Commonwealth v. Kemp ( 2018 )

J-S22027-18
2018 PA Super 237COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
AUBREY KEMP
Appellant No. 1129 EDA 2017
Appeal from the Judgment of Sentence Entered March 2, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0002340-2015
BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.
OPINION BY STABILE, J.: FILED AUGUST 29, 2018
Appellant, Aubrey Kemp, appeals from the March 2, 2017 judgment of
sentence imposing 11½ to 23 months of incarceration for possession with
intent to deliver (“PWID”) marijuana. We vacate and remand for
resentencing.
In this appeal, Appellant challenges the trial court’s denial of his pretrial
motion to suppress evidence. He also challenges the trial court’s computation
of the applicable sentencing guidelines. The Commonwealth concedes that
resentencing is necessary. Regarding the suppression issues, the trial court
made the following findings of fact:
1. [Sergeant] Kenneth Rutherford, Jr. of the Lansdowne Borough
Police Department has been a police officer for 16 years, eight
years of which he was an investigator and seven years in which
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* Retired Senior Judge assigned to the Superior Court.
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he worked in the Delaware County Criminal Investigation
Division, who has, in these capacities also worked as an
undercover police officer.
2. [Sergeant] Rutherford is on the teaching staff of the
Pennsylvania Attorney General’s office Top Gun Undercover
Drug Enforcement training school.
3. As set forth in the Affidavit of Probable Cause for the Search
Warrant, [Sergeant] Rutherford has extensive training in illegal
narcotics and has conducted hundreds of investigations
involving the sale of illegal narcotics. While acting in
undercover capacity, he has purchased various types of illegal
drugs in excess of 200 times.
4. In March of 2015, [Sergeant] Rutherford, the affiant in this
case, spoke with a reliable confidential informant (hereinafter
“CI”) and the basis of the reliability is set forth in the Affidavit
of Probable Cause for the search warrant.
5. The CI told [Sergeant] Rutherford that he had purchased
marijuana from [Appellant] numerous times over the past
couple of years. The CI provided the [sic] [Sergeant]
Rutherford with [Appellant’s] cell phone number, and the CI
used the number to arrange sales of marijuana. The CI
described in detail the type of vehicles that [Appellant] usually
operated while conducting the sales of marijuana, one being a
Jeep Cherokee and the other being a white Cadillac DTS.
6. The CI also said he knew [Appellant] to be a Septa bus driver.
7. The CI said he had purchased marijuana numerous times in the
past six months from [Appellant] and, as stated above, he had
purchased marijuana over the past several years from
[Appellant].
8. [Sergeant] Rutherford investigated the cell phone number
given to him by the CI and said cell phone number was
registered to [Appellant].
9. [Sergeant] Rutherford, through prior contact, knew [Appellant]
and knew his residence to be 908 Bell Avenue, Yeadon, PA.
[Sergeant] Rutherford also knew [Appellant] was a Septa bus
driver. [Sergeant] Rutherford also knew through prior contact,
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that [Appellant] had been involved in a motor vehicle accident
while driving a Septa bus.
10. A J-Net search for [Appellant] disclosed [Appellant’s]
operator’s license number and address, 908 Bell Avenue,
Yeadon, PA.
11. During the third week of March 2015, [Sergeant] Rutherford
met with the CI in order to set up a controlled purchase of
marijuana from [Appellant]. The usual preliminary steps
associated with a controlled buy were effectuated, i.e. a search
of the CI to see if he had any controlled substance in his
possession or any money.
12. The CI called [Appellant] by dialing the above-referenced
cell phone number to place an order for marijuana, and
[Appellant] directed him to a certain location where the
transaction would take place.
13. The residence of [Appellant], 908 Bell Avenue, was under
surveillance contemporaneous with this telephone call.
[Appellant] was seen leaving 908 Bell Avenue and then entered
a while Cadillac DTS. [Appellant] made no stops after leaving
908 Bell Avenue to the point where he met the CI to make the
sale of marijuana.
14. The CI never left the sight of [Sergeant] Rutherford from
the time he was patted down and checked for controlled
substances and money.
15. The exchange between the CI and [Appellant] was observed
by [Sergeant] Rutherford.
16. After the exchange, [Appellant] left the area of the
exchange. The CI returned to [Sergeant] Rutherford’s location.
17. The CI was checked for the money that had previously been
provided to him and that money was not on his person. The
CI then gave the marijuana that he just purchased from
[Appellant] to [Sergeant] Rutherford. The CI told [Sergeant]
Rutherford that he (the CI) had just purchased marijuana from
[Appellant].
18. Within 48 hours of the execution of the search warrant, the
same scenario repeated itself. Again, the CI made the call,
[Appellant] left 908 Bell Avenue, got into his white Cadillac
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DTS, made no stops between his home and the location of the
exchange of marijuana and money. Again, all the proper steps
were taken to see that this CI had no drugs on him before the
exchange and when he returned, he had the marijuana and
none of the money that was given to him by [Sergeant]
Rutherford. Again, the CI said that he had just purchased
drugs from [Appellant]. At no place in the Affidavit of Probable
Cause is there any indication that [Appellant] was followed
from the scene of the exchanges back into his house.
19. There was no purchase or exchange observed inside or in
front of 908 Bell Avenue.
20. There is nothing in the warrant’s affidavit of probable cause
that says that the CI ever saw marijuana inside 908 Bell
Avenue or if he ever bought or took possession of it while
therein. The warrant’s affidavit of probable cause similarly
does not recite that the CI saw marijuana or took possession
of marijuana while in [Appellant’s] automobiles.
21. Based on all of the above, [Sergeant] Rutherford obtained a
search warrant on March 31, 2015 to search [Appellant’s] car
and home. Said search warrant was timely served and
executed and the marijuana and associated contraband was
found inside the house along with a firearm.
22. [Sergeant] Rutherford executed the search warrant that
same day, March 31, 2015, at approximately 6:05 p.m.
23. [Sergeant] Rutherford arrived to the residence
approximately 30 minutes prior to the search and set up
surveillance. During this time, he observed [Appellant] exiting
908 Bell Avenue. [Appellant] came down the front steps and
walked down the driveway.
24. [Sergeant] Rutherford exited his vehicle and approached
[Appellant]. They were standing at the sidewalk at the
driveway.
25. [Sergeant] Rutherford identified himself as a police officer
and advised [Appellant] that he had a search warrant for the
residence.
26. [Appellant] was carrying a black plastic bag.
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27. When [Sergeant] Rutherford approached him, [Appellant]
sat the bag down and began to back away. Based upon these
observations, [Appellant] was immediately handcuffed.
28. [Sergeant] Rutherford testified that he was aware that
[Appellant] owned multiple firearms and had a permit to carry.
He explained that in his experience, guns are often associated
with drug dealing and are used by dealers to protect
themselves.
29. Accordingly, [Sergeant] Rutherford conducted a pat down
for officer’s safety. A firearm, a Glock .40 caliber, was
recovered on [Appellant’s] person.
30. [Sergeant] Rutherford then explained that they were going
to search the residence, and asked [Appellant] about the
location of the dogs in the house. [Appellant] accompanied the
officers as they entered the house.
31. While they were approaching the house, [Appellant] began
to pull away. The officers then conducted a second search of
his person and recovered marijuana in both his right sock and
his left sock.
32. [Appellant] remained on the couch in the living room for the
remaining duration of the search of the residence.
33. The court found the testimony of [Sergeant] Rutherford to
be credible.
Trial Court Opinion, 6/22/17, at 2-5 (record citations omitted).
Appellant first argues that the affidavit of probable cause was not
sufficient to support the issuance of a warrant for the search of his home. The
affidavit set forth the facts recited above—i.e., that Appellant participated in
two controlled buys for which he proceeded directly from his home to the point
of sale. As the trial court noted, the affidavit did not reflect that Appellant
participated in drug transactions in or near his home. Nor did the affidavit
reflect that the CI ever saw drugs or drug paraphernalia inside Appellant’s
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home. For these reasons, Appellant argues the affidavit did not establish a
fair probability that contraband would be discovered in his home. We
disagree.
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where,
as here, 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, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted).
“The Fourth Amendment, by its text, has a strong preference for
searches conducted pursuant to warrants.” Commonwealth v. Leed, ___
A.3d ___, 2018 WL 2452659, at *5 (Pa. June 1, 2018). A neutral and
detached magistrate must determine whether probable cause supports
issuance of a warrant. Id. “Probable cause exists where the facts and
circumstances within the affiant’s knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a man of
reasonable caution in the belief that a search should be conducted.” Id.“[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not
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take the form of de novo review[, and] a magistrate’s probable cause
determination should receive deference from the reviewing courts.” Id.Appellant relies on Commonwealth v. Kline, 335 A.2d 361, 364 (Pa.
Super. 1975) in which this Court explained that “[p]robable cause to believe
that a man has committed a crime on the street does not necessarily give rise
to probable cause to search his home.” In Kline, several witnesses testified
to purchasing drugs from the defendant, but no evidence linked the
defendant’s drug dealing activity to his apartment. Id.Appellant also relies on Commonwealth v. Way, 492 A.2d 1151 (Pa.
Super. 1985), in which police followed the defendant from an arranged
transaction to a location that turned out to be the defendant’s home. No
evidenced established the defendant’s whereabouts prior to the transaction.
We held the warrant to be invalid because of the lack of an evidentiary nexus
between the criminal activity and the defendant’s home. Id. at 1154-55.
Instantly, police twice observed Appellant leaving his home and
proceeding directly to the site of a controlled buy. Thus, unlike Kline and
Way, the affidavit does establish a nexus between Appellant’s home and the
crime under investigation. In a very similar case, our Supreme Court wrote:
Here, the trial court and Superior Court discounted the
common sense import of the fact that after the controlled buy was
arranged, the police observed Appellee leave his residence in his
vehicle, as precisely described by the CI, drive to a location,
conduct the transaction, and immediately return to his residence.
This fact certainly connected the illegal transaction to Appellee’s
residence, in a common sense, non-technical way, and permitted
the issuing authority to conclude that drugs would likely be found
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in the residence. Although the circumstances of the observed
transaction also potentially pointed to Appellee's vehicle as a
storage location for the drugs, the law does not require that the
information in a warrant affidavit establish with absolute certainty
that the object of the search will be found at the stated location,
nor does it demand that the affidavit information preclude all
possibility that the sought after article is not secreted in another
location.
Commonwealth v. Clark, 28 A.3d 1284, 1291 (Pa. 2011). We find Clark
directly on point and controlling in this case. We therefore reject Appellant’s
first argument.
Next, Appellant challenges the detention and frisks that police
conducted when they arrived at Appellant’s home to execute the search
warrant. As noted above, Appellant was walking down his front steps when
Sergeant Rutherford arrived to execute the warrant. Police, when executing
a valid search warrant, “have the authority to detain persons who are on the
premises, or who have recently exited and are outside the premises.”
Commonwealth v. Martinez, 649 A.2d 143, 147 (Pa. Super. 1994). Thus,
the detention was clearly justified.
Regarding the frisks, the record establishes that Appellant had been
observed on two occasions leaving his home to conduct drug transactions.
Appellant appeared uneasy and backed away from Sergeant Rutherford when
the latter approached and announced the warrant, and Appellant dropped a
bag he was carrying. Sergeant Rutherford was aware of Appellant’s firearms
license and his ownership of multiple firearms. The law provides:
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It is well-established that a police officer may conduct a brief
investigatory stop of an individual if the officer observes unusual
conduct which leads him to reasonably conclude that criminal
activity may be afoot. Moreover, if the officer has a reasonable
suspicion, based on specific and articulable facts, that the
detained individual may be armed and dangerous, the officer may
then conduct a frisk of the individual's outer garments for
weapons. Since the sole justification for a Terry[1] search is the
protection of the officer or others nearby, such a protective search
must be strictly limited to that which is necessary for the discovery
of weapons which might be used to harm the officer or others
nearby. Thus, the purpose of this limited search is not to discover
evidence, but to allow the officer to pursue his investigation
without fear of violence.
Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa. Super. 2013).
Given the facts of record and the applicable law, we believe police were
clearly justified in frisking Appellant for weapons. The second, more invasive
frisk occurred after Appellant attempted to pull away from the police officers.
Appellant argues this frisk was invalid under Commonwealth v. DeWitt, 608
A.2d 1030 (Pa. 1992). There, officers noticed a vehicle with its interior lights
on parked partially in a parking lot and partially on the berm of a road. Id.
at 1031. Police pulled alongside the vehicle to investigate, whereupon the
interior lights were turned off and the occupants engaged in furtive
movements. Id. at 1032. The vehicle then began to pull away. Id. Our
Supreme Court held that the vehicle’s flight and the occupants’ furtive
movements did not, in and of themselves, justify an investigative vehicle stop.
Id. at 1034.
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1 Terry v. Ohio, 392 U.S. 1 (1968).
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Appellant argues that, similar to DeWitt, police did not observe any
criminal activity on Appellant’s part prior to the detention and frisks.
Appellant’s brief at 25. Appellant’s reliance on DeWitt is misplaced for several
reasons. First, DeWitt did not analyze the validity of a frisk. Second,
Appellant ignores the fact that police were at his home to execute a search
warrant based on their prior observations of his criminal conduct. DeWitt is
inapposite, and Appellant has failed to develop a meritorious argument against
the validity of the second frisk.
Finally, Appellant argues the trial court applied the incorrect sentencing
guideline range and imposed an aggravated range sentence despite the
court’s stated intent to impose a mitigated range sentence. The trial court, in
reliance on a 12 to 30 month guideline range, sentenced Appellant to 11½ to
23 months of incarceration, as noted above. The parties agree that the
appropriate guideline range, given Appellant’s zero prior record score, was
restorative sanctions to nine months (plus or minus three months). The error
occurred because the 12 to 30 month guideline range included a school zone
enhancement. The Commonwealth concedes that it failed to establish the
proximity of the crime to a school zone. While the duration of Appellant’s
sentence remains within the trial court’s discretion,2 we will vacate the
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2 A challenge to the calculation of the applicable sentencing guidelines relates
to the discretionary aspects of a sentence. Commonwealth v. O’Bidos, 849
A.2d 243, 253 (Pa. Super. 2004), appeal denied, 860 A.2d 123 (Pa. 2004).
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judgment of sentence and remand for resentencing based upon consideration
of the appropriate guideline range.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/18
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Appellant properly preserved this argument in post-sentence motions and in
his Pa.R.A.P. 1925(b) and 2119(f) statements.
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