Com. v. Prough, K. ( 2016 )

J-S87011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KELVIN EVERETT PROUGH,
Appellant No. 1155 MDA 2016
Appeal from the Judgment of Sentence May 16, 2016
in the Court of Common Pleas of Clinton County
Criminal Division at No.: CP-18-CR-0000138-2015
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 28, 2016
Appellant, Kelvin Everett Prough, appeals from the judgment of
sentence imposed after his bench conviction of two counts of manufacture of
a controlled substance.1 We affirm.
We take the following facts from our review of the certified record. On
February 26, 2015, Lois Kyle contacted Sergeant Martin Salinas of the Lamar
Township Police Department to report “suspicious activity” at the residence
she rented to Appellant. (Trial Court Opinion, 10/21/15, at unnumbered
page 2). Prior to contacting Sergeant Salinas, Kyle and her granddaughter
had entered Appellant’s apartment to check the thermostat. While inside,
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
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they took cell phone photographs of plants they discovered growing in a hot
house inside of the rental unit, and provided the photographs to Sergeant
Salinas.
Sergeant Salinas forwarded the photographs to Narcotics Agent
Andrew David Sproat of the Office of Attorney General, Bureau of Narcotics
Investigation and Drug Control, who immediately identified a psilocybin
mushroom grow. Agent Sproat obtained a search warrant for the premises,
and Appellant was arrested on two counts each of manufacture of a
controlled substance, possession with intent to deliver a controlled
substance, and possession of drug paraphernalia.2
On June 30, 2015, Appellant filed a motion to suppress the evidence
seized pursuant to the search warrant. On October 21, 2015, after a
hearing and the parties’ submission of briefs, the court denied the motion.
On April 14, 2016, the court held a bench trial, entered a guilty verdict on
two counts of manufacture of a controlled substance and ordered a
presentence investigation report.
On May 16, 2016,3 the court sentenced Appellant to an aggregate
term of four years of probation, restitution, fines, and costs. On May 20,
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2
35 P.S. §§ 780-113(a)(30) and (32).
3
The trial court docket lists a guilty plea entered by Appellant on the same
day as sentencing. (See Criminal Docket, No. CP-18-CR-0000138-2015, at
7). This appears to be an error, because there is nothing in the certified
(Footnote Continued Next Page)
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2016, Appellant filed a post-sentence motion challenging the restitution
award and the suppression ruling. On June 14, 2016, after a hearing on the
restitution issue, the court amended the sentencing order by vacating the
restitution portion of Appellant’s sentence and adjusting the fee amount.
Appellant timely appealed.4
Appellant raises one issue for our review: “Whether the trial court
committed an abuse of discretion/error of law in denying [his] suppression
motion and subsequent post-sentence motion when the search warrant at
issue was obtained as a result of a clearly deficient affidavit of probable
cause?” (Appellant’s Brief, at 5) (unnecessary capitalization omitted).
Our standard of review of the court’s ruling on a motion to suppress
evidence is well-settled.
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
_______________________
(Footnote Continued)
record to suggest Appellant entered a guilty plea. In fact, Appellant himself
states that there was a bench trial. (See Appellant’s Brief, at 6).
4
Appellant filed a timely concise statement of errors complained of on
appeal on July 21, 2016, and the court filed an opinion on July 22, 2016, in
which it relied on its October 21, 2015 opinion. See Pa.R.A.P. 1925.
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Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our plenary
review.
Commonwealth v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013), appeal
denied, 83 A.3d 415 (Pa. 2013) (citation omitted).
Appellant argues that the affidavit in this matter failed to show
probable cause. (See Appellant’s Brief, at 8-11). Specifically, he maintains
that the affidavit “fail[ed] to establish that Agent Sproat would have had the
ability to distinguish psilocybin mushrooms from other varieties by looking at
a photograph and because there are no specific and objective facts set forth
in the affidavit as to how the agent would have so concluded[.]” (Id. at 11).
We disagree.
As we have often indicated, the legal principles applicable
when reviewing the sufficiency of an affidavit to determine
whether it establishes the probable cause necessary for the
issuance of a warrant are well established. Before an issuing
authority may issue a constitutionally valid search warrant, he or
she must be furnished with information sufficient to persuade a
reasonable person that probable cause exists to conduct a
search. The information offered to demonstrate probable cause
must be viewed in a common sense, nontechnical, ungrudging
and positive manner. It must also be remembered that probable
cause is based on a finding of the probability, not a prima facie
showing of criminal activity, and that deference is to be accorded
a magistrate’s finding of probable cause.
Commonwealth v. Harrell, 65 A.3d 420, 436 (Pa. Super. 2013), appeal
denied, 101 A.3d 785 (Pa. 2014) (citation omitted).
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In this case, the trial court found that:
A fair reading of the [a]ffidavit presented to the issuing
authority in the instant case permitted the issuing authority to
find that probable cause existed for the issuance of the search
warrant. The [a]ffidavit clearly states that the [a]ffiant, Agent
Sproat, had the background and training to identify [p]silocybin
mushrooms and that, upon review of the photograph forwarded
by Sergeant Salinas, Agent Sproat recognized the
substance/grow in the photograph as a “live [p]silocybin
mushroom grow.”
(Trial Ct. Op., at unnumbered page 7). We agree.
In the affidavit, Agent Sproat stated that he has worked in law
enforcement generally since 2001, and narcotics specifically since 2008.
(See Appellant’s Motion to Suppress, 7/30/15, at Exhibit A, Application for
Search Warrant and Authorization with attached Affidavit of Probable Cause,
at 4).5 He has investigated hundreds of drug cases; encountered multiple
types of illegal drugs, including psilocybin mushrooms; and has worked
undercover to purchase drugs on a regular basis. (See id. at 4-5). Agent
Sproat is qualified as an expert in drug investigations, and has received
specialized police training in multiple areas, including drug identification and
recognition, and evidence collection. (See id. at 5). The affidavit of
probable cause stated that, while walking through Appellant’s apartment,
Ms. Kyle observed a hot house and mushrooms lying on top of a Tupperware
container, which she photographed and sent to law enforcement. (See id.
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5
For ease of disposition, we have re-numbered all of the pages of Exhibit A
consecutively.
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at 9-10). Based on his training and experience, Agent Sproat recognized
that the photograph sent by Sergeant Salinas depicted a live psilocybin
mushroom grow. (See id. at 9). Agent Sproat concluded, based on his
training and experience, that Appellant was “growing and trafficking
[p]silocybin mushrooms, a schedule I controlled substance within Clinton
County Pennsylvania[,]” and requested the issuance of a search warrant to
obtain specific items “commonly found in possession of or in the vehicles,
residences or grow houses of those involved in illegal drug dealing and drug
activities.” (Id. at 14-15; see also id. at 2-3 (items to be searched for and
seized)).
Based on the above information, as well as our independent review of
the extensive information contained in the affidavit as a whole, we conclude
that the trial court properly denied Appellant’s motion to suppress where the
issuing authority had sufficient probable cause to issue a search warrant.
See Potts, supra at 1280; Harrell, supra at 436.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2016
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