Com. v. Curtis, T. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TYRONE DWAYNE CURTIS, : No. 1273 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, May 23, 2013,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0003550-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2015
Appellant appeals the judgment of sentence imposed following his
conviction on drug and firearm offenses. Finding that appellant was
improperly sentenced under a mandatory minimum sentencing statute that
has since been declared unconstitutional, we will vacate the judgment of
sentence and remand for resentencing.
The trial court accurately summarized the factual background:
On March 24, 2012, Trooper Brian Richardson
of the Pennsylvania State Police executed a traffic
stop on a silver Ford Edge SUV that was traveling
southbound on I-95. Prior to initiating the traffic
stop, Trooper Richardson clocked the vehicle for over
0.3 miles traveling 64 mph in a properly posted
55 mph zone. The Trooper followed the vehicle for
approximately one mile before activating his
emergency lights and pulling the vehicle over. A
registration search revealed the owner of the vehicle
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was Spallco, a rental company. The vehicle was not
reported stolen.
Upon approaching the driver’s side of the
vehicle to request driver identification and
registration information, Trooper Richardson smelled
the strong odor of raw marijuana. The driver, later
identified as [appellant], did not have a driver’s
license or other proof of identification on his person
and identified himself as “Keith Williams.”
[Appellant] provided a Maryland address, date of
birth and Social Security Number. [Appellant]
advised Trooper Richardson that the vehicle was
rented by a family friend and that he did not have
any rental documentation. The passenger identified
himself as John Barrett (the “Defendant”) via his
Delaware driver’s license.
Trooper Richardson returned to his patrol
vehicle and conducted a CLEAN/NCIC query on both
parties. The search of the name and date of birth
given by the driver revealed no social security
number, and a search of the social security number
provided by driver revealed a different name.
Criminal history of the passenger, Defendant Barrett,
revealed an extensive criminal history, including
drug convictions.
Trooper Richardson requested back-up, and an
officer from Tinicum Police Department arrived on
scene and pulled in front of the suspect vehicle with
lights activated. Trooper Richardson exited his
patrol vehicle and asked the driver, [appellant], to
exit the vehicle. Trooper Richardson conducted a
pat-down search of [appellant] and then requested
he sit on the bumper of the patrol vehicle.
Trooper Richardson then approached the passenger
side of the vehicle and requested that the passenger,
Co-Defendant Barrett, exit the vehicle. As Barrett
opened the door to exit the vehicle,
Trooper Richardson viewed a blue and tan “Polo” bag
being held up behind Defendant Barrett’s calves
below the front passenger seat. Trooper Richardson
conducted a pat-down search and then requested
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that Barrett go to where driver was sitting in front of
the patrol car.
Trooper Richardson approached [appellant]
and asked him for consent to search the vehicle.
[Appellant] signed the Pennsylvania State Police
Waiver of Rights and Consent to Search form with
the name “Keith Williams” in the consenter line.
After receiving consent to search,
Trooper Richardson conducted a hand search of the
vehicle. A search of the blue and tan polo bag
revealed it contained 7 containers containing
suspected Marijuana, one digital scale, 9 empty
containers commonly used to contain Marijuana, and
one Bersa 380 ACP handgun which was loaded with
7 rounds of ammunition.
Trial court opinion, 7/7/14 at 1-2.
On March 21, 2013, a jury convicted appellant of possession of a
controlled substance with intent to deliver (“PWID”), criminal conspiracy,
receiving stolen property, carrying a firearm without a license, and false
identification to law enforcement authorities.1 On March 22, 2013, the trial
court additionally found appellant guilty of persons not to possess firearms
and driving while license is suspended, DUI related.2 On May 23, 2013,
appellant was sentenced to an aggregate term of 8 to 16 years’
imprisonment plus 8 years’ probation. Pursuant to 42 Pa.C.S.A.
1
35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903(c), 3925(a), 6106(a)(1),
and 4914(a), respectively.
2
18 Pa.C.S.A. § 6105 and 75 Pa.C.S.A. § 1543(b)(1), respectively.
Appellant agreed to a bench trial as to the persons not to possess firearms
count and the other count is a summary offense.
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§ 9712.1(a), appellant received a mandatory minimum sentence for PWID of
5 to 10 years because he possessed a firearm with the controlled substance.
Appellant did not immediately file a notice of appeal. On March 21,
2014, the trial court granted appellant’s petition to reinstate his direct
appeal rights nunc pro tunc. This timely appeal followed.
Appellant raises the following issues on appeal:
I. Whether the Court erred in denying
defendant’s Motion to Suppress the marijuana
and handgun seized from the blue and tan
canvas Polo bag since the investigating officer
searched the bag without a search warrant, the
requisite probable cause, reasonable suspicion
or valid consent[?]
II. Whether the trial court’s sentence pursuant to
the mandatory minimum statute, is proper and
constitutional in light of Alleyne v. United
States, 133 S.Ct. 2151 (2013) and
Commonwealth v. Newman, 2014 PA Super
178 (2014)[?]
Appellant’s brief at 4. We will address these matters in the order presented.
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. Where . . .
the appeal of the determination of the suppression
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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. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations
omitted), cert. denied, Jones v. Pennsylvania, 562 U.S. 832 (2010).
The trial court properly denied suppression. In order for a search to
be deemed unreasonable and unconstitutional, a defendant has to
demonstrate that he or she has an expectation of privacy in the place that is
searched. Commonwealth v. Edwards, 874 A.2d 1192, 1195 (Pa.Super.
2005). Instantly, the car that was searched was not owned by appellant,
but was a rental vehicle that appellant claimed was rented by a friend.
However, at the suppression hearing, appellant presented no evidence that
he had permission to operate the vehicle or had any other legitimate
connection to the vehicle. Under similar circumstances, our courts have
found that no expectation of privacy has been shown.
In the instant case, the vehicle was not owned
by Appellant. The vehicle was not registered in
Appellant’s name. Appellant offered no evidence
that he was using the vehicle with the authorization
or permission of the registered owner. Appellant
offered no evidence to explain his connection to the
vehicle or his connection to the registered owner of
the vehicle. Appellant failed to demonstrate that he
had a reasonably cognizable expectation of privacy in
a vehicle that he did not own, that was not
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registered to him, and for which he has not shown
authority to operate.
Commonwealth v. Burton, 973 A.2d 428, 436 (Pa.Super. 2009).
At the suppression hearing, Maldonado bore the
burden of establishing that he had a reasonable
expectation of privacy in the automobile. Id. at 435.
At the suppression hearing, the Commonwealth
presented only the testimony of Officer Buckman,
and Maldonado did not present any witnesses. The
evidence elicited at that time establishes that the
vehicle was owned by Vasquez. Officer Buckland
testified, on cross-examination, that Maldonado told
him that Vasquez was his girlfriend and that they
lived together at the address to which the vehicle
was registered. N.T., 7/6/09, at 18-19. However,
there was no evidence that Maldonado had
permission from Vasquez to drive the car. When
Maldonado’s counsel asked Officer Buckman whether
Maldonado told him that Vasquez had given him
permission to drive her car, Officer Buckman stated
only that he did not recall asking Maldonado that
question. Id. at 19. Of note, although it appears
that Vasquez attended the suppression hearing,
Maldonado did not call her to testify that she had
given Maldonado permission to drive her car on the
day in question.
The fact that Maldonado and Vasquez might
have lived together and had a romantic relationship
does not foreclose the possibility that Maldonado was
driving Vasquez’s vehicle without her knowledge or
permission. For that reason, we conclude that
Maldonado failed to establish an expectation of
privacy in the vehicle he was driving, which “he did
not own, that was not registered to him, and for
which he has not shown authority to operate.” We
therefore reverse the trial court’s order granting
Maldonado’s motion to suppress.
Commonwealth v. Maldonado, 14 A.3d 907, 911-912 (Pa.Super. 2011)
(footnotes and citations omitted).
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Instantly, the car at issue was a rental vehicle not rented in appellant’s
name and appellant did not present evidence that he had the permission of
the person who rented the vehicle to operate it. Consequently, appellant
has not demonstrated an expectation of privacy and cannot attack the
search as unreasonable and unconstitutional.
Appellant cites United States v. Kennedy, 638 F.3d 159 (3rd Cir.
2011), cert. denied, Kennedy v. U.S., 132 S.Ct. 997 (2012), for the
proposition that a person who borrows a rental car but is not an authorized
driver under the rental agreement has a reasonable expectation of privacy in
the car. (Appellant’s brief at 9.) Appellant has misread Kennedy. In fact,
Kennedy holds that a person who has the permission of the renter to
operate the rental car, but is not an authorized driver under the rental
agreement, has no expectation of privacy in the vehicle. Kennedy, 638
F.3d at 165. Thus, Kennedy affords appellant no relief.
Moreover, even if appellant had an expectation of privacy in the car,
the police had probable cause to search the vehicle. The police observed
appellant’s vehicle travelling at 64 m.p.h. in an area zoned for 55 m.p.h. for
a distance in excess of three-tenths of a mile. Thus, the police witnessed a
speeding violation pursuant to 75 Pa.C.S.A. § 3368(a), and had probable
cause to conduct a vehicle stop. Thereafter, when the officers approached
the car and detected the strong odor of raw marijuana, they had probable
cause to suspect that appellant’s vehicle contained a controlled substance
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and were permitted to search the vehicle under the automobile exception to
the ordinary warrant requirement. Commonwealth v. Gary, 91 A.3d 102(Pa. 2014).3
Appellant cites United States v. Chadwick, 433 U.S. 1 (1977), for
the proposition that the automobile exception to the warrant requirement
does not extend to closed containers found within the automobile and seized
by police. However, the United States Supreme Court subsequently
overruled Chadwick, permitting closed containers found in the automobile
to be searched. California v. Acevedo, 500 U.S. 565, 579-581 (1991).
We find that the trial court properly denied suppression.
We now turn to appellant’s second issue pertaining to the
constitutionality of his mandatory minimum sentence following the decisions
in Alleyne v. United States and Commonwealth v. Newman, 99 A.3d 86(Pa.Super. 2014). Alleyne held that any fact that served to aggravate the
minimum sentence could not be considered a sentencing factor determined
by the trial court by a preponderance of the evidence, but had to be found
3
In Gary, our supreme court recently decided that Pennsylvania’s
automobile exception to the warrant requirement was in accord with current
federal jurisprudence; that is, that only probable cause and no exigency
beyond the inherent mobility of a motor vehicle is required to permit a
warrantless vehicle search. We note in passing that the supreme court
issued Gary under the caption “Opinion Announcing the Judgment of the
Court,” which the supreme court commonly employs when rendering a
plurality opinion. However, our reading of Justice Saylor’s concurrence
indicates to us that he fully joins the three-Justice Majority. Consequently,
we do not regard Gary as a plurality opinion.
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by a jury beyond a reasonable doubt. Newman ruled that Alleyne
specifically rendered the mandatory minimum sentencing provision under
which appellant was sentenced, 42 Pa.C.S.A. § 9712.1, unconstitutional.
The mandatory minimum sentencing provision at issue reads as
follows:
(a) Mandatory sentence.--Any person who is
convicted of a violation of section 13(a)(30) of
the act of April 14, 1972 (P.L. 233, No. 64),
[PWID] known as The Controlled Substance,
Drug, Device and Cosmetic Act, when at the
time of the offense the person or the person’s
accomplice is in physical possession or control
of a firearm, whether visible, concealed about
the person or the person’s accomplice or within
the actor’s or accomplice’s reach or in close
proximity to the controlled substance, shall
likewise be sentenced to a minimum sentence
of at least five years of total confinement.
(c) Proof at sentencing.--Provisions of this
section shall not be an element of the crime,
and notice thereof to the defendant shall not
be required prior to conviction, but reasonable
notice of the Commonwealth’s intention to
proceed under this section shall be provided
after conviction and before sentencing. The
applicability of this section shall be determined
at sentencing. The court shall consider any
evidence presented at trial and shall afford the
Commonwealth and the defendant an
opportunity to present any necessary
additional evidence and shall determine, by a
preponderance of the evidence, if this section
is applicable.
42 Pa.C.S.A. § 9712.1(a) and (c). We note that it is Subsection (c) that
runs afoul of Alleyne because it declares that possession of a firearm is not
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an element of the crime, because prior notice to the defendant is not
required, and because possession is determined by the trial court rather
than the jury and by a preponderance of the evidence rather than beyond a
reasonable doubt.
The lower court found that appellant’s mandatory minimum sentence
was sustainable pursuant to the rationale in Commonwealth v. Watley, 81
A.3d 108 (Pa.Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa.
2014). In Watley, the defendant had been convicted by a jury of the
separate offenses of PWID and carrying a firearm without a license. The trial
court imposed the mandatory minimum sentence under 42 Pa.C.S.A.
§ 9712.1 because the appellant possessed a firearm at the time he
committed the PWID offense. While the Watley court acknowledged that
Alleyne had rendered Section 9712.1 unconstitutional, the court could allow
the mandatory minimum sentence to stand because the concerns of Alleyne
had been addressed by the jury’s separate finding that the appellant
possessed a firearm beyond a reasonable doubt and which offense arose
from the same incident as the PWID offense. The court below then
concluded that because separate PWID and firearm convictions were also
reached by the jury instantly, the mandatory minimum sentence could
likewise be sustained. We disagree.
Since the decision in Watley and before this appeal, our court
subsequently decided Newman. Newman held that Alleyne did, in fact,
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render Section 9712.1 unconstitutional and that sentences issued
thereunder were improper and must be vacated. Newman also held that
both Subsections 9712.1(a) and (c) were rendered void over an argument
that Alleyne applied to only Subsection 9712.1(c), “the enforcement arm,”
and not to Subsection 9712.1(a), “the predicate arm.” Newman, 99 A.3d
at 101. Pursuant to that argument, the Commonwealth suggested merely
remanding the case for review by a sentencing jury. Newman rejected that
approach as tantamount to legislating a new enforcement procedure, and
that it was more appropriately the province of the General Assembly to
address. We find that adopting the analysis suggested by Watley likewise
would result in a judicially crafted enforcement arm, allowing the mandatory
minimum sentence to stand where there are separate convictions for PWID
and possession of a firearm. Newman effectively “wiped the slate clean,”
allowing no sentence to stand under Section 9712.1, because that section is
unconstitutional in whole.
Accordingly, we will affirm the decision as to appellant’s suppression
issue, but we must vacate appellant’s sentence and remand for
resentencing.
Judgment of sentence as to suppression is affirmed; judgment of
sentence as to sentencing is reversed. Sentence vacated. Case remanded
for re-sentencing. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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