Com. v. Cole, L. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAURA COLE :
:
Appellant : No. 997 WDA 2017
Appeal from the Judgment of Sentence June 5, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000726-2017
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 01, 2018
Laura Cole (Appellant) appeals from the judgment of sentence imposed
after the trial court convicted her of possession of a controlled substance and
possession with the intent to deliver a controlled substance (PWID).1 For the
reasons that follow, we affirm Appellant’s convictions, vacate her sentence for
possession of a controlled substance, but do not remand for resentencing
because our disposition does not disrupt the trial court’s sentencing scheme.
Following an investigation into a shooting allegedly involving
Christopher Cunningham (Cunningham), Appellant’s paramour, the West
Mifflin Police Department obtained a warrant to search Appellant’s residence.
In short, the facts set forth in the affidavit of probable cause giving rise to the
belief that evidence of Cunningham’s crimes would be found in Appellant’s
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1 35 P.S. § 780-113(a)(16), (30).
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apartment were as follows: (1) witnesses observed the perpetrators of the
shooting drive to and from the scene in a gold sedan; (2) video surveillance
showed a light-colored sedan fleeing the scene of the shooting at a high rate
of speed; (3) police discovered that the same car observed at the scene of the
shooting and on the surveillance video was registered to Cunningham; (4) the
police also learned that Cunningham was romantically involved with Appellant,
who is the mother of his child; and (5) the police observed Cunningham’s
vehicle at Appellant’s apartment numerous times (day and night) in the days
following the shooting.
The trial court summarized the remaining relevant factual and
procedural history of this case as follows:
On or about October 21, 2016, police, pursuant to a search
warrant, entered and searched the residence of [Appellant]
located at 703 D Drive in West Mifflin, Pennsylvania. As a result
of said entry and search, the police found cocaine, marijuana, two
digital scales, a marijuana grinder, [and] an elephant shaped pipe
for smoking marijuana. [Appellant] was charged with [PWID],
Possession of a Controlled Substance and Endangering the
Welfare of Children (EWOC).
On or about April 18, 2017, [Appellant] filed a Motion to
Suppress alleging probable cause did not exist for the issuance of
the search warrant in this matter. A Suppression Hearing was
held on or about June 5, 2017, and denied by this Court. The
matter then proceeded to a stipulated non-jury trial at the
conclusion of which [Appellant] was found guilty of the PWID and
Possession charges and not guilty on the EWOC charge.
[Appellant] was sentenced to 12 months’ probation on the PWID
charge, and a concurrent period of 12 months’ probation on the
Possession charge. No Post-Trial Motions were filed.
On July 5, 2017, [Appellant] filed a Notice of Appeal. On July
10, 2017[,] this [c]ourt ordered [Appellant] to file a Concise
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Statement of Matters Complained of on Appeal, and on July 31,
2017, [Appellant] filed [the] same.
Trial Court Opinion, 8/7/17, at 1-2.
On appeal, Appellant presents the following issues for review:
I. Whether the trial court erred in not granting [Appellant]’s
motion to suppress when the information contained in the four
corners of the search warrant affidavit failed to establish probable
cause to search [her] residence, in violation of her rights under
the Fourth and Fourteenth Amendments of the United States
Constitution, and Article 1, § 8 of the Pennsylvania Constitution?
II. Whether [Appellant]’s double jeopardy rights were violated
and her sentence for Possession is illegal when [she] was
convicted of PWID and Possession with respect to a large amount
of cocaine that was found inside her residence, the trial court
imposed a sentence of 12 months’ probation for each offense, but
Possession is a lesser-included offense of PWID such that the
former merges with the latter for sentencing purposes?
Appellant’s Brief at 6.
For her first issue, Appellant argues that the trial court erred in denying
her suppression motion. Appellant asserts that the four corners of the search
warrant affidavit did not establish probable cause to search her home.
Appellant contends that several facts asserted by the police in the affidavit
were unsupported assumptions and consequently, failed to establish probable
cause that evidence of Cunningham’s crimes would be found in Appellant’s
apartment.
The standard of review for suppression claims is as follows:
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
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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.
Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016)
(quotations and citation omitted).
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment of the United States Constitution “each require that search
warrants be supported by probable cause.” Commonwealth v. Jones, 988
A.2d 649, 655 (Pa. 2010).
“The linch-pin that has been developed to determine whether
it is appropriate to issue a search warrant is the test of probable
cause.” Commonwealth v. Edmunds, [] 586 A.2d 887, 899
([Pa.] 1991) (quoting Commonwealth v. Miller, 513 Pa. 118, 518
A.2d 1187, 1191 (1986)). “Probable cause exists where the facts
and circumstances within the affiant’s knowledge and of which he
has reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief
that a search should be conducted.” Commonwealth v.
Thomas, [] 292 A.2d 352, 357 ([Pa.] 1972).
In Illinois v. Gates, 462 U.S. 213 [] (1983), the United States
Supreme Court established the “totality of the circumstances” test
for determining whether a request for a search warrant under the
Fourth Amendment is supported by probable cause. In
Commonwealth v. Gray, [] 503 A.2d 921 ([Pa.] 1986), this
Court adopted the totality of the circumstances test for purposes
of making and reviewing probable cause determinations under
Article I, Section 8. In describing this test, we stated:
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Pursuant to the “totality of the circumstances” test set forth
by the United States Supreme Court in Gates, the task of
an issuing authority is simply to make a practical, common-
sense decision whether, given all of the circumstances set
forth in the affidavit before him, including the veracity and
basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place . . . .
It is the duty of a court reviewing an issuing authority’s
probable cause determination to ensure that the
magist[erial district judge] had a substantial basis for
concluding that probable cause existed. 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.
* * *
[Further,] a reviewing court [is] not to conduct a de novo
review of the issuing authority's probable cause
determination, but [is] simply to determine whether or not
there is substantial evidence in the record supporting the
decision to issue the warrant.
Id. (quoting Commonwealth v. Torres, 764 A.2d 532, 537-38, 540 (Pa.
2001)).
The affidavit of probable cause in the application for the search warrant
in this matter states, in pertinent part:
During the course of this investigation, the affiant located and
identified several victims and witnesses whose true identities have
been ascertained and have been memorialized in reports
maintained by the affiant. The true identities of these known
unnamed eye witnesses are being withheld for the purpose of this
affidavit, both to ensure their safety and to preserve the integrity
of the ongoing investigation.
On October 14, 2016 at 01:04 hours[,] West Mifflin Officers,
Booth, Marone, and Scruggs were dispatched to 603 Glencairn
Street West Mifflin for shots fired into the residence. There were
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six victims in the house at the time, Victim #1 DOB 06/24/1949
was down stairs, Victim #2 DOB 1 1/25/1971 was in the living
room on the couch, Victim #3 DOB 01/05/1973 and Victim #4
DOB 06/30/2016 were in bed in the one bedroom, and Victim #5
DOB 05/16/2001 and Victim #6 DOB 06/07/1998 were in the
second bedroom. Detective Basic responded to the residence to
process and photograph the scene. Several victims and witnesses
provided statement[s] of the occurrence. The actor(s) were not
located at the time.
* * *
On October 15, 2016, Witness #1 was interviewed by
Detectives Basic and Priestley. Witness #1 heard several shots
and when she/he looked outside he saw two to three people run
to a car that was parked on Donna Avenue. The vehicle sped at
a high rate towards the fire hall. The witness said he heard over
12 rapid fired shots.
* * *
Detective Priestley and I then pr[o]ce[e]ded to Witness #3’s
residence. During the conversation, Witness #3 provided
information that Victim #6 (robbed) [Cunningham]. He stated
that he is familiar with both the victim and Cunningham and a
drug deal for molly was set up. He said that Vi[c]tim #6 met with
Cunningham at his address and Cunningham gave the victim
$1000.00 to purchase molly. The victim left with the money and
did not return as promised with the drugs. Cunningham became
angry and they went searching for Victim #6 to the location where
he pick[ed] up (Molly) with the victim on other occasions. After
several hours went pas[t] and they were unable to make contact
with the victim[,] they returned to West Mifflin. On the way back
Witness #3 said that Cunningham made a phone call and heard
him tell someone that he was ripped off and said to meet with
him. Cunningham told Witness #3 to get in the back seat and
they picked up two black males on Greensprings Avenue. Witness
#3 saw the one black male with a long rifle in his possession and
believed the second black male had handguns in his pocket. He
said both black males were wearing all black clothing. Witness #3
stated Cunningham’s vehicle is a gold sedan. He said that
Cunningham parked down the street on Donna Avenue. He and
Cunningham stayed in the vehicle and the two black males walked
up to the front door and knocked. Witness #3 said that a few
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seconds later he heard and saw flashes from the guns and saw
the black males shooting at the house. The black males returned
to the vehicle and they drove off. He said they drove down Donna
Avenue and Cunningham dropped him off at his girlfriend’s on
Castle Drive. He did not want to discuss the matter any longer.
I obtained surveillance video from Homeville Fire [C]ompany
depicting at 0059 hours a light color sedan with a sun roof
traveling south on Greensprings Avenue make a left onto Majka
Street and at 0109 hours the same vehicle is seen coming down
Donna Avenue and then making a right onto Greensprings at a
high rate of speed, failing to stop at the stop sign.
On October 15, 2016, Detectives Basic and Priestley located
the vehicle outside Cunningham’s girlfriends at the 700 building
in Mifflin Estates. The vehicle is registered to Cunningham.
On October 17, 2016, Detective Priestley and I interviewed
Victim #6. He admitted that he was involved in a drug deal with
Witness #3 and Cunningham.
* * *
Detective Priestley and I interviewed Witness #3 again at the
station. He reiterated the drug deal between Cunningham and
Victim #6. He was shown a photograph of the vehicle and
confirmed this to be Cunningham’s vehicle.
* * *
Detective Priestley obtained Cunningham’s phone number from
Witness #3[’s] phone that was in his contact number for that day.
Cunningham’s number is consistent with the phone number that
West Mifflin Police have listed for him in our system.
Witness #3 willingly gave a recorded statement of the shooting
incident.
During the course of this investigation a background check of
[Cunningham] was performed using various databases and
documents. It was learned that Cunningham’s paramour and the
mother of his child, [Appellant], resides at 703 D Drive, West
Mifflin, within the Mifflin Estates Housing Complex. Since this
incident occurred, Cunningham’s vehicle was originally located in
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the parking lot directly outside of [Appellant]’s apartment and has
been observed parked there num[er]ous times since, at various
times of the day and night. As such, it is believed Cunningham is
residing within the apartment of [Appellant].
Based on the above information, I, Detective Sgt Topolnak
respectfully request a[] search warrant be issued for apartment
703 Mifflin Estates, West Mifflin.
Affidavit of Probable Cause, 10/21/16, at 1-3.
In arguing that the trial court erred in denying her suppression motion,
Appellant first asserts that the affidavit of probable cause fails to adequately
explain how the police determined that the gold sedan witnessed at the scene
of the shooting belonged to Cunningham. Specifically, Appellant emphasizes
that the affidavit does not include the vehicle’s make, model, license plate
number, or registration, and that the only information indicating that the gold
sedan belonged Cunningham was from an “unnamed source.” Appellant’s
Brief at 22, 32. Appellant contends that the information in the affidavit linking
Cunningham to the gold sedan is tenuous at best and as a result,
constitutionally infirm.
Initially, we note that Appellant accuses the police of obtaining
information relating to Cunningham’s vehicle from an unnamed source. The
police, however, obtained information regarding the vehicle, not from an
unnamed or anonymous source but from Witness #3, whose identity is known
to the police, but not included in the affidavit of probable cause for safety and
investigatory reasons.
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The affidavit of probable cause indicates that Witness #3 told the police
that during the shooting, he was present with Cunningham in Cunningham’s
gold sedan, which was the vehicle that carried the perpetrators to and from
the shooting. Affidavit of Probable Cause, 10/21/16, at 2. After learning from
Witness #1 that the vehicle carrying the shooters fled the scene at a high rate
of speed in the direction of the local fire hall, the police obtained surveillance
footage from the fire hall showing a “light[-]color[ed] sedan” traveling “at a
high rate of speed, failing to stop at [a] stop sign” heading away from the
location of the shooting. Id. at 1-2. When the police showed Witness #3 a
photograph of this vehicle, he confirmed that it was Cunningham’s vehicle.
The affidavit further reflects that Detectives Basic and Priestly located this
same vehicle outside of Appellant’s residence. Id. at 2.
It is reasonable to presume that at this point, the detectives ran the
vehicle’s information through their computer and discovered that it was
registered to Cunningham. See Jones, 988 A.2d at 655. Moreover, Appellant
cites no authority for the proposition that the police were required to set forth
in the affidavit of probable cause the precise investigatory technique or
database used to learn the ownership of Cunningham’s vehicle. Accordingly,
a common sense reading of the affidavit plainly sets forth a sufficient factual
basis for concluding that the vehicle in question was registered to
Cunningham.
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Appellant next argues that although the affidavit of probable cause
stated that Appellant and Cunningham were paramours, the affidavit merely
explains that police discovered this information based on a “background
check” of Cunningham “using various databases and documents.” Appellant’s
Brief at 34. Appellant contends that it was constitutionally improper for the
affidavit to fail to set forth “the actual sources used by the police to make this
important determination” and the police never independently corroborated
this information by observing the two individuals together. Id. Appellant
asserts that the “information regarding Cunningham’s association with
[Appellant] was based on rank hearsay.” Id.
This Court has explained:
Hearsay information is sufficient to form the basis of a warrant so
long as the magist[erial district judge] 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
magist[erial district judge] had a “substantial basis for concluding
that probable cause existed.”
Commonwealth v. Woosnam, 819 A.2d 1198, 1208 (Pa. Super. 2003).
As with the registration of the gold sedan, Appellant cites no authority
mandating that the affidavit of probable cause in this case had to set forth the
exact database and documents through which the police discovered the
romantic connection between Cunningham and Appellant. Moreover, it was
reasonable for the magisterial district judge to presume that as the police
investigated Cunningham, his whereabouts, and his connection to the
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shooting that they not only conducted a background check, but through their
investigation, learned that Cunningham and Appellant were romantically
linked, particularly given that Appellant is the mother of his child. Affidavit of
Probable Cause, 10/21/16, at 1-3. Accordingly, we conclude that the affidavit
set forth a substantial basis supporting the conclusion that Appellant and
Cunningham were paramours. See Woosnam, 819 A.2d at 1208.
Appellant further argues that the affidavit indicates that the police only
observed the gold sedan parked outside of Appellant’s residence on one
occasion and that there is no indication that police ever observed Cunningham
at Appellant’s apartment. Although the affidavit states that the gold sedan
was observed at Appellant’s apartment complex “at various times of the day
and night,” Appellant takes issue with the affidavit’s failure to provide the
source of this information.
The affidavit of probable cause reveals that the day after the shooting,
Detective Basic and Priestly observed the gold sedan outside of Appellant’s
apartment. Affidavit of Probable Cause, 10/21/16, at 2. The affidavit further
states “[s]ince this incident occurred, Cunningham’s vehicle was originally
located in the parking lot directly outside of [Appellant]’s apartment and has
been observed parked there num[er]ous times since, at various times of the
day and night.” Once again, given a common sense, non-technical reading of
the affidavit, even though the affidavit does not set forth the source of this
information, it is reasonable to assume that through their continued
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investigation into the shooting in question, either Detectives Basic and
Priestly, or other police officers involved in the investigation, continued to
observe Cunningham’s car parked outside of Appellant’s apartment. See
Jones, 988 A.2d at 655.
Rather than have us review the totality of the circumstances, Appellant
seeks a piecemeal review of certain factual conclusions drawn by the police in
the affidavit of probable cause. It is well-settled, however, that we must
consider the totality of the circumstances and that “[w]e do not review the
evidence piecemeal.” Commonwealth v. Nobalez, 805 A.2d 598, 600 (Pa.
Super. 2002). Thus, we conclude that the trial court did not err in determining
that, based on the totality of the circumstances, the four corners of the
affidavit established probable cause to believe that evidence of Cunningham’s
crimes would be found in Appellant’s home. Accordingly, the trial court
properly denied Appellant’s suppression motion.
In her second issue, Appellant argues that we should vacate her
sentence for possession of a controlled substance because it merged with her
conviction of PWID. “A claim that the trial court imposed an illegal sentence
by failing to merge sentences is a question of law. Accordingly, our standard
of review is plenary.” Commonwealth v. Williams, 958 A.2d 522, 527 (Pa.
Super. 2008) (quotations and citation omitted). “Challenges to the legality of
the sentence are not waivable.” Commonwealth v. Jacobs, 900 A.2d 368,
372 (Pa. Super. 2006).
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It is well-settled:
The proof necessary to convict a defendant of possession with
intent to deliver includes proving all of the elements of possession.
Thus, possession is a lesser included offense of possession with
intent to deliver and the former merges with the latter for
sentencing purposes.
Commonwealth v. Williams, 958 A.2d 522, 528 (Pa. Super. 2008).
Additionally, both the trial court and the Commonwealth agree that Appellant’s
convictions of possession of a controlled substance and PWID should have
merged for sentencing purposes.2 See Trial Court Opinion, 8/7/17, at 6;
Commonwealth’s Brief at 20. Accordingly, we vacate Appellant’s sentence for
possession of a controlled substance. Because Appellant’s sentence for
possession of a controlled substance was identical to and ordered to run
concurrently with her sentence for PWID, we need not remand for
resentencing, as our correction of the illegal sentence does not disrupt the
court’s sentencing scheme. See Commonwealth v. Johnson, 100 A.3d 207,
216 n.8 (Pa. Super. 2014) (declining to remand for resentencing where
vacating a sentence did not affect the trial court’s overall sentencing scheme).
Judgment of sentence affirmed in part and vacated in part. Jurisdiction
relinquished.
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2 The trial court noted that it would have vacated Appellant’s illegal sentence
had Appellant brought the error to its attention either at sentencing or in a
post-sentence motion. Trial Court Opinion, 8/7/17, at 6.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2018
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