless search of the
residence of Walter Brown at 344 South Washington Street,
Apartment 1, Gettysburg, Pennsylvania to search for
controlled substances.
11. On May 27, 2016, at approximately 6:00 a.m. Probation
Officers Livelsberger and McKim, two other probation
officers and two Gettysburg Borough Police Officers arrived
at [Appellant’s] and Walter Brown’s apartment and knocked
on the front door, back door and windows for at least 10 to
15 minutes and announced their presence, but no one
responded.
12. Probation Officer Livelsberger spoke on the telephone with a
woman who identified herself as Walter’s girlfriend’s mother.
This woman informed Officer Livelsberger that Walter and
[Appellant] should be at the residence, but “If he wasn’t
there, there was a possibility he was at SCCAP [a food bank]
doing community service.”
13. Officer Livelsberger ultimately determined that Walter Brown
was not at SCCAP.
14. Officer Livelsberger learned from an upstairs neighbor that
the landlord could provide access to the apartment. The
landlord unlocked an outside door which opened into the
sunroom/laundry room of [Appellant’s] and Walter Brown’s
apartment. Probation officers then proceeded to another
interior door which they determined was locked. Officers
knocked on that door, and Walter Brown answered the door
almost immediately.
15. Per probation’s procedures, Walter Brown was handcuffed
and Officer Livelsberger explained they were there to
conduct a probation search.
16. Officer Livelsberger spoke with [Appellant]. [Appellant] and
her daughter were escorted out of the apartment.
[Appellant] remained outside the apartment during the
initial probation search.
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17. Officer Livelsberger, Officer McKim and the two Gettysburg
Police Officers entered the apartment, drew their firearms
and ensured no one else was present in the apartment.
18. The two probation officers and Gettysburg Police officers
conducted a search of the apartment. Officer Livelsberger
searched the bathroom and observed an open closet which
contained men’s body wash, women’s body wash, towels,
soap and other items, including a clutch-style purse. The
purse was open and at eye level. Officer Livelsberger
observed a pinkish colored pill. Officer Livelsberger opened
the clutch purse and observed two clear plastic baggie
corners containing suspected crack cocaine.
19. At that point, Officer Livelsberger stopped the probation
search and contacted Trooper James O’Shea with the
Pennsylvania State Police, Vice-Narcotics Unit. Within 45
minutes to an hour, Trooper O’Shea arrived at the
apartment. At this point, because of the heat, Walter Brown
and [Appellant] were brought back into the apartment.
[Appellant] was not handcuffed at this point.
20. Trooper O’Shea reviewed the alleged contraband discovered
in the purse/clutch and determined that probable cause
existed to obtain a search warrant for the residence.
21. Trooper O’Shea spoke with [Appellant] and asked whether
she would provide written consent for a search of the
apartment. [Appellant] requested an opportunity to speak
with an attorney and was provided this opportunity.
22. Trooper O’Shea advised [Appellant] that she could provide
written consent to search the apartment, which would
expedite the process, or Trooper O’Shea would apply for a
search warrant.
23. Prior to granting consent, Trooper O’Shea observed
[Appellant] clutching a large purse, and at that time
removed the purse from [Appellant] and handcuffed
[Appellant] for officer safety.
24. Ultimately, [Appellant] agreed to provide written consent for
a search of her residence. Trooper O’Shea read the entire
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written consent form to [Appellant] and [Appellant]
voluntarily signed the consent form.
25. A search of [Appellant’s] purse revealed numerous pills and
United States currency.
Findings of Fact and Conclusions of Law, 3/21/17, at 1–5.
Appellant was charged with various drug offenses on May 27, 2016,
and on December 8, 2016, she filed a pretrial motion to suppress. The trial
court conducted a suppression hearing on February 13, 2017, and March 21,
2017, denying Appellant’s request for suppression.
In denying Appellant’s motion, the suppression court entered the
following conclusions of law:
1. Adams County Probation Officers McKim and Livelsberger had
sufficient reasonable suspicion to conduct a warrantless
probation search on the apartment of [Appellant] and
Walter Brown on May 27, 2016 and followed proper
procedures in accordance with 42 Pa. C.S.A. § 9912.
2. The “knock and announce” rule, set forth in Pennsylvania Rule
of Criminal Procedure 207 was not applicable in this case
because law enforcement authorities were not executing a
search warrant on the apartment of [Appellant] and Walter
Brown. See Pennsylvania Rule of Criminal Procedure 207 and
Commonwealth v. Richter, 791 A.2d 1181, 1186 (Pa.
Super 2002).
3. Adams County Probation Officers acted reasonably when they
entered the apartment of [Appellant] and Walter Brown by
knocking and announcing their purpose for approximately 15
minutes, attempting to locate Walter Brown at another
location, calling the emergency contact person to determine
the whereabouts of Walter Brown, utilizing the landlord to
peacefully enter the sunroom/laundry room of [Appellant’s]
and Walter Brown’s apartment, and by knocking and
announcing their presence at the locked interior door before
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entering into the kitchen of the apartment of [Appellant] and
Walter Brown.
4. Trooper O’Shea of the Pennsylvania State Police had sufficient
probable cause to obtain a search warrant for the apartment
of [Appellant] and Walter Brown based on his observations of
suspected crack cocaine located in the clutch purse.
5. Trooper O’Shea legally and correctly advised [Appellant] that
if [Appellant] did not provide written consent to search the
apartment then Trooper O’Shea would apply for and obtain a
search warrant for a search of the apartment.
6. [Appellant] was in custody prior to [Appellant] providing
consent to search the apartment.
7. [Appellant’s] written consent was knowing and voluntary.
See Commonwealth v. Dressner, 336 A.2d 414, 415–417
(Pa. Super. 1975) for factors to consider when determining
voluntariness of a consent to search.
Findings of Fact and Conclusions of Law, 3/21/17, at 5–7 (emphasis
supplied).
Appellant proceeded to a waiver trial on March 21, 2017. The trial
court summarized the remaining procedural history as follows:
At the conclusion of the non-jury trial, this [c]ourt found
Appellant guilty of count 2, possession with intent to deliver a
controlled substance (Oxycodone and Alprazolam); count 3,
simple possession (cocaine); count 4, simple possession
(Oxycodone and Alprazolam), and count 5, possession of drug
paraphernalia.20 This [c]ourt found Appellant not guilty of count
1, possession with intent to deliver controlled substance
(cocaine).21
2035 [P.S.] §§§ 780-113(a)(30), 780-113(a)(16),
780-113(a)(32), respectively.
21 35 [P.S.] § 780-113(a)(30).
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On May 15, 2017, this [c]ourt sentenced Appellant on
count 2 to no less than three (3) months nor more than twenty
three (23) months in partial confinement at the Adams County
Adult Correctional Complex. This [c]ourt imposed a probationary
sentence of twelve (12) months for counts 3 and … 5, but did
not impose a sentence on count 4 as it merged with count 2.
The sentence[s] for counts 3 and 5 were to run [concurrently to]
each other but consecutive to the sentence imposed on count 2.
Thereafter, on June 23, 2017, Appellant filed a Motion for Bail
Pending Appeal. On July 18, 2017, this [c]ourt held a hearing on
[Appellant’s] Motion for Bail Pending Appeal, which was granted
with certain conditions imposed.
On June 12, 2017, Appellant filed a Notice of Appeal. By
Order of Court dated June 13, 2017, Appellant was directed to
file a concise statement of matters complained of on appeal.
Appellant filed a Motion for Extension of Time to file her concise
statement wherein counsel requested fourteen days from the
date defense counsel received the notes of testimony. This
[c]ourt, by Order of Court dated July 10, 2017, granted
Appellant’s request. Appellant timely filed her concise statement
on July 31, 2017.
Trial Court Opinion, 8/7/17, at 3–4.
Appellant presents the following questions for our consideration:
1. Did the suppression court err in failing to find that the
probation officers did not have reasonable suspicion or
probable cause to search [Appellant’s] residence based on an
uncorroborated confidential informant’s tip in violation of
[Appellant’s] right to be free from unreasonable search and
seizure under both, the Pennsylvania and United States’
constitutions?
2. Did the suppression court err in failing to find that the
probation officers’ entry into [Appellant’s] residence was
effectuated from a government agent’s unlawful entry into
the residence in violation of [Appellant’s] right to privacy
under, both, the Pennsylvania and United States’
constitutions?
Appellant’s Brief at 2.
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As a preliminary matter, we examine whether Appellant has properly
preserved her issues. “Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). See also
Commonwealth v. Williams, 980 A.2d 667, 671 (Pa. Super. 2009)
(argument waived where the appellant does not “even allege that he raised
the issue at the suppression hearing”); Commonwealth v. York, 465 A.2d
1028, 1032 (Pa. Super. 1983) (citation omitted) (“[A] new and different
theory of relief may not be successfully advanced for the first time on
appeal.”).
In her motion to suppress, Appellant asserted that the search of her
residence was unlawful for the following reasons:
a) Said search was conducted without a search warrant.
b) Said search was conducted without voluntary consent.
c) The search of [Appellant’s] residence and personal effects,
including pocket books and purses, was not properly ancillary
to any probation search of Walter Brown.
Motion for Suppression of Evidence, 12/8/16, at ¶ 4.
On appeal, Appellant first contends that the suppression court erred in
denying her motion because the warrantless search of her residence was not
supported by reasonable suspicion or probable cause. Appellant’s Brief at 8.
The crux of Appellant’s argument is that “[t]he confidential informant’s tip
was unreliable, uncorroborated, and without a basis of knowledge at the
time officers’ [sic] entered [Appellant’s] residence.” Appellant’s Brief at 14.
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Upon review of the certified record, we decline to address Appellant’s
issue, as presented. Appellant did not challenge the warrantless search of
her apartment before the suppression court on grounds that it was not
supported by reasonable suspicion or probable cause because the CI’s
information was unreliable.1 Rather, she first raised this argument in her
Pa.R.A.P. 1925(b) statement. Pa.R.A.P. 1925(b) Statement, 7/31/17, at ¶
1. Thus, Appellant’s first issue is waived. Pa.R.A.P. 302(a); Williams, 980
A.2d at 671; York, 465 A.2d at 1032.2
Appellant next argues that the suppression court erred in denying her
motion to suppress because entry into her residence was illegally effectuated
through a government agent, i.e., her landlord. Appellant’s Brief at 14. The
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1 We note that defense counsel, Attorney Cook, argued to the suppression
court that, “this confidential informant . . . does not make a controlled buy.”
N.T. Suppression, 2/13/17, at 76. At that point, the suppression court
stated:
THE COURT: Let me help you out, Mr. Cook. I believe that the
Commonwealth has presented sufficient evidence to show that
they had a reasonable suspicion to conduct a probation search.
I find . . ., looking at the totality of the circumstances and that’s
for probable cause, I think given the totality of the
circumstances they determined there was reasonable suspicion
so I have made that finding.
Id. Appellant has not challenged this conclusion, which incorporated
Appellant’s argument that the CI did not make a controlled buy.
2 Even if not waived, Appellant’s first issue would not warrant relief. We
reach this conclusion based on the suppression court’s findings of fact, which
are supported by the record, and its conclusions of law, which are without
error.
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Commonwealth asserts that this issue “was not properly raised in
[Appellant’s] Motion for Suppression of Evidence.” Commonwealth’s Brief at
11 (citing Pa.R.Crim.P. 581(D)).
Although Appellant did not expressly raise this argument in her motion
to suppress, it was the basis for the trial court’s solicitation of memoranda
from the parties and reopening the suppression hearing without objection
from the Commonwealth. N.T. (Suppression), 2/13/17, at 71, 76, 78–80;
N.T. (Suppression), 3/21/17, at 3. Appellant summarized this issue in her
memorandum as follows:
Here, the landlord was acting as a police agent when she
provided them with the passkey. The testimony was clear that
this was not a common area but rather was within the leasehold
of [Appellant]. Since there was no testimony that the police
officers announced their identity and purpose at the time the
landlord admitted them into the residence, the manner in which
the search was conducted was unreasonable and unlawful.
Thus, all evidence seized by the government is fruit of the
poisonous tree. The suppression motion should be granted.
Memorandum in Support of Motion for Suppression of Evidence, 2/23/17, at
5. The Commonwealth responded to Appellant’s issue, Commonwealth’s
Memorandum in Opposition to Defendant’s Motion for Suppression of
Evidence, 2/27/17, at 2–6, and it was litigated at the reopened suppression
hearing. N.T. (Suppression), 3/21/17, at 4–12. Thus, we conclude that
Appellant sufficiently preserved this issue.
Regarding suppression rulings, our standard of review:
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is limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct.
We may consider only the evidence of the prosecution 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 findings of the
suppression court, we are bound by those facts and may reverse
only if the court erred in reaching its legal conclusions based
upon the facts.
Moreover, it is within the lower court’s province to pass on
the credibility of witnesses and determine the weight to be given
to their testimony.
Commonwealth v. Williams, ___ A.3d ___, 2017 Pa. Super. 382, at *11–
12 (Pa. Super. 2017) (internal citations omitted). Furthermore, the scope of
review of orders granting or denying motions to suppress is limited to the
evidence presented at the suppression hearing. In the Interest of L.J., 79
A.3d 1073, 1085 (Pa. 2013).
On appeal, Appellant continues to argue that her “landlord, who did
not have authority to enter her residence, acted as a government agent
when she unlocked [Appellant’s] door at the request of probation officers.”
Appellant’s Brief at 16. In response, the Commonwealth argues:
Here, the suppression court indicated following testimony
that it believed Adams County Probation possessed reasonable
suspicion and obtained proper authority to conduct the
warrantless search at issue. The question then becomes
whether there was anything improper about the landlord
providing access to the sunroom. It is well settled that a
landlord cannot consent to a warrantless search of the property.
See, e.g., Commonwealth v. Davis, 743 A.2d 946, 951 (Pa.
Super. 1999). However, the property owner here did not
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consent to the warrantless search, but rather merely supplied a
key enabling the officers access to the sunroom.
Commonwealth’s Brief at 13–14.
The suppression court addressed this issue in its third conclusion of
law:
3. Adams County Probation Officers acted reasonably when they
entered the apartment of [Appellant] and Walter Brown by
knocking and announcing their purpose for approximately 15
minutes, attempting to locate Walter Brown at another
location, calling the emergency contact person to determine
the whereabouts of Walter Brown, utilizing the landlord to
peacefully enter the sunroom/laundry room of [Appellant’s]
and Walter Brown’s apartment[,] and by knocking and
announcing their presence at the locked interior door before
entering into the kitchen of the apartment of [Appellant] and
Walter Brown.
Findings of Fact and Conclusions of Law, 3/21/17, at 6.
Upon review, we find that the suppression court’s findings of fact, set
forth supra, are supported by the record, and its legal conclusion regarding
access to Appellant’s sunroom is without error. As a probationer,
Walter Brown had “limited Fourth Amendment rights because of a
diminished expectation of privacy.” Commonwealth v. Parker, 152 A.3d
309, 316 (Pa. Super. 2016). In fact, Walter Brown’s signature on the
probation regulations acts as acknowledgment that the probation officer “has
a right to conduct reasonable searches of the probationer’s residence listed
on the probation agreement without a warrant.” Id. at 318 (quoting
Commonwealth v. E. Williams, 692 A.2d 1031, 1036 (Pa. 1997)).
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Here, pursuant to 42 Pa.C.S. § 9912, Probation Officer Livelsberger
obtained permission to conduct a warrantless search of the approved
residence of Walter Brown, which was Appellant’s residence. Once at the
residence, the probation officers knocked on the front door, back door, and
windows for at least ten to fifteen minutes and announced their presence,
but no one responded. A neighbor assisted Officer Livelsberger in contacting
the landlord, who unlocked an outside door which opened into the sunroom
of Appellant’s residence. Probation officers then proceeded to another
interior door, which was locked. The officers knocked on that door, and
Walter Brown answered the door almost immediately. Thus, contrary to
Appellant’s argument, the landlord did not engage in any conduct as a
government agent to gain information for the police; she simply supplied
access to a back door.3 This measure was authorized by the Adams County
Probation Policy to avoid the use of more force than necessary to secure
entry into a probationer’s residence. Commonwealth Exhibit 1 at ¶
6(c)(iv)(6) (“Probation officers should enter using only the amount of force
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3 Cf. Commonwealth v. Rathfon, 705 A.2d 448 (Pa. Super. 1997)
(affirming that defendant’s girlfriend acted as government agent when she
entered his residence without permission at request of federal authorities
and gathered information that served as basis for search warrants), and
Commonwealth v. Strafford, 749 A.2d 489 (Pa. Super. 2000) (affirming
that defendant’s friend acted as government agent when he entered
defendant’s residence at request of police and observed marijuana plants).
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necessary to secure entry. Keys can often be obtained from
landlords. . . .”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/18
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