Com. v. Smith, W. ( 2023 )

J-S14013-23
2023 PA Super 148COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILFREDO T. SMITH :
:
Appellant : No. 1278 WDA 2022
Appeal from the Judgment of Sentence Entered September 13, 2022
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001516-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
OPINION BY PANELLA, P.J.: FILED: AUGUST 7, 2023
Wilfredo Smith appeals from the judgment of sentence imposed by the
Fayette County Court of Common Pleas after a jury found him guilty of
possession of a controlled substance and possession with intent to
manufacture or deliver (“PWID”), 35 P.S. §780.113(a)(16)&(30). Smith
argues on appeal that the warrantless search of his residence while he was on
parole was illegal and the suppression court therefore erred by refusing to
suppress the contraband found and statements made as a result of that
search. He also argues the trial court erred by finding he was not eligible for
the Recidivism Risk Reduction Incentive (“RRRI”) program when sentencing
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* Retired Senior Judge assigned to the Superior Court.
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him. As we find neither of these issues have merit, we affirm the judgment of
sentence.
The facts underlying this appeal are largely undisputed. Smith was
released on parole in December 2019 from a judgment of sentence for PWID.
At the time of his release, Smith signed a PBPP-11 Form listing the conditions
of his release from incarceration. Those conditions included the right of parole
officers to perform warrantless searches of Smith’s residence. The conditions
also prohibited Smith from possessing alcohol or possessing or selling
controlled substances.
After learning information which indicated Smith was selling drugs out
of his residence, Smith’s supervising parole agent, Parole Agent Trent Sellers,
conducted a warrantless search of Smith’s residence on June 11, 2021. At that
time, Smith tested positive for marijuana and Agent Sellers observed beer in
the kitchen in plain view. Agent Sellers then had a canine from the parole K-
9 unit search the house and the canine alerted positive for drugs in Smith’s
bedroom and several other locations. Parole Agent Justin DePalma, who had
accompanied Agent Sellers to the search, searched a box in the bedroom
which had produced a positive alert from the canine. He discovered a large
bundle of U.S. currency and baggies of white and tan powder suspected to be
narcotics in the box.
Based on what Agent DePalma found, Agent Sellers contacted Detective
Alexis Metros of the Fayette County Bureau of Investigation. The detective
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went to Smith’s residence, and after seeing the suspected contraband found
by Agent DePalma, she filed for, and then received, a warrant to search
Smith’s residence.
Detective Metros read Smith his Miranda rights, and also had him sign
a written form waiving those rights. Smith admitted that the drugs found in
the residence belonged to him and further admitted he was selling the drugs.
During the search pursuant to the search warrant, a large baggie containing
several smaller baggies of suspected cocaine was discovered in a backpack in
Smith’s bedroom.
Smith was charged with two counts of possession of a controlled
substance and two counts of PWID. He filed a motion to suppress, essentially
arguing that there was no legal basis for the parole agents to conduct a search
of his residence before Detective Metros secured the search warrant. The court
held a hearing on the motion on December 3, 2021.
Agent Sellers testified first at the hearing. He confirmed Smith had
signed a PBPP-11 Form, in which Smith expressly consented to a search of his
person, property and residence without a warrant by parole officers. See N.T.
Suppression Hearing, 12/3/2021, at 8. The Form also notified Smith that he
could not possess alcohol, or possess or sell controlled substances. See id. at
7-8. Agent Sellers reported Smith had failed a drug screening in May 2021,
when he testified positive for cocaine and marijuana. See id. at 9
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Agent Sellers stated he became concerned that Smith was selling drugs
from his residence in violation of his parole conditions. See id. at 11.
According to Agent Sellers, this concern stemmed from the fact that Smith
had tested positive for marijuana and cocaine, that Smith’s GPS bracelet
showed Smith routinely traveling to known high drug-trafficking areas as well
as from the tips law enforcement had received from members of the
community that there was a large number of vehicles coming and going from
Smith’s residence. See id. at 10-11.
Based on these circumstances, Agent Sellers sought and received
approval from his supervisor to conduct an approved search of Smith’s house.
See id. at 11. On cross-examination, Agent Sellers reiterated the factors that
created “the existence of reasonable suspicion” that Smith was violating the
conditions of his parole and prompted the warrantless search of Smith’s
house. See id. at 24-25.
Detective Metros also testified. She stated she was contacted by Agent
Sellers on the day of the search because of the suspected narcotics found in
Smith’s residence. Detective Metros recounted that she went to Smith’s
residence, viewed the baggies uncovered in the box in the bedroom and,
based on her experience, also suspected the baggies contained narcotics. See
id. at 43-44. The detective stated she obtained a warrant to search the house,
and pursuant to that search, officers found a backpack containing 162 grams
of cocaine. See id. at 45, 47.
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Following the hearing, the court directed the parties to submit “legal
authority” in support of their positions by December 17, 2022. Smith filed a
memorandum of law, primarily arguing that the parole agents did not have
the statutorily-required reasonable suspicion to conduct the warrantless
search of his house. The suppression court denied Smith’s motion to suppress
in an order entered on January 27, 2022, and filed an accompanying opinion
in support of that order.
Smith proceeded to a jury trial before a different trial judge than the
judge who had ruled on Smith’s suppression motion. The jury found Smith
guilty of one count of possession of a controlled substance and one count of
PWID; the trial court sentenced him to 72 to 144 months’ incarceration. The
trial court specifically found that Smith was not eligible for the RRRI program
because of a previous terroristic threats conviction but stated that the
Department of Corrections could, within its discretion, place Smith in the
program. Smith filed a post-sentence motion, which the court denied.
Smith then filed a notice of appeal. He complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) statement of matters complained of on
appeal, claiming that the suppression court erred by denying his suppression
motion and the trial court erred in failing to deem him eligible for the RRRI
program. In its responsive Rule 1925(a) opinion, the trial court noted that, as
for the first issue, the suppression court had filed its own Statement in Lieu of
Opinion, relying on its opinion issued on January 27, 2022 to support its
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reasons for the denial of the suppression motion.1 The trial court also found it
had not erred by finding Smith ineligible for the RRRI program. Smith now
raises these two issues on appeal:
1. Whether the Honorable President Judge Wagner, Jr. erred
in denying [Smith’s] Post-Sentence Motion requesting his
sentencing order be amended to recommend [his] eligibility
for participation in the [RRRI Program] found at 61 P. C.S.A.
§ 4501 et seq.
2. Whether the Honorable Judge Linda Cordaro erred factually
and legally in denying [Smith’s] Omnibus Pretrial Motion on
January 27, 2022 in that the Commonwealth failed to
sustain its burden of proof by a preponderance of the
evidence that the initial search performed by the parole
agents and the subsequent search conducted after
[Detective] Metros obtained a search warrant was
unconstitutional, illegal and unlawful thereby warranting
suppression of all of the inculpatory evidence seized
therefrom.
Appellant’s Brief at 4 (Answers omitted).
We first address Smith’s challenge to the denial of his suppression
motion. When this Court reviews a trial court’s denial of a suppression motion,
we are limited to reviewing only the evidence presented at the suppression
hearing. See Commonwealth v. Carey, 249 A.3d 1217, 1223 (Pa. Super.
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1 We note that while Smith attached the Statement in Lieu of Opinion to his
brief, he did not attach the January 27, 2022 opinion upon which the
suppression court relied to his brief as required by Pa.R.A.P. 2111 (b)
(providing there “shall be appended to the brief a copy of any opinions
delivered by any trial court … relating to the order or other determination
under review, if pertinent to the questions involved.”). Although the January
27, 2022 opinion is in the certified record, we remind counsel of their
obligation to comply with the Rules of Appellate Procedure.
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2021). We look to see whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct. See id. While we are bound by the suppression court’s
factual findings if those findings are supported by the record, we are not bound
by the suppression court’s legal conclusions. See id. To the contrary, it is our
duty to determine if the suppression court properly applied the law to the
facts. See id.Here, in denying Smith’s motion to suppress, the suppression court first
pointed out that Smith specifically consented to a warrantless search of his
residence by parole officers when he signed the PBPP-11 Form. The court then
noted that 42 Pa. C.S.A. § 9912(d) enumerates the grounds for a valid search
of a parolee's property. To that end, Section 9912(d) provides that a search
of a parolee’s property may be conducted by an officer if there is reasonable
suspicion to believe the real property contains contraband or other evidence
of violations of the conditions of supervision. See id.
Section 9912(d)(6) then lists the factors to be taken into account when
determining whether such reasonable suspicion exists. Those factors include:
the observations of officers, information provided by others, the activities of
the parolee, the experience of the officers with the parolee, and the prior
criminal and supervisory history of the parolee. See 42 Pa. C.S.A. §
9912(d)(6).
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In finding that Agent Sellers had reasonable suspicion here, the
suppression court noted that Smith had failed a drug test the month prior to
the search, Smith’s GPS bracelet showed him regularly visiting known high
drug-trafficking areas and that there had been community reports of possible
drug transactions at Smith’s residence. The court concluded that “[b]ased on
the facts available to Agent Sellers, as well as his own experience, and Smith’s
prior criminal history, there was at least reasonable suspicion to support a
search of [his] property.” Trial Court Opinion, 1/27/2022, at 4.
The suppression court also noted that Agent Sellers had obtained the
prior approval of his supervisor, as mandated by 42 Pa. C.S.A. § 9912(d)(3)
(providing that “[p]rior approval of a supervisor shall be obtained for a
property search absent exigent circumstances”).
We see no error with the suppression court’s conclusion that Agent
Sellers had reasonable suspicion to search Smith’s residence, and that
therefore, both the initial search, as well as the subsequent search pursuant
to the search warrant obtained using evidence of the contraband found during
the initial search, were lawful.
Smith does not focus on disputing the existence of reasonable suspicion
for the initial search in his appellate brief. Instead, he argues for the first time
that the “stalking horse doctrine” warrants suppression of all the evidence
obtained from the searches of his residence. He specifically claims three times
that Agent Sellers and the other parole officers had “‘switched hats,’ ‘ceased
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acting as an administrator of the parole system,’ and were instead ‘acting as
[ ] police officers, involving [Detective Metros and other police officers] in a
coordinated plan to ensnare [Smith] in a drug trafficking crime without a
scintilla of probable cause or reasonable suspicion.” Appellant’s Brief at 7, 13,
21.
In the first instance, Smith did not present this argument in either his
motion to suppress or his memorandum of law in support of his suppression
motion. In fact, Smith’s memorandum of law did not mention the “stalking
horse doctrine” or even cite to the case he now extensively relies upon in
support of that argument in his appellate brief. Moreover, this argument was
not delineated in Smith’s Rule 1925(b) statement. As such, neither the
suppression court nor the trial court ever addressed this argument. Smith’s
argument invoking the “stalking horse doctrine” is therefore waived. See
Pa.R.A.P. 302(a); Commonwealth v. Jefferson, 256 A.3d 1242, 1252 (Pa.
Super. 2021) (providing that new and different theories of relief to support
the suppression of evidence may not be raised for the first time on appeal);
Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (providing
that 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”); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
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(holding that issues that are not sufficiently raised in the Rule 1925(b)
statement are waived).
In any event, we find no merit to the argument in support of the
“stalking horse doctrine” nor do we find any factual basis for it in the certified
record. Based on all of the above, Smith has failed to convince us that his
claim that the suppression court erred by denying his motion to suppress
warrants any relief.
In his other claim, Smith contends the trial court erred by failing to deem
him to be an “eligible person” for the RRRI Program. This claim also fails. 61
Pa.C.S.A. § 4503 defines who is an “eligible person” for purposes of the RRRI
Program. It specifies that an “eligible person” is:
A defendant or inmate convicted of a criminal offense who will be
committed to the custody of the department and who meets all of
the following eligibility requirements:
(1) Does not demonstrate a history of present or past violent
behavior.
…
(3) Has not been found guilty of or previously convicted of or
adjudicated delinquent for … a personal injury crime as defined
under section 103 of the act of November 24, 1998 (P.L. 882, No.
111), known as the Crime Victims Act[.]
61 Pa.C.S.A. § 4503 (footnote omitted). The Crime Victims Act, in turn,
defines personal injury crimes to include “[a]n act, attempt, solicitation or
conspiracy to commit an act” under Chapter 27 of the Crimes Code. See 18
P.S. § 11.103.
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Applying those definitions here, the trial court stated:
Smith was previously found guilty of Terroristic Threats, 18 Pa.
C.S.[A.] § 2706 in Case No. 1588 of 2002 which makes him
ineligible for participation in the RRRI Program. As he had been
convicted of a crime under Chapter 27 of the Pennsylvania Crimes
Code, he is ineligible for participation in the program.
Trial Court Opinion, 11/21/2022, at 3-4 (unpaginated).
Smith does not dispute he was previously convicted of terroristic threats
or that the offense of terroristic threats is a personal injury crime under the
Crime Victims Act disqualifying him from eligibility. Instead, Smith argues his
single previous conviction for terroristic threats does not establish a “history
of present or past violent behavior.” He maintains that his “criminal history,
which reflects several previous convictions, only one of which demonstrates
violent behavior, does not render him ineligible for a sentence under the RRRI
Act” because a single prior conviction demonstrating violent behavior does not
amount to having a pattern or history of such behavior. Appellant’s Brief at
12.
Smith’s argument fails, most notably because it fails to take into account
the explicit language of Section 4503’s definition of “eligible person.” As noted
above, in order to be eligible for the RRRI program, an individual must meet
all of the eligibility requirements listed. Those requirements include being an
individual who has not demonstrated a history of violent behavior. However,
in addition, the eligibility requirements also include being an individual who
has not been previously convicted of any of the disqualifying offenses
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enumerated in Section 4503. Here, Smith was convicted of terroristic threats,
a crime under Chapter 27, which is one of the disqualifying offenses. As such,
under the explicit definition of “eligible person,” Smith was ineligible for the
program, irrespective of whether or not he has demonstrated a history of
violent behavior. See Commonwealth v. Cullen-Doyle, 164 A.3d 1239,
1243 (Pa. 2017) (stating that Section 4503 prescribes that individuals who
have been convicted of certain enumerated offenses, such as the use of a
deadly weapon, personal injury crimes as set forth in the Crimes Victims Act,
and crimes requiring registration as a sex offender, are ineligible for
participation in the RRRI program).
Accordingly, like his first claim, Smith’s claim that the trial court erred
by finding him ineligible for the RRRI program does not offer him any basis
for relief.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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