Commonwealth v. Coleman ( 2015 )

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2015 PA Super 258COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK COLEMAN,
Appellant No. 1839 WDA 2014
Appeal from the Judgment of Sentence June 3, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004456-2013
BEFORE: BOWES, OLSON, AND STABILE, JJ.
OPINION BY BOWES, J.: FILED DECEMBER 14, 2015
Mark Coleman appeals from the judgment of sentence of five to ten
years incarceration to be followed by five years probation after a jury found
him guilty of two counts of possession with intent to deliver (“PWID”), and
one count each of possession of a controlled substance and possession of
drug paraphernalia. After careful review, we reverse.
On December 17, 2012, State Parole Agent Thomas Pekar received an
anonymous telephone call from a woman claiming that Appellant was one of
the largest drug sellers in the West View, Allegheny County area and had
received a driving under suspension citation. One of the conditions of
Appellant’s parole was that he report any contact with police to his parole
officer. Agent Pekar confirmed that Appellant had received a citation for
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driving with a suspended license. Appellant had not informed his parole
officer of that citation.
Previously, Appellant had contacted a prior parole agent to change his
address. Appellant provided that he was going to reside at 102 Center
Avenue, West View, Pennsylvania. He completed Pennsylvania Board of
Probation and Parole Form 348 on November 19, 2012, acknowledging that
he would be living at the 102 Center Avenue address. Appellant’s parole
officer, Agent Pekar, had attempted on approximately three occasions to
meet with Appellant at his address. On one occasion, Appellant agreed to
meet with Agent Pekar but never appeared at the address.
In light of these facts, agents met with Appellant at the parole office
and searched him on December 18, 2012. That search revealed nothing and
Agent Timothy Wolfe told Appellant that he had information that he was
involved in drug activity and was going to search his apartment. Agent
Pekar and Agent William McKay traveled to Appellant’s residence while
Appellant remained at the parole office. The agents retrieved a key from
the rental office manager, whose office was located next door to Appellant’s
apartment. After entering the apartment, the agents observed a digital
scale in plain view that had white powder on it. The apartment also had a
trash bag in the living room area and a Comcast cable bill addressed to
Appellant at the address. The apartment was leased in Appellant’s
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grandmother’s name. The trash bag contained a white substance that
appeared to be cocaine.
The agents seized the suspected cocaine and scale and contacted a
City of Pittsburgh police officer. That officer field tested the suspected
narcotic, which tested positive as cocaine. Since Appellant’s residence was
not within Pittsburgh city limits, the parole agents alerted Allegheny County
police. Allegheny County Detective Todd Naylor charged Appellant with the
aforementioned crimes.
Appellant filed and litigated a motion to suppress, contending that the
warrantless search was unconstitutional. The court denied that motion and
the matter proceeded to trial. After his initial trial resulted in a hung jury, a
subsequent jury found Appellant guilty of PWID, possession of cocaine, and
possession of drug paraphernalia. The court sentenced Appellant to five to
ten years incarceration to be followed by five years probation. This timely
appeal ensued. The trial court directed Appellant to file and serve a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant complied, and the trial court authored its Rule 1925(a) decision.
The matter is now ready for this Court’s consideration. Appellant presents
two issues for our review.
I. Did the trial court err when it denied Mr. Coleman’s motion
to suppress because the parole officers’ warrantless search
of 102 Center Avenue was unreasonable and unsupported
by the requisite reasonable suspicion to believe that
criminal activity was afoot, thus violating Mr. Coleman’s
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rights under the Fourth and Fourteenth Amendments of
the United States Constitution and Article 1, § 8 of the
Pennsylvania Constitution?
II. Was the evidence insufficient to prove, beyond a
reasonable doubt, that Mr. Coleman committed any of the
offenses at CC 2013-04456 because the Commonwealth
failed to establish that Mr. Coleman possessed the cocaine
and paraphernalia, and could not place Mr. Coleman inside
the apartment?
Appellant’s brief at 6.
Since a sufficiency claim warrants automatic discharge rather than
retrial, we address that issue at the outset. In performing a sufficiency
review, we consider all of the evidence admitted, even improperly admitted
evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013)
(en banc). We view the evidence in a light most favorable to the
Commonwealth as the verdict winner, drawing all reasonable inferences
from the evidence in favor of the Commonwealth. Id.The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
Id. When evidence exists to allow the fact-finder to determine beyond a
reasonable doubt each element of the crimes charged, the sufficiency claim
will fail. Id. In addition, the Commonwealth can prove its case by
circumstantial evidence. Where “the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances[,]” a defendant is entitled to relief. Id. This Court
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does not “re-weigh the evidence and substitute our judgment for that of the
fact-finder.” Id. Determining whether a person possessed a drug with an
intent to deliver is based upon the totality of circumstances.
Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007). Necessarily, if a
person possesses narcotics with intent to deliver, he is guilty of possession.
Appellant argues that the Commonwealth failed to prove that he
constructively possessed the cocaine inside 102 Center Avenue. He
maintains that there is no evidence that he actually was inside the address
nor did anyone observe him in possession of or selling the drug. Appellant
asserts that the evidence establishes at most that he resided at the address
at one time.
The Commonwealth responds that the circumstantial evidence in this
matter proved beyond a reasonable doubt that Appellant constructively
possessed the cocaine and digital scale. It notes that Appellant had
informed his parole agent that he lived at 102 Center Avenue and that a
Comcast bill dated December 3, 2012, was inside the apartment on top of
the garbage bag containing the drugs. In addition, there is no dispute that
over 100 grams of cocaine was located inside the apartment.
Constructive possession is determined by examining the totality of the
circumstances. We look to whether the defendant had the ability to exercise
a conscious dominion over the item, the defendant’s power of control over
the item, and his intent to exercise such control. Commonwealth v.
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Johnson, 26 A.3d 1078, 1086 (Pa.Super. 2011). Here, Appellant informed
his parole agent that he lived at the address. Further, a bill addressed to
him at the apartment from two weeks earlier was inside. Appellant’s
grandmother’s name was on the lease, but there was no indication that she
lived there. Men’s clothing was located inside the apartment. The
circumstantial evidence was more than sufficient to establish Appellant used
or lived inside the apartment and therefore constructively possessed the
drugs and scale. In addition, the Commonwealth elicited expert testimony
that based on the amount of drugs that Appellant possessed those drugs
with intent to deliver. Appellant’s sufficiency claim is devoid of merit.
Having determined that the evidence in this matter was sufficient to
find Appellant guilty of the pertinent charges, we now consider his
suppression claim. In evaluating a court order denying a suppression
motion, we consider the factual findings of the suppression court and
whether they are supported by record evidence. In re T.B., 11 A.3d 500,
505 (Pa.Super. 2010). We consider only the evidence of the
Commonwealth’s witnesses and testimony of the defendant’s witnesses that
are not contradicted by the suppression record. Id.1 Where the evidence
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1
As pointed out by Appellant, the Commonwealth relies on a since overruled
standard for reviewing suppression claims, asserting, incorrectly, that this
Court considers trial testimony in addition to suppression evidence in
evaluating a suppression ruling. Commonwealth’s brief at 4-5 (citing
(Footnote Continued Next Page)
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supports the suppression court’s factual findings, we are bound by them and
will reverse only where the legal conclusions derived from those facts are in
error. Id. In this latter regard, we are not bound by the legal
determinations of the suppression court.
Appellant acknowledges that, as a parolee, under both statutory
authority and case law, he has less constitutional search and seizure
protections than the regular citizen. However, he correctly asserts that
parolees still have limited constitutional protections relative to warrantless
searches. Parole officers may perform a search of a parolee’s residence
where the totality of the circumstances demonstrates reasonable suspicion
that evidence of contraband or a violation of parole will be discovered. 61
Pa.C.S. § 6153.
Appellant maintains that the parole officers herein lacked reasonable
suspicion to search his apartment. He contends that the search was based
“on an unreliable, uncorroborated, anonymous tip received by Agent Pekar
on December 17, 2012.” Appellant’s brief at 24. Appellant submits that the
anonymous caller did not indicate that she saw Appellant in possession of
drugs or selling drugs and only stated that he was a large drug dealer in the
_______________________
(Footnote Continued)
Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super. 2011), and
Commonwealth v. Caban, 60 A.3d 120 (Pa.Super. 2012)); compare In
re L.J. 70 A.3d 1073 (Pa. 2013) (prospectively holding that an appellate
court reviews the suppression evidence and does not also consider trial
evidence in determining the correctness of a suppression court ruling).
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area. In addition, Appellant argues that, although Agent Pekar confirmed
that the anonymous caller was correct that Appellant had been cited for
driving with a suspended license, this fact does not render the caller reliable.
In support, Appellant relies on Alabama v. White, 496 U.S. 325 (1990),
Commonwealth v. Goodwin, 750 A.2d 795 (Pa. 2000) (OAJC), and
Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000).
In White, a police officer received an anonymous tip via a telephone
call informing him that Vanessa White would be leaving a specific apartment
at a specified time. The tipster also provided that White would be driving a
brown Plymouth station wagon with a broken right taillight. In addition, the
tipster told police that White would travel to a specific motel and was in
possession of an ounce of cocaine inside a brown attaché case.
Armed with this highly specific information, police traveled to the
apartment complex. Once there, police observed a Plymouth station wagon
with a broken right taillight in the parking lot in front of the apartment
identified by the tipster. The police then witnessed White exit the apartment
and enter the vehicle. She was not carrying anything. Police followed
White, who was driving on the route that would have taken her to the
identified motel. Just prior to reaching the motel, police effectuated a traffic
stop. Police told White that they stopped her because they suspected her of
transporting cocaine in her car. White permitted police to search her car and
they found a locked brown attache case. Police asked for the combination to
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that case and White provided it. Inside police found marijuana. Thereafter,
while processing White, they found cocaine in her purse.
The White Court set forth, “[a]lthough it is a close case, we conclude
that under the totality of the circumstances the anonymous tip, as
corroborated, exhibited sufficient indicia of reliability to justify the
investigatory stop of respondent's car.” White, supra at 332. Appellant
maintains that in this matter there was no independent corroboration by his
parole officers of the tipster’s information.
In Goodwin, supra, Pennsylvania State Police received an
anonymous tip regarding Goodwin. The caller asserted that the girlfriend of
David Klink had sold drugs to Klink’s minor son. The trooper who took the
call had arrested that juvenile on drug charges. Indeed, he had bought
drugs from the minor while undercover. The officer also knew that Goodwin
was David Klink’s girlfriend and that the pair resided together. The tipster
also indicated that the woman sold drugs from her home and workplace.
According to the caller, the woman carried a quarter pound of marijuana in a
pink bag, drove a blue Mustang, and took an hour lunch break, usually
starting at 12:15 p.m. The caller provided the license plate number of the
car and described Goodwin as a red-haired woman, approximately twenty-
five years of age, and wearing a red coat and red stockings on that day.
The tipster also told police of the name and address of Goodwin’s
employer, where Goodwin lived, the location of the parking garage where
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Goodwin would park, and the route she took to walk to the parking garage.
State police then watched the parking garage identified by the tipster. At
approximately 12:10 p.m., Goodwin exited her workplace carrying a pink
bag. She matched the physical description provided by the caller and
walked to her car via the route described by the tipster. Goodwin entered
the vehicle and began to drive. Police pulled her over and informed her that
they believed she was transporting marijuana. Goodwin signed a consent
form and permitted police to search her car. After Goodwin removed her
pink bag from the car, an officer told her that they were going to search the
bag since it was inside the vehicle. At that point, Goodwin acknowledged
that there were drugs in the bag. Police then asked to search her apartment
that she shared with David Klink. Goodwin consented and additional
marijuana and drug paraphernalia were found in her bedroom.
The Pennsylvania Supreme Court was divided over the lawfulness of
the initial stop. Justice Nigro penned the lead opinion and was joined by
Justice Cappy. The lead opinion opined that police saw no unusual activity
while watching Goodwin and that White, supra, was not analogous because
the tip in Goodwin “did not predict behavior that showed a familiarity with
Goodwin's personal affairs.” Goodwin, supra at 355. Accordingly, Justices
Nigro and Cappy held that the stop violated the Fourth Amendment. Justice
Zappala, joined by Chief Justice Flaherty, however, concluded that under
White, the Fourth Amendment was not violated. Nonetheless, they
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reasoned that the stop violated Goodwin’s right against illegal searches and
seizures codified by Article I, § 8 of the Pennsylvania Constitution. Justice
Castille, joined by Justice Newman, dissented, finding that White controlled
and that Article I, § 8 did not provide greater protections than did the Fourth
Amendment.
Wimbush, supra, was decided on the same day as Goodwin, and
involved two consolidated cases: that of Anthony Wimbush and Lance White.
In Wimbush’s case, Pennsylvania State Police received an anonymous tip
regarding a black man named Tony. The tipster set forth that Tony would
be driving a white van on Piney Ridge Road and would have cocaine and
marijuana. The caller provided the license plate number of the van and
police learned that the van was registered to the defendant, Anthony
Wimbush. The police went to Piney Ridge Road in multiple cars. One officer
saw the van parked outside a trailer. After Wimbush began driving, police
stopped him. Upon approaching the vehicle, an officer observed two baggies
on the floor of the van. One bag appeared to contain marijuana and the
other cocaine. Police immediately seized the drugs. Wimbush later signed a
consent to search his van and additional drugs were found.
In White’s matter, New Kensington police received an anonymous 911
call about potential drug activity at a public housing complex. The caller
claimed that a black man wearing a white shirt and white shorts and
carrying drugs was leaving the complex on a girl’s black bicycle. The officer
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who received the tip drove to the housing complex and saw the girl’s black
bicycle. She then saw White, who was dressed in a white shirt and white
shorts, exit the complex and ride away on the bike. The officer stopped
White, and as she began to pat him down, he fled. Another officer was able
to stop White, who dropped sixteen bags of crack cocaine.
Justice Nigro penned the majority opinion, finding the stop illegal. He
was joined by Justice Cappy and Justice Saylor, the latter of whom had not
taken part in the Goodwin case. Chief Justice Flaherty also joined in full,
but offered a concurring opinion on the question of whether the defendants
had preserved their Article I, § 8 challenge as contradistinguished from their
Fourth Amendment claim. Justice Zappala wrote a solo dissent and Justice
Castille authored a dissent joined by Justice Newman. Justice Castille opined
that White controlled, the defendants had not preserved a Pennsylvania
constitutional claim, and even if they had, the Pennsylvania Constitution
offered the same protections as the federal charter. Justice Zappala agreed
with Justice Castille that White was binding on the Fourth Amendment issue
and that the defendants had waived their Pennsylvania constitutional
argument, but did not agree that the two constitutions provided the same
protections. The majority distinguished White and concluded that the tips
were not sufficiently reliable to create reasonable suspicion for the vehicular
stops.
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Appellant proffers that the aforementioned cases support his claim
that the parole officers in this matter did not sufficiently corroborate the
anonymous tip and that their search of his apartment was unlawful. The
Commonwealth counters that, because Appellant failed to inform his parole
officer of his citation for driving with a suspended license and did not appear
at his residence to meet with parole agent on another occasion, his parole
officer was permitted to conduct a compliance check of his residence. It
continues that, based on the totality of the circumstances, the parole agents
had reasonable suspicion to search his address. The Commonwealth
highlights that the agents confirmed that Appellant had been cited for
driving with a suspended license. Additionally, the Commonwealth
maintains that Appellant’s repeated failure to meet with his parole agent to
confirm his address aroused suspicion. Thus, it contends that the agents
had lawful authority to enter Appellant’s apartment.
The Commonwealth adds that, once the agents were inside the
apartment, they observed a digital scale with white powder in plain view and
a box of sandwich baggies in the living room. This information, according to
the Commonwealth, was sufficient to permit them to look inside the garbage
bag in the living room to determine if Appellant had contraband or evidence
of other violations of his parole.
The Fourth Amendment, which applies to the States via the Fourteenth
Amendment, provides that
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The right of the people to be secure in their persons, houses,
papers, and effect, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S.Const. Am. IV. Similarly, Article I, § 8 of the Pennsylvania Constitution
sets forth,
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things
shall issue without describing them as nearly as may be, nor
without probable cause, supported by oath or affirmation
subscribed to by the affiant.
Pa.Const. Art. I, § 8.
A parolee has limited Fourth Amendment rights because of a
diminished expectation of privacy. Commonwealth v. Williams, 692 A.2d
1031, 1035 (Pa. 1997). A “parolee's signing of a parole agreement giving
his parole officer permission to conduct a warrantless search does not mean
either that the parole officer can conduct a search at any time and for any
reason or that the parolee relinquishes his Fourth Amendment right to be
free from unreasonable searches.” Id. at 1036.
As mentioned, state parole agents are statutorily permitted to perform
a search of a parolee’s residence based on reasonable suspicion that “the
real property or other property in the possession of or under the control of
the offender contains contraband or other evidence of violations of the
conditions of supervision.” 61 Pa.C.S. § 6153(d)(2). Here, the initial
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question is whether, under the totality of the circumstances, Appellant’s
parole agents had reasonable suspicion to enter his apartment without a
search warrant.
The suppression court relied on Commonwealth v. Smith, 85 A.3d
530 (Pa.Super. 2014).2 Therein, Smith was released on parole from a drug
related sentence. Smith acknowledged and signed a form that authorized
parole agents to search his person and property without a warrant if they
had reasonable suspicion of criminal activity. In addition, because Smith
was residing with his girlfriend, she also signed an agreement that
consented to searches based on reasonable suspicion and without a warrant
as well as unannounced home visits. Smith’s residence was scheduled for a
routine home visit on December 21, 2011. Smith’s parole agent also
received an anonymous telephone call asserting that Smith was selling
marijuana near where Smith lived.
Parole agents traveled to Smith and his girlfriend’s home on December
21, 2011. Both Smith and his girlfriend were present and allowed the
agents into the residence. Upon entering, the agents immediately detected
a strong odor of marijuana coming from the basement. The odor became
stronger after opening the basement door. A large amount of marijuana
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2
The Commonwealth does not rely on or discuss Smith in its brief.
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was discovered under the basement steps, along with money, a scale, and
unused baggies.
This Court ruled that the parole agents conducted an unannounced
home visit and were permitted into the residence, which did not amount to a
search. Smith, supra at 537 (“We conclude that the state parole agent's
actions in walking through Appellant's residence did not constitute a
search.”). It held that the agents were not required to have reasonable
suspicion to enter the premises. Rather, the agents were lawfully present in
the home when they detected the odor of marijuana, which then provided
reasonable suspicion for a search. Id. (“During this lawful visit, Agent
Peterson smelled marijuana emanating from Appellant's basement, and at
that juncture, he developed the requisite reasonable suspicion to conduct a
search for the marijuana.”).
Although an anonymous telephone call was recited in the facts of the
Smith case, the Court was not faced with a determination as to whether
parole agents had reasonable suspicion to conduct a warrantless entry and
search based on that anonymous call. Here, parole agents did not gain
entry via permission from Appellant or another resident. Rather, they
entered the apartment without consent. The agents herein were not
conducting a scheduled or routine home visit, as they knew Appellant was
not home, and they intended to search the home for drug contraband. See
Smith, supra (Fitzgerald, J., concurring) (“to the extent that the trial court
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found that the agents were investigating information of ‘some kind of drug
sales,’ I would conclude that the agents conducted a search without
reasonable suspicion”). While parole agents have statutory authority to
enter a parolee’s premises without a warrant to search for contraband, they
must have reasonable suspicion of criminal activity. Parole agents cannot
escape the statutory requirements for a warrantless entry based on merely
renaming it a compliance check; otherwise, agents could freely enter a
parolee’s residence without a warrant at any time even without reasonable
suspicion of criminal activity.
Unlike Smith, Appellant was not present and did not allow the agents
to enter. Therefore, the lawful grounds for the presence of the agents inside
the residence therein is distinct from the present case. Simply stated, this is
not a case where the agents lawfully entered with the consent of the
resident. Thus, whereas the agents in Smith did not need reasonable
suspicion to enter the residence in the first instance, that is the important
inquiry here. As Smith did not address whether parole agents had
reasonable suspicion to enter a parolee’s premises based on an anonymous
tip, it is not controlling.
Furthermore, we find that the anonymous tip in this matter falls short
of the information provided and confirmed in the Wimbush case and its
companion case. Indeed, the United States Supreme Court in White,
supra, called that case close and, in that matter, the information relied on
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by law enforcement was of greater quality and quantity and was confirmed
in most of its aspects. Here, Appellant’s parole agent received a bare bones
assertion that Appellant was selling drugs and that he had been cited for
driving with a suspended license. Admittedly, Appellant’s parole agent
confirmed that a citation for the driving violation had been issued, but this is
far less corroboration than occurred in Wimbush and in the plurality
Goodwin case. In addition, that fact did not need to be further
corroborated by searching Appellant’s residence.
We acknowledge that parole agents are not police officers and do not
have the same ability to conduct surveillance or confirm information received
by a tipster. Nonetheless, the search and seizure statute relative to parole
agents expressly states that “[t]he existence of reasonable suspicion to
search shall be determined in accordance with constitutional search and
seizure provisions as applied by judicial decision.” 61 Pa.C.S. § 6153(b)(6).
In this respect, in order for an anonymous tip to give rise to reasonable
suspicion of criminal activity, it must be of sufficient quality that it may be
found reliable.
The anonymous tip in this matter cannot be considered reliable based
on our Supreme Court’s holding in Wimbush and the plurality decision in
Goodwin. In both cases, police were given significantly more detailed
information that they were able to corroborate, but our High Court still
declined to find the anonymous tip reliable enough to arise to reasonable
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suspicion for a warrantless seizure and search. Moreover, the fact that
Appellant and his parole agent had not personally met for a compliance
check of his residence does not, in combination with the unreliable tip, rise
to the level of reasonable suspicion to search that home. Parole agents did
not have specific and articulable facts that Appellant was engaged in criminal
activity. See In re J.E., 907 A.2d 1114 (Pa.Super. 2006) (probation officer
lacked reasonable suspicion to conduct warrantless pat-down absent specific
and articulable facts suggesting a tip was reliable); compare Williams,
supra (parole officer corroborated tip from a confidential informant with
local police regarding the parolee’s dealing of drugs). Accordingly, the
warrantless entry into Appellant’s apartment violated his Fourth Amendment
and Article I, § 8 rights.
Judgment of sentence reversed. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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