Com. v. Sunealitis, S. ( 2015 )

J-A07034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN SUNEALITIS
Appellant No. 1239 WDA 2014
Appeal from the Judgment of Sentence March 13, 2014
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000713-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 8, 2015
Appellant, Steven Sunealitis, appeals from the March 13, 2014
aggregate judgment of sentence of eight to 16 years’ imprisonment imposed
after he was found guilty by a jury of deposits, stores, or disposes of
chemical waste resulting from the manufacture of methamphetamine;
manufacture, delivery, or possession with intent to manufacture or deliver a
controlled substance; intentional possession of controlled substance by
person not registered; and use or possession of drug paraphernalia.1 After
careful review, we are constrained to vacate Appellant’s sentence and
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1
35 P.S. §§ 780-113.4(b)(1), 780-113(a)(30), 780-113(a)(16), and 780-
113(a)(32), respectively
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remand for resentencing. We affirm Appellant’s conviction on all other
bases.
The trial court set forth the facts of this case as follows.
On May 13, 2013, at approximately 6:00 p.m.,
Agent James Shuttleworth of the Pennsylvania Board
of Probation and Parole, along with Agent Donald
Eisman, visited the home of [Appellant], located in
Sandy Township, DuBois, Pennsylvania. The purpose
of the visit was to drug test [Appellant] as part of
the terms and conditions of his parole. While in
[Appellant]’s home Shuttleworth requested a urine
sample from [Appellant]. In response, [Appellant]
informed Shuttleworth that he would test positive for
methamphetamines, as he had “just snorted a line of
meth.” When asked by Agent Shuttleworth where
the narcotics were obtained, [Appellant] stated that
he manufactured the methamphetamine himself, in
his home.
After this revelation, Shuttleworth began
looking around [Appellant]’s residence in an attempt
to find contraband. While conducting his search of
the premises, Shuttleworth found what appeared to
be methamphetamine in [Appellant]’s bedroom.
[Appellant] later admitted that it was in fact
methamphetamine when shown the substance by
Shuttleworth. Agent Shuttleworth also searched the
basement, where he discovered a melted soda bottle
and some empty cold medicine capsules. Based
upon his training and past experience, Shuttleworth
believed that these items were traditionally utilized
in employing the “shake and bake” method of
manufacturing methamphetamines. Agent
Shuttleworth then requested the Sandy Township
Police to be present at the scene. Officers Erik Rupp
and Travis Goodman responded to the call.
Before going back into [Appellant]’s home, the
officers believed it to be prudent to acquire a search
warrant. Later that night, a search warrant was
granted and signed by the Honorable Jerome Nevling
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at 12:00 a.m. on May 14, 2013. After attaining the
warrant, the Sandy Township Police, along with a
Clandestine Search Unit of the Pennsylvania State
Police, went back to [Appellant]’s residence to search
the premises. The State Police carried out the
search at approximately 12:55 a.m. on May 14,
2013, as the Sandy Township Police force normally
relies on the specialized skills and expertise of the
State Police when dealing with the dangerous nature
of methamphetamine labs.
The search uncovered copious items employed
in the production of methamphetamine, including,
but not limited to: a foam cooler that contained a
plastic bottle containing pink crystals; an empty
bottle of cold compresses and one empty pouch; a
glass jar with stripped “AA” batteries; a plastic bottle
with lighter fluid; blister packs of pseudoephedrine; a
plastic bottle of drain opener; an empty bottle of
Rooto drain cleaner; an instant cold pack; several
empty blister packs; clear tubing; coffee filters; and
a plastic Gatorade bottle that contained liquid waste
from the manufacturing of methamphetamine.
As a result of the evidence that was discovered
during that search, [Appellant] was charged with the
[aforementioned] offenses []. The Commonwealth
filed a [m]otion to [a]mend [i]nformation, on
December 17, 2013, which asked th[e] [trial] [c]ourt
to allow the Commonwealth to modify the
[i]nformation to include facts relating to the
aggregate weight of the compound or mixture of
methamphetamine, pursuant to Alleyne v. United
States, 133 S.Ct. 2151 (2013). On January 7,
2014, the [trial] [c]ourt granted the
Commonwealth’s [m]otion, and a[] revised
[i]nformation was filed on January 8, 2014. In
relevant part, the new [i]nformation stated that
“[t]he actor did manufacture, deliver, or possess
with intent to manufacture or deliver, a controlled
substance, methamphetamine, where the aggregate
weight of the compound or mixture containing the
substance involved is at least 100 grams.”
(Emphasis supplied).
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To arrive at the aggregate weight of “at least
100 grams,” the Commonwealth took into
consideration the weight of the contents of the
plastic Gatorade “cook bottle” found at [Appellant]’s
residence during the State Police search. The “cook
bottle” contained waste from the production of
methamphetamine and trace amounts of
methamphetamine. It was determined during the
investigation by a State Police forensic scientist that
the weight of the fluid, that contained waste liquid
and methamphetamine, was approximately [288]
grams.
[Appellant]’s jury trial was held on January 27
and 28, 2014. At trial[,] the Commonwealth
presented evidence from the search of [Appellant]’s
home. Specifically, the Commonwealth established
that the substance found in [Appellant]’s bedroom
was [0.05] of a gram of pure, ingestible
methamphetamine located in [Appellant]’s bedroom.
Also, recovered and presented at trial was, the
above-mentioned, Gatorade “cook bottle” that
contained waste fluid and methamphetamine in []
the aggregate amount of [288] grams. According to
the testimony of Brett Bailor, a forensic chemist and
qualified expert called by the Commonwealth, the
contents of the plastic “cook bottle” were not
ingestible, meaning that the liquid would be toxic if
consumed. Mr. Bailor also expressed that a trace
amount of methamphetamine was detectable in the
waste mixture, but the exact amount of the drug was
undeterminable. Lastly, Mr. Bailor testified that in
the absence of highly-specialized tools, all of the
methamphetamine found in the waste fluid could not
be filtered from the waste product. Absent the trace
amounts in the Gatorade bottle and tubing, and the
small amount in [Appellant]’s bedroom, no other
methamphetamine was recovered from [Appellant]’s
residence.
Upon conclusion of the Commonwealth’s case-
in-chief, [Appellant]’s counsel made an oral motion
for a [d]irected [v]erdict, arguing that the
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Commonwealth had not presented sufficient
evidence to the jury that would allow the members
of the jury to find that [Appellant] possessed
methamphetamine in the amount exceeding [100]
grams, as stated in [Appellant]’s [i]nformation. The
[trial] [c]ourt denied [Appellant]’s [m]otion, and the
defense thus proceeded with presenting their case.
Upon the conclusion of the trial, the jury
returned a guilty verdict that included a finding of an
aggregate weight of a methamphetamine compound
or mixture exceeding [100] grams. On March 11,
2014, [Appellant] appeared before the [trial] [c]ourt
for sentencing. The [trial] [c]ourt sentenced
[Appellant] in accordance with the guidelines and/or
mandatory sentences relating to an aggregate
weight in excess of [100] grams per 18 Pa.C.S.A.
§ 7508(a)(4)(iii).
Trial Court Opinion, 7/2/14, at 1-4.
On March 17, 2014, Appellant filed a post sentence motion. On July 2,
2014, the trial court entered an opinion and order denying said motion. On
July 29, 2014, Appellant filed the instant timely appeal.2
On appeal, Appellant raises the following issues for our review.
I. Whether the [trial] [c]ourt [] erred when, on
January 13, 2014, it dismissed the Appellant’s
[m]otion to [s]uppress [e]vidence[?]
II. Whether the [trial] [c]ourt erred when, on
January 28, 2014, it accepted the guilty verdict
of the jury despite a lack of sufficiency of
evidence presented by the Commonwealth
concerning the aggregate weight of a
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2
The trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925(b). Specifically, the trial court’s August 7, 2014
letter directs this Court to its July 2, 2014 opinion.
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compound or mixture exceeding 100 grams,
and subsequently sentenced the Appellant
based upon the guilty verdict on March 11,
2014[?]
III. Whether the [trial] [c]ourt erred when, on July
2, 2014, it denied the Appellant’s [p]ost-
[s]entence [m]otion for [r]econsideration[?]
Appellant’s Brief at 7.
Appellant’s first issue challenges the denial of his motion to suppress.
Our standard of review is as follows.
In addressing a challenge to a trial court’s
denial of a suppression motion, we are limited to
determining whether the factual findings are
supported by the record and whether the legal
conclusions drawn from those facts are correct.
Since the Commonwealth prevailed in the
suppression court, we may consider only the
evidence of the Commonwealth and so much of the
evidence for the defense as it 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.
Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014).
Specifically, Appellant argues that the trial court erred in not
suppressing unspecified physical evidence because the Sandy Township
Police searched his residence before they acquired a search warrant.
Appellant’s Brief at 17-19. Appellant does not contest the warrant’s validity.
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The Fourth Amendment to the United States Constitution protects “the
right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures[.]” U.S. Const. amend. IV.
Similarly, the Pennsylvania Constitution provides that the “people shall be
secure in their persons, houses, papers and possessions from unreasonable
searches and seizures, and no warrant to search any place or to seize any
person or things shall issue without describing them as nearly as may be,
nor without probable cause, supported by oath or affirmation subscribed to
by the affined.” Pa. Const. art. I, § 8. “Absent probable cause and exigent
circumstances, warrantless searches and seizures in a private home violate
both the Fourth Amendment and [] the Pennsylvania Constitution.”
Commonwealth v. Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009), appeal
denied, 3 A.3d 670 (Pa. 2010).
In its January 13, 2014 opinion denying Appellant’s motion to
suppress, the trial court found that the police did not search Appellant’s
house prior to obtaining a warrant even though Appellant had voluntarily
consented to a search.
Officers Erik Rupp and Travis Goodman of the Sandy
Township Police Department arrived at the scene.
When they arrived the officers entered into
[Appellant]’s residence, as [Appellant] and the two
parole agents were sitting in [Appellant]’s kitchen.
Officer Rupp proceeded to ask [Appellant] if he
would consent to a search of his home. Agent
Shuttleworth expressed that at first [Appellant] was
hesitant in giving permission, but later “gave Officer
Rupp permission to search his residence.” Officers
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Rupp and Goodman also testified to the fact that
consent was given by [Appellant].
However, Officer Rupp did not search
[Appellant]’s dwelling at that precise moment.
Shuttleworth and Rupp discussed the situation and
decided that the officers would be more comfortable
speaking to the District Attorney and obtaining a
search warrant before commencing the search. After
agreeing to this course of action, the agents
removed [Appellant] from the premises and the
officers exited the house. At approximately 7:30
p.m. that evening the parole agents transported
[Appellant] to Indiana County Jail. Officer Goodman
remained outside of the residence to secure the
area, while Officer Rupp traveled back to the station
to prepare the necessary paperwork to obtain a
search warrant. Sergeant Kris Kruzelak came to the
[Appellant]’s home while Officer Goodman was
securing and monitoring the area around
[Appellant]’s house. Sergeant Kruzelak stated that
at no time during his presence on the premises, did
any officers enter [Appellant]’s house. Officer
Goodman further affirmed that no law enforcement
personnel went back into the house after [Appellant]
was removed from the property.
A search warrant was granted and signed by
the Honorable Jerome Nevling at 12:00 a.m. on May
14, 2013. After attaining the warrant, Officer Rupp,
along with a Clandestine Search Unit of the
Pennsylvania State Police, went back to [Appellant]’s
residence to search the premises. Officer Rupp
averred that the search was carried out at
approximately 12:55 a.m. on May 14, 2013.
…
The [trial] [c]ourt heard numerous witnesses,
from both the Commonwealth and [Appellant], and
believes that the search of [Appellant]’s home
occurred after the police officers received the search
warrant. Credible testimony from numerous
witnesses supported this fact, including: Officer
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Rupp; Officer Goodman; Agent Shuttleworth; and
Sergeant Kru[z]elak. While the Deboers, the
[Appellant]’s neighbors, may have seen activity [of
police entering Appellant’s residence before obtaining
a search warrant] to bolster [Appellant]’s assertion,
they never were actually on [Appellant]’s property
and merely viewed what was occurring from their
residence. Moreover, while [Appellant]’s sister
allegedly observed the officers exiting [Appellant]’s
basement, this assertion is overshadowed by the
trustworthy and reliable testimony from several law
enforcement professionals. Accordingly, the [trial]
[c]ourt maintains that no officers entered
[Appellant]’s home [for the purposes of searching
the residence] prior to obtaining a search warrant
and therefore the search was conducted in
conformity with the Constitution.
The [trial] [c]ourt would further note that
[Appellant] expressly consented to the search of his
house. If officers obtain consent before entering a
residence, a warrant is not needed.
Commonwealth v. Scott, 916 A.2d 695 (Pa. Super.
2007). In order to be valid, consent to conduct a
search must be freely, specifically, unequivocally,
and voluntarily given and must not be the product of
any duress or coercion. Id. In this case, while the
officers did not search the premises until after a
search warrant was obtained, consent was given by
[Appellant]. The officers were being cautious in
waiting to obtain a warrant before entering
[Appellant]’s home [to search it]. However, even if
the officers did enter [Appellant]’s abode, the officers
had [Appellant]’s express permission to do so.
Agent Shuttleworth, Officer Rupp, and Officer
Goodman all credibly expressed that [Appellant]
gave them permission to search his home. There
was absolutely no evidence or testimony presented
at the hearings that would indicate that [Appellant]’s
consent was a product of duress or coercion.
Accordingly, even though the [trial] [c]ourt believes
that the police officers did not search the home until
after the receipt of the warrant, the officers had
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express consent to do so, consent that was not
browbeaten or forced from Defendant.
Trial Court Opinion, 1/13/14, at 2-3, 5-6 (emphasis in original).
Upon careful review, we conclude that the record supports the factual
findings of the trial court. Specifically, the trial court’s finding that police did
not initiate a search of Appellant’s home until after they obtained a search
warrant was supported by the testimony of the parole agent and the police
officers. Further, their testimony also supports the finding that Appellant
consented to a search of the premises. The legal conclusions drawn from
those findings are not erroneous. Accordingly, Appellant’s first issue does
not warrant relief. See Scarborough, supra.Before addressing Appellant’s remaining claims, we first proceed to
consider the legality of Appellant’s sentence, sua sponte. We begin by
observing the following principles regarding waiver on appeal. Relevant to
the instant case, “where application of a mandatory minimum sentence gives
rise to illegal sentence concerns, even where the sentence is within the
statutory limits, such legality of sentence questions are not waivable.”
Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super. 2014)
(citation, brackets, and quotation marks omitted). “Legality of sentence
questions … may be raised sua sponte by this Court.” Commonwealth v.
Watley, 81 A.3d 108, 118 (Pa. Super. 2013 (en banc), appeal denied, 95
A.3d 277 (Pa. 2014) (citation omitted). Finally, “a challenge to a sentence
premised upon [the Supreme Court’s decision in] Alleyene [v. United
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States, 133 S.Ct. 2151 (2013)] likewise implicates the legality of the
sentence and cannot be waived on appeal.” Commonwealth v. Newman,
99 A.3d 86, 90 (Pa. Super. 2014) (en banc). Therefore, we address the
issue of Appellant’s sentence.
In examining the legality of a sentence on appeal, this Court employs
the following standard of review.
A challenge to the legality of a sentence … may be
entertained as long as the reviewing court has
jurisdiction. It is also well-established that if no
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.
Issues relating to the legality of a sentence are
questions of law[.] … Our standard of review over
such questions is de novo and our scope of review is
plenary.
Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)
(citations and quotation marks omitted).
Here, the trial court sentenced Appellant pursuant to the mandatory
minimum statute at Section 7508(a)(4)(iii) after the jury found that the
aggregate weight of the compound or mixture containing the controlled
substance was 100 grams or more. N.T., 1/28/14, at 63; N.T., 3/11/14, at
8. Although the jury made the finding of the element beyond a reasonable
doubt on a special verdict form, this Court in Valentine concluded that
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Newman was still binding3 and that it is solely within the province of the
General Assembly to promulgate a new method of the imposition of
mandatory minimum sentences in the Commonwealth. Valentine, supra at
811-812. Therefore, because the trial court utilized a facially
unconstitutional statute in sentencing Appellant, the resulting sentence was
illegal. Accordingly, we vacate the March 13, 2014 judgment of sentence
and remand to the trial court, with instructions to resentence Appellant
without consideration of the mandatory minimum sentence at Section
7508(a)(4)(iii), consistent with this memorandum.4 In all other aspects, we
affirm.
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
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3
In Newman and its progeny, this Court has applied Alleyne and
concluded the mandatory minimum sentencing schemes permitting a judge
to find the factor triggering the imposition of a mandatory minimum by a
preponderance of the evidence are facially unconstitutional as their
subsections are not severable from each other. See, e.g., Commonwealth
v. Fennel, 105 A.3d 13, 20 (Pa. Super. 2014) (recognizing Section 7508 is
facially unconstitutional in light of Newman).
4
In light of our disposition, we need not consider Appellant’s two remaining
issues, challenging the application of Section 7508(a)(4)(iii) based on the
weight of the methamphetamine being over 100 grams.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
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