Com. v. Carr, V. ( 2015 )

J-A14028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT LEROY CARR
Appellant No. 1582 MDA 2014
Appeal from the Judgment of Sentence August 20, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000623-2014
BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY JENKINS, J.: FILED MAY 18, 2015
Appellant Vincent Leroy Carr appeals from the judgment of sentence
entered in the York County Court of Common Pleas following his bench trial
conviction for possession of a controlled substance with intent to deliver
(“PWID”).1 We affirm Appellant’s conviction, but vacate his judgment of
sentence and remand for resentencing.
The trial court sets forth the relevant facts of this appeal as follows:
Detective Scott Nadzom had been receiving information
from an informant that a known unwitting drug dealer was
being supplied with or obtaining cocaine from an unknown
black male drug dealer, who resides in the area of 502 N.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
J-A14028-15
Pershing Ave. in York City. The known unwitting drug
dealer redistributes or sells the cocaine to other people.
During a controlled buy, the informant called the known
unwitting drug dealer to purchase cocaine. Detective
Nadzom searched the informant’s vehicle for any type of
contraband with a negative result. He [then] supplied the
informant with official funds to purchase the cocaine. At
this point, the detective followed the informant to a
predetermined location where he observed the informant
meet with the known unwitting drug dealer. The informant
remained under constant police surveillance, while other
police observed the known drug dealer go directly from the
informant to the first floor apartment of 502 N. Pershing
Ave. A short time later, police observed the known
unwitting drug dealer exit the residence and return directly
to the informant.
After the meet was complete, police followed the informant
to a predetermined location where the informant turned
over the cocaine he had purchased. The informant’s
vehicle was again searched with negative results. The
informant told police that the known unwitting drug dealer
told him that his cocaine supplier at 502 N. Pershing Ave
1st floor apartment had additional amounts of cocaine for
sale. The informant in this case is a multi-drug dealer and
user who is familiar with how cocaine is used, packaged,
and sold in York County.
Based on this information from the informant and the
surveillance and controlled [buy], Detective Nadzom
applied for and was subsequently issued a search warrant
for 502 N. Pershing Ave. Upon execution of the search
warrant, [Appellant] was charged with [PWID].
Trial Court Order Denying Appellant’s Omnibus Pre-Trial Motion (“6/9/14
Order”), filed June 9, 2014, at 1-2 (page numbers supplied) (internal
footnotes omitted).
On May 16, 2014, Appellant filed an omnibus pre-trial motion,
including a motion to suppress evidence. The court conducted a hearing on
-2-
J-A14028-15
May 19, 2014, and denied Appellant’s motions on June 9, 2014. Following a
stipulated bench trial conducted on June 18, 2014, the court convicted
Appellant of PWID. N.T. 6/18/14, at 9-12. The court further found
Appellant possessed 13 grams of cocaine in a school zone. Id.
On June 26, 2014, the Commonwealth filed a notice of application of
mandatory minimum sentence pursuant to 18 Pa.C.S. §§ 7508 and 6317.
On July 29, 2014, Appellant filed a motion for extraordinary relief on the
basis that the mandatory minimum statutes are no longer facially
constitutional in light of Alleyne v. United States, ___ U.S. ___, 133 S.Ct.
2151, 186 L.Ed. 2d 314 (2013). On July 31, 2014, Appellant filed a
sentencing memorandum requesting an intermediate punishment sentence
of 24 months, with the first six months on electronically monitored house
arrest due to his family considerations, lack of criminal history over the past
27 years, severe medical history, and current medical condition. The same
day, the court conducted a sentencing hearing and requested further case
law on sentencing enhancements. On August 20, 2014, the court conducted
another sentencing hearing during which it asked the Commonwealth which
mandatory sentence it wanted applied. The Commonwealth indicated it
wanted the court to apply the drug weight mandatory minimum, pursuant to
18 Pa.C.S. §§ 7508(3)(ii)(a). The court sentenced Appellant as follows:
The court previously found [Appellant] guilty of [PWID],
the weight that the court found was greater than 10 grams
but less than a hundred. Therefore, the minimum applies.
-3-
J-A14028-15
[Appellant] is sentenced to 3 to 6 years in the state
correctional institute.
N.T., 8/20/14, at 9-10.
On September 19, 2014, Appellant timely filed a notice of appeal.
Appellant and the trial court complied with Pa.R.A.P. 1925.2
Appellant raises the following issues for our review:
1. WHETHER THE TRIAL COURT ERRED IN ITS JUNE 9,
2014 ORDER DENYING [APPELLANT’S] OMNIBUS PRETRIAL
MOTION, WHICH SOUGHT SUPPRESSION OF EVIDENCE
OBTAINED PURSUANT TO THE EXECUTION OF A SEARCH
WARRANT AT [APPELLANT’S] RESIDENCE, CONTENDING
THAT THE JANUARY 21, 2014 APPLICATION FOR SEARCH
WARRANT AND ACCOMPANYING AFFIDAVIT LACKED
SUFFICIENT PROBABLE CAUSE, IN VIOLATION OF
[APPELLANT’S] RIGHT TO BE FREE OF UNREASONABLE
SEARCHES AND SEIZURES AS GUARANTEED BY THE
FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE 1, SECTION 8 OF
THE PENNSYLVANIA CONSTITUTION?
2. WHETHER THE TRIAL COURT ERRED IN ITS AUGUST 20,
2014 IMPOSITION OF 3 TO 6 YEARS[’] IMPRISONMENT
PURSUANT [TO] THE MANDATORY MINIMUM SENTENCING
PROVISIONS OF THE PENNSYLVANIA DRUG TRAFFICKING
SENTENCING AND PENALTIES STATUTE, ERRING IN
CONCLUDING THAT THIS STATUTE REMAINS FACIALLY
CONSTITUTIONAL IN LIGHT OF THE UNITED STATES
SUPREME COURT’S JUNE 17, 2013 DECISION IN ALLEYNE
V. UNITED STATES, AS THIS STATUTE VIOLATES
____________________________________________
2
On September 23, 2014, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On October 14, 2014, Appellant filed a motion for an extension of time in
which to file his concise statement. On October 17, 2014, the court granted
Appellant’s motion and ordered him to file a Rule 1925(b) statement within
30 days. Appellant timely complied on November 14, 2014, and the trial
court issued its Rule 1925(a) opinion on December 4, 2014.
-4-
J-A14028-15
[APPELLANT’S] RIGHT TO TRIAL BY JURY GUARANTEED BY
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, AND ARTICLE 1,
SECTION 6 OF THE PENNSYLVANIA CONSTITUTION?
Appellant’s Brief at 4.
In his first issue, Appellant challenges the sufficiency of the affidavit of
probable cause supporting the search warrant. Appellant argues the
affidavit lacked a basis for the confidential police informant’s reliability or
veracity. Further, he complains that the affidavit rests upon double-hearsay
statements without any additional showing of reliability or veracity of the
unwitting drug dealer. He concludes the court erred in denying his motion to
suppress evidence obtained as a result of the execution of the search
warrant. We disagree.
When addressing a challenge to a trial court’s denial of a suppression
motion, our standard of review is “whether the factual findings are
supported by the record and whether the legal conclusions drawn from these
facts are correct.” Commonwealth v. Hawkins, 45 A.3d 1123, 1126
(Pa.Super.2012), appeal denied, 53 A.3d 756 (Pa.2012) (internal citation
omitted). Further:
[w]hen reviewing the rulings of a suppression court, we
must consider only the evidence of the prosecution 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 record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are
in error.
Id. (citations and internal quotation marks omitted).
-5-
J-A14028-15
Evidence obtained in violation of a defendant’s right to be free from
unreasonable searches and seizures cannot be used against him at trial.
See Commonwealth v. Lee, 972 A.2d 1, 5 (Pa.Super.2009). “Once a
motion to suppress evidence has been filed, it is the Commonwealth’s
burden to prove, by a preponderance of the evidence, that the challenged
evidence was not obtained in violation of the defendant’s rights.”
Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa.2012) (citing
Pa.R.Crim.P. 581(H); Commonwealth v. Hamilton, 673 A.2d 915, 916
(Pa.1996)).
The Fourth Amendment of the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect against unreasonable
searches and seizures. See Commonwealth v. Gillespie, 103 A.3d 115,
118 (Pa.Super.2014). The Pennsylvania Constitution provides, in relevant
part:
§ 8. Security from searches and seizures
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.
“In determining whether the warrant is supported by probable cause,
the magistrate may not consider any evidence outside the four-corners of
the affidavit.” Commonwealth v. Ryerson, 817 A.2d 510, 513
-6-
J-A14028-15
(Pa.Super.2003) (quoting Commonwealth v. Sharp, 683 A.2d 1219, 1223
(Pa.Super.1996). Additionally,
[t]he legal principles applicable to a review of the
sufficiency of probable cause affidavits are well settled.
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 standard
for evaluating a search warrant is a ‘totality of the
circumstances’ test as set forth in Illinois v. Gates, 462
U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and
adopted in Commonwealth v. Gray, 503 A.2d 921([Pa.]1985). A magistrate is to make a “practical,
common sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.” The information offered to establish
probable cause must be viewed in a common sense, non-
technical manner. Probable cause is based on a finding of
the probability, not a prima facie showing of criminal
activity, and deference is to be accorded a magistrate’s
finding of probable cause. Commonwealth v. Dean, 693
A.2d 1360, 1365 (Pa.Super.1997) (citations, quotations,
and emphasis omitted).
Ryerson, supra at 513-14.
Regarding confidential informants, our Supreme Court has held that:
a determination of probable cause based upon information
received from a confidential informant depends upon the
informant’s reliability and basis of knowledge viewed in a
common sense, non-technical manner. Commonwealth
v. Luv, 735 A.2d 87, 90 ([Pa.]1999). Thus, an informant’s
tip may constitute probable cause where police
independently corroborate the tip, or where the informant
has provided accurate information of criminal activity in
the past, or where the informant himself participated in
the criminal activity. Id. The corroboration by police of
significant details disclosed by the informant in the
-7-
J-A14028-15
affidavit of probable cause meets the Gates threshold.
Commonwealth v. Sanchez, 907 A.2d 477, 488
([Pa.]2006) (quoting United States v. Tuttle, 200 F.3d
892, 894 (6th Cir.2000)) (“[I]nformation received from an
informant whose reliability is not established may be
sufficient to create probable cause where there is some
independent corroboration by police of the informant’s
information.”) [The Pennsylvania Supreme] Court has
recently expressed the standard broadly: “The linch-pin
that has been developed to determine whether it is
appropriate to issue a search warrant is the test of
probable cause. Probable cause exists where the facts and
circumstances within the affiant’s knowledge and of which
he has reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the
belief that a search should be conducted.”
Commonwealth v. Jones, 988 A.2d 649, 655
([Pa.]2010) (citations omitted).
Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa.2011).
In this case, the affidavit of probable cause provided:
The undersigned is Det. Scott Nadzom who has been a
police officer with the York City Police for the last 18 years
and I am currently assigned to the Vice & Narcotics Unit of
the York City Police Department. I was also a member of
the York County Drug Task Force from 1997 until 2013.
Over my career as a police officer with York City, I have
been involved in or associated with over a thousand drug
investigations.
Within the last month l received information that a known
unwitting drug dealer is being supplied with or obtaining
cocaine from an unknown black male drug dealer, who
resides in the area of 502 N. Pershing Ave. in York City,
then the known unwitting black male drug dealer
redistributes or sell[s] this cocaine to other people.
Within the last 72 [hours], the same informant as noted
above called a known unwitting drug dealer and ordered
up a quantity of cocaine. With that, I searched the
informant and [its] vehicle for any type of contraband with
negative results then I supplied the informant with official
-8-
J-A14028-15
funds (photocopied) to purchase cocaine from the known
unwitting drug dealer. I followed the informant to a pre-
determined location where I observed the informant meet
with the known unwitting drug dealer. The informant
remained stationary under constant police surveillance
while other police observed the known unwitting drug
dealer go directly from the informant to 502 N. Pershing
Ave. where the known unwitting drug dealer entered the
1st floor apt. of 502 N. Pershing Ave. A short time later,
police observed the known unwitting drug dealer exit 502
N. Pershing Ave. 1st floor apt. and return directly to the
informant. After the meet was complete between the
informant and the known unwitting drug dealer, police
followed the informant to a pre-determined location where
the informant turned over a quantity of cocaine which the
informant purchased from the known unwitting drug dealer
with official funds. The item purchased from the known
unwitting drug dealer field-tested positive for cocaine. I
searched the informant and it’s vehicle again for any type
of contraband with negative results. The known unwitting
drug dealer told the informant that the known unwitting
drug dealer’s cocaine supplier at 502 N. Pershing Ave. 1 st
floor apt. had additional amounts of cocaine for sale. The
informant involved in this incident is a multi-drug
dealer/user who is familiar with how cocaine is used,
packaged and sold in York County.
During the above-described incident, police kept the
informant under constant surveillance and the informant
only had contact with the known unwitting drug dealer.
Police also surveilled the known unwitting drug dealer
throughout the duration of this incident except for the time
period the known unwitting drug dealer was inside 502 N.
Pershing Ave. 1st floor apt. in York City.
With regard to the known unwitting drug dealer and other
on-going drug investigations as it relates to the informant
involved in this incident, the known unwitting drug dealer
will be charged with felony drug deliveries at a later date.
Based on the above information I request a search warrant
for 502 N. Pershing Ave. 1st floor apt. (City of York) in
order to search for additional amounts of cocaine as well
as the official funds used in the above described incident.
-9-
J-A14028-15
Also include any curtilage associated with the residence as
well as all persons present during the service of the
warrant. I am requesting all persons to be searched based
on this detective’s experience that cocaine can be
concealed on a person and later destroyed.
Affidavit of Probable Cause, dated January 21, 2014.
Based on this affidavit of probable cause, the magistrate properly
issued a search warrant. The trial court reasoned:
Here, the controlled buy corroborated the information
given to police by the informant. The police observed the
known drug dealer[,] who redistributes the cocaine from
his supplier, enter the residence, exit, and deliver cocaine
to the informant. This fact certainly connected the illegal
transaction to [Appellant’s] residence, in a common sense,
non-technical way, and permitted the issuing authority to
conclude that drugs would likely be found in the residence.
Under the totality of the circumstances, there was a
sufficient connection between the residence and the
transaction to corroborate the [informant’s] information
that drugs were stored in the residence, and to support a
determination of probable cause to issue a search warrant
to search the residence.
6/9/14 Order at 5-6. We see no reason to disturb the trial court’s order
denying Appellant’s suppression motion, because the record supports the
court’s factual findings and its legal conclusions are correct. See Hawkins,
supra.In his second issue, Appellant argues the trial court erred by imposing
the mandatory minimum sentence pursuant to 18 Pa.C.S. §§ 7508(3)(ii)(a),
as it is facially unconstitutional in light of Alleyne. We agree.
Our standard of review regarding the imposition of a mandatory
sentence is as follows:
- 10 -
J-A14028-15
Generally, a challenge to the application of a mandatory
minimum sentence is a non-waiveable challenge to the legality
of the sentence. Issues relating to the legality of a sentence are
questions of law, as are claims raising a court’s interpretation of
a statute. Our standard of review over such questions is de
novo and our scope of review is plenary.
Hawkins, supra at 1130.
The sentencing code provides, in relevant part:
§ 7508. Drug trafficking sentencing and penalties
(a) General rule.--Notwithstanding any other provisions
of this or any other act to the contrary, the following
provisions shall apply:
* * *
(3) A person who is convicted of violating section
13(a)(14), (30) or (37) of The Controlled Substance,
Drug, Device and Cosmetic Act where the controlled
substance is coca leaves or is any salt, compound,
derivative or preparation of coca leaves or is any
salt, compound, derivative or preparation which is
chemically equivalent or identical with any of these
substances or is any mixture containing any of these
substances except decocainized coca leaves or
extracts of coca leaves which (extracts) do not
contain cocaine or ecgonine shall, upon conviction,
be sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this
subsection:
* * *
(ii) when the aggregate weight of the compound or
mixture containing the substance involved is at least
ten grams and less than 100 grams; three years in
prison and a fine of $15,000 or such larger amount
as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity; however, if at
the time of sentencing the defendant has been
convicted of another drug trafficking offense: five
- 11 -
J-A14028-15
years in prison and $30,000 or such larger amount
as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity; and
* * *
(b) Proof of sentencing.--Provisions of this section shall
not be an element of the crime. Notice of the applicability
of this section 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 evidence presented at
trial, shall afford the Commonwealth and the defendant an
opportunity to present necessary additional evidence and
shall determine, by a preponderance of the evidence, if
this section is applicable.
18 Pa.C.S. § 7508.
In Alleyne, the Supreme Court held that the Due Process Clause of
the Federal Constitution requires each factor that increases a mandatory
minimum sentence to be submitted to a jury and found beyond a reasonable
doubt. Alleyne, 133 S.Ct at 2163. Based upon Alleyne, this Court stated
in dicta in Commonwealth v. Watley that 18 Pa.C.S. § 75083 and 42
Pa.C.S. § 9712.14 are unconstitutional insofar as they permit a judge to
automatically increase a defendant’s sentence based on a preponderance of
____________________________________________
3
§ 7508. Drug trafficking sentencing and penalties.
4
§ 9712.1. Sentences for certain drug offenses committed with firearms.
- 12 -
J-A14028-15
the evidence standard for factors other than a prior conviction. Watley, 81
A.3d 108, 117 n. 4 (Pa.Super.2013) (en banc), appeal denied, 95 A.3d. 277
(Pa.2014)
More recently, in Commonwealth v. Newman, 99 A.3d 86(Pa.Super.2014) (en banc), following our dicta in Watley, we held that the
preponderance of the evidence standard in section 9712.1(c) is
unconstitutional under Alleyne. We then addressed whether it was possible
to continue enforcing the remaining subsections of section 9712.1 after
severing subsection (c). We held that section 9712.1, as a whole, was no
longer workable, because subsection (c) was “essentially and inseparably
connected” with the mandatory minimum sentencing provision in subsection
(a). Newman, supra at 101. Further, in Commonwealth v. Valentine,
101 A.3d 801 (Pa.Super.2014), this Court found that “it is manifestly the
province of the General Assembly to determine what new procedures must
be created in order to impose mandatory minimum sentences in
Pennsylvania following Alleyne. We cannot do so.” Valentine, 101 A.3d at
811.
In a case factually similar to our present case, this Court concluded
that the imposition of a sentence pursuant to 18 Pa.C.S. § 7508(a)(2)(iii)
was illegal and must be vacated. See Commonwealth v. Cardwell, 105
A.3d 748, 754-55 (Pa.Super.2014); see also Commonwealth v.
Thompson, 93 A.3d 478, 494 (Pa.Super.2014). In Cardwell, the
- 13 -
J-A14028-15
Commonwealth and the appellant stipulated to the total weight of the drug
PCP. Cardwell, supra at 754. The trial court concluded that the
Commonwealth had proved the element of the weight of the drugs beyond a
reasonable doubt and applied the mandatory minimum pursuant to Section
7508. Id. This Court vacated the judgment of sentence and remanded for
resentencing without the imposition of the statutory minimum.
Because the trial court sentenced Appellant pursuant to the mandatory
minimum under 18 Pa.C.S. § 7508, we conclude that his sentence is illegal
and must be vacated under the foregoing authorities.
Conviction affirmed. Judgement of sentence vacated; case remanded
for resentencing. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
- 14 -