Com. v. Barony, N. ( 2017 )

J-S08012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NORMAN J. BARONY, JR.
Appellant No. 475 WDA 2016
Appeal from the Judgment of Sentence dated March 15, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000649-2012
CP-07-CR-0000650-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED MAY 23, 2017
Appellant, Norman J. Barony, Jr., appeals from the March 15, 2016,
aggregate judgment of sentence of one to ten years’ incarceration, imposed
following a bench trial that resulted in Appellant’s conviction of two counts
each of conspiracy – manufacture, delivery, or possession of a controlled
substance with an intent to manufacture or deliver; intentional possession of
a controlled substance by a person not regulated; use/possession of drug
paraphernalia; and manufacture, delivery, or possession of a controlled
substance with intent to manufacture or deliver.1 We affirm.
In its opinion and order entered August 13, 2013 and its opinion and
order entered August 28, 2014, the trial court fully and correctly sets forth
____________________________________________
1
18 Pa.C.S. § 903 and 35 P.S. § 780-113(a)(16), (32), (30), respectively.
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the relevant facts of this case. See Trial Ct. Op., 8/13/13, at 1-3; Trial Ct.
Op., 8/28/14, at 2-6. Thus, we have no reason to restate them at length
here.
This case involves telephone conversations from July 27 to August 4,
2011, between Appellant and a now-deceased confidential informant that
were recorded by Pennsylvania State Police with the informant’s consent.
Trial Ct. Op., 8/28/14, at 3 (citing N.T., 5/30/13, at 12). The conversations
were about a marijuana growing operation.2
The case also involves a “trash pull” by the Pennsylvania State Police
from a road near Appellant’s residence. The “trash pull” was conducted on
August 4, 2011, subsequent to the recorded phone calls, by Pennsylvania
State Trooper Charles Schaefer, who has been employed by the
Pennsylvania State Police since 1995 and “has been primarily investigating
drug offenses since January of 1998.” It was done on Pine Street, a road
near Appellant’s residence that is marked as a “private drive.” Trial Ct. Op.,
8/13/13, at 1-2, 8, 11 (citing N.T., 5/30/13, at 14); Trial Ct. Op., 8/28/14,
at 2, 4 (citing N.T., 5/30/13, at 14). “Burgmeier’s Hauling had access to this
street, and Trooper Schaefer rode with the hauling company to collect the
trash that had been discarded or abandoned” there Trial Ct. Op., 8/13/13,
at 8; see also id. at 2 (citing N.T., 5/30/13, at 14); Trial Ct. Op., 8/28/14,
____________________________________________
2
According to Appellant’s Brief, at 8, the confidential informant died on
October 10, 2012.
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at 4. The trash had been put “out from the house along the roadway” on a
date after the previous times Trooper Schaefer had driven by that house.
N.T., 5/30/13, at 14. As a result of the trash pull, Trooper Schaefer found
“indicia indicating the residence was [Appellant]’s,” a marijuana stem, and
an empty box of Herbal Clean — a substance used to clean
tetrahydrocannabinol (“THC”) out of a person’s system prior to a drug test.
Trial Ct. Op., 8/13/13, 2-3, 11 (citing N.T., 5/30/13, at 14-16, 21); Trial Ct.
Op., 8/28/14, at 4 (citing N.T., 5/30/13, at 15).
Following the trash pull, on August 5, 2011, Trooper Schaefer obtained
a warrant to search Appellant’s house. Trial Ct. Op., 8/13/13, at 3; Trial Ct.
Op., 8/28/14, at 5-6 (citing Commonwealth’s Ex. 1). During the resulting
search, troopers found nine marijuana plants, growing paraphernalia, and
marijuana seeds in Appellant’s bedroom. Criminal charges were filed against
Appellant based on this evidence. Id. at 6.
On September 12, 2012, Appellant filed an omnibus pretrial motion,
which included a motion to suppress the trash pull and a motion to suppress
the evidence obtained during execution of the search warrant for insufficient
probable cause and for staleness of the information upon which the warrant
was based. On August 13, 2013, the trial court denied the motions to
suppress the trash pull and the evidence from the search.
Between September 2013 and November 2014, the trial court granted
at least nine motions for continuance. Appellant was scheduled to plead
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guilty on January 12, 2015, but, during his colloquy, he changed his mind
and asked to go to trial. Appellant was convicted on November 20, 2015,
and sentenced on March 15, 2016.
On April 4, 2016, Appellant filed a notice of appeal to this Court.
Appellant raises three questions for our review:
I. Whether the trial court erred by denying Appellant’s
motion to suppress with regard to the legality of the trash pull[.]
II. Whether the trial court erred by denying Appellant’s
motion to suppress based on insufficient probable cause for
issuance of a search warrant due to the unreliability of the
confidential informant and the violation of Appellant’s Sixth
Amendment right to confront witnesses against him[.]
III. Whether the trial court erred by denying Appellant’s
motion to suppress despite the use of stale information as the
basis for the search warrant[.]
Appellant’s Brief at 5.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
The suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our plenary
review.
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Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining
a ruling on a pre-trial motion to suppress.
Commonwealth v. Freeman, 150 A.3d 32, 34–35 (Pa. Super. 2016)
(citations omitted).
Appellant’s first issue is that the trial court erred by denying his motion
to suppress with regard to the legality of the trash pull. Appellant’s Brief at
11. Appellant contends that he had “an actual or subjective expectation of
privacy with respect to the bag searched and seized by Trooper Schaefer”
and that his “actual and subjective expectation of privacy in the materials
located on his property and in the curtilage is one which society is prepared
to accept as reasonable.” Id. at 13, 15. He adds that “[t]he bag seized by
Trooper Schaefer was neither voluntarily relinquished into the hands of third
parties” nor “located in an area sufficiently exposed to the public to defeat
Appellant’s claim to protection under the Fourth Amendment and Article I,
Section 8” of the Constitution of Pennsylvania. Id. at 16, 18.
Appellant’s third issue is that “the trial court erred by denying [his]
motion to suppress despite the use of stale information as the basis for the
search warrant” – specifically, the information Trooper Schaefer obtained
from the confidential informant. Appellant’s Brief at 26, 28. Appellant
contends that “all evidence seized during the execution of the search
warrant and all fruit of the poisonous tree discovered thereafter should have
been suppressed from trial.” Id. at 31.
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Elizabeth A.
Doyle, we conclude that Appellant’s first and third issues merit no relief. The
trial court opinion of August 13, 2013, comprehensively discusses and
properly disposes of Appellant’s first issue, relating to his motion to suppress
the trash pull.3 The trial court opinion of August 28, 2014, comprehensively
discusses and properly resolves Appellant’s third issue, relating to his motion
to suppress evidence seized pursuant to the search warrant “despite the use
of stale information,” noting in particular that the search warrant was based
4
on information from the trash pull that was not stale
____________________________________________
3
See Trial Ct. Op., 8/13/13, at 3-8 (holding: (1) the law is clear that
putting trash out for collection is an act of abandonment that terminates
Fourth Amendment protections, citing Commonwealth v. Perdue, 564
A.2d 489 (Pa. Super. 1989), appeal denied, 574 A.2d 68 (Pa. 1990); (2)
Appellant’s argument that he did not contract with Burgmeier’s Hauling for
garbage removal “does not alter the pertinent inquiry . . . as to whether the
trash was discarded or abandoned so as to terminate [Fourth] Amendment
protections”; (3) the trash was “away from the house along Pine Street,”
“was at the end of a cement driveway on [Appellant’s] property,” and was
set out in bags “as close to the road as possible without blocking traffic”; (4)
the location of the trash placement does not qualify as curtilage and hence
does not have a heightened expectation of privacy (citing N.T., 5/30/13, at
14); (5) other Pine Street property owners had also placed their trash
alongside the street for collection; and (6) Pine Street, notwithstanding the
“private drive” sign and “the fact that the street was not a through street”
was not a private road because the sign did not preclude public access, it
had no gatekeepers, other residents lived on the street, and the garbage
hauling company had access to the street (citing Id. at 37, 59)).
4
See Trial Ct. Op., 8/28/14, at 8-9 (holding: (1) the trash pull occurred on
August 4, 2011; (2) the affidavit of probable cause for the search warrant
was dated August 5, 2011, the search warrant was issued that same day,
(Footnote Continued Next Page)
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Appellant’s remaining claim is that there was “insufficient probable
cause for issuance of a search warrant due to the unreliability of the
confidential informant and the violation of Appellant’s Sixth Amendment
right to confront witnesses against him.” Appellant’s Brief at 20. Appellant
states that the confidential informant “was unreliable because he passed
away in the midst of the case and was not able to have his actions and
motive verified.” Id. at 20-21. Appellant concedes, however, that the
confidential informant died after his suppression hearing. Id. at 8.
“The requisite probable cause must exist at the time the warrant is
issued and be based on facts closely related in time to the date of issuance.”
Commonwealth v. Jones, 484 A.2d 1383, 1387 (Pa. 1984). Contrary to
Appellant’s claim, he could have called the confidential informant to testify at
the suppression hearing because the informant was still alive at that time.
Although Appellant had that opportunity, he chose not to exercise it. See
Commonwealth v. Bonasorte, 486 A.2d 1361, 1374 (Pa. Super. 1984)
(en banc) (defendant may obtain production of a confidential informant at a
suppression hearing if he shows that production is material to his defense,
reasonable, and in interest of justice); Commonwealth v. Johnson, 33
A.3d 122, 127 (Pa. Super. 2011) (same), appeal denied, 47 A.3d 845 (Pa.
2012); Commonwealth v. Baker, 946 A.2d 691, 693 (Pa. Super. 2008).
_______________________
(Footnote Continued)
and the affidavit referenced the evidence from the trash pull that occurred
the prior day; and (3) “[t]here is nothing about the facts to indicate that the
criminal activity was attenuated by the passage of time”).
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Even without the recorded calls between Appellant and the confidential
informant, the evidence from the legal trash pull of the marijuana stem, the
empty Herbal Clean container, and indicia of Appellant’s residency were
sufficient to establish probable cause to support the search warrant at the
time it was issued. See Jones, 484 A.2d at 1387; see also Trial Ct. Op.,
8/13/13, 2-3, 11 (citing N.T., 5/30/13, at 14-16, 21); Trial Ct. Op., 8/28/14,
at 4 (citing N.T., 5/30/13, at 15). Therefore, Appellant’s claim that the trial
court erred in denying his motion to suppress the evidence obtained by
police during the execution of the search warrant is meritless. See id.;
compare Appellant’s Brief at 20-21.
For the reasons stated above, we affirm the judgment of sentence.
The parties are instructed to attach a copy of the trial court’s opinion of
August 13, 2013, and its opinion of August 28, 2014, to all future filings that
reference this Court’s decision.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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_.,_. _
........Circulated 04/27/2017 04:17 PM
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA,
v. 2012 CR 652
2012 CR650
MARIANNE BARONY,
and
NORMAN BARONY,
Defendants.
ELIZABETH A. DOYLE PRESIDING JUDGE
DEREK ELENSKY, ESQ. COUNSEL FOR COMMONWEALTH
ROBERT DONALDSON, ESQ. COUNSEL FOR DEFENDANTS
OPINION AND ORDER
AND NOW, this [ !. r- day of August, 2013, this matter having come
before the court on an Omnibus Pretrial Motion, it is ripe to decide.
FACTS
The facts as found from the transcript are as follows:
Trooper Charles Schaefer of the Pennsylvania State Police (PSP) has been
employed with the PSP since 1995 and has been primarily investigating drug
offenses since January of 1998. Sometime before August 4, 2011, he began an
investigation on a Mark Heverfy about a marijuana growing operation. Through
that investigation and cooperation of Mr. Heverly, Trooper Schaefer received
information that Norman Barony ("Defendant"), was working with Mr. Heverly in
this grow· operation.
Trooper Schaefer investigated the matter further to confirm the information
. he was receiving from his informant. This investigation included background on
the Defendant that included the Defendant's residence. Transcript, pg. 11.
Trooper Schaefer consensualized Mr. Heverly and phone conversations were
recorded between Mr. Heverly and the Defendant about the grow operation.
Trooper Schaefer drove around the residence of the Defendant on more than
one instance to determine when trash would be put out for pickup. This
investigation was conducted prior to August 4, 2011. Transcript, pg. 12.
On August 4, 2011, Trooper Schaefer conducted a trash pull at 127 Pine
Street, Tyrone, the Defendant's residence. The Trooper rode on a Burgmeier's
Hauling Truck to perform the trash pull. The trash was put out along the road on
Pine Street, away from the house. The trash was not out by the road the
previous times Trooper Schaefer drove by the Defendant's house. Transcript, pg.
14. The trash was pulled by the Trooper and a Burgmeier employee and was
placed separately from the other trash being collected by the hauling company.
Trooper Schaefer inspected the trash that was seized from the
Defendant's residence at 127 Pine Street. The trash Included a long marijuana
stem, Herbal Clean, and indicia indicating that 127 Pine Street was the
Defendant's resfdence. Transcript, pg. 15.
2
__ .. _
Trooper Schaefer testified that the marijuana stem was both long and cut,
indicating the probable existence of marijuana plants. Transcript, pg. 20. The
Herbal Clean is a substance that can be used to clear out THC from a person's
system. Transcript, pg. 21.
As a result of the trash pull and the other investigation performed by
Trooper Schaefer, a search warrant was prepared and approved on August 5,
2011. The search warrant was executed on August 6, 2011. As a result of the
executed search warrant and Investigation by Trooper Schaefer, charges were
filed against both the Defendant and his wife, Mrs. Marianne Barony.
On September 12, 2012, an Omnibus Pre-Trial Motion was filed on behalf
of both Defendants, Mr. and Mrs. Barony. A hearing was held May 30, 2013 in
which testimony was taken as to the Motion to Suppress the trash pull.
DISCUSSION
Legalityof the Trash Pull
"No one has a standing to complain of a search and seizure of property
that he has voluntarily abandoned. The determination of whether or not there
has been an abandonment of property is an ultimate fact, dependent upon the
purported set of abandon111e11t and the manifested lntenfof the person alleged to
have abandoned the property. The test for abandonment is whether the
complaining party could retain a reasonable expectation of privacy in the property
allegedly abandoned. Placing trash for collection is an act of abandonment which
terminates any Fourth Amendment protection." Commonwealth v. Perdue, 564
3
A.2d 489 (Pa. Super. 1989), citing Commonwealth v. Shoatz, 366 A.2d 1216,
1220 (Pa.1976), citing Commonwealth v. Sero, 387 A.2d 63, 69 (Pa.1978 ), citing
Commonwealth v. Minton, 432 A.2d 212 (Pa.Super.1981).
"It is axiomatic that a defendant has no standing to contest the search and
seizure of items which he has voluntarily abandoned. A criminal defendant has
no privacy expectation in property that he has voluntarily abandoned or
relinquished. That is, before a defendant can challenge the seizure of phys_ipal
evidence, he must demonstrate that he had both a possessory interest in the
evidence and a legally cognizable expectation of privacy in the area from which
the evidence was seized .... Abandonment is primarily a question of intent, and
intent may be inferred from words spoken, acts done, and other objective facts.
All relevant circumstances at the time of the alleged abandonment should be
considered. The issue is not abandonment in the strict property-right sense, but
whether the person prejudiced by the search had voluntarily discarded, left
behind, or otherwise relinquished his interest in the property in question so that
he could no longer retain a reasonable expectation of privacy with regard to it at
the time of the search. In other words, abandonment can be established where
an individual's surrender of possession of the property constitutes such a
relinquishment of interest in the property that a reasonable expectation of privacy
may no longer be asserted." Commonwealth v. Byrd, 987 A.2d 786 (Pa. Super.
2009). citing Commonwealth v. Tillman, 621 A.2d 148 (Pa. Super 1993); citlng
Commonwealth v. Pizarro, 723 A.2d 675 (Pa. Super. 1998); citing
4
Commonwealth v. Clark, 746 A.2d 1128 (Pa. Super. 2000); ciUng Commonwealth
v. Shoatz, 366 A.2d 1 ~16 (Pa.1976).
In California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d
30 (1988), the United States Supreme Court upheld the warrantless search and
seizure of garbage left for collection outside the defendant's home. Specifically,
the Court concluded that the defendant failed to demonstrate a subjectively
reasonable expectation of privacy in his discarded trash. Similarly, the
Pennsylvania Courts have long held that a person has no reasonable expectation
of privacy in items voluntarily abandoned as garbage in a public space. See, e.g.,
Commonwealth v. Perdue, 3~7 Pa. Super. 473, 564 A.2d 489, 493 (Pa. 1989),
appeal denied, 574 A.2d 68 (Pa. 1990). However, as this line of reasoning
speaks to garbage left for collection in an area accessible to the public, the
location of the garbage seized is of paramount importance. See Greenwood,
supra at40-41, Commonwealth v. James, 12A.3d 388 (Pa. Super. 2010).1
Where a Defendant challenges the affidavit of probable cause alleging
ambiguities or omissions, specifically as to the legality of a trash pull, such
challenges must be resolved with evidence beyond the affidavit's four corners.
Testimony that allowed the suppression court to rule on abandonment, including
the specific location where the trash was located, was necessary in the Court's
determination of whether the facts would be included or stricken as to the search
warrant. Commonwealth v. James. 2013 WL 2360949 (Pa. 2013).
1
This case was overturned by Commonwealth v. James, 2013 WL 2360949 (Pa. 2013) to allow for
testimony outside of the four corners of the affidavit of probable cause and not for the law as to trash
pulls/abandoned property.
5
On August 4, 2011, Trooper Schaefer conducted a trash pull at 127 Pine
Street, Tyrone. As his testimony set forth, previous to August 4, 2011, Trooper
Schaefer drove by this residence to see when the trash would be discarded.
Transcript, pg. 12. The times he drove by the residence previous to this trash
pun, there was no trash along the roadway. Transcript, pg. 12. On August 4,
2011, Trooper Schaefer testified that the trash was "away from the house along
Pine Street." Transcript, pg. 12. There were several trash bags set out on the
properties on Pine Street the day of the trash pull. Transcript, pg. 37-38. The
trash was not in a wooden storage container. Trooper Schaefer testified that
based on his training and experience, if the trash had been in the wooden
storage container, he would not have considered it abandoned. Transcript, pg.
13, 14, 60. The trash was set out in bags alongside Pine Street when collected.
Transcript, pg. 12. The trash was placed as close to the road as possible
without blocking traffic. Trooper Schaefer was clear that the trash was at the end
of a cement driveway on the Barony's property. Transcript, pgs. 43-44.
The law is clear that trash put out for collection is an act of abandonment
which tenninates 4th Amendment protections. The test is to look to at the
surrounding facts to determine if the trash bags were discarded. The facts and
testimony in this case set forth that this trash was abandoned and discarded.
There was no trash out on previous occasions when Trooper Schaefer went by
the property. The trash was not in a wooden storage area. Transcript, pg. 42.
The trash was set alongside the street.at the time when other property owners
along that street had set their trash alongside the street for pick-up. There was
6
no testimony that the trash was alongside the street for any other purpose than
trash pick-up. As set forth in California v. Greenwood, trash set out is readily
accessible to animals, children, scavengers, snoops, and other members of the
public. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L Ed. 2d 30
(1988).
The Defendants argue that they did not contract with Burgmeier's Hauling
for their garbage and that Trooper Schaefer was violating the law by collecting
the trash bags. The Court rejects this argument finding that it does not alter the
pertinent inquiry. As set forth above, the inquiry is as to whether the trash was
discarded or abandoned so as to terminate 4th Amendment protections. Here,
the trash was put alongside the street away from the house. It had been moved
from wherever it was previously located, and was not in any wooden storage
container. We find that the trash was put alongside the street voluntarily and was
abandoned property, in which there was no longer an expectation of privacy.
The Defendants argue that the trash was located within curtilage of their home
and cite Commonwealth v. Lemanski, 529 A.2d 1085 (Pa. Super.1987) in their
brief. This case is distinguished from Lemanski, in which officers parted
shrubbery and peered with binoculars into someone's home. The trash was also
not along curtilage of the home. Trooper Schaefer again testified that the trash
was "away fromthe house along Pine Street." Transcript, pg. 12.
An area away from the house along the street does not fall under the
definition of curtilage set out in the case law. The Defendants' argument that this
trash pull was a violation of their rights because of a private drive sign also fails.
7
This was a named street, Pine Street. There was no gate keeping individuals out
of the area. Transcript, pg. 59. Trespassing signs were not posted. Transcript,
pg. 59. This street did not just lead to the residence of Defendants, but several
other houses as well. Transcript, pg. 37, 59. Burgmeier's Hauling had access to
this street and Trooper Schaefer rode with the hauling company to collect the
trash that had been discarded or abandoned.
The Defendants have established that there is a sign on Pine Street that
says "private drive". This does not preclude traffic on the street. The street
contained multiple houses and the private drive sign did not prevent public
access of and on to the street. Transcript, pg. 37. The fact that a sign on the
street said "Private Drive" and the fact that the street was not a through street
does not create a heightened expectation of privacy in garbage.
II Probable Cause for the Search Warrant
Where a motion to suppress has been filed, the burden is on the
Commonwealth to establish by a preponderance of the evidence that the
challenged evidence is admissible. Commonwealth v. Smith, 784 A.2d 182, 186
(Pa. Super. 2001 )(citing Commonwealth v. James, 506 Pa. 526, 486 A.2d 376(Pa 1985)) This Commonw~alth has established the following standar-d for
determining whether a search warrant affidavit contains sufficient probable
cause:
8
Before an issuing authority may issue a constitutionally valid search warrant. he
or she must be furnished with information sufficient to persuade a reasonable
person that probable cause exists to conduct a search. (citations omitted) The
information offered to demonstrate probable cause must be viewed in a common
sense, nontechnical, ungrudging and positive manner. (citations omitted) It must
also be remembered that probable cause is based on a finding of the probability,
not a prima facie showing of criminal activity, and that deference is to be
accorded a magistrate's finding of probable cause. (citations omitted) Hearsay
information is sufficient to form the basis of a warrant so long as the magistrate
has been provided with sufficient information to make a "neutral" and "detached"
decision about whether there is a fair probability that contraband or evidence of a
crime will be found in a particular place. And the duty of the reviewing court is
simply to ensure that the magistrate had a "substantial basis for ... concluding
that probable cause existed." Commonwealth v. Rivera, 816 A.2d 282,291 (Pa.
Super. 2003); Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23,25 (Pa. 1992)
(quoting Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (Pa. 1985)), (citing
Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317,2332, 76 L. Ed. 2d 527,547
(1983))); See also Commonwealth v. Torres, 564 Pa. 86,96, 764 A.2d 532,537
(Pa. 2001) (quoting Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921,
925 (Pa.1986)(quoting Illinois v. Gates, 462 U.S. 213,238-39, 103 S. Ct.
2317,2332); See also Commonwealth v. Jones, 506 Pa. 262,269, 484 A.2d
1383, 1387 (Pa.1984).
9
I··
I "The requisite probable cause must exist at the time the warrant is issued
and be based on facts closely related in time to the date of issuance". Jones,
506 Pa. at 269, 484 A.2d at 1387; Commonwealth v. Tolbert, 492 Pa. 576, 424
A.2rJ 1342 (Pa.1981); Commonwealth v. Jackson. 461 Pa. 632, 337 A.2d 582,
cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376 (1975); Commonwealth
v. Eazer, 455 Pa. 320, 312 A.2d· 398 (Pa.1973); Commonwealth v. Mccants, 450
Pa. 245, 299 A.2d 283 (Pa.1973): Commonwealth v. Simmons, 450 Pa. 624, 301
A.2d 819 (Pa.1973). Further, "[i]f the [Magisterial District Judge] is presented
with evidence of criminal activity at some prior time, it must also be established
that the criminal activity continued up to the time of the request for the warrant in
order to support a finding of probable cause." Jones, 506 Pa. at 269, 484 A.2d at
1387; Tolbert, 492 Pa. 576, 424 A.2d 1342; Jackson, 461 Pa. 632, 337 A.2d 582;
Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (Pa.1971 ).
It is the duty of a court reviewing an issuing authority's probable cause
determination to ensure that the magistrate had a substantial basis for
concluding that probable cause existed. Gray, 509 Pa. at 484, 503 A2d at 925.
In so doing, the reviewing court must accord deference to the issuing authority's
probable cause determination, and must view the information offered to establish
probable cause in a common-sense, non-technical manner.
Torres, 564 Pa. at 96-97, 764 A.2d at 537-38 (citing Commonwealth v. Jones,
542 Pa. 418, 668 A.2d 114, 117 (Pa.1995) (opinion announcing the Judgment of
the Court)); See also Jones, 506 Pa. at 296, 484 A.2d at 1387.
10
In this case, Trooper Schaefer, an experienced officer in drug
investigations who has been qualified previously as an expert, received
information that the Baronys were cultivating marijuana plants. He "pulled" their
trash and the contents of the trash collected contained a marijuana stem, Herbal
Clean, and indicia indicating the residence was Norman Barony's. Transcript, pg.
15, 16. The marijuana stem was long and cut which would indicate the
probability of marijuana plants. Transcript, pg. 20. Trooper Schaefer was able to
use part of the marijuana stem for a NIK test, the test being positive for
marijuana. Transcript, pgs. 28-33. Trooper Shaffer testified that the Herbal Clean
can be used to try to clean out THC, the actlve ingredient in marijuana, from a
person's system. Transcript, pg. 20 - 21. All this information was contained in
the search warrant. Based on the above, the Court finds there was probable
cause for issuance of the search warrant.
11
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
v. 2012 CR 652
2012 CR 650
MARIANNE BARONY,
and
NORMAN BARONY,
Defendants.
ELIZABETH A. DOYLE PRESIDING JUDGE
DEREK ELENSKY, ESQ. COUNSEL FOR COMMONWEAL TH
ROBERT DONALDSON, ESQ. COUNSEL FOR DEFENDANTS
ORDER
Based on the forgoing, the Court must issue the following order:
AND NOW, this ~ day of August, 2013, the defendant's Omnibus
Pre· Trial Motion is denied and dismissed. The case(s} is/are listed for trial list
review on August 261h, 2013.
By the Court,
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Circulated 04/27/2017 04:17 PM
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIAt
v. 2012 CR 650
2012 CR 649
NORMAN BARONY,
COMMONWEALTH OF PENNSYLVANIA,
v. 2012 CR 652
MARIANNE BARONY,
Defendants.
·.,'
4
. : : .
ELIZABETH A. DOYLE PRESIDING JUDGE ·. ,
PETER WEEK, ESQ. ASST. DISTRICT ATTORN£Y,
··.. . ,: ~.._: •
DEREK ELENSKY, ESQ. ASST. DISTRICT AITORN('(.-·, :-:
>,.. -u
:·.; =~
PHI LI p MASORTI I ESQ. COUNSEL FOR DEFENDANT .:.o
THOMAS DICKEY, ESQ. COUNSEL FOR DEFENDANT
OPINION AND ORDER (fo.su, J- ..2..t? J 2.t7IL/) cA-D
OPINION
In these two related and joined cases, the Commonwealth has
charged Norman and Marianne Barony with Possession to Deliver a
Controlled Substance, 35 Pa. C.S. 780-113 (a)(30), Criminal Conspiracy to
Possess a Controlled Substance, 18 Pa. C.S.A. 903 (a) (1). and related
offenses. Defendants have filed Omnibus Pretrial Motions, which the
Court partially denied on August 13, 2013, and November 14, 2013. The
1
August Opinion and Order upheld the constitutionality of a "trash pull" by
the state police that led to a search warrant in the case. The November
141 2013 Order dismissed any remaining issue In the Omnibus Pretrial
Motion. Thereafter the Defendants filed a Motion to Vacate Order,
asserting that the Commonwealth has not established a sufficient record
to support the dis missal of the outstanding issues. In that Motion, the
Defendants repeated the averments in the original Omnibus Pretrial
Motion and any supplemental Omnibus Pretrial Motion1 and specifically
repeat a challenge to the reliability and credibility of the Confidential
Jnformant, who has now passed away. Also outstanding is Defendant's
Objection to New, Aggravated Crime with Mandatory Minimum Terms,
and a Motion to Declare 42 Pa. C.S.A. 9712 (Sentences for Offenses
Committed With Firearms) and 18 Pa. C.S.A. 7508 (Drug Trafficking
Sentencing and Penalties) Unconstitutional. A Habeas Corpus petition was
filed by new counsel for Marianne Barony. The Court will document
disposition for each of these motions or petitions.
Fscts
The facts as found from the transcripts of May 30, 2013 and
Februapt-2-8,-2-0l-4-ar.e-as-follows,~·------------------
Trooper Charles Schaefer of the Pennsylvania State Police (PSP) has
been employed with the PSP since 1995 and has been primarily
investigating drug offenses since January of 1998. The Court has
I
Although at the time of filing of the Motlon to Vacate Order, It was made only as to
Norman Barony, the Court has extended Its analysis to Marianne Barony as well.
2
accepted him as an expert witness in the field of drug investigation and
identification. Sometime before August 4, 2011, he began an
investigation on a Mark Heverly about a marijuana growing operation.
Through that investigation and cooperation of Mr. Heverly, Trooper
Schaefer received information that Norman Barony ("Defendant"), was
working with Mr. Heverly in this grow operation.
Trooper Schaefer Investigated the matter further to confirm the
Information he was receiving from his informant. This investigation
included background on the Defendant that Included the Defendant's
residence. Trooper Schaefer consensualized Mr. Heverly by having him
meet with First Assistant District Attorney Jackie Bernard. Attorney
Bernard met with Mr. Heverly on July 27, 2011. She had a direct
conversation with him alone to make a determination about whether he
understood what was being asked of him in terms of acting as a
confidential Informant and having hJs voice recorded and to make sure he
was not being forced or coerced in any way to do so. After speaking with
Mr. Heverly Attorney Bernard was convinced that he was not under the
influence of any substance, was aware of what he was doing, and was
.acting-vo.f.u.mar-i!y.In performing the consensualization as she did,
Attorney Bernard complied with the provisions of the Wire Tap Act.
Subsequently, telephone conversations were recorded between Mr.
Heverly and the Defendant about the grow operation. Trooper Schaefer
drove around the residence of the Defendant on more than one instance
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to determine when trash would be put out for pickup. This investigation
was conducted prior to August 4, 2011. 5/30/ 13 Transcript, pg. 12.
On August 4, 2011, Trooper Schaefer conducted a trash pull at 127
Pine Street, Tyrone, the Defendant's residence. The Trooper rode on a
Burgmeier's Hauling Truck to perform the trash pull. The trash was put
out along the road on Pine Street, away from the house. The trash was
not out by the road the previous times Trooper Schaefer drove by the
Defendant's house. 5/30/13 Transcript, pg. 14. The trash was pulled by
the Trooper and a Burgmeier employee and was placed separately from
the other trash being collected by the hauling company.
Trooper Schaefer inspected the trash that was seized from the
Defendant's residence at 127 Pine Street. The trash included a long
marijuana stem, Herbal Clean, and indicia indicating that 127 Pine Street
was the Defendant's residence. S/30( 13 Transcript, pg. 15.
Trooper Schaefer testified that any marijuana you get, whether It Is street
marijuana or marijuana that you grow, has stems in It. However, in the
street or Mexican marijuana the stems are ground up and small. They
usually do not have uniform cuts. The marijuana stem Trooper Schaefer
indicating that came from a plant, thus demonstrating the probable
existence of marijuana plants. 5/30/13 Transcript, pg. 20. Trooper
Schaefer took a pistil from the stem and performed a NIK test on it. The
test changed colors, indicating a positive result for marijuana. The
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\)
Herbal Clean Is a substance that can be used to clear out THC from a
person's system If they have to take a drug test. 5/30/13 Transcript, pg.
21. Taken together, the presence of the Herbal Clean and the long
marijuana stem led Trooper Schaefer to believe that the Defendants were
engaged in illegally growing marijuana plants.
After the trash pull, Trooper Schaefer prepared a search warrant.
In the Affidavit of Probable Cause Trooper Schaefer listed his training and
experience in drug enforcement over the past 16 years in a 17-line
paragraph, including that he had attended a Marijuana Eradication course
that focused on marijuana growing techniques. He referred to the trash
pull and stated, "This officer recovered a marijuana stem. an empty box
of Herbal Clean and lndlcia of occupancy for Norman Baroney (sic) and
Marianne Baroney (sic). This officer was able to field test part of the
marijuana stem using the NIK identification system and same tested
positive for marijuana. This officer also notes that the end of the stem
was longer than stems found in processed marijuana and was clearly cut
at one end. This is of importance as marijuana that is purchased on the
street is generally ground and pressed. This tends to create shorter stems
likely from "home grown" marijuana. This officer also knows through
training and experience that the Herbal Clean Is often used by marijuana
users to clear their systems of THC (Tetra-hydrocannabinol) for urine
tests. This officer knows through training and experience that marijuana
5
growers/users often maintain a stash of marijuana for their personal use.
This officer also knows that this stash is kept in a location under their
dominion and control such as their person, residence or securable
outbuildings, etc." Search Warrant, Com. Ex 1, 5/30/13 hearing. The
premises to be searched was the Barony residence.
The search warrant was approved by the court on August 5, 2011.
The search warrant was executed on August 6, 2011. As a resu It of the
executed search warrant, nine marijuana plants, growing paraphernalia
and marijuana seeds were found In the Barony's bedroom. The instant
charges were then filed against both the Defendant and his wife, Mrs.
Marianne Barony.
Discussion
In the Motion to Suppress, which is divided into multiple parts,
Defendants first challenge an illegal aerial search. There was none. They
withdrew this challenge. The Court will address their next challenges in
order.
Motion to Suppress-Illegal Trash Pull
This was decided separately by the Court in its Order of August 13,
2013. The troopers did not act improperly in conducting the trash pull
The Defendants had abandoned the trash.
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Motion to Suppress- False Information In Affidayit of Probable Cause
The Defendants allege that false information was included In the
affidavit of probable cause because, they assert, the stem that Trooper
Schaefer found in their trash was not marihuana as defined in 35 P.S.
780-102. They further state that Herbal Clean is not contraband and
should not have been considered by the Court in Its determination of
whether probable cause existed for the search warrant.
It is hornbook law that before an issuing authority may issue a
constitutionally valid search warrant, he or she must be furnished with
information sufficient to persuade a reasonable person that probable
cause exists to conduct a search.
Here, the issuing authority was presented with more than mere
assertions from the police that they had been told by someone that the
Defendants were growing marijuana. The search warrant application
revealed that the troopers did a trash pull and that "Thls officer recovered
a marijuana stem, an empty box of Herbal Clean and indicia of occupancy
for Norman Baroney (sic) and Marianne Baroney (sic). This officer was able
to field test part of the marijuana stem using the NIK identification
system and same tested positive for marijuana. This officer also notes
that the end of the stem was longer than stems found In processed
marijuana and was clearly cut at one end. This is of importance as
marijuana that is purchased on the street is generally ground and
pressed. This tends to create shorter stems and uneven edges at the end
7
')
of the stems. The stem in this case is more likely from "home grown"
marijuana. This officer also knows through training and experience that
the Herbal Clean Is often used by marijuana users to clear their systems
of THC (Tetra-hydrocannabinol) for urine tests. This officer knows
through training and experience that marijuana growers/users often
maintain a stash of marijuana for their personal use. This officer also
knows that this stash is kept in a location under their dominion and
control such as their person, residence or securable outbuildings, etc."
The Issuing authority was thus presented with the fact that the
troopers had recovered tangible evidence from the Defendants' trash that
they were growing marijuana. A reasonable person would conclude that
there was probable cause to search the Barony's residence for marijuana
plants. Merely because a stem from a marijuana plant is not, standing
alone, defined as marihuana under Title 35 does not mean that it is not
indicia that marijuana is being grown. Further, Just because Herbal Clean
is not contraband does not mean that it Is not indicia of marijuana use.
The Trooper did not state that Herbal Clean was contraband, just that it
was used by marijuana users to cleanse their system of THC. To argue
asserted here borders on frivolity.
Motion to Suppress-Staleness
The Defendants argue that the evidence of criminal activity was
stale such that probable cause did not exist at the time the warrant was
8
)
issued. The trash pull was August 4, 2011. The search warrant was
issued August 5, 2011. There Is nothing about the facts to indicate that
the criminal activity was attenuated by the passage of time.
Motion to Suppress-Insufficient Probable Cause
The Defendants argue that there was insufficient probable cause
for the issuance of the August 5, 2011 search warrant. The Court
disagrees based on Its analysis above.
Motion to Suppress- Fruits of the Poisonous Tree
The Defendants argue that all evidence seized and any statement
given by them should be suppressed because the trash pull was illegal
and the search warrant was based on insufficient probable cause. The
Court disagrees based on its analysis above and in its August 13, 2013
Opinion and Order.
Discovery
The Defendants made various motions for discovery in their
Omnibus .Pretrial Motion.
.
These have been resolved through exchange of
discovery.
Habeas Corpus-Marianne Barony
who filed the original Omnibus Pretrial Motion. After getting separate
counsel, Marianne Barony filed a Habeas Corpus. However, she had
waived the preliminary hearing with counsel. As such, she is not entitled
9
to later challenge the sufficiency of the evidence, as set out in Pa Rule of
Crim. Proc. 541 (A) and (C).
Defendant's Objection to New, Aggravated Crime with Mandatory
Minimum Terms and Motion to Declare 42 Pa. C.S.A. 9712 (Sentences for
Offenses Committed With Firearms) and 18 Pa. C.S.A. 7508 (Drug
Trafficking Sentencing and Penalties} Unconstitutional.
The Court notes that this Court en bane has held that the
mandatory minimum sentencing laws that involve fact finding by the
Court rather than the jury and a lesser burden of proof than beyond a
reasonable doubt have been rendered unconstitutional by the decision in
Alleyne v un;ted States, 133 5. Ct 2151, 186 L.Ed. 2d 314 (2013).
Furthermore, our Superior Court has held recently in Commonwealth v
Newman, 2014 Pa Super 178, that Alleyne does indicate that the
sentencing practice under Section 9712.1 ts unconstitutional. Therefore,
to the extent that the above Motions challenge matters the courts have
found to be unconstitutional, they are granted.
Conclusion
Based on the foregoing, the following Order is appropriate this 28th
The Defendants' Motions to Suppress found in their Omnibus
Pretrial Motion are denied and dismissed. Marianne Barony's Petition for
Writ of Habeas Corpus is denied and dismissed. To the extent that the
above Motions challenge sentencing schemes the courts have found to be
10
unconstitutional, they are granted. The Court knows of no outstanding
discovery matters. The cases are placed back on the trial list.
BY THE COURT:
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