Com. v. Milbourne-Winters IV, S ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEARVILLE MILBOURNE-WINTERS
Appellant No. 897 EDA 2013
Appeal from the Judgment of Sentence January 24, 2013
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004713-2011
BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 15, 2014
Appellant, Searville Milbourne-Winters, appeals from the judgment of
sentence entered on January 24, 2013, in the Court of Common Pleas of
Chester County. We vacate the judgment of sentence and remand for
resentencing.
Late one night, a man, later identified as Milbourne-Winters, parked
his vehicle along a no-parking section of a street outside of a bar, alighted
from his vehicle, and entered the bar. An officer observed this and walked
up to the vehicle to ticket it for the parking violation. The officer looked into
the car and observed on the middle of the passenger seat a “tied sandwich
baggie of a green leaf-like substance.” N.T., Suppression Hearing, 10/1/12,
at 11. Based on his “training and experience,” the officer believed that the
substance in the sandwich bag was marijuana. Id., at 16. Eventually,
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Milbourne-Winters left the bar and the officer approached him and asked if
the vehicle was his and Milbourne-Winters responded that it was. The officer
immediately arrested Milbourne-Winters.
The police officer had the vehicle towed and during an inventory
search, an officer opened the trunk and smelled a strong odor of marijuana.
The officer obtained a search warrant and a search of the trunk revealed
marijuana and cocaine.
Prior to trial, Milbourne-Winters moved to suppress the evidence of the
contraband, which, after a hearing, the suppression court denied. The
matter proceeded to trial and the jury convicted Milbourne-Winters of,
among other things, possession with intent to deliver cocaine. The verdict
slip did not ask the jury to make a factual finding as to the weight of the
cocaine. At sentencing, the trial court imposed the mandatory minimum
sentence pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii).1 After the denial of
post-sentence motions, this timely appeal followed.
Milbourne-Winters first argues that the police officer did not have
probable cause to arrest him and that the illegal arrest renders the
subsequently found contraband inadmissible. At the suppression hearing,
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1
The Commonwealth incorrectly cites 18 Pa.C.S.A. § 7508(a)(2)(ii) in its
brief. See Commonwealth’s Brief, at 18-19. Subsection 3, not 2 applies in
this case. See, e.g., Order, filed 2/26/13 (“18 Pa.C.S.A. § 7508(a)(3)(ii)
applies to the charge of PWID [cocaine] of which the Defendant was
convicted.”).
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however, Milbourne-Winters’s counsel argued that the officer “did not have
reasonable suspicion to arrest my client….” N.T., Suppression Hearing,
10/1/12, at 6 (emphasis added). The particular claim Melbourne-Winters
seeks to present on appeal was not raised at the suppression hearing. See
id., at 3-4 (counsel for Melbourne-Winters setting forth specific suppression
claims). Indeed, the suppression court construes the claims advanced at the
suppression hearing as “Defendant asserts that the Commonwealth did not
have the reasonable suspicion to detain Defendant or the probable cause
necessary for the search warrant.” Order, filed 10/11/12, at 2 n.1.
Melbourne-Winters’s Rule 1925(b) statement simply asserts, “the [c]ourt
committed an error of law in denying the Appellant’s pre-trial motion to
suppress evidence collected from the automobile.” Rule 1925(b) Statement,
9/13/13, at ¶ 2. a.
As he did not present this issue in the lower court we must find it
waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”);
Commonwealth v. Little, 903 A.2d 1269, 1272-1273 (Pa. Super. 2006)
(“[A]ppellate review of an order denying suppression is limited to
examination of the precise basis under which suppression initially was
sought; no new theories of relief may be considered on appeal.”). Even if we
had addressed this claim on the merits, it would not entitle Melbourne-
Winters to relief.
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Generally, a police officer must have a warrant to make an arrest. If
an officer has probable cause, however, he can make a warrantless arrest.
Probable cause is determined by the totality of the circumstances. See
Commonwealth v. Martin, ___ A.3d ___, ___, 2014 WL 4745782, *10
(Pa., filed September 24, 2014).
Probable cause exists where the facts and circumstances within
the officer’s knowledge are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is
being committed, and must be viewed from the vantage point of
a prudent, reasonable, cautious police officer on the scene at the
time of the arrest guided by his experience and training. As we
have stated:
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
arrest, and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the
belief that the suspect has committed or is committing a crime.
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity. In
determining whether probable cause exists, we apply a totality
of the circumstances test.
Id. (citations and quotation marks omitted; emphasis in original).
Here, the police officer observed on the middle of the passenger seat a
“tied sandwich baggie of a green leaf-like substance.” N.T., Suppression
Hearing, 10/1/12, at 11. Based on his “training and experience,” the officer
believed that the substance in the sandwich bag was marijuana. Id., at 16.
When asked, Milbourne-Winters admitted the vehicle was his. See id., at
17.
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Had we addressed this claim on the merits, we would have found that
the police officer had probable cause to arrest Milbourne-Winters. There was
certainly a probability that the “green leaf like substance” was marijuana.
Milbourne-Winter’s tries to challenge the credibility of the police officer by
inferring that there was no way for him to know it was marijuana—it was
dark, the officer did not utilize a flashlight, and he did not smell marijuana.
The officer, however, testified that he observed a “green leaf-like substance”
that he believed to be marijuana based upon his training and experience.
The suppression court credited this testimony. We cannot reject this
credibility determination. We also stress that the officer did not have to
know, categorically, that the substance was marijuana. All that was
required was a probability that it was contraband.
Lastly, Milbourne-Winters argues that the trial court erred when it
imposed the mandatory minimum sentence pursuant to 18 Pa.C.S.A. §
7508(a)(2)(ii). Specifically, he argues that § 7508 is unconstitutional in light
of Alleyne v. United States, 133 S. Ct. 2151 (2013).2
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2
The Commonwealth maintains that Milbourne-Winters waived this issue, as
he failed to present it in his Rule 1925(b) statement. This Court has
previously stated in addressing the Alleyne decision that where
“[a]pplication of a mandatory minimum sentence gives rise to illegal
sentence concerns, even where the sentence is within the statutory limits[,]
[such] [l]egality of sentence questions are not waivable.” Commonwealth
v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013). See also
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc)
(“We find that a challenge to a sentence premised upon Alleyne likewise
(Footnote Continued Next Page)
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A panel of this Court recently held that § 7508 is unconstitutional on
its face. See Commonwealth v. Fennell, ___ A.3d ___, 2014 WL
6505791 (Pa. Super., filed November 21, 2014). Therefore, we are
constrained to vacate Milbourne-Winters’s judgment of sentence3 and
remand for resentencing without consideration of the mandatory minimum
sentence under § 7508.
Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Judge Stabile joins in the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2014
_______________________
(Footnote Continued)
implicates the legality of the sentence and cannot be waived on appeal.”).
Despite stating that the issue is waived, the Commonwealth then asks this
Court to “remand this case for resentencing” due to the Alleyne violation.
The Commonwealth does argue that § 7508 is not constitutionally infirm.
We will address the merits of this issue.
3
The vacating of the judgment of sentence does not affect Milbourne-
Winters’s convictions, which remain intact.
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