Com. v. Smith, D. ( 2018 )

J-S83022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DASHAWN L. SMITH :
:
Appellant : No. 116 EDA 2017
Appeal from the Judgment of Sentence December 14, 2016
In the Court of Common Pleas of Montgomery County Criminal Division at
No(s): CP-46-CR-0000745-2016,
CP-46-CR-0000753-2016, CP-46-CR-0005110-2013
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 09, 2018
Appellant, Dashawn L. Smith, appeals from the judgment of sentence,
in three separate criminal matters,1 entered on December 14, 2016. Upon
review, we affirm.
____________________________________________
1 As noted by the trial court:
First, [Appellant] appeals from his judgment of sentence[]
entered on December 14, 2016, at docket CP-46-CR-005110-
2013 (“5110-2013”), imposed following a stipulated non-jury
trial on July 8, 2016, where he was convicted of persons not to
possess firearms and possession with intent to deliver [a
controlled substance (“PWID”)]. [18 Pa.C.S.A. § 6105 and 35
P.S. § 780-113(a)(30), respectively.] [Appellant] has also
appealed from his judgment of sentence entered on December
14, 2016, at docket CP-46-CR-0000753-2016 (“753-2016”),
imposed following a stipulated non-jury trial on September 26,
2016, at which he was found guilty [PWID], criminal conspiracy,
resisting arrest[,] and recklessly endangering another person
[(“REAP”)]. [35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, 18
(Footnote Continued Next Page)
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We briefly set forth the facts and procedural history of these cases as
follows. At docket 5110-2013, while on parole for an unrelated PWID
conviction, Appellant violated several provisions of his parole in June of
2013, including missing curfew, testing positive twice for controlled
substances, and giving his parole officer conflicting excuses for the alleged
misconduct. Additionally, when going through the metal detector at the
parole office, Appellant’s parole officer saw Appellant with a cellular
telephone and a stack of currency, despite the fact that Appellant had been
unemployed for the prior seven months. Appellant’s parole officer and the
officer’s supervisor searched Appellant’s cellular telephone and found
incriminating evidence, including text messages indicating Appellant was
selling drugs and other text messages discussing Appellant’s positive drug
tests. Appellant was detained. In a search incident to that detention, the
parole agents recovered $460.00 from Appellant’s person, which Appellant
attributed to selling DVDs or t-shirts. A subsequent search of Appellant’s
apartment, on June 19, 2013, uncovered 932 individual baggies of heroin, a
(Footnote Continued) _______________________
Pa.C.S.A. § 5104, and 18 Pa.C.S.A. § 2705, respectively.]
Finally, [Appellant] has appealed from his judgment of sentence
entered on December 14, 2016, at docket CP-46-CR-0000745-
2016 (“745-2016”), imposed following his entry of a guilty plea
on the same date to criminal trespass[, 18 Pa.C.S.A. § 3503].
Trial Court Opinion, 3/29/2017, at 2-3 (footnotes incorporated). However,
this appeal only addresses issues related to the first two cases, 5110-2013
and 753-2016, as set forth above.
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digital scale, unused baggies, and an unloaded .45 caliber handgun under
the mattress in the bedroom belonging to Appellant. Prior to trial, on June
15, 2016, the trial court held a suppression hearing and denied Appellant
relief. On July 8, 2016, following a stipulated non-jury trial, Appellant was
convicted of persons not to possess a firearm and PWID. On December 14,
2016, the trial court sentenced Appellant to six years and three months to
14 years of imprisonment.
At docket 753-2016, police saw Appellant enter an apartment building
located at 3 West Fourth Street in Montgomery County, Pennsylvania on
December 17, 2015. They saw Appellant and a woman later identified as
Appellant’s girlfriend, Melissa Griffin, enter the building together. At the
time, there was an active, outstanding warrant for Appellant’s arrest and one
of the investigating officers knew Appellant carried a firearm in the past and
believed he may be armed. Appellant eventually left the building alone, saw
the police when they approached him, and fled. While fleeing, Appellant
discarded a cellular telephone and 14 individual bags of heroin. Police
arrested Appellant and applied for a search warrant for the apartment at 3
West Fourth Street. Before obtaining a search warrant, the officers decided
to secure the apartment because Griffin was still inside and could destroy
evidence. Police announced their presence, opened the unlocked front door,
and Griffin came out of one of the bedrooms with her hands up. Police then
conducted a protective sweep of the apartment, only looking in places where
a person could hide. In doing so, police observed three cellular telephones
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and a stack of money in one room. In another bedroom, they saw items of
drug paraphernalia. All of these items were in plain view and police did not
confiscate them. Instead, they awaited the search warrant for the
apartment. While in police custody, Appellant asked why the police were
searching the residence at 3 West Fourth Street when he lived at 416 Vine
Street. Thereafter, the police applied for a search warrant for 416 Vine
Street. While executing the search warrants, police recovered over 1,200
individually packaged bags of heroin totaling 24.5 grams. On September 26,
2016, the trial court held a suppression hearing and denied Appellant relief.
Appellant proceeded directly to a stipulated non-jury trial wherein he was
convicted of the aforementioned charges. On December 14, 2016, the trial
court sentenced Appellant to 27 months to six years of imprisonment and
imposed this sentence consecutive to the sentence at docket number 5110-
2013. A timely appeal followed.2
____________________________________________
2 As the trial court noted, and appellate counsel concedes on appeal,
counsel for Appellant filed a timely single notice of appeal challenging the
judgment of sentence at all three docket numbers on December 28, 2016.
See Appellant’s Brief at 14; see also Trial Court Opinion, 3/29/2017, at 1-2.
Generally, taking one appeal from separate judgments is not acceptable
practice and is discouraged. See Dong Yuan Chen v. Saidi, 100 A.3d 587,
589 n.1 (Pa. Super. 2014), citing Pa.R.A.P. 341, Note and Pa.R.A.P. 512,
Note. However, we have overlooked such procedural error when the trial
court has addressed the issues pertaining to each order. Id. Moreover, as
discussed later, because Appellant challenges the trial court’s imposition of
his sentence at docket 753-2016 consecutive to the sentence imposed at
docket number 5110-2013, the issues raised on appeal overlap. Each
appeal also specifically challenges suppression. Had Appellant filed separate
notices of appeal, this Court could have sua sponte ordered consolidation for
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issues for our review:
1. [At docket 5110-2013, d]id [Appellant’s parole agent] have
reasonable suspicion to engage in a warrantless confiscation
and search of Appellant’s cellphone pursuant to 61 Pa.C.S.A.
[§] 6153?
2. Based on the United States and Pennsylvania Constitutions,
the trial court erred in denying the suppression of all evidence
recovered from the properties located at 3 West Street and
416 Vine Street [at docket 753-2016?]3
3. Whether the trial court erred in finding that the prohibition
against nighttime warrants applied?
4. Whether the trial court erred in sentencing Appellant to
consecutive sentences under the circumstances?
Appellant’s Brief at 11.
In his first issue presented, with regard to docket 5110-2013,
Appellant claims that the trial court erred by denying suppression of
(Footnote Continued) _______________________
appellate review. See Pa.R.A.P. 513 (“…where the same question is
involved in two or more appeals in different cases, the appellate court may,
in its discretion, order them to be argued together in all particulars as if but
a single appeal.) After receiving the notices of appeal, on January 6, 2017,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely, raising issues related to docket numbers 5110-2013 and 753-2016.
The trial court issued a single opinion pursuant to Pa.R.A.P. 1925(a) on
March 29, 2017, addressing all of Appellant’s issues related to both cases.
For all of these reasons we will overlook the procedural misstep of filing a
single notice of appeal.
3 Appellant’s statement of questions involved does not correspond with his
subsequent argument. To avoid confusion, we have provided Appellant’s
second issue as set forth in the argument section of his appellate brief. See
Appellant’s Brief at 30 (complete capitalization omitted).
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evidence recovered from his cellphone and residence upon finding violations
of the terms of his parole. Appellant’s Brief at 19-29. More specifically,
Appellant claims that once his parole agent witnessed a curfew violation and
received confirmation that Appellant tested positive for controlled
substances, the investigation into the violations should have concluded. Id.
at 20. “Thus, Appellant asserts that two positive urines and a curfew
violation, both of which were confirmed, would not give the parole agents
the right to seize, and search his cellphone or his residence at that time
because the two violations were no longer suspicions and had been
confirmed prior to the search of the phone.” Id. at 27. As such, Appellant
argues that the subsequent search of his cellular phone and residence were
illegal and the evidence obtained required suppression.
Our standard of review for challenges to the denial of
a suppression motion 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 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....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. Where ... the appeal of the determination of
the suppression court turns on allegations of legal error,
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,
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the conclusions of law of the courts below are subject to our
plenary review.
Commonwealth v. Haslam, 138 A.3d 680, 685–686 (Pa. Super. 2016)
(citation omitted).
Upon review of the trial court opinion, the parties’ briefs, the facts of
this case, and the applicable law, we conclude that the trial court’s factual
findings in denying Appellant’s suppression claim are supported by the
record. The trial court first recognized that because Appellant was on
parole, he had a diminished expectation of privacy and parole officers need
only a reasonable suspicion that a parolee is violating the law in order to
conduct a search of the parolee’s person or property.4 Trial Court Opinion,
3/31/2017, at 7-8. The trial court considered the statutory factors set forth
at 61 Pa.C.S.A. § 6153 and determined the parole agent in this matter had
the requisite reasonable suspicion to conduct the subsequent searches. Id.
at 8-9. The trial court found that the parole agent knew Appellant’s criminal
history and was supervising him for a prior PWID conviction. Id. at 9.
When Appellant missed curfew, he provided conflicting statements about his
____________________________________________
4 Appellant relies upon the United States Supreme Court decision Riley v.
California, 134 S. Ct. 2473 (2014) for the proposition that “there is an
intimate expectation of privacy in the cellphone and it is not subject to a
search without a warrant.” Appellant’s Brief at 27. However, we have
specifically held that Riley is inapplicable, and a warrantless search of a
cellular telephone is proper, when the search involves a parolee and the
parole officer has reasonable suspicion to believe there was a violation of
parole. See Commonwealth v. Murray, 174 A.3d 1147, 1156 (Pa. Super.
2017).
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whereabouts. Id. He tested positive for controlled substances, and did not
have a prescription, which showed Appellant had access to illicit narcotics.
Id. The parole agent also personally witnessed Appellant with a large sum of
cash and a cellular telephone, even though Appellant was not employed.5
Id.
Section 6153 only requires reasonable suspicion that the cellular
telephone contained evidence of violations. There is simply no provision that
a parole officer must stop searching once a suspicion is confirmed, as
Appellant suggests. Moreover, despite Appellant’s claim that breaking curfew
and testing positive for controlled substances were the only potential
violations the parole agent was investigating, it is also clear from a totality
of the evidence of record that the parole agent had the requisite reasonable
suspicion to believe that Appellant was also procuring and potentially selling
narcotics. The facts here suggested drug dealing (i.e., lack of gainful
employment coupled with possession of a cellular telephone and cash),
which is a separate violation of parole from using narcotics and missing
curfew. Hence, the subsequent searches were proper and suppression
unwarranted. We conclude that there has been no error at docket 5110-
2013 and that the March 31, 2017 opinion meticulously, thoroughly, and
____________________________________________
5 Appellant does not challenge or address this determination.
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accurately disposes of Appellant’s issue on appeal. Accordingly, we adopt
its rationale as our own.
In his second issue presented, Appellant claims the trial court erred in
denying suppression of evidence recovered from 3 West Fourth Street and
416 Vine Street at docket 753-2016. Appellant’s Brief at 30. More
specifically, Appellant argues that police had a warrant for his arrest in an
unrelated, alleged burglary and that the trial court erred “by finding that
exigent circumstances were present that permitted the initial warrantless
entry into 3 West Fourth Street that led to the observation of drug related
materials and ultimately the search warrant that led to the finding of
contraband.” Id. Additionally, Appellant challenges the protective sweep at
3 West Fourth Street alleging that, because he was arrested outside,
Appellant claims there were no issues with officer safety or any risk of
destruction of evidence inside “in this arrest for the alleged burglary.” Id. at
31. He claims “[t]he [possibility that Appellant carried a] gun was known
[by police] prior to going to the premises and, the discarding of drugs
occurred outside the property with no indication the drugs were related to
the property.” Id. at 33 (case citation omitted). Appellant posits that if the
investigating officer “already knew prior to going into the property without a
warrant that he would be looking for evidence of criminal activity such as a
gun or drugs, he should have obtained the warrant before he went, or at
least justified his reason for not being able to timely secure a warrant prior
to engaging in the operation.” Id. at 35. Appellant also argues that it was
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unreasonable for the police to conduct a protective sweep of 3 West Fourth
Street. Id. As such, Appellant argues:
The trial court concluded that the items of contraband observed
during the initial illegal foray into 3 West Fourth Street would
support probable cause to issue the search warrants for the two
properties[, 3 West Fourth Street and 416 Vine Street.] Thus, if
[] the initial foray into the property [at 3 West Fourth Street]
was not constitutional, then the items seized pursuant to the
search warrant are the fruit of the poisonous tree and both sets
of respective items confiscated from each property must be
suppressed[.]
Id. at 36.
Here, the trial court first recognized that there is an exigency
exception to the search warrant requirement. Trial Court Opinion,
3/31/2017, at 14-15. The trial court then examined the 10 established
factors regarding exigency and concluded that the exception to the warrant
requirement had been met. Id. at 15. Although police had a warrant for
Appellant’s arrest in conjunction with an alleged burglary, they were also
investigating illegal drug activity at that location. Id. at 16 (record citation
omitted). The investigating officer was aware that Appellant previously
carried a weapon. Id. Appellant fled from police and they recovered
packets of heroin that Appellant discarded while fleeing the officers. Id.
Police were concerned that Melissa Griffin, who was still inside the residence,
could destroy additional evidence. Id. Thus, the trial court determined
“that the initial entry into the residence was permitted pursuant to exigent
circumstances.” Id. The trial court then concluded that the police were
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justified in conducting a protective sweep of the property to ensure their
safety and were not required to ignore the contraband seen in plain view.
Id. at 17. The trial court found that police knew at least one other person
was present and the protective sweep was limited to locating people inside
the residence, in places where a person could hide. Id. at 18.
Based upon our standard of review, we discern no error or abuse of
discretion in denying suppression at docket 753-2016. Police believed that
Appellant could have been armed. When they attempted to execute an
arrest warrant, Appellant fled and discarded narcotics. It was reasonable for
police to believe they would find additional evidence of narcotics in the
residence Appellant recently exited and they knew that Griffin was still inside
and could destroy evidence. Moreover, police did not uncover a firearm
upon Appellant’s arrest and, thus, recognized that their safety was still
compromised. Accordingly, exigent circumstances were present and a
protective sweep of the property permissible. Thus, suppression was
unwarranted. We conclude that there has been no error in this case and
that the March 31, 2017 opinion meticulously, thoroughly, and accurately
disposes of Appellant’s issue on appeal. Again, we adopt its rationale for
denying suppression.
In his third issue presented, Appellant again challenges the trial court’s
decision to deny suppression at docket 753-2016. Appellant’s Brief at
39-46. Appellant claims that the initial entry into 3 West Fourth Street, as
well as the subsequent searches executed by search warrant of 3 West
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Fourth Street and 416 Vine, were conducted in violation of the prohibition on
executing searches at nighttime. Id. He claims that “[n]othing in the
warrant explained why a nighttime search of either property was necessary”
and the trial court erred by concluding “the nighttime search was
appropriate due to fear of destruction of evidence and the fact that police
were holding the location secure while waiting for the search warrant.” Id.
at 41.
The trial court and the Commonwealth assert that Appellant waived
this issue. See Trial Court Opinion, 3/31/2017, at 21; Commonwealth’s
Brief at 17. Upon review, we agree. We have previously determined:
“[A]ppellate review of an order denying suppression is limited to
examination of the precise basis under
which suppression initially was sought; no new theories of relief
may be considered on appeal.” Commonwealth v. Little, 903
A.2d 1269, 1272–1273 (Pa. Super. 2006); Commonwealth v.
Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (“When a defendant
raises a suppression claim to the trial court and supports that
claim with a particular argument or arguments, the defendant
cannot then raise for the first time on appeal different arguments
supporting suppression.”).
It is well-settled law that motions
to suppress evidence are decided prior to the
beginning of trial. Moreover, pre-trial rulings on
the suppression of evidence are final. In
sum, suppression motions must ordinarily be made
before the trial to the suppression court, they must
be made with specificity and particularity as to the
evidence sought to be suppressed and the reasons
for the suppression, and the suppression court's
determination is to be final, except in the case of
evidence not earlier available.
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Commonwealth v. Metzer, 634 A.2d 228, 233 (Pa. Super.
1993) (citations omitted).
Although the burden in suppression matters is on the
Commonwealth to establish “that the challenged evidence was
not obtained in violation of the defendant's rights,” Pa.R.Crim.P.
581(D), that burden is triggered only when the defendant
“state[s] specifically and with particularity the evidence sought
to be suppressed, the grounds for suppression, and the facts and
events in support thereof.” Commonwealth v. McDonald, 881
A.2d 858, 860 (Pa. Super. 2005). Thus, when a defendant's
motion to suppress does not assert specifically the grounds
for suppression, he or she cannot later complain that the
Commonwealth failed to address a particular theory never
expressed in that motion. McDonald, 881 A.2d at
860; Commonwealth v. Quaid, 871 A.2d 246, 249 (Pa. Super.
2005) (“[W]hen a motion to suppress is not specific in asserting
the evidence believed to have been unlawfully obtained and/or
the basis for the unlawfulness, the defendant cannot complain if
the Commonwealth fails to address the legality of the evidence
the defendant wishes to contest.”).
Commonwealth v. Freeman, 128 A.3d 1231, 1241–1242 (Pa. Super.
2015). Upon review, Appellant’s omnibus pretrial motion to suppress did not
challenge the search of property based upon the time of night. See
Omnibus Pre-Trial Motion, 3/11/2016, (unpaginated) at 2, ¶ 5(a)-(g). Thus,
we conclude that Appellant waived this issue.
Finally, Appellant contends that the trial court erred in sentencing him
to an aggravated range sentence at docket 5110-2013 and imposing it
consecutively to the sentence at docket 753-2116. Appellant’s Brief at
49-50. Appellant also argues that the trial court failed to consider
“mitigating circumstances and salient rehabilitation factors[,]” including his
“drug addiction” and “horrific childhood.” Id. at 51 and 61. Appellant
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claims these failures resulted in him receiving unreasonable sentences. Id.
at 61.
We have previously determined:
It is well-settled that “[t]he right to appeal a discretionary aspect
of sentence is not absolute.” Commonwealth v. Dunphy, 20
A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, an
appellant's appeal should be considered as a petition for
allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155,
162 (Pa. Super. 2007). As we stated in Commonwealth v.
Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of
his sentence must invoke this Court's jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3)
whether appellant's brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is
a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code,
42 Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa.
Super. 2006)). Whether a particular issue constitutes
a substantial question about the appropriateness of sentence is
a question to be evaluated on a case-by-case
basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Commonwealth v. Radecki, 2018 WL 989152, at *21 (Pa. Super. 2018).
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Here, the first three requirements have been met. Appellant filed a
timely appeal, preserved the issue in a post-sentence motion, and included a
statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. Thus, we
turn to whether Appellant raises a substantial question to implicate our
review.
We have previously determined:
We have found that a substantial question exists “when the
appellant advances a colorable argument that the sentencing
judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing
process.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.
Super. 2008) (citation omitted), appeal denied, 964 A.2d 895
(Pa. 2009). “[W]e cannot look beyond the statement of
questions presented and the prefatory [Rule] 2119(f) statement
to determine whether a substantial question
exists.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa.
Super. 2013), affirmed, 125 A.3d 394 (Pa.2015).
It is settled that this Court does not accept bald assertions of
sentencing errors. See Commonwealth v. Malovich, 903 A.2d
1247, 1252 (Pa. Super. 2006).
* * *
We consistently have recognized that excessiveness claims
premised on imposition of consecutive sentences do not raise a
substantial question for our review. See Commonwealth v.
Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc )
(stating, “[a] court's exercise of discretion in imposing a
sentence concurrently or consecutively does not ordinarily raise
a substantial question[.]”), appeal denied, 126 A.3d 1282 (Pa.
2015); see also Commonwealth v. Ahmad, 961 A.2d 884,
887 n.7 (Pa. Super. 2008) ; Commonwealth v. Pass, 914 A.2d
442, 446–447 (Pa. Super. 2006).
* * *
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[However, a]s we explained in Commonwealth v. Dodge, 77
A.3d 1263 (Pa. Super. 2013)]:
A defendant may raise a substantial question where
he receives consecutive sentences within the
guideline ranges if the case involves
circumstances where the application of the
guidelines would be clearly unreasonable,
resulting in an excessive sentence; however, a
bald claim of excessiveness due to the
consecutive nature of a sentence will not raise
a substantial question.
Dodge, 77 A.3d at 1270 (emphasis added).
* * *
We cautioned that although Dodge had raised a substantial
question in his particular case, a defendant does not raise a
substantial question “where the facts of the case [being
reviewed] do not warrant the conclusion that there is a plausible
argument that the sentence is prima facie excessive based on
the criminal conduct involved.” Id. at 1271.
Radecki, 2018 WL 989152, at *22 (parallel citations omitted).
Here, the facts of the cases do not warrant the conclusion that the
consecutive nature of the sentences were prima facie excessive based upon
the criminal conduct involved.6 Here, there were two separate criminal
cases involving different crimes, one involving a firearm. We conclude that
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6 We further note that the precedent we relied upon above addresses the
imposition of consecutive sentences within the same criminal information.
Here, however, Appellant challenges the consecutive nature of sentences
imposed in two separate criminal informations. There is no precedent
declaring that such sentences are contrary to sentencing norms or
inconsistent with our Sentencing Code.
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Appellant failed to raise a substantial question regarding the consecutive
nature of the sentences.
However, “[w]e have held that a substantial question is raised where
an appellant alleges the sentencing court erred by imposing an aggravated
range sentence without consideration of mitigating circumstances.”
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012). Thus,
we will address the merits of Appellant’s claim that his aggravated range
sentence imposed at docket 5110-2013 was excessive and an abuse of the
trial court’s discretion.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. An abuse of
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.
Super. 2002) (citations omitted). More specifically, 42 Pa.C.S.A.
§ 9721(b) offers the following guidance to the trial
court's sentencing determination:
[T]he sentence imposed should call for confinement
that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and
the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
In every case where a sentencing court imposes
a sentence outside of the sentencing guidelines, the court must
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provide in open court a contemporaneous statement of reasons
in support of its sentence. 42 Pa.C.S.A. § 9721; see
also Commonwealth v. Eby, 784 A.2d 204, 205–206 (Pa.
Super. 2001).
The statute requires a trial judge who intends
to sentence a defendant outside of the guidelines to
demonstrate on the record, as a proper starting
point, [its] awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate
from the guidelines, if necessary, to fashion
a sentence which takes into account the protection of
the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates
to the impact on the life of the victim and the
community, so long as [it] also states of record the
factual basis and specific reasons which compelled
[it] to deviate from the guideline range.
Commonwealth v. Gibson, 716 A.2d 1275, 1276–1277 (Pa.
Super. 1998) (internal quotations omitted).
When evaluating a challenge to the discretionary aspects
of sentence [], it is important to remember that
the sentencing guidelines are advisory in nature. Id. at 1277. If
the sentencing court deems it appropriate to sentence outside of
the guidelines, it may do so as long as it offers reasons for this
determination. Id. “[O]ur Supreme Court has indicated that if
the sentencing court proffers reasons indicating that its decision
to depart from the guidelines is not unreasonable, we must
affirm a sentence that falls outside those
guidelines.” Id. (citations omitted, emphasis in original).
Bowen, 55 A.3d at 1263–1264 (Pa. Super. 2012).
Moreover, where the sentencing court had the benefit of reviewing a
pre-sentence investigation report (PSI), an appellate court is required to:
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors.
A pre-sentence report constitutes the record and speaks for
itself. In order to dispel any lingering doubt as to our intention of
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engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by
the pre-sentence report, the sentencing court's discretion should
not be disturbed. This is particularly true, we repeat, in those
circumstances where it can be demonstrated that the judge had
any degree of awareness of the sentencing considerations, and
there we will presume also that the weighing process took place
in a meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Knox, 165 A.3d 925, 930–931 (Pa. Super. 2017)
(citation omitted).
In this case, there is no dispute that the trial court had the benefit of
PSI reports prior to sentencing. Further, Appellant does not dispute the
accuracy of those PSI reports. Thus, we presume that the trial court was
aware of Appellant’s mitigating circumstances and considered them when
fashioning its sentence. Moreover, upon review of the record, the trial court
placed its reasons for its sentence on the record, first recognizing that
Appellant had a “not-so-wonderful childhood” and chronicling his addiction to
controlled substances, but ultimately concluding that he “led a life of
committing rather serious crimes, crimes that pose a significant harm and
danger to other people and to the community, crimes involving addiction,
distributing heroin, a situation that costs society and the police time and
money to a considerable degree [and] he admits to long-term selling of
controlled substances for profit.” N.T., 12/14/2016, at 43. The trial court
also stated that it believed a lengthy term of imprisonment was necessary to
- 19 -
J-S83022-17
protect the public, because efforts at prior rehabilitation with Appellant were
unsuccessful. Id. For these reasons, an upward departure from the
sentencing guidelines was not unreasonable and we discern no abuse of
discretion in sentencing Appellant.
Therefore, we affirm Appellant’s first two issues based on the trial
court’s March 31, 2017 and adopt it as our own. Because we have adopted
the trial court’s opinion, we direct the parties to include the trial court’s
opinion in all future filings relating to our examination of the merits of these
appeals, as expressed herein. Moreover, Appellant waived his third
appellate issue and we discern no sentencing error. As such, all of
Appellant’s appellate issues fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/18
- 20 -
Circulated 03/23/2018 08:55 AM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY (CO'UNTY PENNSYLVANIA
CRIMINAL DIVISION33
-···'I"' •. ,. • OH• • . . ·····�·NO··�--...._.. _:.,._,.,-............
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c; ...CP�4:6.:-.CR::.000Sl.10-201V
CP-46-CR-000015 3�2016
COMMONWEALTH OF PENNSYLVANIA CP-4'6-CR-000074-5.�201'6
!:-. ....
DESHAWN SMITH 116 EDA 2016
OPINION
CARPENTER J. MARCH 29, 2017
INTRODUCTION
Appellant, Deshawn Smith (Smith"), has filed this counseled
appeal from three distinct and separate judgments of sentence. Each of these
three appeals at their respective docket numbers listed above ariŠe from three
different set of events and facts and involve different crimes, despite the fact
that sentencing on all three files occurred 011 the same day, December 14,
2016,
•ar two separate sentencing hearings. This Court notes that appellate counsel
\\
1\
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I;:: .
has violated Pa.R.A.P. 341, Note which states, "lal party needs ro file only a . :\
·1.
j �·,.·
sinele notice or appeal to secure review of prior non-final orders that are l -c,
J�.':.
made final by the entry of a final order, see K.ll. v. I.R., 82G A.2cl 863,
87071. (Pa.
2003) (following trial); Betz v. Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012)
I,>
(summary judgment). Where, however, one or more orders resolves issues arisinp;
on more than one docket or relating to more than one judgment,
_::�
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separate notices 01' appeal must be filed. Commonwealth V. C-M.K.. 932
A.2d 111, 1 13 & n.3 (Pa. Super. 2007) (quashing appeal taken by single
notice of appeal from order on remand for consideration under Pa.R.Crim.P.
607 Of two persons' judgments of sentence.)" However, in this case appellate
counsel filed a single appeal listing all three cases in his notice of appeal.
While this practice is prohibited by the rules and this appeal may be quashed,
this Court will address the merits ol" the three appeals in this 1925(a) Opinion
given that the Superior Court may exercise its discretion to consider the
merits of these appeals.
First, Smith appeals from his judgment of sentenced entered on
December 14, 2016, at docket CP-46£R-0005110-2013 ("5110-2013"),
imposed following a stipulated non-jury trial on July 8, 2016, where he was
convicted of persons not to possess firearms l and possession with intent to
deliver. On appeal, Smith contests the denial of his suppression motion.
Smith has also appealed from his judgment of sentence entered on
December 14, 2016, at docket CP-46-CR-0000753-2016 ("753-2016"), imposed
following a stipulated non-jury trial on September 26, 201 G, all which he was
-·
•.J.•I
found guilty of possession with intent to deliver, criminal conspiracy, resisting
::��·�
arrest and recklessly endangering another person.
,!,$
.'i' Finally, Sillilll has appealed from his judgment of sentence entered
,..
< .
'1.;',,
OhDecember 14, docket : : .PA.ff·CR-00007 4.5�.2.0-1.6 ("745 201'")
. '
)'
;r··.::: 18 PA,C.S.A .. §6.105.(a)(l).
� .
i.i;l�
.35 P.S, ·§78(),-J. .l 3(�)(30) .
·J
imposed foll(jwing his entry ot a guilty Plea on the same date to criminal
trespass ß . Smith did not raise any issues in his court ordered concise statement
of errors complained of on appeal relating to this guilty plea; therefore, all
issues are waived in this regard, and this 1925(a) Opiflion focuses on Smith's
convictions at dockets, 31.l0-2Ql 3 and 7532016.
DOCKET 5110-2013 FACTUAL AND PROCEDURAL HISTORY
After the denial of Smith's motion to suppress on June 15, 2016,
the stipulated non-jury trial held on July 8, 2016, established the following.
On June 19, 2013, a search by parole agents of Smith's residence turned up
the following items: numerous unused read baggies, a digital scale, 932
baggies of heroin. (Negotiated Guilty Plea/Stipulated Bench Trial 7/8/16 p.
13). The total weight of the heroin was 29.71 grams. Id. at 16. In addition,
parole agents found an unloaded black and silver Colt .45 caliber handgun
underneath the mattress in the bedroom that belonged to Smith. Id. at 16. If
an expert in the field of narcotics were to have testified at trial, he or she would
have opined that based the amount of heroin and the manner in which it was
packaged, the scale was found, the unused baggies and the text messages
=·�·
•;,.I
round on Smith's cell phone Smith possessed the heroin willi the intent to
deliver. Ill, at 17.
On December 14, 2010, Smith was sentenced 10 an aggregate term
.,...,
of six years, three months 10 14 years' imprisonment. A timely posvsentc:nce
�.....
i>.'1:•
t·•· 18 Pa.C.S.A. §�503(a)(1J(i).
motion wag filed, which was denied by way of an order entered on December 27,
2016. A timely notice of appeal followed on December 28, 2016.
Whether there was reasonable suspicion to seize and search Smith's cell
phone and to search his residence.
DISCUSSION
I.There was reasonable suspicjon to seize and search Smith's cell phone and
to search his residence.
Smith contends that the motion to suppress was improperly
denied. He argues on appeal that Agent Dominick lacked reasonable
suspicion to seize and search hi$ cell phone and 10 search his residence,
The suppression testimony given on June 15, 2016, established the
following facts. Parole Agent Scott Dominick began supervising Smith in
November of 2012, a month after Smith was paroled from his one-and-a-half
to four year sentence for possession with intent to deliver. (Motion to Suppress
6/15/16 5, 6). Agent Dominick reviewed the conditions and rules of regulations
of supervision. Id. at 7 - 8. One of the special conditions was, "You shall
achieve nepative results in screening tests randomly conducted by the Board
to detect your use of controlled substances..." Id. al 9 - TO. Smith also had a
.•·..·
curfew of 8:00 p.m- tillliA 6:00 a.m. Id. at 10 l l .
On June .1 1 , 2013, Agent Dominick did a curfew check of Smith's
approved residence al 447 East Elm Street, Apartment E-103, Pottstown. Ill. at
(�;
Il. The agent arrived there at 10:05 p.m. Id. at I l. Although Smith lived there with
his girlfriend, his son and his sisler, only Smith's sister and son were at
the apartment. Idž at ] 2. Smith and his girlfriend were missing. Id. at 12.
Smith's sister told Agent Dominick that he was at Walmart with his girlfriend.
Id. at 12. About two minutes later, as Agent Dominick was about to leave the
residence, Smith's girlfriend entcred the house through a back door, as
opposed to the front door. Id. at 13. She told the agent that Smith was out front
with the car, although she insisted she had driven the car. Icl. at 13. The agent
asked her some follow up questions. Id. Eventually, Agent Dominick left the
residence in order to find Smith, which he did at about 1 0:13 p.m. out in the
parking lot area of the apartment complex. Id. at 13 - 14. There was a car that
was just leaving. Icl. at 14. In response tÔ the agent's questions, Smith told
him that his friend had driven him. Id. There were additional inconsistent
statements told to the agent by Smith. Id. As a result, Agent Dominick told
Smith to report to Norristown the next day to discuss the curfew violation. Id.
The following day, on June 12, 2013, Smith reported to the
Norristown office and was given an instant urine test. Id. The test showed that
Smith tested positive for Oxycodone. Id. at 14 - 15. Upon questioning, Smith
rejleralecl that he had been jn the hospital, but gave a different version ol' events
than lie had the previous night. I(l. at .1 5. He indicated thal lye might have been
given something [here. Id. at IS. Smith had no paperwork or prescription Ironm
rhe hospital al thal time. [d. Therefore, Agent Dominick instructed Smith to report
on June 19 th to provide the hospital paperwork.
On June 19, 2013, Smith reported as instructed and did bring
hospital paperwork that showed that he was in the emergency room on June
th
10 for a sore throat. Id. at 16. Smith was given a prescription at the hospital,
although it was not for a controlled substance. Id. Agent Dominick gave Smith
another urine test, which again testing positive for Oxycodone. Id. In their ensuing
, ... conversation, Smith admitted taking Percocet and that he did not have a prescription
for it. Id. In addition, when Smith carne through security at the parole office, the
agent: saw that he had a cell phone and a wad of money, which was seemed unusual
because Smith was not employed in the seven months that Agent Domiliick had
been supervising him- Id. at 18. Although the agent did not know at that time how
much money was in the wad. ,ld.
Because of the missed curfew, inconsistent statements and the two
positive tests of urine, Agent Dominick told Smith to wait in the lobby while
he had a conversation with his supervisor, Id. at 17 18. Agent Smith reviewed
the situation with his supervisor, Agent David Dettinburn. Id. at 18, 35 - 37.
Together they decided to have a supervisor's conference, which is a meeting with the
parolee, parole agent and the supervisor, to discuss the violations and determine how
10 proceed. Id. at 18 - 19. During that conference, Smith's phone was searched by
Ille supervisor, and he did find incriminating evidence. Id. al: .19 - 20, 37. For
example Agent Dertinburn testified thal in the text messages where Smith was
talking about his positive urine test he states, "Nar it's come up for perc again." Agent
Det:tinburn believed this to be referring to his using drugs. Id. at 40; see also, Exhibit
"C-3", Cell Phone Exvraction Report. Also, Agent Detlinbtll'il testified further that
the text messages read, "How many do you want?" 10 which i l was replied, "l need
two." Agent Deltinburn believed this
7
to mean that someone ig requesting two bundles or baggies Of drugs from
Smith. Id. at 41, Further, the tests read, O Can I get six for 50? Pinky gonna
come meet you cause I got my son." Agent Dettinburn testified that this means
six bags for $50.00. rd.
Smith was detained. Id. at 20. He was also searched, at which time
Smith was found to have on his person. Jd. Slñith trjed to explain away the
money. Id. at 32 - 33. He told the agent that the money was from selling DVD'g or
tee shifts- Agent Dominick told this Court that at this point it became clear to
him and his supervisor that Smith's residence would be searched, Id. at 20.
Our appellate court's 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, the appellate court
may consider only Ille evidence of the Commonwealth and so nmuctð of the
evidence ror the defense as remains uncontradicted when read in the context
of the record as a whole. The suppression court's legal conclusions are binding
011 an appellate court, whose duty it is to determine if the suppression court
properly applied the law to the facts. Thus, the conclusions ol' law of the courts
below are subject to our plenary review. Commonwealth v. Jones, 988 A.2d
(jA9,
8
654 (Pa. 2010) (citations, quotations, and ellipses omitted).
Ag a general principle, a parolee has a diminished expectation of
privacy by virtue of their status as the assumption of the institution of parole is
-,
I.,
,".·
:.,,
that the parolee is more likely than the ordinary citizen to violate the law;
therefore, reasonable suspicion to search a parolee's person or property is
\/:,;.
. ,. ..,
.. t sufficient. Commonwealth v. Smith, 85 A,3d 530, 533 (Pa-Super. 2014) (citing
Commonwealth v. Colon, 31 A.3d 309, 315 :Pa.Super·.2011) quoting
Commonwealth v. Hunter, 963 A.2cl 545, 351-52 (Pa-Super. 2008)). A state
parole agent's authority under the circumstances encountered in the instant
case is governed by 61 Pa.C.S. § ·.6153- Supervisory S relationship to
11
offenders."
The specific sections of the statute that apply to the conduct of Agent
Dominick read as follows:
(d) Grounds for personal search of offender.--
(2) A property search may be conducted by an agent
if there is reasonable suspicion to believe that the real
or other property in the possession of or under the
control of the offender contains contraband or other
evidence of violations of the conditions of
supervision.
(3) Prior approval of a supervisor shall be obtained
for a property search absent exigent circumstances.
NO prior approval shall be required ror a personal
search.
61 Pa.C.S.A §· 0153(
The statute also provides a list of factors for consideration when
9
determining whether sucll reasonable suspicion exists:
,.,.....�
,., (U) The existence of reasonable suspicion to search
� •,_\
' . shall be determined in accordance with
constitutional search and seizure provisions as
i. ••
applied by judicial decision. In accordance with such
case law, the
following factors, where applicable, may be taken into account:
(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of agents with the offender.
(vi) The experience of agents in similar circumstances. (vii) The
prior criminal and supervisory history of the offender.
(viii) 'The need 10 verify compliance with the
conditions of' supervision.
6153(
61 Pa.C.S.A. S
An examination of the evidence presented by the Commonwealth
at the suppression hearing, as applied to the factors listed above, led this Court
to find that there was abundant reasonable suspicion of a parole violation in
view of the totality of the circumstances surrounding Agent Dominick's
encounters with Smith. This Court considered Smith's criminal history. Smith
was at the time being supervised on parole for a possession witli intent to
deliver conviction. This Court also considered that Smith had two positive
urine tests for drugs; Smith had violated his curfew; that there was a series of
inconsistent statements about his whereabouts and conduct on the night of the
curfew violation and that the observations of Agent Dominick of the wad of
cash Smith had in his possession despite being unemployed just prior to the
10
search of the cell phone. These factors all supporled this Court's finding ol'
reasonable suspicion to search Smith's cell phone. The search of the cell phone
gave additional incriminating evidence that led Agent: Dominick's supervisor,
Agent David Dettinburn to conclude tor all purposes that a search of [he
residence was appropriate. Accordingly, based upon these considerations this
Court found that Agent Dominick had the requisite reasonable suspicion to
conduct the searches.
CONCLUSION
Based on the foregoing analysis, the judgment of sentence imposed
on December 2016 in regard to docket 5110-2013, Should be affirmed.
11
DOCKET 75.3-2016 - FACTIJAL AND PROCEDURAL.. HISTORY
On September 26, 2016, a suppression hearing was held, at
the
,, I
conclusion of which suppression was denied. Directly after Smith's motion to
suppress was resolved, Smith proceeded to a stipulated aon-jury tfia-l, where he was
found guilty of the aforementioned charges. Smith filed a postsentence motion,
challenging The discretionary aspects of his sentenceL The motion was deniecL
Subsequently, a l'imely notice ot appeal was tiled, which gives rise to this appeal-
ISSUES
Issue seven as set forth in Smith's concise statement of errors
complained of on appeal seems to merge testimony from this case with an
assertion of error from the previous case. It can't be discerned by this Court,
the error that Smith wishes to have reviewed in Issue seven; therefore, it
will not be addressed.
1. Whether there were exigent circumstances giving rise to a protective
sweep of 3 West Fourth Street.
ll.Whetherthere was sufficient orobable cause to issue a search warrant ror 3
West Fourth Street and 416 Vine Street.
Ill. Whether the nighttime search was proper.
IV.Whether live imposition of consecutive sentences was proper.
DISCUSSION
1. There were exigent circumŠtances giving rise to a protective sweep of 3 West
Fourth Street.
The Suppression Hearing established the following facts. Sergeant
Edward Kropp, Jf., an experienced drug investigator, of the Pottstown Police
Department, Community Response Unit was present when Smith was taken into
Custody on December 179 2013. (Motion to Suppress/StipulateçI Bench Trial
,:,:
.......
' 9/26/16 op. 5 6). As Sergeant Kropp was walking back to his office at
,...... Pottstown Borough Hall he saw Smith sitting in the interview room. [d. at 7. Smith
·� . •
..,,
who is familiar with the sergeant voluntarily said to him "How are you going to
charge me with what was in that apartment? I don't even live there. J live at 416
East Vine Street." Sergeant Klopp responded to Smith telling him to talk to the
people attempting to interview him about that," and he continued walking to his
office. 'd. 7 - 8.
Smith had been arrested at 3 West Fourth Street, Pottstwon,
Montgomery County. Id. at 8. Sergeant Kropp was present for that arrest, where he
was initially on surveillance of that properly. lc[. at 9- The sergeant had seen Smith
go into the residence, by the time DetectÎve Kropp recognized it was Smith who he
had know from a prior occasion, Smith was already inside. Id. at 9, 25. Detective
Kropp decided to wait until Smith had come out or the residence because it was
known [hal there was a firearm involved in his prior history; therefore, the police
believed it to be safer 10 wait until Smith exited
12
the residence rather than making entry into an apartment with a potential for
Smith to have a weapon, Id. at 25.
Upon seeing Smith leave, the police pulled up and Smith fled. Id. at
13
 9. As he fled, Sfnith discarded his cell phone and heroin, Id. at 9 I O. The police
knew that Smith'S co-defendant was still inside the residence, because Sergeant
: r.� Kropp watched her arrive with Smith but did not see her leave. Ids at 10.
Once Smith was arrested, the police determined that they would
seek a search warrant for the premises at 3 West Fourth Street. Id. at 10.
Sergeant Kropp wanted to secure the residence for the application of that
search warrant. at 10. He knew there was another person present and he was
concerned about the destruction of evidence. Id.
The police opened the door of the residence, which was unlocked.
Id. at 10 - l l. They announced "Police," and asked if anyone was present. at
I l . Eventually, Smith's co-defendant, Melissa Griffin said she was in the bedroom,
and the police told her to come out with her hands up. [d.
For safely, the police went inro every room ol' Ille apartment to
ascertain il there were any other people present. Id- at 11 - 12. In doing this, they
saw items of contraband and other items that would support probable cause. Id-
at 13. For example, Detective Kropp observed that there were three cell phones
and a of' money ill one room- Id. 111 another, he saw items of paraphernalia.
None of this seized. Id. at .13 14. However, they were in
plain view and thé police put these observations into the body of the search
warrant. Id. at 23.
 ·•
This was a nighttime search, and the police put the reasons for the
search in the warrant. Id. at 19.
At the conclusion of Detective Kropps's testimony and argument
:'.68 A.3d 930, 935 (Pa.Super. 2013).
Exigent circumstances arise only where "the need for prompt
'.
'f
police action is imperative, either because the evidence sought to be preserved
i$ likely to be destroyed or secreted from investigation, or because the officer
must protect himself from danger ...s" Commonwealth v. Lee, 972 A.'2d l, 5
···,,t
(Pa.Super. 2009) (citation omittedL Various factors need to be taken into
account to aSsess the presence of exigent circumstances; for example: (l) the
gravity of the offense; (2) whether the suspect is reasonably believed to be
armed; (3) whether there is a clear showing of probable cause; (4) whether
there is a Strong reason to believe that the suspect is within the premises being
entered; (5) whether there is a likelihood that the suspect will escape if not
swiftly apprehended; (6) whether the entry is peaceable; (7) the timing of the
entry; (8) whether there is hot pursuit of a fleeing felon; (9) whether there is a
likelihood that evidence will be destroyed if police take the time to obtain a
warrant; and (l O) whether there js a danger to police or other persons inside
or outside ov the dwelling to require immediate and swift action. In analyzing
exigent circumstances, courts must balance the needs ol' law enforcement
against the rights and liberties of private citizens. Johnson 68 A-3d al 937
(citation omitted). The Commonwealth bears the burden ol' presenting clear
and convincing evidence Ihal [he circumstances surrounding the opportunity
to search were truly exigent and thal the exigency was ill no way attributable
to the decision by the police ro Forego seeking a warrant. Commonwealth v.
Bostick, 958 A.2d 543, 556-557 · (Pa-super. 2008) (Citation omitted).
Moreover, all decisions made pursuant to the exigent circumstances
• >
·I, I
exception must be made cautiously because it is an exception that by its
... nature can very easily swallow the rule unless applied in only restricted
r"
circumstances. Id. at 557.
···.( In this case, an examination of the above delineated factors
reveals that there were exigent circumstances in this case sufficient to justify
the warrantless entry Of the police into 3 West Fourth Street, (Motion to
Suppress/Stipulated Bench Trial 9/26/16 p, 26). The police were investigating
Smith illegal drug activity in this location. The investigation into Smith was a part
of an ongoing and larger investigation. Id. at 25. Second, Smith was known by
Detective Kropp to have a weapon in his past, and he believed on the night of the
search, Smith might be jn possession of a weapon. Id. at 23. This gave police
urgency. Additionally, Detective Kropp observed Smith enter the property a 3 West
Fourth Street with co-defendant Griffin. Smith had discarded heroin upon leaving
the residence and fleeing from the police after they announced, "Police, Stop."
There were about 14 bags of heroin that Smith discarded. Detective Kropp
explained at the suppression hearing that he was concerned about the destruction of
evidence because he knew that Griffin remained in the residence. Further, Smilll
was apprehended a very short disvatvce from that location.
Having concluded that the initial entry into the residence was
17
.,>
permitted pursuant to exigent circumstances, we turn ro [he legitimacy of the
protective sweep ol' the residence that ultimately uncovered drugs anddrug
contraband. It ig well settled that "lu]nder emergent. circumstances, protective
A,,t,
sweeps are a well-recognized exception to the warrant requirement."
Commonwealth v. Witmani 750 A.2d 327, 335 (Pa.Super. 2000) A protective
•',
sweep is "a quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others." Maryland v, Buie,
494 US. 325, 327, 110 s,CT. 1003, L.Ed.2c1 27 (1990). sets forth twolevels of
protective sweeps. Id. at 334, 110 S. Ct. 1093. A properly conducted sweep is
for persons. It cannot be used as a pretext for an evidentiary search. rt cannot
be lengthy or unduly disruptive. It must be swift and target only those areas
where a person could reasonably be expected to hide. Commonwealth v.
Crouse, 729 A.2d 588, 598 (Pa.Super. 1999). Although the purpose of a
protective sweep is to assure officer safety, police officers are not required to
ignore contraband they encounter in the course thereof. -Commom� ealth v.
1
I
Potts, 73 A.3d at 1275, 1282 (Pa.Super, 2013) ("If, while conducting a
protective sweep, the officer should ... discover contraband other than
weapons, he clearly cannot be required 10 ignore the contraband, and the
Fourth Amendment does not require its suppression in such circumstances.");
Crouse, 729 A .2cl al 593
(evidence observed in plain view durinp; a protective sweep is admissible). In
18
;'')'
,J
IJ
,J
Crouse, supra, our Superior Courv held that properly conducted protective
sweeps violate neither the Fourth Amendment [tol United States Constitution
nor Article l, Section 8 ov the Pennsylvania Constitution. "A protective sweep
c I
is 'a quick and limit;ed search ol' premises, incident to an arresti and conducted
to protect the safety of police officers or others.' " Commonwealth v. Taylor,
' ., 771 A.2d [261, 1267 (Pa. 2001) (quoting Marylann_yž 494 U.s. 325,
327 (1990)).
This Court found the search of 3 West Fourth Street was proper.
There were exigent circumstances to support the protective sweep. The
protective sweep and was limited to securing the premises and locating any
persons inside. It is significant that the search immediately followed Smith's
arrest as short distance away from this location. The police only looked in
places where people could be. In addition, there may have been guns accessible
to persons inside. They knew for a fact, that there was at least one other person
was inside the residence. Therefore, the police entered the residence to conduct
a protective sweep after exigent circumstances arose.
ll. There wa 'ficient nrob•thle cause to is ue a search warrant West
for
Fourth Street and 416 Vine Street.
Smith's second issue on appeal, asserts that the search warrants
for both 3 West Fourth Street and 416 Vine Street lacked sufficient probable
cause.
The reviewñng court is not to conduct a de novo review of the
19
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 a warrant 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 commonsense,
non technical manner. Comonwealth v. Gaglìardi, 128 A.3d 790, 794 (Pa.
Super.
2015) (quoting Commonwealth v. Jones, 988 A.'2d 649, 655 (Pa. 2010)). This
requires consideration of the totality of the circumstances. Commonwealth v.
Galvin, 985 A.2d 783, 796 (Pa. 2009). The Court wjll consider whether the issuing
authority correctly determined "given all of the facts and circumstances provided in
the affidavit, including the veracity and basis of knowledge of the er sonssupplying
hearsay information, [that) there is a fair probability that contraband or evidence of
a crime will be found in a certain locale." "It must be remembered that probable
cause is based on a finding of the probability of criminal activity, not a prima lacie
showing of criminal activity." Commonwealth v. Luton, 672 A.2d 819, 822
(Pa.Super. 1996)(citing Commonwealth v. Baker 615 A.2d 23, 25 (Pa. 1992)).
Moreover, "[i]f a substantial basis exists to support the magistrate
l
s probable cause finding, [the trial court] must uphold that finding even if a
different magistrate judge might have found the affidavit insufficient to
support a warrant." Jd. at 795 (quoting United States v. Leon, 468 U.S. 897,
20
..
914 (1984); citing United States v. Miknevich, 638 F.3d 178, 182 (3rd Cir,
2011) (internal citations and quotations omitted)). Furthermore, "a
magistrate's determination of probable cause 'must be based lup101Þ facts
described within the four corners ol' the supporting affidavit.'" Id. (quoting
Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007) (citing
Commonwealth v. Smith, 784 A.2d 182, (Pa. Super.
In rhjs case, a fair reading of The affidavit Vor 3 Wesl Fourth Street
presented 10 issuing authorily permitled the issuing authority 10 Find
Iha( probable cause existed for the issuance Of the search warrant. The
affidavit clearly states that the affiant, Officer Brandon Nf. Unruh, has the
background and training in narcotics investigations. See, Exhibit "(I-I",
Affidavit of Probable Cause for 3 West Fourth Street. The basis for the
search warrant related to the charge of possession with intent to deliver.
Based upon the information from four confidential informants, a controlled
buy, evidence of drugs and other contraband found during the protective
sweep of 3 West Fourth Street and information received from West
Pottsgrove Police Department.
In addition, the affidavit. for 3 West Fourth Street presented to
the issuing authority permitted the iŠsuing authority to find that probable
cause existed for the issuance of the search warrant. Both affiants, Officer
Um-uh and Detective Timothy Roeder, have the background and training in
narcotic investigations. The basis for the search warrant included information
21
from four confidential informants, a controlled buy, information received
from Melissa Griffin, evidence and drugs and other contraband found during
the protective sweep of 3 West Fourth Street and evidence found from the
search of 3 West Fourth Street.
A reading of both warrants demonstrates thal rhe police had good
information Ihar Smith stayed at both locations, and spent tune there. The
police did know of the relationship between Smith and Griffin. In the warrants
the confidential informants established that Smith wag involved in an ongoing
drug sale enterprise. These people had purchased drugs from Smith directly.
Both warrants also contained the controlled buy ol' drugs from Smith and
show
22
information demonstrating that smith traveled from one location to the other,
The scarch of 3 West Fourth Street yielded a good amount of heroin,
t: ..
. ,,
ii 11- �-
-, supporting the search of the Vine Street location.
In addition, both affidavits set forth considerable reasons based on
the extensive experience of the two affiants that support the conclusion that a
,I-.
drug dealer such as Smith keeps guns, drugs and evidence ill locations where
-he stays and lives. Therefore, this Court concluded that the iŠsuing authority
had a substantial basis for a finding of probable cause to believe evidence of a
crime, including contraband, would be found at both locations.
111. The nighttime search was proper.
Next, Smith contends that this Court erred ill finding that the
prohibition on nighttime searches did not apply.
Our Supreme Court has mandated search warrant shall
authorize a nighttime search unless the affidavits show reasonable cause for
such nighttime search." Pa-R.Crim„P. 203(E). Due to the greater intrusion
upon an individual's privacy occasioned by a nighttime search, some. greater
justification than that required for a daytime search must be shown. See
l?a.R.Crim.P. and Comment]. Put simply, llve affidavit for a warrant
authorizing a nighttime search must show both probable cause and some
reason why the search cannot wait unlit morning Commonwealth v-
Bowmaster, 01 A.3d 789, 793-794 (Pa.Super. 2014) (italics and citations
omitted).
., However, to the extem that Smith challenges the nighttime aspect
ol' the issuance ol' the search warrant, this issue is waived. Al the suppression
hearing, Smith contested Smith's "statements made by [Smith], and the
), . search warrant in question and the manner of entry into the building before
the search warrant." (Motion to Suppress/Stipulated Bench Trial 9/26/16 p.
4). Appellate review of an order denying suppression is limited to an
examination of the precise basis under which suppression initially was
sought, and no new theories or relief may be considered on appeal.
Commonwealth v, Little, 903
A.2d 1269, 1272-73 (Pa.Super.2006). Smith did not develop a specific
argument
regarding nighttime execution of the search warrant in his motion to suppress
argued at the suppression hearing; therefore, it is waived. See Commonwealth
v. Gordon, 328 A.2d 631, 642 (Pa.Super .1987) ("The raising of one particular
theory in support of a suppression claim is not sufficient to preserve all other
possible grounds for suppression of the same evidence")-
Even if thiS claim is reviewable on appeal, it does not provide Smith
with relief. This Court found that the nighttime search was appropriate,
giving the reasons supplied to the issuing authority, including the fear of
destruction of evidence and the fact that the policc were holding location
secure while wailing for the search warrant.
IV ..The imposition of consecutive sentences was proper.
Last on appeal is Smith's contention that the imposition of
consecutive sentences was excessive and did not lake into accounl his
I..•
rehabilitative needs.
�-
... On December 14, 2016, a sentencing hearing was held on both
·�·1..,.
....f..,,
Common Pleas dockel:s. 51 and 753-201 6. Al the sentencing hearing,
"'-1-.\ the Commonwealth presented the testimony of Detective Michael
Mark0ViCh, an
18 year veteran of the Pottstown Police Department. (Sentencing 12/14/16 p. 6). In
regard to the 2013 case, docketed at 5110-2013, Detective Markovich was involved
in the June 9, 2013 search warrant, at which time he recovered 932 bags of heroin
from Smith's re$iclence. Yd, at 7. The detectivc opined that in 2013 heroin was in
Pottstown; however, it was thc epidemic that it is today and that at that time this was
by far the most heroin packaged for sale that he and
Sergeant Kropp as the arresting officers had ever seen. Id. at 7. In 2015, when
1290 bags of heroin were recovered in regard to docket 753-2016, Detective
Markovich opined that although heroin had taken off ill Pottst0Vvrn and was
now the drug of choice, the nearly 90 bundles and over 1200 bags of heroin
that was recovered wa$ the most heroin that had been seized in Pottstown-
Id. at 8. The detective explained how hard the heroin epidemic has hit
Pottstown. Id. at 8 9.
Next, the Commonwealth called Lieutenant Erik Echevarria to
testify. Lieutenant Echevarria is a seasoned investigator having been with the
Montgomery County Detective Bureau since 1999. 'd. at 11. At some point he was
assigned 10 the Narcotic Enforcement Team, which oversees drug investigations
25
throughoul Montgomery County. in particular, the lieutenant oversaw the
Povtstown territory, and was involved the 201 5 search and seizure of 1290 baggies
or heroin with a street value of about Id. at l?
'i.•
13. The lieutenant opined that other than seeing such large amounts from
•·'2 a
source city such as Allentown, Reading, Philadelphia, the seizure of that much
·' heroin is an excessive amount in Montgomery County. Id- at 13 - 14, 15.
After the Commonwealth concluded, Smith testified. He told this Court
about his difficult childhood. Icl„ at 17 19. He also told this Court that he has a
fot1Eyear•oId son that he tries to take of financially. Id. at 20. Smith furtihe.r stated
that when he gets out or jail he wants to get a legitimate job such as becoming a
truck driver- Id. at 21.
After argument from counsel, this Court imposed its sentence as
follows. On docket 5110-2013, Smith was sentenced to an aggregate term of
six years and three months' to 14 years' imprisonment. Id. at 44 - 43. Then at
docket 753-2016, this Court sentenced Smith to a term of 27 months to six
years. This latter sentence is to run consecutive to the former, with a total
aggregate sentence of 1ght-and-a-half to 20 years' imprisonment. Id. at 45.
On appeal, Smith contends his aggregate sentence of eight-and-ahalf
years to 20 years' imprisonment is excessive, and that this Court erred in
imposill}ž consecutive sentences. Smith argues that this Court failed to consider
his rehabilitaljve needs.
This is a challenge to [tie discretionary aspects ol' his sentence
Ior which there is no automatic right to appeal. Commonwealth v. Marts, 889
A,2d 608 (Pa.Super. 2005) (holding thal challenge 10 the trial court's
imposition of consecutive sentences is a challenge to the discretionary
aspects of a sentence). Such appeals are granted at the appellate court's
..·
., I
discretion where there is a stihstanlial questlon.thal the sentence is nor
appropriate under the Sentencing Code. 42 Pa.C.S.A. S 9781(b), A
' {
substantial question is presented where a defendant. advances a colorable
claim that the trial court's sentence is inconsistent with the Sentencing Code
or fundamentally contradicts the norms which underlie the sentencing
process. Commonwealth v. Cleveland, 703 A.2d
1046, 1048 (Pa.Super. 1997). The determination of what constitutes a
substantial question must be evaluated on a case-bycase 'basis.
Commonwealth
v. Paul, 925 A.2d 825.Super.2007).
In Commonwealth v. Austin, GG A.3d 798 (Pa.Super. 2013)
our Superior Court has provided some guidance as to whether Smith's claim
raises a substantial question.
Generally, Pennsylvania law affords the sentencing
court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the
same time or to sentences already imposed. Any
challenge to the exercise of this discretion ordinarily
does not raise a substantial question" Commonwealth
v. Prisk, 13 A.3d 526, 533 (Pa.Super.2011). see Commonwealth
v. Hoag, 445 Pa.Super. 435, 663 A.2d
1212 (1995) (stating an appellant is not entitled to a
'volume discount" for his crimes by having all
sentences run concurrently). In fact, this Court has
27
recognized "the imposition or consecutive, rather
than concurrent, sentences may raise a substantial
question in only the most extreme circumstances,
such as where the aggregate sentence is unduly
harsh, considering Ille nature ol' the crimes and the
length of imprisonment." Commonwealth v.
Lamonda, 32 A.3d 3651 372 :Pa.Super.2012) (en
banc) (citation omitted).
That is "in out' view, the key [0 resolving the preliminary
substantial question inquiry is whether the decision 10
sentence consecutively raises Ille aggregate sentence to,
what: appears upon its face to be, an excessive level in
lighl of criminal conduct al issue in the case." PriŠk,
13 A.'3d at 533 (quoting
Magtromarino, 2 A.3d at 587) (quotation markŠ omitted).
Austin, 66 A.3d at 808 - 809, Applying this case law to this case, it seems that
Smith's issue does nor raise a substantial question.
,,,
''
Even assuming our Superior Court determines that Smith does
J.,,
raise a substantial question, this claim lacks merit and should be rejected. The
\ ..
imposition ol' cOnsecutivc rather than concurrent sentences lies within the
sound discretion of the sentencing court. Commonwealth v. 'ohnson, 961 A,2d
877, 880 (Pa.Super. 2008) (citing, Commonwealth v. Lloyd, 878 A.2d 867,
873 (Pa.Super.2005). Factors to be considered when determining a defendant's
sentence include the character Of the defendant and the particular
circumstances of the offense in light of the legislative guidelines for
sentencing. Commonwealth v. Scott, 860 A.2d 1029, 1032 (Pa.Super. 2004).
The sentence imposed must be consistent with the protection of the public, the
gravity of the offense and the rehabilitative needs of the defendant. Id. Mental
illness is clearly a factor that may be considered in sentencing. However, there
is no mandatory reduction or modification in a defendant's sentence that could
be imposed. Commonwealth v. Diaz, 867' A-2cÍ 1283, 1287 (Pa.Super. 2005).
Where the sentencing judge had the benefit of a presentence
investigation report, il will be presumed Thal lie "was aware ol' relevant
information regarding the defendant's character and weighed those
considerations along with mitigating stalulory factors." Commonwealth
v.
29
Devers, 546 A.2d Il, [8 (Pa. 1988). Further, "lhlæanp; been IQ111y informed by
the presentence report, thë sentencing court's discretion should riÕt be
disturbed." Devers, 546 A."2d at 18; see also, Commonwealth v. Egan, 679
t.,
:,,. A.2d 237, 239 (Pa.Super. 1996) (The court is required to place its reasons for
the sentence on the record and this requirement can be satisfied by indicating
it has reviewed a pre-sentence report). This Court placed its reasons for the
sentence imposed on the record in relevant part as follows:
Well, the Court does have the benefit of a lot of
information concerning sentencing of this particular
defendant, having heard the bench trial, receiving two
presentence investigations and reports, which actually
pretty much mirror each other except for the different
factual patterns set forth for the criminal conduct. I
have also reviewed the Sentencing Code and
considered the information supplied today through
counsel by way of testimony and argument.
I will look at the presentence investigation and reports
for a moment.
At the time of these reports the defendant was 26
years old. Two dependents are listed. High school
diploma. He did indicate to the presentence
investigator, as Mr. Flick said, with some candor that
he started selling drugs at the age of' 14; that he sold
heroin, crack cocaine and marijuana; that he sold
drugs to support himself. He indicated it was an easy
way to make money. He estimated he made
approximately $60,000 in the year prior to his arrest.
And he mirrors that in the other report also, where he
admitted to selling drugs to support himself and his
giflfriend, and using [he gun for protection.
30
Now, there is a criminal history and ill is somewhat
significant. Ile first got in trouble as a juvenile,
October He was adjudicated delinquent, receiving
stolen property, conspiracy offense. 2G04
. ,..
,...: the crime was possession ol' a weapon on school property.
Del'enclanl was adjudicated delinquenl.
Mr. Flick argues that he has no history of violence.
That's a pretty serious offense with a great potential
for violence, possessing a weapon on school
property.
He was adjudicated delinquent again in 2006 for a
drug offense and disorderly conducU 2007, Drug Act
possession; adjudicated delinquent. And later in
2007, possession With intent to deliver, an ungraded
felony. That's a significant crime for a juvenile. He
then repeats as an adult.
As an adult, 2008, criminal conspiracy. Placed on
probation and later violated probation on two
occasions at least, or three - two, I think. 2010, that's
when he received his state prison sentence, two to four
years, violation of the Drug Act, possession with
intent to deliver, an ungraded felony.
The fact that he's facing a pending state parole
violation is not to his benefit. He knew he was on state
parole when he committed the instant offense, and he
knew what the state prison was ail about.
The first offense we have is from June 2-13. He was
convicted after that in 2014, false identification, a one
year probation, He has a couple cases pending yet.
His family situation and background are set forth. That
was supplemented by the defendant's testimony today.
We heard about his not-soAvonderfí11 childhood,
being born Bronx, New York, and later bejng rajsecl
in Pottstown.
31
The report also speaks about Melissa Griffin. They have
been together some two years. She had been employed as
,j.',f•
Certified Nursing Assistant. She's also the mother of
I·•
...:J. children of his, of daughter. Then he has a second child
by a different lady.
,' 1L,
The defendant admitted he started using marijuana on a
r·: daily basis al the age of 15. lie started using Percocet alid
syrup at the age of 18. He said he used a lot of syrup every
j(. �
day, and eventually stopped the Percocet and syrup in
2013, 2014. In 2007 he was using cocaine and Xanax on
a daily basis.
He did graduate from Pottsgrove High School in the
Pottstown area. He attended the Western Montgomery
County Technical School for part of the day. There
were some problems With truancy and
insubordination and assaultive behavior in school.
The Court herc is dealing with a defendant, who has,
Simply stated, led a life oc crime, He had led a life of
committing rather serious crimes, crimes that pose a
significant harm and danger to other people and to the
community, crimes involving addiction, distributing
heroin, a situation that costs society and the police time
and money to a considerable degree. As indicated
previously by this Court, he admits to long-term selling
of controlled substances for profit.
It $eemŠ fairly obvious that consecutive sentences are
certainly justified here. These are a number of separate
crimes. Most certainly, the separate crime of
possessing a firearm without a license is the most
serious offense. I think it's obvious that combing drugs
and guns makes a dangerous situation more
dangerous. Involving the situation that he was on state
parole at the time, that certainly is not a mitigating
factor. That is something that I think also works
32
: "»,
·t-1
11
against the defendant's argument for all concurrent
....... sentences.
-,::ftl
.'
•• v
He certainly presents an undue risk of committing
new crimes when not incarcerated. Ile has a pattern ol'
.'.r,1
that already somewhat established. I Think he
presents a clear and present danger of reverting to his
1·� i criminal activity when released. Consecutive
;,; � �1
sentencing is necessary 10 protect [lie public and
··-,1 society from e defendant's criminal conduct. There is
nothing that has been presented, although I have
considered it all, including his childhood and his
testimony, that convinces me that a concurrent set or
sentences are appropriate. I have reviewed the various
factors that I think are supportive or consecutive
senrencing. In short, the length and breadth ol' this life
ol' crime in
the current criminal actiV1ty we are dealing with
supports protecting the public through a series of
consecutive sentences.
(Sentencing 12/14/17 pp, 39 - 44. ThiŠ Court provided its rea$ons for the
sentence it fashioned in Smith's case. Specifically, this Court considered
the presentence investigation and reports, the testimony of both the
Commonwealllf$ witnesses and that of Smith, the sentencing guidelines and
sentencing code. This Court in particular addressed the need for consecutive
sentencing as opposed to concurrent. Accordingly, this sentence is proper.
CONCLUSION
Based on the foregoing analysis, the judgment of sentence imposed
on December 14, 2016, should be affirmed.
33
BY THE COURT:
COURT OF COMMON PLEAS
LOJL;,
WILLIAM R. CARPE r•ER J.
MONTGOMERY COUNTY
PENNSYLVANIA
38"' JUDICIAL DISTRICT
Copies sent on. March 29, 2017
By Interoffice Mail to:
Court Administration
Raymond Roberts, Esquire
34