Com. v. Wilson, S. ( 2018 )

J-S82021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SHA'RON RAYMERE WILSON :
: No. 471 WDA 2017
Appellant
Appeal from the Judgment of Sentence March 9, 2017
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001613-2015,
CP-07-CR-0001618-2015
BEFORE: BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 05, 2018
This is an appeal from the judgment of sentence entered in the Court of
Common Pleas of Blair County following Appellant Sha’Ron Raymere Wilson’s
conviction by a jury on the charges of criminal conspiracy, possession with the
intent to deliver a controlled substance (“PWID”), simple possession, and
possession of marijuana1 at lower court docket number CP-07-CR-0001613-
2015, and conspiracy, criminal use of a communication facility, PWID, and
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1 18 Pa.C.S.A. § 903 and 35 P.S. § 780-113(a)(30), (16), and (31),
respectively. These charges stemmed from a drug transaction occurring at a
Big Lots parking lot.
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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simple possession2 at lower court docket number CP-07-CR-0001618-2015.
Appellant avers (1) the trial court erred in denying his motion to suppress the
physical evidence seized by the police and (2) the evidence was insufficient to
sustain his convictions. After a careful review, we affirm.
The relevant facts and procedural history are as follows: Following
Appellant’s arrest and the filing of charges at both docket numbers indicated
supra, the lower court consolidated Appellant’s cases. On February 25, 2016,
Appellant filed a counseled, pre-trial motion seeking to suppress the physical
evidence seized by the police on July 12, 2015.
On October 5, 2016, the matter proceeded to a suppression hearing at
which the sole testifying witnesses were Police Sergeants Christopher Moser
and Joseph Merrill. Specifically, Sergeant Moser testified he is in charge of
the Altoona Narcotics and Vice Unit, and he is a member of Blair County’s
West 4 Drug Task Force. N.T., 9/27/16, at 27. He estimated that he has
participated in the execution of over 200 search warrants, and on July 12,
2015, he conducted a drug investigation relevant to the instant case. Id. at
28-29.
Sergeant Moser testified that, with the use of a confidential informant
(“CI”), a controlled buy for heroin was arranged between the CI and Darryl
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2 18 Pa.C.S.A. §§ 903 and 7512; 35 P.S. § 780-113(a)(30) and (16),
respectively. These charges stemmed from contraband seized by the police
from Room 217 of a Motel 6, as well as from Appellant’s person.
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Lewis ("Mr. Lewis”). Id. at 29. He testified that he, Corporal Matthew
Plummer, and Patrolman Crist3 were undercover and involved in the
investigation/controlled buy, which was set to occur at a Big Lots parking lot
on July 12, 2015. Id. Before the appointed time, he and Patrolman Crist
arrived at the Big Lots parking lot and observed Mr. Lewis meeting with an
unidentified person and then walking towards the adjacent Motel 6. Id. at 30.
Sergeant Moser opined that, based on his training and experience, the
interaction between Mr. Lewis and the unidentified person was consistent with
a drug transaction. Id.
Thereafter, Corporal Plummer, who was driving the CI, arrived at the
Big Lots parking lot, and the CI exited the vehicle, calling Mr. Lewis on his cell
phone to announce his arrival. Id. Mr. Lewis returned to the Big Lots parking
lot, coming from the direction of the Motel 6. Id. The CI then gave Mr. Lewis
$100 of pre-recorded money, and in return, Mr. Lewis gave the CI five packets
of heroin. Id. at 29-30. During the transaction, Sergeant Moser moved his
position so that he would be able to observe the Motel 6, as well as the Big
Lots parking lot, in order to determine the room to which Mr. Lewis returned.
Id. at 31.
After the controlled buy was completed, Sergeant Moser observed Mr.
Lewis meet briefly with another unidentified individual in a manner consistent
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3 This Court has not been provided with the full name for Patrolman Crist.
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with drug trafficking, and he then observed Mr. Lewis return to Room 217 of
the Motel 6. Id. Based on this training and experience, Sergeant Moser
determined that “Mr. Lewis was coming and going from Motel 6 and there
would be a supply of heroin somewhere there and he was making multiple
drug deals[.]” Id. at 32.
At this point, the officers, including Sergeant Moser, briefly left the Big
Lots/Motel 6 area, discussed arresting Mr. Lewis, and determined it was
appropriate to obtain a search warrant for Room 217. Id. at 31. Sergeant
Moser and Patrolman Crist returned to the Motel 6 and continued to conduct
surveillance. Id.
During the surveillance, the officers observed another male, later
identified as Appellant, looking out of Room 217’s window. Id. at 32.
Specifically, the male “constantly would come and go from the window, was
constantly peering out.” Id. at 32-33. Sergeant Moser testified that
Appellant’s actions were consistent with “counter-surveillance,” meaning
Appellant was watching the surrounding area and observing the people to
whom the drugs were being sold. Id. at 33-34. He testified the aim of the
“counter-surveillance” was to watch for the police, as well as determine
whether the seller was “getting ripped off” by customers. Id. at 34.
At this point, Sergeant Moser observed an individual, who the police
knew to be involved in drug activity, operating a vehicle with Mr. Lewis as the
passenger. Id. at 33. Sergeant Moser testified he was in contact with other
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officers, including Sergeant Merrill, as the police took Mr. Lewis into custody.
Id. at 34. He indicated he subsequently learned the police seized a set of
binoculars from the motel room, and he opined the binoculars were used for
“counter-surveillance.” Id.
Sergeant Merrill, a member of the Altoona Police Department and Blair
County’s West 4 Drug Task Force, testified that, on July 12, 2015, he received
a telephone call from Sergeant Moser, who explained the CI just completed a
controlled buy with Mr. Lewis, who was staying in a motel room at Motel 6.
Id. at 5. Sergeant Merrill was assigned to arrest Mr. Lewis, and upon arrival
at the Motel 6, he and fellow officers were “staged out of sight of the rooms.”
Id. At some point, Sergeant Moser advised him that Mr. Lewis had exited the
motel room and was walking around the building towards Sergeant Merrill and
his fellow officers. Id. at 6.
Sergeant Merrill arrested Mr. Lewis, who had a loaded handgun and six
packets of heroin on his person but no motel key. Id. at 6-8. Sergeant Merrill
asked Mr. Lewis who else was in the motel room, and Mr. Lewis stated “no
one else [was] in the room[.]” Id. at 8. Sergeant Merrill informed him the
police had the room under surveillance and a male was obviously in the room.
Id. Mr. Lewis indicated the male had left and, when pressed further by
Sergeant Merrill, Mr. Lewis “kind of just shrugged his shoulders and turned his
head.” Id. When Sergeant Merrill confronted Mr. Lewis with the fact he did
not have a motel key in his possession, and asked him how he planned to
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enter the motel room, Mr. Lewis indicated the other male would let him into
the room. Id. at 8-9.
Sergeant Merrill testified the police’s “plan was to get a search warrant
for the hotel room[;]” however, since the police were aware that at least one
other person occupied the room, he determined it was necessary to make a
warrantless entry to secure the room and then obtain a warrant to search the
room. Id. at 10. Sergeant Merrill specifically testified “at that Motel 6, we
have issues from people being alerted to [the police’s] presence before [the
police] can even knock on the door.” Id. He testified this fact, combined
with Mr. Lewis’ possession of a loaded handgun, created a safety concern in
that there was only one way for the police to enter the motel room, facing
whatever danger awaited them. Id. at 10-11. He also noted there are
“civilians all around” at a motel. Id. at 22. Further, Sergeant Merrill opined
that, since Mr. Lewis had been periodically “coming and going” from the room,
the longer the police waited to secure the room the more evident it would be
to the occupant (Appellant) that the police had arrested Mr. Lewis. Id. at 11.
Sergeant Merrill testified this created “an immediate fear” that the occupant
of the room would destroy evidence. Id.
Accordingly, Sergeant Merrill went to the front office and retrieved a key
card for Room 217. Id. at 12. The motel staff provided him with a form,
which indicated the room was rented to “Christopher Woomer,” who had a
Scranton address. Id. Sergeant Merrill testified he was familiar with
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Christopher Woomer from prior investigations and the person occupying Room
217, who the police observed conducting “counter-surveillance,” did not have
a physical description consistent with that of Christopher Woomer. Id.
After securing the key card, the police approached the door of Room
217, yelled “Altoona Police,” entered the room, and discovered Appellant lying
on the bed. Id. at 13. The police detained Appellant and checked the room
for additional people. Id. The police did not conduct a search for evidence in
any manner and “simply physically occupied the room making sure it was
secure.” Id. at 14. The police then secured and executed a search warrant,
finding a loaded handgun under a blanket where Appellant had been lying at
the time of entry. Id. at 14-16. The police discovered a large amount of
heroin and ammunition in the room’s ceiling. Id. Further, the police found a
large amount of money on Appellant’s person, including $80 of the pre-
recorded money from the CI’s controlled buy of heroin from Mr. Lewis. Id. at
47.
On cross-examination, Sergeant Merrrill admitted the police did not
“knock and announce” their presence prior to opening the door but announced
their identity as they were entering the room. Id. at 19. He reiterated that,
prior to entering the room, the police had safety concerns for themselves and
the public, particularly since the police seized a loaded handgun from Mr.
Lewis. Id. at 19-21. He opined that, in light of all of the information known
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to the police at that time, “there [was] a high probability of a weapon” in the
room. Id. at 21.
By opinion and order filed on November 18, 2016, the suppression court
denied Appellant’s motion to suppress. Specifically, the suppression court
determined there were exigent circumstances sufficient to justify the police’s
warrantless entry into the hotel room and the police did not violate the “knock
and announce” rule. The suppression court also determined the subsequent
search warrant obtained by the police was supported by the necessary
probable cause.
On December 8, 2016, Appellant proceeded to a jury trial at which the
Commonwealth presented the testimony of several officers involved in the
instant surveillance/investigation, including Sergeants Moser and Merrill, as
well as a forensic scientist from the Pennsylvania State Police laboratory.
Sergeants Moser’s and Merrill’s trial testimony regarding the controlled buy
between the CI and Mr. Lewis in the Big Lots parking lot,4 Appellant’s
participation in the “counter-surveillance” from Room 217 of the Motel 6, and
the fact Appellant was discovered in the room upon the police’s entry was
substantially consistent with their suppression hearing testimony. See N.T.,
12/8/16, at 51-63, 157-88.
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4 Trial testimony revealed the controlled buy occurred at approximately 4:30
p.m. N.T., 12/8/16, at 102.
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Sergeant Merrill specifically confirmed that, upon execution of the
search warrant, the police discovered a loaded handgun under a blanket on
the bed upon which Appellant had been lying when the police initially entered
the room.5 See id. at 61-62. He clarified the ammunition, which was
discovered in the ceiling by 880 packets of heroin, was for the type of gun
found on the bed, as opposed to the gun seized by the police from Mr. Lewis’
person. Id. at 62, 71. Sergeant Merrill also confirmed the police seized a pair
of binoculars from the room. Id. at 61.
Additionally, Sergeant Moser confirmed that, while Mr. Lewis had no
money on his person upon his arrest, Appellant had $1,175 on his person,
including $80 of the pre-recorded money used in the previous controlled buy.6
Id. at 185-86. Further, Agent Thomas Brandt testified the police discovered
a baggie of marijuana on the bathroom sink and loose marijuana on the sink’s
stand. Id. at 74.
With regard to the fact the room was rented in the name of “Christopher
Woomer,” Sergeant Merrill testified the police did not encounter a person with
this name during the instant investigation; however, he explained that it is
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5 Sergeant Michael Sapienza testified that, from his vantage point, Appellant
was actually lying on top of the loaded gun, which was under a blanket, when
the police entered the room. Id. at 91, 99. He opined Appellant would have
been aware that he was lying on the gun. Id. at 100.
6 Sergeant Moser noted the police discovered freshly purchased fast food in
the motel room, and he opined the remaining missing $20 of pre-recorded
money was used to buy the fast food. Id. at 187-88.
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not uncommon for people selling drugs to rent a motel room in the name of
someone else. Id. at 65.
Appellant took the stand in his own defense. Specifically, Appellant
testified he had money on his person from landscaping jobs, babysitting, and
“birthday money.” N.T., 12/9/16, at 34-35. He explained that he wanted to
go on a vacation, so he joined Mr. Lewis and “Jordan” in the motel room in
Altoona with the idea of “getting some girls.” Id. at 35. He testified they
bought food from KFC, picked up some marijuana, picked up a speaker from
Big Lots, and went to the room. Id. at 40. He testified “Jordan” arranged to
get a key for the room from “Woomer;” however, Appellant never met
“Woomer.” Id. at 41. In any event, he testified “Jordan” was the person in
possession of the key and who had opened the motel room. Id. Appellant
also testified that Mr. Lewis owed him money and, while they were at Big Lots
buying the speaker, Mr. Lewis repaid him $80. Id. at 44.
Appellant testified that, at some point, Mr. Lewis and “Jordan” left the
room, but Appellant remained behind to “get high” and listen to music. Id.
at 42. He explained he looked out of the window a few times because he had
never been in Altoona and “was just looking around[.]” Id. Appellant denied
knowing either that Mr. Lewis was dealing drugs, that there was contraband
in the room, or that he conspired with Mr. Lewis to sell drugs. Id. at 44-48.
He denied knowledge of the firearm, and he testified he never saw Mr. Lewis
hide anything in the ceiling. Id. at 47.
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Appellant called Mr. Lewis as a defense witness. Mr. Lewis testified that
he visits Altoona several times each year with the primary purpose of selling
drugs. Id. at 7. He confirmed he knew Appellant from the neighborhood, he
borrowed $80 from Appellant, and he invited Appellant to Altoona. Id. at 8-
9. Mr. Lewis testified he was in Altoona at a friend’s house when he paid
“Jordan” to transport Appellant to Altoona for a “hotel party with some
females.” Id. at 9-10. Mr. Lewis testified that Christopher Woomer rented
Room 217 at the Motel 6 for the “party.” Id. at 11. Mr. Lewis testified that,
after Mr. Woomer paid for the room, Mr. Lewis went to the room and stashed
his drugs, binoculars, bullets, and guns. Id. at 12. He then began making
plans to sell the drugs, including to the CI at issue. Id. at 12-13.
Mr. Lewis testified Appellant arrived in Altoona with Jordan about an
hour after he finished the transaction in the Big Lots parking lot with the CI
and he gave Appellant $80, which he owed him. Id. at 14, 18. He testified
that he, Appellant, and Jordan went to the Big Lots to buy a speaker, bought
food at a KFC, bought marijuana, and went back to the room. Id. Mr. Lewis
indicated his contraband remained hidden. Id. at 15.
Mr. Lewis explained he left the motel, informing Appellant he was going
to buy more marijuana, and he was then arrested by the police. Id. Mr.
Lewis confirmed that he pled guilty to various charges in connection with the
offenses at issue, including the sale of the narcotics to the CI in the Big Lots
parking lot, the possession of the gun and drugs found on his person, and the
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contraband found in the motel room. Id. at 23-24. He denied Appellant was
involved in the illegal activity, conspired with him, or had any knowledge of
either the illegal activity or contraband. Id. at 18. He further denied Appellant
or he ever possessed a key card for the room. Id. at 20. Mr. Lewis denied
that he was trying to “protect” Appellant; but rather, he testified he was
“speaking the truth.” Id. at 22.
At the conclusion of the testimony, the jury convicted Appellant of the
offenses indicated supra, and on March 9, 2017, the trial court sentenced
Appellant to an aggregate of thirty-eight months to seventy-six months in
prison. This timely, counseled appeal followed, the trial court directed
Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied,
and the trial court filed a 1925(a) opinion.
Appellant first contends the trial court erred in denying his pre-trial
motion to suppress the physical evidence seized by the police. Specifically,
Appellant argues (1) there were no exigent circumstances permitting the
police’s warrantless entry into the motel room, (2) the police violated the
“knock and announce” rule when they entered the motel room, and (3) the
search warrant for Room 217 was not supported by probable cause.
We review the denial of a motion to suppress as follows:
An 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
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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[.]
Where the suppression court’s factual findings are supported by
the record, the appellate court is bound by those 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, the conclusions of law of the courts below are subject
to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015)
(citations, alterations, and ellipsis omitted).
“Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (quotation marks and quotation
omitted). “[W]arrantless searches and seizures are … unreasonable per se,
unless conducted pursuant to a specifically established and well-delineated
exception to the warrant requirement.” Id. at 556. One exception to the
warrant requirement is when probable cause and exigent circumstances are
present. “Absent probable cause and exigent circumstances, warrantless
searches and seizures in a private home violate both the Fourth Amendment
[of the United States Constitution] and Article I[,] § 8 of the Pennsylvania
Constitution.” Commonwealth v. Bowmaster, 101 A.3d 789, 792
(Pa.Super. 2014) (citation omitted). These constitutional protections have
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been extended to include a person’s hotel room.7 See Commonwealth v.
Dean, 940 A.2d 514, 521 (Pa.Super. 2008) (stating “[w]arrantless searches
and seizures inside a … hotel room are presumptively unreasonable unless the
occupant consents or probable cause and exigent circumstances exist to
justify intrusion”) (citations and parentheses omitted)).
Thus, prior to the police making a warrantless entry into the motel room
in the instant case, the police needed (1) probable cause and (2) exigent
circumstances. Here, Appellant does not allege the police entered the motel
room absent probable cause;8 however, he asserts the officers’ warrantless
entry was not supported by exigent circumstances.
This Court addressed the issue of police entry without a
warrant and exigent circumstances in Commonwealth v.
Demshock, 854 A.2d 553 (Pa.Super. 2004). We observed there
that various factors need to be taken into account to assess the
presence of exigent circumstances; for example: (1) 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;
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7 We shall assume, arguendo, Appellant established that he had a legitimate
expectation of privacy in the hotel room at issue. See Commonwealth v.
Enimpah, 630 Pa. 357, 106 A.3d 695, 702 (2014) (holding that although a
defendant charged with a possessory offense has automatic standing to
challenge the suppression of the items seized, he must additionally
demonstrate that he had a reasonable expectation of privacy in the place
searched).
8As discussed infra, Appellant contends the search warrant was issued absent
probable cause, which is an inquiry separate from the police’s warrantless
entry into the motel room.
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(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 (10) whether there is a danger
to police or other persons inside or outside of the dwelling to
require immediate and swift action. Demshock, 854 A.2d at
555–56.
Dean, 940 A.2d at 522.
“An inquiry to determine whether exigent circumstances exist involves
a balancing of the individual’s right to be free from unreasonable intrusions
against the interest of society in investigating crime quickly and adequately.”
Commonwealth v. Caple, 121 A.3d 511, 518 (Pa.Super. 2015) (quotation
marks and quotations omitted). “It requires an examination of all of the
surrounding circumstances in a particular case.” Id.Here, in explaining its ruling that sufficient exigent circumstances
existed to support the police’s warrantless entry into Room 217, the
suppression court indicated the following:
Here, officers had strong reason to believe [Appellant] was
within the motel room as they had observed him conducting
counter-surveillance. The officers reasonably believed [Appellant]
was armed, given their past experience with drug distribution at
this particular motel and due to the fact that the [co-conspirator]
was armed [when police seized him]. Therefore, officers had
reason to fear for their own safety and the safety of others within
the motel if they did not act quickly. Officers obtained a key to
the room prior to entering, to eliminate the need for a violent or
forced entry.
Additionally, the [co-conspirator] eventually admitted that
he did not have a key to the room and would need to call
[Appellant] to return to the room. The fact that [Appellant] would
be awaiting a phone call from his [co-conspirator] also gave
officers reason to believe that [Appellant] would either flee or
destroy evidence if officers did not act quickly. The officers
reasonably believed that a failure of the [co-conspirator] to return
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to the room would tip [Appellant] off to the presence of the police
officers. This created a circumstance where officers did not
believe they could obtain a search warrant in the time frame in
which the [co-conspirator] would be expected to return to the
room.
The record reflects that the officers reasonably believed that
such exigent circumstances existed so as to create the possibility
that evidence may have been removed or destroyed in the time it
would take to obtain a search warrant. Therefore, the warrantless
search of the motel room was not unreasonable and does not
justify suppression of the evidence.
Suppression Court Opinion, filed 11/18/16, at 6-7.
We agree with the suppression court’s sound reasoning and find no merit
to Appellant’s first suppression claim.
With regard to Appellant next suppression claim, he contends that when
the police initially entered Room 217 they violated the “knock and announce”
rule as set forth under Pennsylvania Rule of Criminal Procedure 207.
Pa.R.Crim.P. 207 provides:
(A) A law enforcement officer executing a search warrant shall,
before entry, give, or make reasonable effort to give, notice of the
officer’s identity, authority, and purpose to any occupant of the
premises specified in the warrant, unless exigent circumstances
require the officer’s immediate forcible entry.
(B) Such officer shall await a response for a reasonable period of
time after this announcement of identity, authority, and purpose,
unless exigent circumstances require the officer’s immediate
forcible entry.
(C) If the officer is not admitted after such reasonable period, the
officer may forcibly enter the premises and may use as much
physical force to effect entry therein as is necessary to execute
the search.
Pa.R.Crim.P. 207.
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The suppression court held that Appellant was not entitled to relief under
Rule 207. Specifically, the court held:
[T]he language of the [R]ule clearly states that it applies to an
officer’s conduct in “executing a search warrant.” No warrant was
obtained in this case until after the [police entered] the motel
room at issue. Therefore, it is appropriate to [ ] to analyze the
facts under the. . .framework of exceptions to the warrant
requirement.
Suppression Court Opinion, filed 11/18/16, at 5.
Appellant has not provided us with any authority indicating that Rule
207 applies when the police enter a motel room absent a warrant. In any
event, it is well settled that the Rule’s requirements are relaxed in the
presence of exigent circumstances. Commonwealth v. Frederick, 124 A.3d
748, 754-55 (Pa.Super. 2015). For instance, our Court has recognized exigent
circumstances exist for Rule 207 purposes where “the police have reason to
believe that an announcement prior to entry would imperil their safety[,] or
[] the police have reason to believe that evidence is about to be destroyed.”
Id. at 755 (footnote, quotation, and citations omitted). The suppression
court’s factual findings, as discussed supra, support the conclusion that both
of these circumstances were present in this case, and thus, Appellant is not
entitled to relief on this claim.
In his final suppression claim, Appellant contends the search warrant for
Room 217 was not supported by probable cause.
A search warrant may issue only upon a demonstration of
probable cause by an affiant. See generally Commonwealth v.
Gary, 625 Pa. 183, 91 A.3d 102, 107 (2014). The existence of
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probable cause is measured by examining the totality of the
circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983). “Probable cause exists where the
facts and circumstances within the affiant’s knowledge and of
which he [or she] has reasonably trustworthy information are
sufficient in and of themselves to warrant a [person] of reasonable
caution in the belief that a search should be conducted.”
Commonwealth v. Johnson, 615 Pa. 354, 42 A.3d 1017, 1031
(2012) (internal quotation marks and citation omitted). A
magisterial district judge, when deciding whether to issue a search
warrant, must “make a practical, common-sense decision
whether, given all of the circumstances set forth in the
affidavit…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.” Id. (citation omitted). Conversely, “[a] court reviewing a
search warrant determines only if a substantial basis existed for
the magistrate to find probable cause.” Id. (citation omitted).
Commonwealth v. Jacoby , --- Pa. ---, 170 A.3d 1065 (2017).
Here, the affiant was Sergeant Moser, and the affidavit of probable
cause submitted to the issuing authority in support of the search warrant for
Room 217 of the Motel 6 stated in full:
Your Affiant is Sgt Christopher Moser of the Altoona City
Police Dept. Your Affiant attended Johnstown Regional Police
Academy where I received mandatory police training under Act
120. Your Affiant was previously employed by the Williamsburg
and Tyrone Borough Police Departments. Your Affiant has been
employed by the City of Altoona Police Dept. since March 1st,
2005[,] and is a member of the Blair County West IV Drug Task
Force. Your Affiant has received training and also has experience
in narcotics investigations and arrests. As such, your Affiant is
empowered to apply for, obtain and serve search warrants, make
seizures and make arrests in the course of investigation into the
various laws of the Commonwealth of Pennsylvania, including
drug violations. Your Affiant also completed a one week
Wiretapping School held by the Pennsylvania State Police,
commonly referred to as “A” School. Your Affiant is “A” certified
and was assigned [a] certification number[.]
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Upon information and belief there is presently concealed
within [Motel 6] Room 217 Altoona PA. . .those items set forth in
attachment “A,” attached, which items constitute evidence of
violations of Title 35, Section 13(a)(30). Probable cause belief is
based upon the following facts and circumstances:
Based upon your Affiant’s education, training and
experience I know:
Narcotic traffickers maintain books, records, notes and
other papers relating to the distribution of controlled substances.
That they often “front” or provide on consignments, controlled
substances to their customers.
That it is common for drug dealers to keep controlled
substances and/or contraband, proceeds of drug sales and records
within their residence, vehicle(s) and on their person, ready for
access, but concealed from law enforcement.
That it is common for persons involved in narcotics
trafficking to maintain evidence relating to their obtaining,
secreting, transferring, concealing and/or expending narcotics
proceeds, such as large amounts of currency, precious metals and
jewelry, book records, invoices, receipts, records of real estate
transactions, bank statements and related records, certificates of
deposit, cashier checks, bank checks, safe deposit keys, money
wrappers and other evidence of financial transactions. These
items are maintained by narcotics traffickers in their residences,
at their businesses, in their vehicles, at residences of associates
and in safe deposit boxes.
It is also common for narcotics traffickers to secure or
secrete items in their residences, to conceal those items from law
enforcement. Such common areas would include but not be
limited to hiding items in floor boards, ceiling tiles and within
walls[.]
TO WIT: On 7-12-15 CI 4017-15 contacted
Affiant/Reporting Officer (“R/O”) and stated he could purchase
heroin from Darrell Lewis. The CI stated he was in contact with
Lewis at [a specific phone number]. The CI told Lewis that he had
$100.00 and needed heroin. Lewis told the CI to meet him at Big
Lots when he was ready.
The CI met at the APD N/O with R/O, Cpl Plummer and Ptlm
Crist. At 1545 hrs, Ptlm Crist strip searched the CI with negative
findings for drugs and/or monies. R/O gave the CI $100.00 in
pre-recorded task force funds to purchase the heroin.
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R/O and Ptlm Crist provided cover/surveillance. Cpl
Plummer transported the CI in an undercover capacity. Officers
arrived in the area of Big Lots [ ] at approximately 1614 hrs. R/O
and Ptlm Crist observed Lewis standing under the awning of the
Vape Vibe store meeting with an unknown male. R/O called Cpl
Plummer and advised him that Lewis was meeting with someone
and to have the CI call him. R/O and Ptlm Crist then observed
Lewis separate from the unknown male and walk up a set of steps
to the Motel 6. Lewis walked out of sight as he walked to the back
side of the motel.
At 1615 hrs the CI called Lewis to tell him he was there, in
the presence of Cpl Plummer. The CI exited Cpl Plummer’s vehicle
and walked to the front of Big Lots. R/O and Ptlm Crist took a
surveillance position near ComPros. At 1618 hrs the CI walked to
the steps that lead to Motel 6. R/O and Ptlm Crist observed Lewis
emerge from the back side of Motel 6 and walk to meet with the
CI. Ptlm Crist exited R/O’s vehicle and took a surveillance position
in the wooded area behind Motel 6. The CI and Lewis met at the
top of the steps and then walked to Big Lots parking lot together.
The CI returned to Cpl Plummer’s vehicle and turned over (5)
white wax packets of heroin stamped Live High with a Superman
Logo. Cpl Plummer departed with the CI.
R/O observed Lewis enter the Big Lots store and exit at
approximately 1625 hrs. At 1628 hrs Lewis went back into Big
Lots and exited at 1629 hrs. R/O observed Lewis was on his phone
during this time and appeared to be waiting for someone. At 1632
hrs R/O observed Lewis meet with a white male that had exited a
white Dodge Neon bearing [a specific PA license plate]. Lewis and
the white male walked up the steps leading to Motel 6. R/O
observed (2) other white males in the Dodge Neon that were
observing and pointing at Lewis and the unknown white male.
R/O called Ptlm Crist to advise him that Lewis may be
walking back to his motel room. R/O took a surveillance position
in the parking area of the 100/200 rooms. At 1637 hrs Ptlm Crist
advised R/O that Lewis was walking back to the area where R/O
was parked. Lewis walked directly behind R/O’s vehicle. R/O
observed Lewis enter Room 217.
R/O and Ptlm Crist returned to the APD N/O and met with
the CI and Cpl Plummer. At 1643 hrs Cpl Plummer strip searched
the CI with negative findings for drugs and/or monies. At 1649
hrs Cpl Plummer conducted a field test on a portion of the heroin
with a positive response for the same. The heroin was packaged
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and placed into APD Evidence along with a PSP Lab Analysis
Request for additional processing. The CI provided a verbal and
written statement in regards to this incident.
The CI stated he met with Lewis at the top of the stairs at
Motel 6. The CI stated that he gave Lewis the $100.00 in task
force funds and Lewis gave the CI the (5) packets of heroin. The
CI then parted ways with Lewis and returned to Cpl Plummer.
R/O then contacted other officers to return to Motel 6 to take
Lewis into custody. R/O, Ptlm Crist and Agent Brandt went to the
100/200 area of Motel 6 parking lot and maintained surveillance
on room 217. Sgt Merrill, Sgt Sapienza, and Ptlm Swope
conducted surveillance on the office side of Motel 6. Officers
arrived at Motel 6 at approximately 1830 hrs. Officers observed
the curtain to the room was open and a black male was constantly
peering out of the window. At 1928 hrs officers observed a silver
sedan bearing [a specific PA license plate] arrive and park in front
of the motel room. Ptlm Crist was able to identify the operator of
the vehicle as Jeremiah Morgan. Officers observed that Lewis was
in the front passenger seat. Lewis exited the vehicle and entered
Room 217. Morgan then departed in the vehicle. Officers
observed that the unknown black male and Lewis continued
looking out of the window. At 1947 hrs the unknown black male
exited the room, walked around the corner briefly and then
returned to the room. At 2020 hrs Lewis exited the room and
walked towards the office side of the motel. R/O radioed to Sgt
Merrill and other units that Lewis was walking their way. Officers
then took Lewis into custody on the controlled delivery[.]
Sgt Merrill stated when they encountered Lewis he was
compliant and on his phone. Sgt Merrill identified himself as a
police officer and told Lewis to place his hands in the air, which he
did. Lewis was then placed into custody and advised he was going
to be searched. Lewis stated that he had a gun in his pocket. Sgt
Merrill provided Lewis with his Miranda warnings and asked him if
he knew why he was being arrested. Lewis stated “it was because
he had a gun on him.” Sgt Merrill advised Lewis that he was under
arrest for a drug delivery. Ptlm Swope searched Lewis and
recovered a Charter Arms Pink Lady 38 special revolver bearing
[a specific serial number]. The gun was found in Lewis’ right front
pocket. Ptlm Swope also located (6) packets of heroin stamped
Live High with a Superman log in Lewis’ left front pocket. Lewis
was placed into custody and officers called for a transport
vehicle[.]
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While officers were waiting for a transport vehicle to arrive
on scene, a black male identified as Darnell Adams approached
officers. Officers [made] contact [with] Adams and observed he
was on his phone and appeared to be looking for someone. Ptlm
Swope noted that Lewis’ phone was ringing while Adams
approached them. Adams was detained briefly and provided his
Miranda warnings. Adams stated that he was friends [with] Lewis,
who he knew as “Ace,” and he was coming to meet him but would
not specify why.
Due to the fact that the unknown black male was still in the
motel room and could easily destroy any remaining evidence, once
it was apparent Lewis would not be returning to the room due to
his arrest, Sgt Merrill made contact at the front desk at Motel 6.
Sgt Merrill advised the clerk that officers would be securing Room
217 for a search warrant and requested a key card for the room.
Sgt Merrill was given a key card for the room at approximately
2035 hrs. Officers then moved to a location around the room.
Ptlm Swope utilized the key card to open the door and officers
made entry, announcing as police officers. The unknown black
male, identified as [Appellant] was found lying on a bed in the
room. Wilson was placed into detention and advised of his
Miranda warnings. R/O advised Wilson that officers would be
obtaining a search warrant for the room and he was being
detained until the issuance and execution of the search warrant.
Sgt Sapienza, Ptlm Crist and Agent Brandt are currently
waiting with Wilson at the room until a search warrant can be
obtained.
Night Time Search Requested:
Due to the time of application R/O requests approval for
night time search. Officers currently have the room secured and
Wilson is detained at the room with officers.
Affidavit of Probable Cause, dated 7/12/15.
We are mindful that, “[i]n dealing with probable cause, [ ] as the very
name implies, we deal with probabilities. These are not technical; they are
the factual and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.” Brinegar v. United States,
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338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Thus, viewing the
information contained in Sergeant Moser’s affidavit accordingly, we reject
Appellant’s arguments that the affidavit lacked probable cause to believe “that
any contraband would be located in Room 217.” Appellant’s Brief at 11. The
affidavit, on its face, provided a substantial basis for the magistrate to find
probable cause to indicate that contraband, specifically narcotics and illegal
proceeds, would be found in the subject motel room. See Jacoby, supra.
Specifically, Sergeant Moser detailed a controlled buy of heroin, which
occurred at a Big Lots parking lot next to a Motel 6, between a CI and Mr.
Lewis. Further, he detailed Mr. Lewis’ meetings with other individuals before
and after the instant controlled buy, concluding the meetings were consistent
with the dealing of narcotics, as well as Mr. Lewis’ comings and goings from
the motel. Sergeant Moser noted that officers specifically viewed Mr. Lewis,
as well as Appellant who constantly peered out of the motel window, in Room
217. Sergeant Moser indicated that, based on his training and experience, it
was common for drug dealers to keep contraband, proceeds from their sales,
and other items concealed from law enforcement but within ready access.
Moreover, Sergeant Moser indicated that, upon Mr. Lewis’ arrest, the police
found a gun and packets of heroin on Mr. Lewis’ person. Accordingly, we find
no merit to Appellant’s final suppression claim.
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In his final issue, Appellant contends “[t]he evidence was insufficient to
convict relative to all charges.”9 See Appellant’s Brief at 14. Specifically, he
argues that he was merely present in the motel room and, at most, he is
“guilty of sitting on the bed listening to music and smoking some marijuana
while waiting for his hometown friend and some young ladies to arrive to the
[m]otel.” Appellant’s Brief at 16. We find Appellant’s sufficiency claim is
waived.
With regard to issue preservation, this Court has held:
Pennsylvania Rule of Appellate Procedure 1925(b) provides,
inter alia, “Issues not included in the Statement and/or not raised
in accordance with the provisions of this paragraph (b)(4) are
waived.” Pa.R.A.P. 1925(b)(4)(vii). In Commonwealth v.
Garland, 63 A.3d 339 (Pa.Super. 2013), this Court found the
appellant had waived his sufficiency of the evidence claim where
his 1925(b) statement simply averred the evidence was legally
insufficient to support the convictions and in doing so reasoned:
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. . .the
appellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth must prove beyond
a reasonable doubt. Here, as is evident, [the a]ppellant. . .failed
to specify which elements he was challenging in his Rule 1925(b)
statement. . . .Thus, we find [his] sufficiency claim waived on this
basis. Id. at 344 (citations omitted).
____________________________________________
9 In the argument portion of his brief, Appellant “acknowledges he is guilty of
[ ] possession of a small amount of marijuana, if in fact the search warrant
and method of arrest is determined valid[.]” Appellant’s Brief at 16.
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Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa.Super. 2016) (footnote
and some quotation marks omitted) (concluding the appellant waived
sufficiency claim where his concise statement failed to clearly state any
element upon which the alleged evidence was insufficient).
In the case sub judice, Appellant was convicted of eight separate
offenses, each of which contains multiple elements. In his concise statement,
he presented his sufficiency claim as follows: “The evidence was insufficient
to convict relative to all charges.” Rule 1925(b) Statement, 4/18/17, at 1 ¶ 2.
This vague statement fails to “state with specificity the element or elements
upon which the appellant alleges that the evidence was insufficient[,]” and is
inadequate to preserve his claim. Stiles, supra at 982 (citation omitted).
Accordingly, Appellant's sufficiency issue is waived.10
For all of the foregoing reasons, we affirm.
Affirmed.
P.J.E. Bender joins the memorandum.
Judge Strassburger concurs in the result.
____________________________________________
10 In any event, we note the entire “gist” of Appellant’s argument is that he
was merely present in the motel room, did not have any knowledge of the
contraband in the room, and did not conspire with Mr. Lewis. In so arguing,
Appellant points to his and Mr. Lewis’ trial testimony. However, the jury was
free to discount their testimony. See Stiles, supra. Further, as detailed
supra, applying the appropriate standard of review, the evidence supports the
jury’s verdict that Appellant was not “merely present;” but rather, he was an
active participant who conducted “counter-surveillance” and held the drug
proceeds. See id. (setting forth standard of review for sufficiency of the
evidence claims).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/05/2018
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