Com. v. Perry, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES PERRY :
:
Appellant : No. 696 WDA 2016
Appeal from the Judgment of Sentence May 9, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003361-2011,
CP-65-CR-0003372-2011
BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 17, 2017
Appellant, James Perry, appeals from the judgment of sentence of an
aggregate eight to sixteen years of incarceration followed by five years of
probation, imposed May 9, 2016, following a jury trial resulting in his
conviction for multiple counts of manufacture, delivery or possession with
intent to deliver.1 We affirm.
The relevant facts and procedural history are as follows. In March
2010, Agent Richard Miller initiated an investigation of Appellant that
included extensive surveillance of Appellant’s heroin distribution operation.
See Trial Ct. Op., 6/9/2010, at 1-2. Agent Miller received information from
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30)
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a confidential informant that Appellant had sold him heroin approximately
fifty times between December 2009 and March 2010. See id. Between the
months of March 2010 and February 2011, Agent Miller utilized several
confidential informants to carry out wiretaps authorized by the attorney
general. See id. at 2-4. He also provided confidential informants with
marked cash to facilitate their purchases of heroin from Appellant. See id.
at 2. Appellant would leave his residence located at 218 Bonnie Street,
drive to 814 Park Avenue, enter the residence for brief amounts of time, exit
the residence, drive to a local shopping mall where he would engage in
numerous brief exchanges in the parking lot, and then return to the 814
Park Avenue residence. See id. at 2-3. In June 2010, Agent Miller
observed Kimberly Kibelbek (“KK”) and Appellant move furniture out of the
814 Park Avenue location to 423 Third Street in Moneseen. See id. at 3. A
confidential informant confirmed to Agent Miller that KK resided at these
residences. See id. at 4.
After several controlled buys through confidential informants, Agent
Miller concluded that Appellant utilized the residences located at 814 Park
Avenue and 423 Third Street, where KK resided, as stash houses. See id.
at 2-5. On certain occasions, Agent Miller observed Appellant travel to his
residence at 218 Bonnie Street after he left 423 Third Street. See id. at 4.
Based on his observations, Agent Miller believed marked cash from the
controlled buys they executed would be found at 218 Bonnie Street. See id.
at 5 (citing Search Warrant, ¶¶ 42-45).
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In February 2011, Agent Miller prepared an affidavit of probable cause
to search 423 Third Street and 218 Bonnie Street and authorizing searches
of Appellant’s person and KK’s person. See id. at 5. On February 25, 2011,
District Judge Joseph DeMarchis issued search warrants for the two
residences that also authorized the search of their persons. See TCO at 5
(citing Notes of Testimony (N.T.), 2/1/2016-2/5/2016 (Trial), at 112-114).
Around 9:48 a.m. on the same day, Agent Miller observed Appellant’s white
Ford truck parked in front of 423 Third Street. TCO at 5. Appellant entered
the first floor of the residence, remained inside for a short period of time,
and returned to his truck. Id. As Appellant drove away from the house,
police conducted a traffic stop on Appellant and subsequently detained him.
Id. at 5-6.
Chief Manderino and Chief Gibson then ordered Appellant at
gunpoint to exit the vehicle. N.T. 242. The officers handcuffed
Appellant, conducted a pat down search, and found two baggies
of a white powdery substance in the brim of Appellant's hat.
N.T. 243-244. Appellant stated that the drugs were his and that
they were for personal use. N.T. 244. At this point, the officers
placed Appellant in the patrol car. N.T. 244. Chief Manderino
witnessed Appellant making strange movements while
handcuffed in the back of the patrol car. N.T. 244. After
observing such movements, Chief Manderino warned Appellant
not to hide any narcotics because they will find them. N.T. 246.
Once at the station and at the commencement of the search,
Appellant told the Officers that he had more heroin in his sock.
N.T. 246. The Officers then located three (3) more corner
baggies of heroin. N.T. 246, 249. During the search, Chief
Manderino also found other items on Appellant's person,
including $978.00 in U.S. currency. N.T. 247. Chief Manderino
removed the following items from Appellant's person during the
search: two Lowes receipts, an owner's card for the 1999 Ford F
-250 that indicated that the owner of the vehicle was Davida
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Perry with an address of 218 Bonnie Street, Belle Vernon, and
insurance card with the same information. N.T. 251. Chief
Manderino further found a key ring that contained four keys and
a "legal shield" card, which explained one's constitutional rights.
N.T. 251.
TCO at 7.2
Around 10:00 a.m. on the same day, Agent Clinton Thomas Ferris of
the Attorney General’s Office, Bureau of Narcotics, along with other officers,
executed the search warrant at the 218 Bonnie Street location. See TCO at
7-8 (citing N.T., Trial, 272-312). Officers also seized, inter alia, a black safe,
a .9mm Taurus firearm, two loaded magazines, a fur coat, a box of ammo,
and loan documents. See TCO at 8 (citing N.T. at 277-282). Although no
drugs were found at 218 Bonnie Street, police found fourteen thousand
dollars in cash in a footstool at the end of the bed in the master bedroom.
With regard to the money found in the footstool at 218 Bonnie
Street, the money was put through a scanner, and eight (8)
$20.00 bills matched the serial numbers that were already in the
machine from a report dated February 23, 2011. N.T. 360 -367.
On February 23, 2011, those same eight (8) bills were used by
the police for ‘buy money,’ and given to a confidential informant
[whom Agent Miller observed make a purchase from Appellant
and return with a small amount of heroin with the $160.00 no
longer in his possession.].
TCO at 9; see also N.T. at 284. .
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2
Police executed the warrant to search 423 Third Street and confiscated
several items, including a green safe. See TCO at 6. After obtaining
Appellant’s written consent, Agent Miller used the key found on Appellant’s
person to open the safe. See TCO at 9. Agent Miller found heroin, cocaine,
crack-cocaine, and a non-controlled substance in the safe. See id.
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In November 2011, Appellant filed a motion to suppress evidence
seized pursuant to the search warrant. The court denied this motion by
opinion and order on May 22, 2012. In February 2016, following a jury trial,
Appellant was convicted of all counts.3 In May 2016, Appellant was
sentenced as described above.
Appellant timely filed a notice of appeal and court-ordered 1925(b)
statement. The trial court issued a responsive opinion.
On appeal, Appellant raises the following issues:
1. Whether the suppression court erred in denying the Appellant’s
omnibus pretrial motion seeking to suppress the evidence
obtained by Agent Miller of the Attorney General’s Office through
the execution of two search warrants?
2. Whether the trial court erred in finding the evidence sufficient to
sustain a verdict of guilty on the count of 35 P.S. § 780-
113(a)(30), possession with intent to deliver a controlled
substance?
Appellant’s Br. at 9.
First, Appellant contends that the search warrant was (1) “overbroad”
to permit a search of his residence at 218 Bonnie Street, (2) anticipatory to
permit a search of Appellant’s person without probable cause, (3) based on
information that was not reliable, and/or (4) based on stale information.
Appellant's Br. at 23. Our standard of review is as follows.
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3
Appellant’s first trial was declared a mistrial due to a hung jury in April
2015.
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In reviewing the ruling of the suppression court, this Court is “limited
to determining whether the record supported that court’s factual findings
and whether the legal conclusions that the suppression court drew from
those facts were correct.” Commonwealth v. Torres, 764 A.2d 532, 537-
38 (Pa. 2001) (citations omitted). “Since the prosecution prevailed in the
suppression court, we may consider only the evidence of the prosecution
and so much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole.” Commonwealth v.
Bomar, 826 A.2d 831, 842 (Pa. 2003).
The Pennsylvania and United States Constitutions require that search
warrants be supported by probable cause governed by the practical,
nontechnical “totality of the circumstances test” established in Illinois v.
Gates, 462 U.S. 213, 230-31 (1983). See U.S. CONST. amend. IV; PA.
CONST. art. I, § 8.
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and
‘basis of knowledge’ of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime
will be found in a particular place. And the duty of a reviewing
court is simply to ensure that the magistrate had a ‘substantial
basis for ... conclud[ing] that probable cause existed.’
Commonwealth v. Gray, 503 A.2d 921, 925 (Pa. 1985) (quoting Gates,
462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271
(1960)). “Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the suppression court’s
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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.”
Commonwealth v. Jones, 988 A.2d 639, 654 (Pa. 2010) (citations and
internal quotation marks omitted). “[A] reviewing court [is] not to conduct a
de novo review of the issuing authority's probable cause determination, but
[is] simply to determine whether or not there is substantial evidence in the
record supporting the decision to issue the warrant.” Jones, 988 A.2d at
655 (quoting Torres, 764 A.2d at 540). “In so doing, the reviewing court
must accord deference to the issuing authority's probable cause
determination, and must view the information offered to establish probable
cause in a common-sense, non-technical manner.” Torres, 764 A.2d at 538
(citation omitted).
First, Appellant contends that the warrant to search his residence at
218 Bonnie Street was overbroad. According to Appellant, there was no
“substantial nexus” between the suspected illegal activity and the premises
to be searched because the affidavit of probable cause failed to set forth
facts to suggest that 218 Bonnie Street was instrumental to any illegal
activity. See Appellant's Br. at 24-25 (citing in support Commonwealth v.
Way, 492 A.2d 1151, 1154 (Pa. Super. 1985) (“[L]ack of substantial nexus
between the street crime and the premises to be searched renders the
warrant facially invalid.”)).
This Court has previously found Way distinguishable.
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In Way, the affidavit of probable cause merely declared that:
the defendant was a drug dealer; an “alleged [drug] transaction
occurred in [the defendant's] blue van along a country road[;
and, a]fter the alleged [drug] transaction, police followed the
blue van to a driveway of a property” that was owned by the
defendant. Way, 492 A.2d at 1152–54. Confronted with this
affidavit, the Way Court held that there were “[insufficient] facts
to believe that drugs would be found” in the defendant's house
and that the search warrant for the defendant's house was thus
defective. Id. at 347.
Commonwealth v. Gagliardi, 128 A.3d 790, 798 (Pa. Super. 2015)
(distinguishing Way where the magistrate had a substantial basis to believe
that facts established that defendant used his home as “a base of illicit
operations,” id. at 797 (emphasis in original)).
Here, the facts summarized in the affidavit established that Appellant
maintained stash houses at 423 Third Street and 814 Park Avenue. The
police independently corroborated this information by observing Appellant
travel back and forth to these locations, sometimes driving erratically and
often meeting with suspected customers for only a few minutes. See Clark,
28 A.2d at 1288. Police facilitated controlled buys wherein confidential
informants would participate in drug transactions, exchanging marked cash
for drugs. Following these transactions, Appellant returned to his personal
residence at 218 Bonnie Street.
According to the Commonwealth, it does not require a “leap of faith to
conclude that important evidence of [Appellant’s] drug trafficking would be
found at his home.” Commonwealth's Br. at 22. We agree. Just because
Appellant conducted the majority of his illegal activities outside of his
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personal residence does not render the warrant to search his home facially
invalid where it was clearly supported by probable cause that police would
likely find the fruits of his crimes therein. See Gagliardi, 128 A.3d at 797
(looking to the four corners of the affidavit, police independently
corroborated tips of confidential informants by conducting controlled
purchases of illegal drugs sufficient to create probable cause to search
defendant’s home where defendant left home prior to drug sales and
returned to his home after the drug sales). Based on the totality of the
circumstances, the affidavit provided the issuing authority with a substantial
basis to find that there was probable cause to believe that evidence tending
to link Appellant to illegal drug activity would be found at his 218 Bonnie
Street residence. Torres, 764 A.2d at 544. Thus, we conclude that the
issuing authority possessed a substantial basis for determining there was a
fair probability that contraband would be found at Appellant’s residence
located at 218 Bonnie Street. Based upon common sense and the
information available to the issuing authority, the search warrant was
supported by probable cause.
Next, Appellant contends that the warrant to search Appellant’s person
was “an anticipatory search warrant” and was not supported by sufficient
probable cause in his arrest. Appellant's Br. at 27. In support of his
argument, Appellant cites Commonwealth v. Glass, 754 A.2d 655, 661
(Pa. 2000) (noting that the proper standard to apply is probable cause
consistent with Gates, supra and Gray, supra). According to Appellant,
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probable cause exists where the affidavit presents reliable information
“which would cause a reasonable man to believe that a crime is being, or is
about to be committed.” Appellant's Br. at 28 (quoting Commonwealth v.
Baker, 518 A.2d 802, 805 (Pa. 1986)).
Appellant suggests that the warrant to search his person was invalid
because he was not per se committing a crime when he was stopped by
police. Contrary to Appellant’s suggestion,
[a]nticipatory search warrants pose no threat to settled views of
probable cause. The very nature of a search warrant is in a
sense “anticipatory.” Time being a continuum, the analysis
cannot be otherwise. Warrants authorize future searches, not
searches into the past. There is always a lag between the
underlying observation, the representations of the affiant, the
issuance of the warrant, and its ultimate execution. Presented
with a series of factual averments, the magistrate must
determine, or anticipate, whether there is a fair probability that
evidence of a crime ‘will be found’ in a particular place when the
warrant is executed. Although probable cause unquestionably
must exist at the time the warrant is authorized, see, e.g.,
Commonwealth v. Tolbert, 424 A.2d 1342, 1344 (Pa. 1981)
(citation omitted), the magistrate's assessment of probable
cause, as well as the ultimate question as to whether the
warrant should issue, is distinctly forward-looking.
Glass, 754 A.2d at 662–63. Based on the facts laid out in the affidavit, the
suppression court concluded that Agent Miller’s “extensive and meticulous
investigation” provided ample probable cause in the search warrant to justify
Appellant’s arrest. Suppression Ct. Op., 5/22/2012, at 8. The affidavit of
probable cause presented sufficient facts for the magistrate to reasonably
infer probable cause to search Appellant’s person based on his well-
documented involvement in numerous suspected illegal drug sales. Those
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facts juxtaposed with a fair probability that police would discover contraband
on his person after Appellant left the stash house gave the magistrate ample
authority to assess and find probable cause to issue the warrant to search
his person.
Next, Appellant argues that the information contained in the affidavit
of probable cause was not sufficiently reliable. See Appellant's Br. at 29.
Specifically, he asserts that the warrant failed to establish that confidential
informants provided sufficiently reliable inside information beyond mere
assertions that they had purchased drugs from Appellant in the past. See
id. at 32. This argument is also without merit.
“[A] determination of probable cause based upon information received
from a confidential informant depends upon the informant's reliability and
basis of knowledge viewed in a common sense, non-technical manner.”
Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011).
When information essential to a finding of probable cause is
garnered from the use of confidential informants, the issuing
authority determines the reliability of the informant's information
from the facts supplied by the police official. The determination
of reliability does not hinge on disclosed records regarding the
track record of the informant. Furthermore, the affidavit need
not contain the names, dates, or other information concerning
prior arrests or convictions.
Commonwealth v. Dukeman, 917 A.2d 338, 342 (Pa. Super. 2007)
(quoting Commonwealth v. Gindlesperger, 706 A.2d 1216, 1225 (Pa.
Super. 1997)). Notwithstanding, “it is clear that under the totality-of-the-
circumstances approach, there is no talismanic recitation of a particular
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phrase with respect to ‘reliability’ or ‘basis of knowledge’ that will either be
required or will suffice to conclusively establish, or conclusively disaffirm, the
existence of probable cause.” Clarke, 28 A.3d at 129.
In this case, Agent Miller employed several confidential informants and
police monitored every step of the drug transactions. See Suppression Ct.
Op., 5/22/2012, at 6. Here, the suppression court opined:
In this case, corroboration of the reliability of the CI’s was
established by close police scrutiny of their conduct. The
informants were searched and wired with intercepting and
recording devices. The vehicle used by the CI was searched and
surveillance was employed to track both the CI and [Appellant].
The CI was provided with marked money and his interactions
with the [CI known as “unwitting”] were electronically recorded
and observed by police. After the purchase, police met with the
CI and conducted a second search of his person and his vehicle.
The purchased narcotics were field tested and proved positive for
heroin. Simultaneously[,] [Appellant] was observed and noted
to travel to unwittings’ residence immediately prior to the
purchase of the heroin.
Given this procedure, it was unnecessary to establish the
reliability of the CI by documenting past arrests based upon his
information. The manner in which the controlled buys were
conducted proved the informant’s reliability and provided ample
probable cause for the search of [Appellant] and his residence.
Id. at 10.
Here, the affidavit provided substantial corroborative evidence and
independently verified the confidential informant’s reliability as an
undercover agent who provided substantial assistance to police officers
throughout their investigation. Thus, the Commonwealth was not required
to establish the past arrests with which the confidential informant assisted in
this case. See Clarke, 28 A.3d at 1292 (noting that information provided
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by a confidential informant that is corroborated by independent police
information will suffice to establish “a fair probability that contraband or
evidence of a crime would be found”). Accordingly, Appellant’s argument is
without merit.
Lastly, Appellant contends that the warrant contained information that
was “stale.” Appellant's Br. at 33. According to Appellant, a day had passed
between Appellant’s last contact with the drugs and the authorization of the
search warrant. Id. at 33-34. The premise of this argument defies the
common sense inquiry for determining probable cause expounded in Gray,
supra and Gates, supra. Even if the information in the affidavit was a day
old, the issuing authority had the power to issue the warrant based on a
reasonable belief that such information indicated Appellant was
systematically dealing heroin per his involvement in a criminal enterprise.
As discussed above, the warrant was justified by ample probable cause
under the totality of the circumstances presented. Accordingly, we discern
no error of law or abuse of the suppression court’s discretion.
In his second issue, Appellant purports to challenge the sufficiency of
the evidence to support his conviction. Preliminarily, we observe that his
1925(b) statement stated the following: “whether the trial court erred in
finding the evidence sufficient to sustain a verdict of guilty on the count of
35 P.S. 780-113(a)(30).” Appellant’s 1925(b) Statement, 7/12/2016, at 2.
We pause to address the adequacy of his statement preserving this issue.
As this Court observed in Commonwealth v. Freeman, 128 A.3d
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1231, 1247 (Pa. Super. 2015):
The Pennsylvania Supreme Court has explained that Rule 1925 is
a crucial component of the appellate process, which “is intended
to aid trial judges in identifying and focusing upon those issues
which the parties plan to raise on appeal. When an appellant
fails adequately to identify in a concise manner the issues sought
to be pursued on appeal, the trial court is impeded in its
preparation of a legal analysis which is pertinent to those issues.
In other words, a Concise Statement which is too vague to allow
the court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all.
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant's Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as here,
the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt.
Commonwealth v. Freeman, 128 A.3d 1231, 1247 (Pa. Super. 2015)
(internal citations and quotation marks omitted).
In this case, Appellant’s 1925(b) statement simply declared, in
boilerplate fashion, that the evidence was insufficient. See Appellant’s
1925(b) Statement, 4/1/2016. We observe that a jury found Appellant
guilty of nine counts of 35 P.S. 780-113(a)(30) arising from two
consolidated cases. Appellant’s failure to specify which instance, element or
elements of his convictions “upon which the evidence was insufficient”
renders Appellant's sufficiency of the evidence claim waived on appeal.
Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (quoting
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)
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(internal citations omitted)).
Further, it is of no moment that the trial court addressed Appellant’s
sufficiency claim in its Rule 1925(a) opinion.
The Commonwealth's failure [to object to the defect in the Rule
1925(b) statement] and the presence of a trial court opinion are
of no moment to our analysis because we apply Pa.R.A.P.
1925(b) in a predictable, uniform fashion, not in a selective
manner dependent on an appellee's argument or a trial court's
choice to address an unpreserved claim. Thus, we find 1925(b)
waiver where appropriate despite the lack of objection by an
appellee and despite the presence of a trial court opinion.
Tyack, 128 A.3d at 261 (quoting Williams, 959 A.2d at 1257 (internal
citations omitted)). Accordingly, Appellant’s sufficiency claim is waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
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