Com. v. Simmons, J. ( 2018 )

J-S01035-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMAL SIMMONS :
:
Appellant : No. 1314 MDA 2017
Appeal from the Judgment of Sentence July 10, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000887-2016
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 03, 2018
Appellant, Jamal Simmons, appeals from the judgment of sentence
entered in the Court of Common Pleas of Berks County Criminal Division,
following his bench trial convictions of persons not to possess, use,
manufacture, control, sell, or transfer firearms, and firearms not to be
carried without a license.1 We affirm and grant counsel’s petition to
withdraw.
In its opinions, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
As a preliminary matter, appellate counsel seeks to withdraw
____________________________________________
1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), respectively.
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representation, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). After establishing that counsel has met
the antecedent requirements to withdraw, this Court makes an independent
review of the record to confirm that the appeal is wholly frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See
also Commonwealth v. Dempster, 2018 PA Super 121 (filed May 8,
2018) (en banc).
In Santiago, our Supreme Court addressed the briefing requirements
where court-appointed appellate counsel seeks to withdraw representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
____________________________________________
2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition to withdraw, which states
counsel conducted a conscientious review of the record and determined the
appeal is wholly frivolous. Counsel also supplied Appellant with a copy of
the brief and a letter explaining Appellant’s right to retain new counsel or
proceed pro se to raise any additional issues Appellant deems worthy of this
Court’s attention. In the Anders brief, counsel provides a summary of the
facts and procedural history of the case. Counsel’s argument refers to
relevant law that might arguably support Appellant’s issue. Counsel further
states the reasons for the conclusion that the appeal is wholly frivolous.
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Therefore, counsel has substantially complied with the requirements of
Anders and Santiago. Appellant has not responded to the Anders brief
pro se or with newly retained private counsel.
Counsel raises the following issues on Appellant’s behalf:
WHETHER THE TRIAL COURT ERRED IN DENYING
[APPELLANT]’S OMNIBUS PRETRIAL MOTION FOR
SUPPRESSION BASED ON AN UNLAWFUL ARREST AS THE
WARRANTS WERE NOT VALID AT THE TIME OF THE
ARREST[?]
WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN SENTENCING APPELLANT TO AN
AGGREGATE TERM OF INCARCERATION OF 8½-17 YEARS,
WHICH SENTENCE IS MANIFESTLY EXCESSIVE UNDER THE
CIRCUMSTANCES OF THE CASE THAT THE PERSONS NOT
TO POSSESS, USE, MANUFACTURE, CONTROL, SELL OR
TRANSFER FIREARMS AND FIREARMS NOT TO BE CARRIED
WITHOUT A LICENSE ARISE FROM THE SAME CRIMINAL
EPISODE AND DO NOT WARRANT CONSECUTIVE
SENTENCES.
(Anders Brief at 5).
Appellant complains of the order denying his omnibus pretrial motion
to suppress. Specifically, Appellant claims his arrest was unlawful because
the warrant used to detain him was invalid. Because a valid arrest warrant
did not exist at the time of his arrest, Appellant concludes the gun seized
upon his arrest should have been suppressed.
Appellant also argues the imposition of consecutive sentences unfairly
led to an excessive aggregate sentence of incarceration of eight and a half
(8½) to seventeen (17) years. Specifically, Appellant asserts the charges
arose from a single incident involving one gun; and the imposition of
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consecutive sentences was manifestly unwarranted, clearly unreasonable,
and contrary to the fundamental norms underlying the sentencing code.
Appellant submits the court failed to give adequate reasons to impose the
sentence.3 As presented, Appellant’s second issue involves the discretionary
aspects of sentencing. See Commonwealth v. Gonzalez-Dejusus, 994
A.2d 595 (Pa.Super. 2010) (explaining challenge to imposition of
consecutive sentences involves discretionary aspects of sentencing);
Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim
that sentence is manifestly excessive refers to discretionary aspects of
sentencing).
Review of an order denying a motion to suppress evidence implicates
the following principles:
[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 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, [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
____________________________________________
3 Appellant’s post-sentence motion did not include or fairly imply a claim
regarding the adequacy of the court’s reasons for the sentence imposed.
Therefore, we give that claim no further attention.
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of legal error, the suppression court’s legal conclusions are
not binding on [the] 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 [trial court
are] subject to plenary review.
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),
appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant must
invoke the appellate court’s jurisdiction by including in his brief a separate
concise statement demonstrating that there is a substantial question as to
the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the
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reasons relied upon for allowance of appeal furthers the purpose evident in
the Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision
to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 a.2d 895 (2009), cert.
denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting
Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en
banc)) (emphasis in original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Sierra, supra at 912-13. When considering
whether an appellant has raised a substantial question, this Court does not
accept bald assertions of sentencing errors. Commonwealth v. Malovich,
903 A.2d 1247 (Pa.Super. 2006). Rather, the appellant must articulate how
the sentencing court’s actions violated the sentencing code. Id.“Generally, Pennsylvania law ‘affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. Any challenge
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to the exercise of this discretion ordinarily does not raise a substantial
question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
2006)). See also Commonwealth v. Foust, 180 A.3d 416, 436 (Pa.Super.
2018) (regarding mere challenge to imposition of concurrent versus
consecutive sentences, Pennsylvania has long disavowed volume discounts
on multiple crimes).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the
public, gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant [and], of course, the court must
consider the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d
843, 847-48 (Pa.Super. 2006). A sentencing court may consider any legal
factor in imposing an aggravated range sentence. Commonwealth v.
Bowen, 975 A.2d 1120, 1122 (Pa.Super. 2009). The “court is required to
consider the particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002),
appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied, 545 U.S.
1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). Where the sentencing court
had the benefit of a presentence investigative (“PSI”) report, we can
presume the court “was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
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mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-
02, 546 A.2d 12, 18 (1988).
Our standard of review concerning the discretionary aspects of
sentencing states:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at
a manifestly unreasonable decision.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005). This Court considers four
factors:
§ 9781. Appellate review of sentence
* * *
(d) Review of record.—In reviewing the record the
appellate court shall have regard for:
(1) The nature and circumstances of the offense and
the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe
the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d)(1)-(4). Our Supreme Court explained, “the concept
of unreasonableness” in the context of sentencing is “inherently a
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circumstance-dependent concept that is flexible in understanding and lacking
precise definition.” Commonwealth v. Walls, 592 Pa. 557, 568, 926 A.2d
957, 963 (2007).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Paul M.
Yatron, President Judge, we conclude Appellant’s issues merit no relief. The
trial court opinions comprehensively discuss and properly dispose of the
questions presented. (See Trial Court Opinion, filed August 16, 2016, at 1-
4; Trial Court Opinion, filed September 27, 2017, at 1-4;) (finding: (1) at
suppression hearing, Criminal Investigator Eric Sweitzer testified that on
December 29, 2015, he verified existence of outstanding warrant before
attempting to apprehend Appellant; Pennsylvania Board of Probation and
Parole warrant was valid and outstanding; CI Sweitzer stated he knew
Appellant by sight from previous interactions; CI Sweitzer testified during
struggle leading to Appellant’s arrest, Appellant repeatedly reached toward
his right ankle; search of Appellant incident to arrest revealed concealed
firearm on his person near his right ankle; handgun seized was admissible at
trial; (2) court had benefit of PSI report when it sentenced Appellant; court
concluded Appellant’s actions in combination with his prior criminal record
made clear he is capable of harming community; sentencing court
considered Appellant’s status as repeat felon; court sentenced Appellant at
or below mitigated range on both charges; sentencing court properly
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exercised its discretion to impose sentences consecutively). Following our
independent review of the record, we agree with counsel and conclude the
appeal is frivolous. See Dempster, supra; Palm, supra. Accordingly, we
affirm on the basis of the trial court’s opinions and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/18
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Circulated 06/19/2018 11:12 AM
COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS
PENNSYLVANIA : OF BERKS COUNTY, PENNSYLVANIA
: CRIMINAL DIVISION
N v.
,--
N
: No. CP-06-CR-0000887-2016
,,. JAMAL SIMMONS,
APPELLANT PAUL M. YATRON, PRESIDENT JUDGE
1925(a) Opinion September 27, 2017
Procedural Background
Prior to trial, Appellant filed an Omnibus Pretrial Motion challenging the suppression of
evidence. After a hearing and the submission of briefs, in an opinion and order we denied the
motion on August 16, 2016.
On July 10, 2017, Jamal Simmons ("Appellant") was convicted of Count 1, Persons not
to Possess, Use, Manufacture, Control, Sell or Transfer Firearms, and Count 2, Firearms not to
be Carried without a License, of the information. He was found not guilty of Count 3, Escape.
Immediately following conviction, we proceeded to sentencing. After hearing the
recommendations of counsel, Appellant was sentenced to five (5) to ten (10) years of
incarceration at Count 1. Consecutive to this sentence, at Count 2, he was sentenced to three and
a half {3 1/2) to seven years (7) of incarceration. His aggregate sentence was for a term of eight
and a half (8 1/2) to seventeen (17) years of incarceration.
After sentencing, Appellant filed a timely post sentence motion on July 17, 2017, which
we denied on July 24, 2017. Appellant then filed an appeal on August 23, 2017. On September
12, 2017, Appellant filed a concise statement of errors pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure.
Appellant raises the following matters for review:
Whether the Trial Court erred in denying Defendant's Omnibus Pretrial Motion for
Suppression based on an unlawful arrest as the warrants were not valid at the time of
arrest
The Trial cowl ery ,and, #I§ctii its discretion in sentencing Appellant to an aggregate
term of indircerdlidif of g l'AIO.Y.7 years, which sentence is manifestly excessive under the
circumstaveuttlle iereetigslAig Appellant's low prior record score and the fact that
the Persons Not to Possession (sic.), Use, Manufacture, Control, Sell or Transfer
jO Ma:113
yon
Firearms arid Firearms Not to be Carried without a License arise from the same criminal
episode and do not warrant consecutive sentences.
CONCISE STATEMENT, September 12, 2017.
Discussion
I. The Court properly denied Appellant's pretrial motion to suppress evidence.
Appellant argues that this Court erred in denying Appellant's pretrial motion to suppress
the evidence because the warrants were not valid at the time of arrest. CONCISE STATEMENT at
¶1. We discussed this issue in an opinion filed on August 16, 2016, which is attached as
APPENDIX A. The suppression motion was easily characterized as frivolous.
II. The Court did not err or abuse is discretion in sentencing Appellant to an
aggregate term of incarceration of 8 1/2 to 17 years.
Appellant alleges that the Court manifestly abused its discretion by failing to adequately
consider his low prior record score and by sentencing him to two consecutive periods of
incarceration. A court has broad discretion in sentencing, but is restrained in that it must consider
the sentencing guidelines. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1117 (Pa. 2007). The
sentencing guidelines provide that a court shall consider:
. .[T]he protection of the public, the gravity of the offense as it relates to the impact on
.
the life of the victim and on the community, and the rehabilitative needs of the defendant.
The court shall also consider any guidelines for sentencing and resentencing adopted by
the Pennsylvania Commission on Sentencing and taking effect under section 2155
(relating to publication of guidelines for sentencing, resentencing and parole and
recommitment ranges following revocation).
42 Pa. C.S. § 9721. "The only line that a sentence may not cross is the statutory maximum
sentence." See Yuhasz, 923 A.2d at 1119.
When reviewing an abuse of discretion claim, the appellate court must consider that
"[s]entencing is a matter vested in the sound discretion of the sentencing judge, and a sentence
will not be disturbed on appeal absent a manifest abuse of discretion." Commonwealth v. Booze,
953 A.2d 1263, 1278 (Pa. Super. 2008). Abuse of discretion is more than an error in judgment;
rather, the appellant must establish that the sentencing court either "ignored or misapplied the
law[;] exercised its judgment for reasons of partiality, prejudice, bias or ill will[;] or arrived at a
manifestly unreasonable decision." Id. A sentence should not be disturbed when it is evident that
the sentencing court was aware of the sentencing considerations and weighed the considerations
in a meaningful fashion. Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988).
First, Appellant alleges that the Court failed to consider his low prior record. The Court
considered Appellant's prior record, amongst other factors, at the time of sentencing. We stated:
I have taken into account all of the testimony I've heard at several levels in this case. I've
taken into account, obviously, the testimony that I heard today that triggered the verdict
that I have rendered today. I've taken into account the P.S.I. which I have reviewed
carefully. And quite frankly, the P.S.I. is troublesome in this regard. Recognizing that the
two offenses which are the disqualifiers for the Defendant occurred one 11 years ago and
one roughly about 10 years ago that doesn't give the Court much solace given the fact
that the first conviction resulted in a county jail sentence of 6 to 23 months in September
2005, in October of 2007, that was a first degree felonious burglary. And in 2007, the
Defendant was convicted of a first degree felonious robbery. At this point, he was
sentenced to 4 to 10 years imprisonment. I don't know how much of that sentence that he
served, but he was on parole from that offense when this offense occurred. I can only
conclude from this - and one of the most troubling things about the testimony today is
when surrounded by policemen who were tasing him and trying to restrain him, the
defendant fought like a demon to try to reach his firearm which was concealed within his
clothing. From these things I can conclude only that, Mr. Simmons, that you're a really
dangerous man and that the public needs to be protected from you. The interesting
anomaly here is because of the sentencing guidelines and because of the statutory
penalties here, the maximum penalties in both of these are seriously into the mitigated
range and, in fact, at Count 2 totally outside the guidelines themselves.
SENTENCING HEARING, July 10, 2017, at 6-7.
Reviewing our testimony, Appellant's prior record was not low; Appellant is a repeat
felon. In sentencing, we considered Appellant's status as a repeat felon and that the guidelines
suggested a standard range sentence exceeding the statutory maximums for the offenses.
Restricted by statute, Appellant was sentenced in the mitigated range of the sentencing
guidelines at Count 1 and below the mitigated range of the sentencing guidelines at Count 2. It
strains credulity to argue that we did not adequately consider Appellant's prior record, because
this consideration was foremost in our analysis and Appellant was sentenced at or below the
mitigated range.
Second, considering Appellant's challenge to being consecutively sentenced on two
counts, consecutive sentences are subject to a review for abuse of discretion only when a
substantial question is raised; that is, when on its face, the "sentence [is] excessive level in light
of the criminal conduct at issue in the case[.]" Commonwealth v. Mastromarino, 2 A.3d 581,
sa 587 (Pa. Super. 2010). The Superior Court has considered sentencing to merit review when the
No- court disregards the relevant sentencing criteria, the circumstances of the offense, and the
rehabilitative needs of the defendant. Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super.
2013) (citations omitted). However, generally the imposition of consecutive sentences, opposed
Cid
to concurrent sentences, does not alone raise a substantial question. Commonwealth v. Gonzalez-
sn
Dejusus, 994 A.2d 595, 598 (Pa. Super, 2010).
Instantly, we found it particularly troubling that Appellant was reaching for the firearm at
the time of his arrest. Appellant's actions in combination with his prior crimes evince that he is
an individual capable of harming the community. The Court in its decision to sentence Appellant
to consecutive terms thought that the protection of the community was paramount. A lengthy
period of incarceration is needed to protect the public from Appellant. Furthermore, we
adequately considered the instant case, the sentencing criteria, and his prior record on each count
when deciding to sentence Appellant to consecutive terms. Each sentence was at or below the
mitigated range. Therefore, we did not abuse our discretion by sentencing Appellant to
consecutive terms.
CONCLUSION
For all of the foregoing reasons, this Court respectfully requests that the instant appeal be
DENIED.
Appendix A Circulated 06/19/2018 11:12 AM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
OF BERKS COUNTY, PENNSYLVANIA
V. : CRIMINAL DIVISION
: NO. CP-06-CR-0000887-2016
JAMAI, LEE SIMMONS,
DEFENDANT : PAUL M. YATRON, PRESIDENT JUDGE
K. Kenneth Brown , Esquire, Attorney for the Commonwealth
Matthew S. Kopccki, Esquire, Attorney for Defendant
Opinion and Order in Disposition of Defendant's Omnibus Pretrial Motion
President .lodge Paul M. Yatron August 16 , 2016
Defendant stands before the Court charged with Persons Not to Possess Firearms, Firearms
Not to 13c Carried Without a License, and Escape. The charges were riled as a result of Defendant's
arrest on December 29, 2015, and a search of his person pursuant to that arrest.
Defendant filed a timely pretrial motion seeking the suppression of the firearm seized from
Defendant's person as well as any other evidence derived from what Defendant alleges to be an
unlawfill arrest.
Hearing was held on the Defendant's motion on June 10, 2016, during which we heard
testimony from David Smith, a State Parole Agent, and Eric Swcitzer, a Criminal Investigator with
the Police Department of the City of Reading. At the conclusion of the hearing, counsel were given
time for the preparation and filing of briefs.
The parties have submitted their briefs and the matter is thus ripe for adjudication. The
narrative that follows constitutes our Findings of Fact and Conclusions of Law in disposition of
Defendant's motion.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
tad MA1103 SM1138
In 1ate1015 Defendant was on State parole -on robbery and conspiracy charges docketed at
0 an,
CP-06-CR-00048 I 8.-2006.1I ByraMovcrnber he was determined to be an "absconder." This
means he tralAilliV011eng11,6o be supervised by the State Parole Board, and had tbiled to
report as directed and to provide his current address to the Board, This, of course, constitutes a
violation of the terms and conditions of his parole.
The State Parole Agent supervising the Defendant prepared a Conn 62-a, a standard
document used by the Parole Board. The form was forwarded to Harrisburg, where an entry was
made in NCIC indicating that the Defendant was a parole violator. The steps taken were part of a
fhb longstanding standard protocol in such cases.
The posting to NCIC constituted notice to law enforcement agencies and is the functional
equivalent of a warrant for the Defendant's arrest. This document is Page 1 of Commonwealth's
Exhibit 1 to these proceedings.
Criminal Investigator Eric Swcitzer of the Reading Police Department knows the Defendant
through "numerous contacts." En late December 2015, Sweitzer was aware that the State Parole
Board had issued a warrant for the Defendant's arrest for parole violations. On December 29.2015,
Sweitzer accessed NCIC to determine li the State Parole Board warrant was still outstanding. His
inquiry revealed that the request for Defendant's apprehension was still active.
At around 6:00 o'clock on the morning of December 29, 2015, Criminal Investigator
Sweitzer and three or four other officers of the Reading Police Department spotted the Defendant. in
the vicinity of Ilth and Cotton Streets in the City of Reading and County of 13crks. Three of the
other officers attempted to place the Defendant into custody, but the Defendant broke free from
their grasps and ran westbound on Cotton Street. The officers caught up to the Defendant and after
a struggle that lasted several minutes, were able to handcuff the Defendant. During the course of
the struggle, the Defendant repeatedly reached backward toward his right ankle. A search of the .
Defendant after he was subdued revealed a concealed firearm in the vicinity where the Defendant
was attempting to reach.
Alter taking the Defendant into custody, CI Swcitzer again contacted NCIC and sent a "hit
confirmation." This constitutes a notification that the subject of the State Parole warrant is in
custody, and inquires as to whether the Defendant's arrest is still sought. The communication sent
by CI Sweitzer to NCIC is contained on Page 2 of Commonwealth's Exhibit Ito these proceedings.
In response to CI Sweitzer's communication, the Board responded to the effect that the warrant was
still active and the Defendant was still sought by the Board. This "hit confirmation response" is
found at Page 4 of Commonwealth's Exhibit I to these proceedings.
2
Also sent to Ci Sweitzer was Commonwealth's Exhibit 2. This is an official Parole Board
document -styled "warrant to commit and detain." Possession of such a document is necessary in
order that Berks County Prison will accept custody of a Defendant arrested on behalf of theParole
Board.
All of the documents referenced herein and procedural steps arc and have been part of the
standard procedure and protocol utilized in this Commonwealth in the case of parole violators.
At around the time that CI Sweitzer was initially verifying the existence of the Parole
Board's warrant, he had also received information to the effect that the Central Berks Police
Department sought the Defendant as a suspect in a home invasion robbery. Upon checking NCIC,
however, he found no such warrant filed. The actions taken by him and his fellow officers were
based solely on the Pennsylvania Board of Probation and Parole's outstanding warrant.
The foregoing constitute our Findings of Fact. They arc based upon testimony from the
June 10, 2016, hearing from both Criminal Investigator Eric Sweitzer and State Parole Officer
David Smith,
It is well settled that in this Commonwealth, a police officer may arrest an individual when
he is aware that there is a warrant for the individual's arrest outstanding. He need not have the
warrant in his possession, nor even review it. Commonwealth v. Gladleher 324 A.2d 518, 519
(Pa.Super 1974). Further, it has long been held that information from NCIC is deemed sufficiently
reliable to establish probable cause for an individual's arrest. Commonwealth v. Fellie. 581 A.2d
636, 643 (Pa. Super 1990). Additionally, NCIC reports arc deemed to be trustworthy to the degree
that they provide probable cause to a police officer to arrest the subject of such a report
immediately. Commonwealth v. Cotton,740 A.2d 258, 264-265 (Pa. Super 1999).
CI Sweitzer verified the existence of the PI3PP's warrant before seeking the Defendant.
That he knew the Defendant by sight from numerous prior occasions, when coupled with the other
facts Wore us, well establishes that the arrest of the Defendant on December 29, 2015, was lawful
and proper.
That a subject who has been legally arrested is subject to a search of his person has been
black letter law for generations. Thus, there can be no doubt that the seizure of the handgun
allegedly unlawfully possessed by the Defendant was proper, especially considering the struggle
during which the Defendant attempted to access it.
3
Based on all of the forgoing, the Defendant's motion to suppress evidence must be denied.
The handgun seized from the Defendant on December 29, 2015, may be admitted against the
Defendant at his trial.
4