Com. v. Allen, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 3860 EDA 2017
SABRINA ALLEN
Appeal from the Orders Entered October 24, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004769-2017
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 07, 2018
Appellant, the Commonwealth of Pennsylvania, appeals from the orders
entered on October 24, 2017.1 Upon careful review, we reverse the orders
and remand for additional proceedings.
The trial court recited the facts of this case as follows:2
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1 The Commonwealth appeals from two orders entered on October 24, 2017.
The first order granted Sabrina Allen’s motion for suppression of evidence
wherein she challenged the affidavit of probable cause supporting a search
warrant that the police executed at the apartment where she admitted she
lived. The second order granted Sabrina Allen’s motion for writ of habeas
corpus, quashing counts 1 through 4 of the criminal information filed against
her.
2 The trial court adduced the facts from the affidavit of probable cause
supporting the search warrant at issue, as well as the testimony from the
suppression hearing.
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On January 22, 2017[,] at about 9:43 p.m.[,] Officer [Joshua]
Alexander arrived at [an apartment building in Delaware County,
Pennsylvania] to investigate a reported fight with a gun in the
parking lot. On his arrival[,] he saw a white pick-up truck leaving
the lot. He stopped the truck and made contact with the driver
(Anthony Allen) and the [d]efendant (Sabrina Allen). He learned
from one of [] these subjects that earlier in the evening Sabrina
Allen had an argument with her boyfriend[,] Thurmond Allen[,] in
Apartment 319 and that she called Anthony Allen.[3] Anthony
went to the apartment and a physical altercation between him and
Thurmond Allen took place. Officer Alexander observed fresh cuts
on Anthony Allen’s hands. Officer Alexander asked [Sabrina Allen]
for a description of Thurmond Allen and for the apartment
number.
When speaking with Anthony Allen[,] Officer Alexander detected
the odor of marijuana emanating from the interior of the vehicle.
Officer Alexander searched the truck [with Anthony’s consent] and
found a duffle bag containing what he believed to be a
vacuum-packed nine by [13] by two inch thick brick of marijuana.
Officer Alexander asked Anthony Allen about the duffel bag and
he stated that it was given to him by Thurmond Allen and that he
did not know what was inside the bag. A gun was not found in
the truck.
Anthony Allen was arrested. He was transported to the Radnor
Police Department and was found to be carrying [10] clear plastic
baggies of suspected cocaine in an Altoids container, and an
additional [37] “8 ball”[-]sized and [20] “dime bag” baggies of
marijuana in the duffel bag.4
During the interaction in the parking lot[,] an assisting officer went
to Apartment 319 and attempted to make contact with Thurmond
Allen. The door was ajar and the door frame was damaged
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3 Despite sharing the same last name, the trial court notes that the parties
are not related. Trial Court Opinion, 1/24/2018, at 3 n.4. In order to avoid
confusion, we will use full or first names throughout this memorandum.
Moreover, we note that the Commonwealth is also challenging the trial court’s
grant of suppression in Thurmond Allen’s case at 3868 EDA 2017.
4 Laboratory tests later confirmed that the substances were, in fact, cocaine
and marijuana, respectively.
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consistent with forcible entry. Thurmond Allen did not respond to
the officer’s repeated knocking but soon thereafter arrived and
another officer met him. That officer requested consent to search
the apartment for the gun allegedly used [during the prior,
reported physical altercation], and Thurmond Allen refused.
The neighbor[, Cynthia Neenan,] who called in the disturbance
was contacted and she stated that she saw a violent fight outside
her apartment and that she heard someone involved in the fight
say that they had a gun.
Officer Alexander concluded: “Due to the above information,
including the sheer quantity of the narcotics, the damage to the
apartment door, the statement of Cynthia Neenan regarding a
possible firearm, along with the violent nature of narcotics deals
and dealers,” he [] request[ed] a search warrant. The items to
be searched for included[,] inter alia, marijuana, cocaine, drug
paraphernalia, firearms, ammunition, proof of residency and
records.
Trial Court Opinion, 1/24/2018, at 8-9 (most quotations omitted).
Accordingly,
Officer Alexander prepared the affidavit of probable cause in
support of the search warrant application. The warrant issued and
it was executed on January 23, 2017 by Officer Jonathon
Jagodinski[,] who serves as a member of the Delaware County
Drug Task Force. Officer Jagodinski testified that several
suitcases, bags, a couch, and a television were in a common living
area of the apartment. No people were present during the search.
He described one of the suitcases as a zipped up “carry on,”
containing a modified shot gun with a sawed off barrel and a black
ski mask. A cable bill bearing Thurmond Allen’s name was seized.
Officer Jagodinski testified that he seized an unspecified piece of
mail for Sabrina Allen. He also seized a grinder with marijuana
residue and a roach with burnt marijuana that was possibly in the
common area. He believed that [a recovered] bong was in a
bedroom. [Officer Jagodinski] testified that the apartment was in
transition and there was both male and female clothing in the
apartment.
Id. at 4 (record citations and most quotations omitted).
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The Commonwealth filed a criminal complaint on January 23, 2017,
charging Sabrina Allen, inter alia, with possession of a small amount of
marijuana, possession of drug paraphernalia, and two counts of conspiracy
(one count for each narcotics offense).5 Following a preliminary hearing, on
July 27, 2017, a magisterial district judge held Sabrina Allen for trial on the
charges. On August 23, 2017, the Commonwealth filed a criminal information
against Sabrina Allen, listing the four charges as set forth above. On
September 5, 2017, Sabrina Allen filed a request for a bill of particulars. On
that same day, Sabrina Allen filed an omnibus motion seeking suppression of
the evidence recovered from Anthony Allen’s vehicle and Apartment 319. In
that motion, Sabrina Allen claimed that the police lacked probable cause for
the issuance of a search warrant. On September 6, 2017, Sabrina Allen filed
a motion for writ of habeas corpus, arguing that the Commonwealth failed to
present sufficient evidence to establish a prima facie case regarding the
pending charges. The trial court held a hearing on the motions on October 4,
2017. On October 24, 2017, the trial court entered the orders at issue,
granting suppression and quashing the criminal information filed against
Sabrina Allen.
In a subsequent opinion setting forth the grounds for ordering
suppression and quashing the information lodged against Sabrina Allen, the
trial court held that the affidavit of probable cause failed to justify the search
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5 35 P.S. § 780-113(a)(31), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A.
§ 903, respectively.
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of Apartment 319. Specifically, the trial court found that the veracity of
Anthony Allen was suspect and that Officer Alexander could not rely on his
statements because: (1) police arrested Anthony Allen with a large quantity
of marijuana; (2) Anthony Allen attempted to shift blame by claiming he did
not know what was inside the duffel bag; and, (3) Anthony Allen told Officer
Alexander that Thurmond Allen gave him the marijuana despite the physical
confrontation between the two moments before. Trial Court Opinion,
1/24/2018, at 10. The trial court opined that it was erroneous for Officer
Alexander to conclude that, “drugs and firearms could be found together in
the apartment based on Anthony Allen’s representation that he innocently
received [the] duffel bag from Thurmond Allen [and] that ‘narcotics deals and
dealers’ are violent by nature[.]” Id. Thus, the trial court determined that
the Commonwealth failed to prove that there was probable cause to issue the
search warrant and that the evidence obtained therefrom required
suppression. This timely appeal resulted.6
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6 Because the 30th day of the appeal period fell during the Thanksgiving
holiday when the courts were closed, the Commonwealth filed a timely notice
of appeal on November 27, 2017. See Pa.R.A.P. 903 (notice of appeal shall
be filed within 30 days after the entry of the order from which the appeal is
taken); see also 1 P.S. § 1908 (whenever the last day of the appeal period
falls on a legal holiday, such time shall be omitted from the computation of
time). Moreover, pursuant to Pa.R.A.P. 311(d), the Commonwealth certified
in its notice of appeal that the orders under review “terminate[d] or
substantially handicap[ped] the prosecution.” On December 5, 2017, the trial
court ordered the Commonwealth to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth
complied timely. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on January 24, 2018.
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On appeal, the Commonwealth presents the following issues for our
review:
A. Whether the trial court erred as a matter of law in granting
[Sabrina Allen’s] motion to suppress the evidence recovered
following the execution of a search warrant at [Sabrina Allen’s]
apartment?
B. Whether the trial court erred as a matter of law in granting
[Sabrina Allen’s] habeas motion for discharge where the
Commonwealth presented a prima facie case for the charges?
Commonwealth’s Brief at 1.
In its first issue presented, the Commonwealth argues that the trial
court erred by granting Sabrina Allen’s motion for suppression.
Commonwealth’s Brief at 12-20. Initially, the Commonwealth notes:
In the instant case, the trial court concluded that the affidavit [in
support of the issuance of a search warrant,] did not contain
probable cause because the veracity of the information provided
by Anthony Allen was suspect. The [trial] court noted that
Anthony Allen was arrested while in possession of marijuana,
attempted to distance himself from the contraband by claiming
ignorance of the bag’s contents, and shifted blame to the man
who he had recently fought. The [trial] court held that Anthony
Allen’s condition and the damage to the door [of Apartment 319]
suggested that an altercation took place there[,] but these facts
indicate only that a fight took place and did not provide a
substantial basis to conclude that illegal firearms and controlled
substances would be found in the apartment.
The [trial] court’s analysis is not complete because the [trial] court
did not examine the totality of the circumstances. The information
from Anthony Allen was only a small part of the information
related by police in the affidavit. The [trial] court disregarded the
rest of the information in the affidavit.
Commonwealth’s Brief at 15-16. More specifically, the Commonwealth posits
that an identified informant, a confirmed neighbor, told police that she saw a
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physical altercation outside of her apartment door, heard someone say they
had a gun, and witnessed a white pickup truck leaving the scene. Id. at 16.
Police corroborated this information when they found the door to the subject
apartment forcefully damaged and ajar and Anthony Allen “showed obvious
signs that he had been in a fight.” Id. at 17. Police stopped Anthony Allen in
a vehicle matching the neighbor’s description. Id. Anthony Allen and Sabrina
Allen admitted that they had just left Apartment 319 after Anthony Allen and
Thurman Allen physically fought. Id. Additionally, the Commonwealth argues
that when police smelled marijuana emanating from truck, there was probable
cause to search the vehicle. Id. at 17. When the police did not recover a
firearm during that search, the Commonwealth maintains it was reasonable to
suspect a gun remained inside the apartment. Id. at 19. Thus, the
Commonwealth posits that,
[w]hether [Thurmond Allen gave Anthony Allen] the marijuana,
or, as is more likely[, Anthony Allen] forcibly took the marijuana,
the fact remains that police had probable cause to believe as
follows:
[Anthony Allen] just left Apartment 319; there was a
fight with a gun in Apartment 319; there was no gun
in the truck; the man in the fight was in possession of
a large amount of marijuana; the duffle bag of
marijuana was easily transported; and [Anthony
Allen] claimed he received the marijuana from a
resident of that apartment.
Id. at 18-19.
Our standard of review in addressing a challenge to the suppression
court's granting of a suppression motion is well settled:
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When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant's witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court's
findings of fact bind an appellate court if the record supports those
findings. The suppression court's conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Our standard of review is restricted to establishing whether the
record supports the suppression court's factual findings; however,
we maintain de novo review over the suppression court's legal
conclusions.
With regard to search warrants, we have explained the following.
It is well-established that for a search warrant to be
constitutionally valid, the issuing authority must
decide that probable cause exists at the time of its
issuance, and make this determination on facts
described within the four corners of the supporting
affidavit, and closely related in time to the date of
issuance of the warrant. It is equally well established
that a reviewing court [must] pay great deference to
an issuing authority's determination of probable cause
for the issuance of a search warrant. Moreover, our
Supreme Court has recognized that affidavits
supporting search warrants normally are prepared by
nonlawyers in the midst and haste of a criminal
investigation, and, accordingly, said affidavits, should
be interpreted in a common sense and realistic fashion
rather than in a hypertechnical manner.
* * *
In short, probable cause exists when, based upon a totality of the
circumstances set forth in the affidavit of probable cause, there is
a fair probability that evidence of a crime will be found in a
particular place.
Commonwealth v. Korn, 139 A.3d 249, 252–254 (Pa. Super. 2016) (internal
citations and quotations omitted). Further,
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[i]n reviewing an issuing authority’s decision to issue a warrant, a
suppression court must affirm unless the issuing authority had no
substantial basis for its decision. On appeal, [the appellate court]
affirms the decision of the suppression court unless it commits an
error of law or makes a factual finding without record support.
Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa. 2013), citing
Commonwealth v. Johnson, 42 A.3d 10017, 1031 (Pa. 2012) and
Commonwealth v. Briggs, 12 A.3d 291, 320 (Pa. 2011).
Here, upon careful review of the uncontradicted facts and applicable law,
we conclude the trial court erred by finding a lack of probable cause to support
the search warrant at issue. More specifically, the trial court erred by focusing
almost exclusively on Anthony Allen’s veracity in granting suppression, instead
of examining the totality of circumstances as set forth in the affidavit of
probable cause as required. Officer Alexander did not blindly accept Anthony
Allen’s statements to establish probable cause as the trial court suggests. By
their own admission, Anthony Allen and Sabrina Allen were leaving Apartment
319 immediately after a physical altercation. Sabrina Allen verified that she
lived there with Thurmond Allen. A neighbor, who police directly interviewed,
stated that she witnessed the fray and heard someone threaten to shoot
someone else. Police corroborated the physical fight when they observed
Anthony Allen’s injuries and saw damage to the door of the apartment that he
recently departed. When the police did not recover a firearm from one of the
confirmed participants of the fight, Anthony Allen, it was reasonable for them
to assume a gun was still in the apartment. Moreover, when police legally
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recovered a large quantity of marijuana from Anthony Allen, who claimed it
originated from the apartment at issue, it was reasonable for them to believe
there was a fair probability of additional evidence of narcotics sales and/or
illicit use inside the apartment. Such inference was reasonable regardless of
the reason Anthony Allen gave for his receipt of the narcotics. In sum, when
the police applied for the search warrant at issue, they knew that there was a
physical altercation with the threat of a firearm and a large quantity of
narcotics, all centered on a specific, corroborated apartment. Thus, there
were separate and mutually confirmatory grounds for police to believe that a
firearm and evidence of narcotics use or sale would be found in Apartment
319. Thus, under a totality of the circumstances as clearly set forth in the
affidavit of probable cause, there was a fair probability that police would find
evidence of a firearm and narcotics in Apartment 319. As such, we conclude
that the trial court erred in suppressing the evidence found therein.
Accordingly, we reverse the order granting suppression.
Next, the Commonwealth asserts that the trial court erred by granting
habeas relief and quashing the criminal information against Sabrina Allen,
because it established a prima facie case for all of the charges.
Commonwealth’s Brief at 20-29.
We review a decision to grant a pre-trial petition for a writ of habeas
corpus by examining the evidence and reasonable inferences derived
therefrom in a light most favorable to the Commonwealth. See
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Commonwealth v. Dantzler, 135 A.3d 1109, 1111 (Pa. Super. 2016).
Whether a prima facie case has been established is a question of law and our
review is plenary. Id. at 1112.
Moreover, we have explained:
At the pre-trial stage of a criminal prosecution, it is not necessary
for the Commonwealth to prove the defendant's guilt beyond a
reasonable doubt. A prima facie case exists when the
Commonwealth produces evidence of each of the material
elements of the crime charged and establishes probable cause to
warrant the belief that the accused committed the offense.
Further, the evidence must be considered in the light most
favorable to the Commonwealth so that inferences that would
support a guilty verdict are given effect.
In addition, the evidence should be such that if presented at trial,
and accepted as true, the judge would be warranted in allowing
the case to go to the jury. The standard clearly does not require
that the Commonwealth prove the accused's guilt beyond a
reasonable doubt at this stage. [Furthermore,] the weight and
credibility of the evidence is not a factor at this stage.
Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (internal
citations, quotations, and original brackets omitted).
In this case, the Commonwealth charged Sabrina Allen with the
following prohibited acts under the Controlled Substance Act:
(31) […] the possession of a small amount of marihuana only for
personal use[.]
* * *
For purposes of this subsection, thirty (30) grams of marihuana
or eight (8) grams of hashish shall be considered a small amount
of marihuana.
(32) The use of, or possession with intent to use, drug
paraphernalia for the purpose of planting, propagating,
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cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packing, repacking, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the human body
a controlled substance in violation of this act.
35 P.S. § 780-113(31)-(32).
We have previously determined:
possession can be found by proving actual possession,
constructive possession, or joint constructive possession. Where
a defendant is not in actual possession of the prohibited items, the
Commonwealth must establish that the defendant had
constructive possession to support the conviction. Constructive
possession is a legal fiction, a pragmatic construct to deal with the
realities of criminal law enforcement. We have defined
constructive possession as conscious dominion, meaning that the
defendant has the power to control the contraband and the intent
to exercise that control. To aid application, we have held that
constructive possession may be established by the totality of the
circumstances.
It is well established that, as with any other element of a crime,
constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must establish
facts from which the trier of fact can reasonably infer that the
defendant exercised dominion and control over the contraband at
issue.
Commonwealth v. Parrish, 191 A.3d 31, 36–37 (Pa. Super. 2018) (internal
citations and quotations omitted). Additionally, our Supreme Court has
recognized that “constructive possession may be found in one or more actors
where the item in issue is in an area of joint control and equal access.”
Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (internal
citation omitted).
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As discussed earlier, it is undisputed that Sabrina Allen resided at the
subject apartment and had just left there. There was nothing indicating that
only one resident had sole access to the seized bong, grinder, and burnt
marijuana roach recovered by police. Those items were found throughout the
apartment where both Sabrina and Thurmond Allen had access. Thus, we
conclude that the Commonwealth presented prima facie evidence of the
possessory narcotics charges against Sabrina Allen.
To establish a conspiracy, “the Commonwealth must establish that the
defendant (1) entered an agreement to commit or aid in an unlawful act with
another person or persons, (2) with a shared criminal intent and, (3) an overt
act was done in furtherance of the conspiracy.” Commonwealth v. Ruiz,
819 A.2d 92, 97 (Pa. Super. 2003) (internal citation omitted). “This overt act
need not be committed by the defendant; it need only be committed by a co-
conspirator.” Id. Factors considered in determining the existence of a
conspiracy include evidence of an association between alleged
co-conspirators, knowledge of the commission of a crime, and presence at the
crime scene. Id. (citations omitted). Moreover, we have previously
determined that the same evidence establishing joint constructive possession
of a controlled substance may also support a finding of a conspiracy to possess
it. See Commonwealth v. Kitchener, 506 A.2d 941, 946 (Pa. Super. 1986).
Here, we conclude that the Commonwealth’s evidence of joint constructive
possession also supports a prima facie showing of conspiracy charges against
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Sabrina Allen. For all of the foregoing reasons, we conclude that the trial court
erred by granting habeas relief and quashing the criminal information in this
matter.7
Orders reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/18
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7 We note that the trial court states that Sabrina Allen was “charged with
conspiring with Anthony Allen to use or possess the contraband that was
discovered in the apartment.” Trial Court Opinion, 1/24/2018, at 5 (emphasis
added). Upon review, the criminal information filed by the Commonwealth
does list Sabrina Allen’s co-conspirator as Anthony Allen, rather than
Thurmond Allen. However, despite the discrepancy, as discussed above, the
Commonwealth provided prima facie evidence of a conspiracy between the
co-residents of the apartment. A criminal information may be amended “when
there is a defect in form, the description of the offense(s), the description of
any person or any property, or the date charged, provided the information as
amended does not charge an additional or different offense.” Pa.R.Crim.P.
564.
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