Com. v. Brown, B. ( 2019 )

J-S63010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BENJAMIN BROWN, JR. :
:
Appellant : No. 1793 WDA 2017
Appeal from the Judgment of Sentence July 6, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008446-2016
BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED JANUARY 07, 2019
Benjamin Brown, Jr., appeals from the judgment of sentence imposed
July 6, 2017, in the Allegheny County Court of Common Pleas. The trial court
sentenced Brown to an aggregate term of 11½ months, less one day, to 24
months, less one day, followed by five years’ probation, after finding Brown
guilty of persons not to possess firearms, possession of controlled substances
(two counts), possession of a small amount of marijuana, and possession of
drug paraphernalia.1 On appeal, Brown argues (1) the trial court erred in
denying his pretrial motion to suppress evidence obtained during an unlawful
search by his probation officer, and (2) the court abused its discretion in
____________________________________________
 Former Justice specially assigned to the Superior Court.
1See 18 Pa.C.S. § 6105(a)(1), and 35 P.S. §§ 780-113(a)(16), (31) and (32),
respectively.
J-S63010-18
concluding the verdict was not against the weight of the evidence. For the
reasons below, we affirm.
The facts underlying Brown’s arrest and conviction are aptly
summarized by the trial court as follows:
With regard to the Suppression Hearing, the Commonwealth first
called Probation Officer Robert Tutko as a witness. Officer Tutko
has been employed as a Probation Officer in Allegheny County for
twenty-two years. He recalled being in the area of the Hi View
Gardens section of McKeesport on March 22, 2016 at
approximately 1:00 p.m. Officer Tutko was there to do a
compliance check on the residence of [] Brown as [Brown] was
under his supervision for the last six to nine monhs. When Officer
Tutko arrived at the location, he observed [] Brown and his
girlfriend seated in a Ford Escape. [] Brown was in the driver’s
seat and when he opened the door, Officer Tutko observed a
marijuana blunt laying in the center console and could smell the
odor of marijuana in the air. According to Officer Tutko, [Brown]
was on probation at this time and he had him step out of the
vehicle and patted him down. Officer Tutko located a small bag
of marijuana on his person. At that point, [] Brown became
uncooperative, so Officer Tutko handcuffed him for the safety of
himself and the other 5-6 probation officers present. He then
explained to [] Brown that they were going to conduct a
compliance check at his residence and, his girlfriend, Starkisha
Thomas, escorted them into the residence of 733 Sixth Street,
Apartment 318. Prior to that [] Brown stated, “There’s nothing in
there.”
Once inside the apartment, Officer Tutko observed a small
baggie of crack cocaine on the kitchen counter. At that point, he
contacted his supervisor, Michelle McDowell, explained what he
observed, and she authorized the officers to look further in the
residence for additional contraband. At that point, the compliance
check became a search. Immediately off the kitchen was a dining
area where male clothing and shoeboxes were located. Officer
Tutko next opened a shoebox and found a firearm, currency and
a bag of what appeared to be powdered cocaine. There were
approximately ten shoeboxes in the room. Another probation
officer located a larger bag [of] crack cocaine in another shoebox.
Officer Tutko believed the crack cocaine was inside a green Crown
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Royal bag. When [] Brown became uncooperative, the
McKeesport Police were called and arrived at the scene. Once
Detective Summers arrived at the scene, he was shown the items
located in the shoeboxes, and took custody of the items.
Officer Tutko was shown a printout, dated February 1, 2016,
which indicated that [] Brown filled out paperwork to transfer his
supervision from Butler County to Allegheny County. The
paperwork was handled by an intake clerk, Craig Jonas, and []
Brown’s address was transferred to 733 Sixth Street, Apartment
318.
The Commonwealth next called Detective Sidney Summers
to testify [regarding the drugs and firearm recovered from the
apartment].
The Commonwealth then called Starkisha Thomas to the
stand. She recalled being in the area of the Hi View Gardens
apartments in McKeesport on the afternoon of March 22, 2016.
She was with [] Brown on that date …. Ms. Thomas had an
apartment in that area located at 733 Sixth Street, Apartment
318. She indicated that her children and [] Brown were staying
at the apartment with her. Prior to the incident on March 22,
2016, [] Brown, after being released from the Allegheny County
Jail[,] had been staying at Ms. Thomas’ apartment for two or three
weeks. Prior to this, the last time he was on probation, he was
staying at his cousin’s house on Locust Street[ while he was put
back on electronic monitoring]. After [] Brown moved back to Ms.
Thomas’ apartment, she helped him move approximately twelve
pair of Jordan sneakers shoeboxes to her residence on March 22,
2016, a few hours before probation arrive. Ms. Thomas thought
there were shoes in the boxes. [] Brown also had some clothes
and jackets at her residence. She picked up the boxes from his
cousin’s house in Locust Street and placed them along her living
room wall.
Ms. Thomas last had contact with [] Brown a few months
before the trial and he told her he was sorry for putting her in this
situation and he admitted the stuff was his. Ms. Thomas admitted
that she was actually charged with crimes based on the evidence
found in her residence. She further admitted she was offered a
plea deal in exchange for her testimony. Prior to the plea deal
occurring, she recalled going to the McKeesport Police Station and
providing a statement to them.
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During cross-examination, Ms. Thomas stated she was
cooperative when probation arrived, and she allowed them into
her residence because to the best of her knowledge, there was
nothing in her home. A few months after this incident, she
decided to give a statement to the police indicating the items
belonged to [] Brown.
On redirect examination, Ms. Thomas testified that the first
time she tried to tell the police, specifically Detective Summers,
that the stuff was not hers was when she was arrested a week or
two after the incident. A month or two after that she was asked
to give written statement.
Detective Summers was called again for redirect
examination. He recalled Ms. Thomas coming to him to try to tell
her side of the story when she was arrested and when she had
her first initial preliminary [hearing]. He further testified that the
information she provided, at those times, was consistent with
what she told him when she gave her written statement.
Defense counsel placed a stipulation on the record that on
February 20, 2016, Officer Jeremy Zuber responded to a
disturbance at 1315 Locust Street. Once on scene, the officers
flagged down the victim, Starkisha Thomas, who stated that her
vehicle’s windshield was just bricked, and she alleged that it was
done by [] Brown.
****
[D]efense counsel called [] Brown to the stand for purposes
of the suppression hearing only. [] Brown admitted to having a
relationship with Ms. Thomas but testified it ended in late February
of 2016 after the incident with the brick in the windshield of her
vehicle. As such, he stated he was surprised when probation said
they were conducting a compliance check for him at Ms. Thomas’
residence. [] Brown testified he never registered Ms. Thomas’
address with probation and he remained at 1315 Locust Street
even though that address was expired. On cross-examination, []
Brown indicated when the probation officers said they were going
to do the compliance check at 733 [Sixth Street], he told them he
didn’t understand why Officer Tutko was doing the check at Ms.
Thomas’ residence when he didn’t live there. According to []
Brown, Officer Tutko said that this was [] Brown’s registered
probation address and that he was doing to do a compliance check
on [him] at her address. Finally, [] Brown said that he may have
left a few pieces of clothing at Ms. Thomas’ residence from when
he lived there previously.
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Trial Court Opinion, 5/29/2018, at 4-11 (record citations omitted).
Brown was subsequently charged with the aforementioned crimes. On
April 7, 2017, he filed a pretrial motion to suppress the evidence recovered
during the search of the apartment, arguing the probation officer did not have
the authority to search that residence because it was not his “proper
registered address with probation.” Motion to Suppress, 4/7/2017, at ¶ 9.
The case proceeded to a contemporaneous suppression hearing/non-jury trial
conducted on April 10, 2017. The trial court denied Brown’s suppression
motion,2 and then permitted counsel to present argument on the trial issues.
Thereafter, the trial court found Brown guilty on all charges. On July 6, 2017,
the court sentenced Brown to a term of 11½ months, less one day, to 24
months, less one day, followed by five years’ probation on the charge of
persons not to possess firearms.3 Brown filed a timely post-sentence motion
challenging the weight and sufficiency of the evidence, which the trial court
denied on November 9, 2017. This appeal followed.4
Brown raises two issues on appeal. First, he contends the trial court
erred in denying his pre-trial suppression motion. Brown insists Officer Tutko
____________________________________________
2 See N.T., 4/10/2017, at 88-89.
3 The court imposed no further penalty on the remaining convictions.
4 On November 20, 2017, the trial court ordered Brown to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Brown complied with the court’s directive, and after being granted an
extension of time, filed a concise statement on January 5, 2018.
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J-S63010-18
did not have probable cause to believe Brown lived at the Sixth Street
apartment, and, even if the officer did have probable cause to believe the
apartment was Brown’s residence, he maintains Officer Tutko had no
reasonable suspicion to conduct a search of the apartment. See Brown’s Brief
at 12-14. Second, Brown argues the verdict was contrary to the weight of the
evidence because there was very little evidence linking him to the apartment.
See id. at 15. He insists Ms. Thomas’ testimony, confirming he lived there
with her, was suspect since drugs were found in plain view in the home, and
Officer Tutko had “previously disapproved of [him] residing at that address.”
Id.
When reviewing an order denying a defendant’s pretrial motion to
suppress,
[we are] 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, [the appellate
court] is bound by [those] findings and may reverse only if the
court's legal conclusions are erroneous. Where ... 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 [ ] plenary
review.
Commonwealth v. Boyd Chisholm, ___ A.3d ___, ___, 2018 PA Super 291,
*3 (Pa. Super. 2018) (citation omitted).
-6-
J-S63010-18
Our review of a challenge to the weight of the evidence supporting the
verdict is well-settled:5
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. On appeal, our purview
is extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
of a review of the trial court’s exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence. An appellate court may not reverse a
verdict unless it is so contrary to the evidence as to shock one’s
sense of justice.
Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en
banc) (citation omitted), appeal denied, 168 A.3d 1237 (Pa. 2017).
After an independent review of the record, the parties’ briefs, and the
relevant statutory and case law, we find the trial court properly disposed of
Brown’s claims in its opinion. See Trial Court Opinion, 5/29/2018, at 14-19
(concluding: (1) after discovering marijuana on Brown’s person, the probation
officers had reasonable suspicion to conduct a check of the apartment, during
which they saw cocaine in plain view; (2) the officers then properly contacted
a supervisor to obtain permission to conduct a full search; and (3) both Ms.
____________________________________________
5We note Brown properly preserved his weight claim in a post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).
-7-
J-S63010-18
Thomas’ testimony, that the shoeboxes containing a gun and drugs belonged
to Brown, as well as Officer Tutko’s testimony, that the apartment was Brown’s
registered address, were credible, so that the verdict was not against the
weight of the evidence). Accordingly, we rest on the trial court’s well-
reasoned bases.
We write only to briefly address Brown’s claim that Officer Tutko did not
have probable cause to believe Brown lived at the Sixth Street apartment.
See Brown’s Brief at 12. Brown relies on this Court’s decision in
Commonwealth v. Edwards, 874 A.2d 1192 (Pa. Super. 2005), where the
panel explained that “to provide a [probation officer] with authority to make
a warrantless entry into a home[] it must be apparent to the [probation]
officers that the residence being searched is in fact the residence of the
[probationer] and not of another person.” Id. at 1197 (footnote omitted).
The Edwards Court later concluded the officer in that case “did not yet have
probable cause to believe that [the parolee] resided” at the home that was
searched. Id. at 1198.
In the present case, Brown highlights his own testimony that he did not
reside at the Sixth Street apartment with Thomas, nor did he inform Officer
Tutko that he intended to do so. See Brown’s Brief at 12. He also emphasizes
Officer Tutko never observed him at the apartment from the time he was
released from electronic monitoring to the date of his arrest, and on the day
in question, Officer Tutko encountered him outside of the apartment in a
vehicle. See id.-8-
J-S63010-18
Our review of the record reveals Officer Tutko had probable cause to
believe Brown was residing at the Sixth Street apartment. Officer Tutko had
supervised Brown at that apartment previously. See N.T., 4/10/2017, at 13.
However, after the February 2016, incident, when Brown had to return to
electronic monitoring, the officer requested Brown find a new residence. See
id. At that time, Brown moved to Locust Street.
Nevertheless, Officer Tutko testified that on March 7, 2016, three days
before Brown was to be released from electronic monitoring, he met with
Brown at the Locust Street residence, and “asked [Brown] if he was going
back to stay at the apartment on Sixth Street, and [Brown] stated he was.”
Id. Officer Tutko then planned to conduct a compliance check on the date of
the arrest, March 22, 2016. The fact that Brown denied having had this
conversation with Officer Tutko is of no moment, as it was within “the sole
province of the suppression court to weigh the credibility of witnesses.”
Commonwealth v. Edwards, 194 A.3d 625, 632 (Pa. Super. 2018) (citation
omitted).
Furthermore, Officer Tutko testified that in February of 2016, when
Brown transferred his supervision from Butler County to Allegheny County,
Brown provided the Sixth Street apartment as his residence. Therefore, the
probation database listed that address as his residence, despite the fact that,
for a short period of time, Brown was under electronic monitoring at the Locust
Street home. See id. at 23. Accordingly, we conclude Officer Tutko had
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probable cause to believe Brown was residing at the Sixth Street apartment
on March 22, 2018.
Because we conclude Brown is entitled to no relief, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2019
- 10 -
Circulated 12/10/2018 03:14 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
CRIMINAL DIVISION
v. No. 2016-08446
1793WDA2017
BENJAMIN BROWN, 0. RIGINAL �-= �{� �
Cnmrnal Division r- 0 -; � -�··"!
Dept. Of Court Records � :�:'.� c, � • I
Defendant Allegheny County, PA �} �,-: .. . �
-<. ,·- ·; ·. U)
OPINION ___....,,
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IGNELZI, J. 0
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PROCEDURAL HISTORY
By Criminal Information filed at No. CC 08446-2016 on July 6, 2016,
"Defendant" was charged with Persons not to Possess a Firearm-18 Pa.C.S.
6105A1; Possession of a Controlled Substance-Z Counts-35 Pa. C.S. § 780-
113A16; Possession of Marijuana-35 Pa. C.S. § 780-113 A31; and Possession
of Drug Paraphernalia-35 Pa.C.S. § 780-113A32. Additional charges of
Conspiracy and Possesion with Intent to Deliver were dismissed at Lower
Court.
On April 10, 2017, this Court conducted a Suppression Hearing
contemporaneously with a Non-Jury Trial. With regard to the Motion to
Suppress, the Court, after making findings of fact, DENIED the Defendant's
1
Motion to Suppress. Suppression Hearing and Non-Jury Trial Transcript, TT,
dated April 10, 2017, at pp.88:-89. At the conclusion of the Non-jury Trial, the
Court rendered the following verdict: As to Count 1-Possession of.a Firearm
Prohibited, Guilty; Count 2· Possession of a Controlled Substance, Guilty; Count
3·Possession of Marijuana, Guilty; Count 4·Use/Possession of Drug
Paraphernalia, Not Guilty; and Count 5-Possession of a Controlled Substance,
Guilty of a lesser charge. TT at p.-97. Because the guidelines were pretty high,
the parties agreed that a presentence report would be appropriate. Id.
The sentencing occurred on July 6, 2017. Prior to imposing the sentence,
the Court made the following findings:
First, the Court agreed with the defense that Mr. Brown does
not have a significant history of violence. This was his first firearm
charge.
Second, Mr. Brown spared the Commonwealth a jury trial.
Third, there was no indication that any of the officers or
probation officers were in any way, shape or form threatened with
a firearm.
Fourth, and most importantly, Mr. Brown used his time
productively with the hope that he is understanding the path he's
gone down up until now is not going to be the path for the rest of
his life.
And fifth, while the Commonwealth requested a minimum 3
to 6 year sentence, the recommendation of the defense, if the Court·
accepts it, in essence gives Mr. Brown a 3 year period of
incarceration.
Sentencing Transcrtpt, ST, dated July 6, 2017, at pp.13-14.
2
The Court, believing that a downward departure was appropriate,
sentenced Mr. Brown as follows: As to Count 1 a period of incarceration of no
less than one year less one day and no more than two years less one day. This
will be a county sentence and no credit will be given for time served. Judge
Cashman will determine how he wants to use it on the probation violations. The
Court also imposed a five year period of probation to commence at the end of
the county sentence. The Court further imposed· court costs and, as· to the
remaining counts, no further penalty. ST at pp. 14-15.
On July 14, 2017, Defendant file a Post-Sentence Motion, which was
denied on November 13, 2017. On November 14, 2017, Defendant filed a timely
Notice of Appeal. in the Superior Court of Pennsylvania. By Order dated
November 20, 2017, this Court ordered Defendant to file a Statement of Errors
Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). The Concise
Statement was ultimately filed on January 5, 2018.
STATEMENT OF ERRORS ON APPEAL
The Defendant's errors complained of on appeal are as follows:
1. The.. Commonwealth presented insufficient evidence to support the
verdict rendered. As the firearm and cocaine were not located on Mr.
Brown's person, the Commonwealth needed to establish that Mr.
Brown had knowledge and intent to control both of these items.
Commonwealth v. Boatwright, -1453 A.2d 1058 (Pa. Super. 1982). The
3
Commonwealth failed to establish either of these elements beyond a
reasonable doubt, as Officer Tutko was aware of one other individual
residing at the residence;
2. This Court' s verdict was against the weight of the evidence. The Court
placed too much emphasis on the fact that Mr. Brown was previously
on probation and had a history with Officer Tutko. The record
revealed that Officer Tutko had no evidence that Mr. Brown actually
resided in the apartment at issue: he had never seen Mr. Brown inside;
had previously disapproved the residence for Mr. Brown to live in; and
did not find any indicia linking Mr. Brown to the residence. TT at pp.
20-25 & 28; and
3. This Court improperly denied Mr. Brown's Motion to Suppress.
Officers had no reason to believe that Mr. Brown was associated with
the residence and Officer Tutko acknowledged that he continued the
search of the apartment, per authorization from his supervisor,
Michelle McDoweJl, without a warrant. TT at p. 15.
FACTUAL HISTORY
The Suppression Hearing and Non-Iury Trial occurred on April 10, 2017.
With regard to the Suppression Hearing, the Commonwealth first called
Probation Officer Robert Tutko as a witness. Officer Tutko has been employed
as a Probation Officer in Allegheny County for twenty-two years. TT at p, 10.
He recalled being in the area of the Hi View Gardens section of McKeesport on
March 22, 2016 at approximately 1:00 p.m. Id. Officer Tutko was there to do a
compliance check on the residence of Benjamin Brown as Benjamin was under
his supervision for the last six to nine months. Id. When Officer Tutko arrived
at the location, he observed Mr. Brown and his girlfriend seated in a Ford
Escape. Id. at pp. 10-11. Mr. Brown was in the driver's seat and when he
4
opened the door, Officer Tutko observed a marijuana blunt laying in the
center console and could smell the odor of marijuana in the air. Id. at p, 11.
According to· Officer Tutko, he was on probation at this time and he had him
step out of the vehicle and patted him down. Id. Officer Tutko located a small
bag of marijuana on his person. Id. at pp. 11·12. At that point, Mr. Brown
became uncooperative, so Officer Tutko handcuffed him for the safety of
himself and the other 5-6 probation officers present Id. at 12. He then
explained to Mr. Brown that they were going to conduct a compliance check at
his residence and, his girlfriend, Starkisha Thomas, escorted them into the
residence of 733 Sixth Street, Apartment 318. Id. at 12-13. Prior to that Mr.
Brown stated, "There's nothing in there." Id. at 14.
Once inside the apartment, Officer Tutko observed a small baggie of
crack cocaine on the kitchen counter. Id. At that point, he contacted his
supervisor, Michelle McDowell, explained what he observed, and she
authorized the officers to look further in the residence for additional
contraband. Id. at 15. At that point, the compliance check became a search. Id.
Immediately off the kitchen was a dining area where male clothing and
shoeboxes were located. Id. Officer Tutko next opened a shoebox and found a
firearm, currency and a bag of what appeared to be powdered cocaine. Id.
There were approximately ten shoeboxes in the room. Id. at 16. Another
5
probation officer located a larger bag crack cocaine in another shoebox. Id.
Officer Tutko believed the crack cocaine was inside a green Crown Royal bag.
Id. at 17. When Mr. Brown became uncooperative, the McKeesport Police
were called and arrived at the scene. Id. at 17-18.0nce Detective Summers
arrived at the scene, he was shown the items located in the shoeboxes, and
took custody of the items. Id. at 18.
Officer Tutko was shown a printout, dated February 1, 2016, which
indicated that Mr. Brown filled out paperwork to transfer his supervision
from Butler County to Allegheny County. Id. at 30. The paperwork was
handled by an intake clerk, Craig Jonas, and Mr. Brown's address was
transferred to 733 Sixth Street, Apartment 318. Id.
The Commonwealth next called Detective Sidney Summers to testify. .
The detective is employed by the City of McKeesport Police Department as a
narcotics detective and has been so employed for the past six years. Id. at 32·
33. Detective Summers was contacted by his Assistant Chief Green indicating
that probation located a large amount of narcotics inside the apartment of 733
Sixth Street. Id. at 33. Detective Summers spoke with the probation officers
and recovered the evidence. Id. According to Detective Summers, one shoebox
contained a firearm (which he believed was an Intratec handgun), U.S.
currency and a plastic bag containing cocaine. Id. The second shoebox had a
6
green Crown Royal bag which contained a large amount of cocaine, and there
was a separate clear plastic baggie containing cocaine inside the box. Id. at 34.
The items were placed into evidence and sent down to the Allegheny County
Crime Lab. Id.
The Commonwealth then called Starkisha Thomas to the stand. She
recalled being in the area of the Hi View Gardens apartments in McKeesport
on the afternoon of March 22, 2016. Id. at 37. She was with Ben Brown on
that date and she identified him as being in the Courtroom during the trial. Id.
at 37·38. Ms. Thomas had an apartment in that area located at 733 Sixth
Street, Apartment 318. Id. at 38. She indicated that her children and Ben
Brown were staying at the apartment with her. Id. Prior to the incident on
March 22, 2016, Mr. Brown, after being released from the Allegheny County
Jail had been staying at Ms. Thomas' apartment for two or three weeks. Id. at
39·40. Prior to this, the last time he was on probation, he was staying athis
cousin's house on Locust Street. Id. at 40. After Mr. Brown moved back to Ms.
Thomas' apartment, she helped him move approximately twelve pair of
Jordan sneakers shoeboxes to her residence on March 22, 2016, a few hours
before probation arrived. Id. at 41�43. Ms. Thomas thought there were shoes
in the boxes. Id. at 42. Mr. Brown also had some clothes and jackets at her
7
residence. Id. She picked up the boxes from his cousin's house on Locust
Street and placed them along her living room wall. Id. at 43.
Ms. Thomas last had contact with Mr. Brown a few months before the
trial and he told her he was sorry for putting her in this situation and he
admitted the stuff was his. Id. at 45. Ms. Thomas admitted that she was
actually charged with crimes based on the evidence found in her residence. Id.
She further admitted she was offered a plea deal in exchange for her
testimony. Id. at 45-46. Prior to the plea deal occurring, she recalled going to
the McKeesport Police Station and providing a statement to them. Id. at 46.
During cross-examinatlon, Ms. Thomas stated she was cooperative
when probation arrived, and she allowed them into her residence because to
the best of her knowledge, there was nothing in her home. Id. at 53. A few
months after this incident, she decided to give a statement to the police
indicating the items belonged to Mr. Brown. Id. at 53-54.
On redirect examination, Ms. Thomas testified that the first time she
tried to tell the police, specifically Detective Summers, that the stuff was not
hers was when she was arrested a week or two after the incident. Id. at 61. A
month or two after that she was asked to give a written statement. Id. at 62.
Detective Summers was called again for redirect examination. He
recalled Ms. Thomas coming to him to try to tell her side of the story when she
8
was arrested and when she had her first initial preliminary. Id. at 63. He
further testified that the information she provided, at those times, was
consistent with what she told him when she gave her written statement. Id.
Defense counsel placed a stipulation on the record that on February 20,
2016, Officer Jeremy Zuber responded to a disturbance at 1315 Locust Street.
Once on scene, the officers flagged down the victim, Starkisha Thomas, who
stated that her vehicle's windshield was just bricked, and she alleged that it
was done by Mr. Benjamin Brown. TT at 46.
The Commonwealth moved for the admission of Commonwealth Exhibit
1, a certified conviction from CC 2012M13006,where the Defendant, Benjamin
Brown, pled guilty to robbery, force however slight. Id. at 65-66. There was
also a stipulation to the crime lab reports: Report No. 1 deals with the
recovered Star 9-millimeter firearm with serial number 16LAB02032, found
to be in good operating condition; Report No. 2 is the report of the recovered
controlled substances. Item 3-A tested positive for marijuana with a weight of
1.148 grams. Item 3-8 tested positive for cocaine at a weight of 2.053 grams.
Item 3-C tested positive for a cocaine base at a weight of 27.286 grams. Item
3-D also tested positive for a cocaine base with a weight of 2.656 grams. And
finally, Item 3-02 tested positive for a cocaine base at a weight of .396 grams.
TT at 65-67.
9
Defense counsel then made a motion for judgment of acquittal as to all
charges except the marijuana counts, alleging the Commonwealth has failed to
make out a prima facie case to link Mr. Brown to the residence and he was not
found in possession of any of the items. TT at 67. The Court indicated it has to
view the evidence in the light most favorable to the Commonwealth and, as
such, found sufficient evidence and denied the motion. TT at67-68.
Thereafter, defense counsel called Benjamin Brown to the stand for
purposes of the suppression hearing only. Mr. Brown admitted to having a
relationship with Ms. Thomas but testified it ended in late February of 2016
after the incident with the brick in the windshield of her vehicle. TT at 70. As
such, he stated he was surprised when probation said they were conducting a
compliance check for him at Ms. Thomas' residence. Id. Mr. Brown testified he
never registered Ms. Thomas' address with probation and he remained at
1315 Locust Street even though that address was expired. Id. at 71. On cross-
examination, Mr. Brown indicated when the probation officers said they were
going to do the compliance check at 733, he told them he didn't understand
why Officer Tutko was doing the check at Ms. Thomas' residence when he
didn't live there. Id. at 74. According to Mr. Brown, Officer Tutko said that this
was Mr. Brown's registered probation address and that he was going to do a
compliance check on me at her address. Id. Finally, Mr. Brown said that he
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may have left a few pieces of clothing at Ms. Thomas' residence from when he
lived there previously. Id. at 75.
FINDINGS OF FACT ON THE SUPPRESSION MOTION
This Court hereby incorporates by reference the Findings of Fact and
Conclusions of Law in support of its denial of the Suppression Motion as set
forth in the Suppression Hearing and Non-Jury Trial Transcript, dated
April 10, 2017, at p, 88, line 8 through p. 89, line 2.
DISCUSSION
I
Defendant, Benjamin Brown, first challenges the sufficiency of the
Commonwealth's evidence for his firearm and cocaine convictions. This claim
is without merit.
In this case, the weapon and drugs were not located on Defendant's
person; thus, the Commonwealth was required to establish that he
constructively possessed the contraband. Commonwealth v. Gutierrez, 969
A.2d 584, 590 (Pa.Super. 2009) ("Possession can be found by proving actual
possession, constructive possession or joint constructive possession.")
(quoting Commonwealth v. Heidler, 741 A.Zd 213, 215 (Pa.Super. 1999)); see
11
also Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983);
Commonwealth v. Sanes, 955 A.2d 369 (Pa. Super. 2008). In order to prove
that a defendant had constructive possession of a prohibited item, the
Commonwealth must establish that the defendant had both the ability to
consciously exercise control over it as well as the intent to exercise such
control. Sanes, supra.Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of facts
that possession of the contraband was more likely than not. We
have defined constructive possession as conscious dominion. . ..
We subsequently defined conscious dominion as the power to
control the contraband and the intent to exercise that control. ... To
aid application, we have held that constructive possession may be
established by the totality of the circumstances.
Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011).
The application of the legal principle of constructive possession often
arises when contraband is · found in a car or a residence. As noted, all the
attendant facts and circumstances are weighed to determine whether the
Commonwealth proved the defendant's ability and intent to exercise control
over the articles in question. In the present case, Defendant was on probation
and his probation officer was Officer Tutko. TT at 10. Officer Tutko credibly
testified that the registered address for Defendant's probation was 733 Sixth
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Street, Apartment 318, McKeesport, PA. Id. When Officer Tutko arrived at the
address, he observed the Defendant and Ms. Thomas sitting in a vehicle outside
the residence. When he approached the vehicle and Mr. Brown opened the car
door, Officer Tutko observed a marijuana blunt in the center console and the
smell of marijuana in the air. Id. at 11. Mr. Brown was then patted down and a
small bag of marijuana was found on his person. Id. at 11-12. Mr. Brown then
became uncooperative and was placed in handcuffs. Id. at 12. His girlfriend, Ms.
Thomas, escorted the probation officers into her residence where the
shoeboxes containing the firearm and cocaine were located. Id. at 15-17. Ms.
Starkisha Thomas credibly testified that Mr. Brown had been living with her for
the past two to three weeks Id. at 39-40; on March 22, 2016, he asked for her
help to move shoeboxes from his Locust Street address to her address Id. at 41-
43; she had no knowledge what was inside the shoeboxes and she thought there
were shoes in them Id. at 42 ·& 53; and she gladly allowed the probation officers
to conduct a compliance check of her home because, as far as she knew, there
was nothing incriminating inside. Id. at 53. Ms. Thomas testified that a few
months before the trial, Mr. Brown contacted her to say he was sorry for getting
her involved and admitted the stuff was his. Id. at 45.
0
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Hence, the evidence was sufficient to show that defendant had both the
ability and intent to exercise control of the firearm and drugs located in the
residence. This court concludes that in viewing the totality of evidence
0
presented at trial, there was sufficient evidence to determine the defendant was
the only person with conscious dominion over the contraband. It is further
concluded that Mr. Brown constructively possessed the contraband found in his
shoe boxes.
II
The Defendant's second alleged error on appeal is that the trial court
reached a verdict that was against the weight of the evidence presented at trial.
However, this assertion offers Defendant no greater refuge. than his prior
claims. The determination of whether a verdict is against the weight of the
evidence is governed by the following standard:
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none of
the evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reserve the lower court's verdict if it so contrary
to the evidence as to shock one's sense of justice.
"
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).
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Further, a challenge W the weight of the evidence concedes that
sufficient evidence exists to sustain the verdict, but questions which evidence
is to be believed. Commonwealth v.. Charlton, 902 A.2d 554, 561 (Pa. Super.
2006). A new trial should not be granted because of a mere conflict in the
testimony or because the jutlge on the same facts would have arrived at a
different conclusion. Commonwealth v, Widmer, 744 A.2d 745 (Pa. 2000.
When a defendant claims that a verdict is against the weight of the evidence,
.
the role of the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them, or to give
them equal weight with all the other facts, is to deny justice. Commonwealth
v, Fisher, 47 A.3d a55, 158 (Pa. Super. 2012) appeal denied, 62 A.3d 378 (Pa.
2013).
· All of the testimony in this case, establishes that the Defendant, as of
March 22, 2016, was residing at 733 Sixth Street, Apartment 318, with his
girlfriend, Starkisha Thomas. Ms. Thomas credibly testified that the shoeboxes
containing the contraband belonged to the Defendant and she helped him
move them into her residence the day of the incident with probation.
Probation Officer Tutko had a registered address for the Defendant's
probation at this same address. Accordingly, the Defendant has not been
15
denied justice. Justice was clearly served upon his convictions of personnot to
possess a firearm; possession of a controlled substance; and possession of
marijuana.
III
Defendant's final alleged error was that the suppression court erred in
denying his Motion to Suppress as the officers had no reason to believe that
Mr. Brown was associated with
,.
the residence and Officer Tutko continued the
search of the apartment without a warrant. These allegations are without
merit.
The probation officers discovered, in plain view, a marijuana blunt in
the center console of the vehicle Defendant was sitting in, the smell of
marijuana in the air, a small bag of marijuana on his person and, when
escorted into the residence by Ms. Thomas, observed a small baggie of crack
cocaine on the kitchen counter. TT at 11�14. Ms. Thomas had no concerns
about letting the officers perform am compliance check of the residence she
shared with her boyfriend, the defendant. TT at 44, 53. Defendant's
possession of these items constituted violations of his probation and gave the
officers reasonable suspicion to search the residence for other contraband
that might be present. Given reasonable suspicion, the probation officers had
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only to obtain permission from a supervisor to perform a search, which they
did. TT at15. As such, the search was reasonably related to the probation
officers' duties to confirm compliance with the terms of Defendant's
probation, as detailed in the Regulations, and to protect the public from illegal
activity.
The aim of probation and parole is to rehabilitate and reintegrate a
lawbreaker into society as a law abiding citizen. Commonwealth v.
Chambers, 55 A.3d 1208, 1212 (Pa. Super. 2012). The institution of probation
and parole assumes a probationer or parolee is more likely than the ordinary
citizen to violate the law. Commonwealth v, Moore, 805 A.2d 616, 619 (Pa.
Super. 2002). Consequently, probationers and parolees have limited Fourth
Amendment rights because of a diminished expectation of privacy. Id.The statute governing the supervisory relationship between probation
officers and probationers and the concomitant rights of probationers is
provided in 42 Pa. C.S.A. §9912(a), (b)(l), [c), (d). "The policy behind Section
9912 is to assist offenders in their rehabilitation and reassimilation into the
community and to protect the public." Moore, supra at 620. "Essentially,
Section 9912 authorizes county probation officers to search a probationer's
person or property, if there is a reasonable suspicion to believe the
17
probationer possesses contraband or other evidence of violations of the
conditions of supervision." Chambers, supra at 1214, (citing 42 Pa. C.S.A. §
9912(d)(1)(i), (d)(2)).
In establishing reasonable suspicion, the fundamental inquiry is
an objective one, namely, whether the facts available to the officer
at the moment of intrusion warrant a [person] of reasonable
caution in the belief that the action taken was appropriate. This
assessment, like that applicable to the determination of probable
cause, requires an evaluation of the totality of the circumstances,
with a lesser showing needed to demonstrate reasonable
suspicion in terms of both quantity or content and reliability.
Moore, supra at 619-20.
Finally, a suppression court's factual findings are binding and may only be
reversed "if the legal conclusions drawn therefrom are erroneous."
Commonwealth v. Rosas, 875 A.2d 341, 346 (Pa. Super. 2005).
Using the totality of the circumstances test, this· Court concluded the
probation officers in this case first conducted an unannounced home visit of
Defendant and his girlfriend's residence, in accordance with Defendant's
probation Regulations. Their observation of contraband in plain view gave
them reasonable suspicion that Defendant had additional contraband in the
residence. The probation officer's search, which was conducted with prior
approval from a supervisor, was consistent with and reasonably related to
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Defendant's probation Regulations. Therefore, the probation officers search of
the residence was proper under the facts of this case, and this Court properly
DENIED the Motion to Suppress -.
CONCLUSION
Based on the foregoing, the judgment of sentence imposed by this Court
should be AFFIRMED.
BY THE COURT:
PHI
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