Com. v. Duncan, K. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KHALIF OMAR DUNCAN, :
:
Appellant : No. 1318 MDA 2015
Appeal from the Judgment of Sentence June 15, 2015,
in the Court of Common Pleas of Dauphin County,
Criminal Division, at No(s): CP-22-CR-0005600-2013
BEFORE: MUNDY, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 13, 2016
Khalif Omar Duncan (Appellant) appeals from the judgment of
sentence entered following his convictions for possession of a controlled
substance with intent to deliver (PWID) and possession of drug
paraphernalia. Upon review, we affirm.
Appellant was arrested for the above offenses on October 30, 2013,
based upon events which culminated in his parole officer’s finding three
glass vials of PCP during a search of Appellant’s residence.1 On January 17,
2014, Appellant filed a motion to suppress evidence, which the trial court
denied following a hearing. Appellant was found guilty of both offenses after
a bench trial held on April 9, 2015. He was sentenced to an aggregate term
of 54 months to ten years of incarceration on June 15, 2015. On June 24,
1
Appellant was also cited for driving with a suspended license and a turn
signal violation, which are not at issue herein.
*Retired Senior Judge assigned to the Superior Court.
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2015, Appellant filed post-sentence motions, which the trial court denied the
next day. This appeal followed.
On appeal, Appellant presents the following issues for our
consideration, which we have reorganized for ease of disposition:
I. Whether the trial court erred in denying Appellant’s
suppression motion where law enforcement conducted an
unlawful property search of Appellant’s home without
reasonable suspicion in contravention of the Fourth
Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution?
II. Whether the trial court erred in denying Appellant’s post-
sentence motion where his convictions were against the
weight of the evidence so as to shock one’s sense of
justice as Appellant was not shown to have engaged in
acts which constitute the offenses of which he was
convicted?
III. Whether the trial court erred in denying Appellant’s post-
sentence motion where his sentence is excessive and
unreasonable and constitutes too severe a punishment in
light of the gravity of the offense, what is needed to
protect the public, and Appellant’s rehabilitative needs?
Appellant’s Brief at 7 (unnecessary capitalization and suggested answers
omitted).
In his first issue, Appellant argues that the trial court erred in denying
his suppression motion because his parole officer, Agent Michael Welsh,
lacked reasonable suspicion to search his residence. Id. at 16. In support
of his argument, Appellant contends that he received a citation for driving
with a suspended license prior to the search, “Agent Welsh’s knowledge that
Appellant was driving under suspension was a complete parole violation, and
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there was nothing Agent Welsh could conceivably have discovered in
Appellant’s residence which would be relevant to proving or investigating”
that violation. Id. at 16-17. Appellant further argues that “there were no
objective circumstances to provide Agent Welsh with reasonable suspicion to
search [the] residence” and that the search “constituted an illegal fishing
expedition.” Id. at 17.
We address Appellant’s first issue mindful of the following.
Our analysis of this question begins with the presumption
that where a motion to suppress has been filed, the burden is on
the Commonwealth to establish by a preponderance of the
evidence that the challenged evidence is admissible. If the trial
court denies the motion, we must determine whether the record
supports the trial court’s factual findings and whether the legal
conclusions drawn therefrom are free from error. In so doing,
we may 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 court erred in
reaching its legal conclusions based upon the facts.
Commonwealth v. Berkheimer, 57 A.3d 171, 177 (Pa. Super. 2012) (en
banc) (citations, quotations, and alteration omitted). Moreover, we may
only consider the evidence presented at the suppression hearing. In re
L.J., 79 A.3d 1073, 1085-87 (Pa. 2013).
Pursuant to Pennsylvania law, if an individual is on probation or parole,
then “[a] property search may be conducted by an agent if there is
reasonable suspicion to believe that the real or other property in the
possession of or under the control of the offender contains contraband or
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other evidence of violations of the conditions of supervision.” 61 Pa.C.S.
§ 6153(d)(2).
The existence of reasonable suspicion to search shall be
determined in accordance with constitutional search and seizure
provisions as applied by judicial decision. In accordance with
such case law, the following factors, where applicable, may be
taken into account:
(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of agents with the offender.
(vi) The experience of agents in similar circumstances.
(vii) The prior criminal and supervisory history of the
offender.
(viii) The need to verify compliance with the conditions of
supervision.
61 Pa.C.S. § 6153(d)(6).
As this Court has stated:
Because the very assumption of the institution of parole is
that the parolee is more likely than the ordinary citizen to
violate the law, the agents need not have probable cause
to search a parolee or his property; instead, reasonable
suspicion is sufficient to authorize a search. Essentially,
parolees agree to endure warrantless searches based only
on reasonable suspicion in exchange for their early release
from prison.
The search of a parolee is only reasonable, even where the
parolee has signed a waiver ..., where the totality of the
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circumstances demonstrate that (1) the parole officer had
reasonable suspicion to believe that the parolee committed
a parole violation; and (2) the search was reasonably
related to the duty of the parole officer.
The determination of whether reasonable suspicion exists
is to be considered in light of the totality of the
circumstances.
Commonwealth v. Colon, 31 A.3d 309, 315 (Pa. Super. 2011) (citation
omitted).
The trial court provided the following accurate summary of the
pertinent testimony elicited at the suppression hearing:
Michael Welsh, a parole agent with the [Pennsylvania]
Board of Probation and Parole, was supervising [Appellant] at
the time of his arrest. Agent Welsh testified that he had been
supervising [Appellant] since May of 2013, that [Appellant] had
a curfew of midnight, and had to abide by … conditions including
no guns, no drugs, no alcohol, and no criminal offenses.
[Appellant] was also responsible for paying a supervision fee,
attending classes, therapy, and any other group that Agent
W[e]lsh saw fit.
On the Saturday night before Halloween, 2013, Agent
Welsh heard a radio transmission involving a shooting incident
that involved [Appellant]. When Agent Welsh followed up on the
incident, he placed a call to Sergeant Doug Wealand, who told
him that [Appellant] had been shot in the hip while leaving a
nightclub that was known to have gun violence and drug activity.
Agent Welsh testified that part of the parole conditions required
[Appellant] to report any change in status whether it be medical,
educational, etc… or whether he has had police contact. Agent
Welsh found it very suspicious that he was not contacted by
[Appellant] after the shooting, especially since the two of them
had a very open line of communication. Agent Welsh reported
the shooting information to his immediate supervisor, Agent
Talasky, told him that he suspected that the gunshot wound was
self-inflicted, and that [Appellant] had been admitted and [was
going to be] released from the Harrisburg Hospital. [Agent
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Welsh opined that the manner in which Appellant was shot
appeared consistent with a person sticking a gun in his
waistband, accidentally discharging into the hip.] Agent Welsh
decided to initiate contact with [Appellant], and Agent Talasky
approved the contact, and also approved checking [Appellant’s]
residence for any evidence of parole violations, whether it be
alcohol, narcotics, or fugitives.
Agent Welsh attempted a field contact at [Appellant’s]
home. He did not answer the door. Subsequently, on October
30th, while assigned to the Street Crimes Unit with Officer
Hammer, Agent Welsh asked Officer Hammer to stop at
[Appellant’s] residence, as Agent Welsh had authorization to
conduct a search of the residence to check for parole violations.
As they pulled up to the residence, Agent Welsh noticed a silver
Grand Marquis[], which he knew was a car normally driven by
[Appellant], pulling away from the house. At that point, Officer
Hammer radioed information about [Appellant’s] vehicle. Officer
Darrin Bates spotted the vehicle and followed behind. When
[Appellant] failed to use a traffic signal, Officer Bates pulled him
over. The officer discovered that [Appellant] had a suspended
driver’s license, which meant the vehicle had to be towed.
Officer Bates testified that he told [Appellant] he was free to go
and that a citation would be arriving in the mail. Within
seconds, Officer Hammer and Agent Welsh arrived and took
[Appellant] back to his residence while Officer Bates waited on
the towing company.
Before returning to [Appellant’s] residence, Agent Welsh
asked [Appellant] what was going on, patted him down for
weapons, and inquired about the “large knot” he felt around his
waist. It was bandaging, and [Appellant] told Agent Welsh that
he had been shot. [Appellant] was short on details, and
appeared nervous. At some point during the conversation,
Agent Welsh told [Appellant] that he wanted to search his
residence. Agent Welsh testified that [Appellant] told him he
was fine with that and had nothing to hide. On the way to the
residence, Agent Welsh smelled an odor of what he knew to be
PCP, as he had a lot of exposure to it in his years as an agent.
They arrived at the house and Agent Welsh unlocked the front
door. As soon as he walked in, he was hit with an overwhelming
odor of PCP. At that point, Agent Welsh asked Officer Hammer
to stand with [Appellant] while he searched the home. Agent
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Welsh encountered two children (between the ages of 8 and 12)
watching television in [Appellant’s] bedroom; he requested they
wait with Officer Hammer. Agent Welsh followed the smell of
PCP and found three vials underneath a night stand in the
bedroom. Officer Hammer read [Appellant] his Miranda[2]
rights. Afterwards, the officer asked if there was anything else
in the residence they should know about [and if he minded if
they took a look]. Appellant said no, admitted the PCP was his,
allowed a further search of the residence, and told the officer
about another cup of PCP that was on top of a shelf.
[Appellant] testified at the suppression hearing. When
asked if he gave consent to his residence being searched, he
said he did not. When asked why he would not consent to the
search[], he replied that he “knew […] drugs were there,” that it
was a violation of his supervision, and he knew he could be
charged criminally.
Trial Court Opinion (TCO), 12/7/2015, at 2-4 (citations and footnote
omitted).
Based on the totality of the circumstances, including a consideration of
the factors set forth in 61 Pa.C.S. § 6153(d)(6), we agree with the trial court
that Agent Welsh had reasonable suspicion to believe that Appellant had
violated his parole and that Appellant’s residence “contain[ed] contraband or
other evidence of violations of the conditions of supervision.” 61 Pa.C.S.
§ 6153(d)(2). Therefore, Agent Welsh was permitted to search that
location. See Commonwealth v. Koehler, 914 A.2d 427 (Pa. Super.
2006) (holding warrantless search of parolee’s residence permitted where
parole agent had reasonable suspicion to believe residence contained
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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evidence of violations of parole conditions). Accordingly, we hold that the
trial court did not err in denying Appellant’s motion to suppress.
Appellant next challenges the weight of the evidence to support his
convictions. Appellant argues that he possessed the PCP for personal use
and cites evidence to support that conclusion. Appellant’s Brief at 19.
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.
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. It has often been stated that
a new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
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This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (emphasis in
original; citations and some quotation marks omitted).
In its opinion issued pursuant to Pa.R.A.P. 1925(a), the trial court
concluded that
[a] review of the record[3] in this case reveals that, while
there is a slight conflict in the testimony presented, such
discrepancy is not sufficient to render the jury [sic] verdict so
contrary to the evidence as to shock one’s sense of justice.
There was more than ample evidence of record to support the
fact-finder’s guilty verdict.
TCO, 12/7/2015, at 10 (citations omitted). Appellant has failed to establish
that the trial court abused its discretion in reaching its conclusion. Rather,
3
The certified record does not contain the transcript from the bench trial
held in this matter; however, its absence does not impact our disposition of
this issue.
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Appellant’s argument merely amounts to a challenge to the weight and
credibility determinations made by the fact-finder. However, as explained
by the trial court, “it is solely within the fact-finder’s province to assess
weight and credibility of the evidence.” TCO, 12/7/2015, at 11 (citing
Commonwealth v. Rabold, 920 A.2d 857, 860 (Pa. Super. 2007) (“The
finder of fact is the exclusive judge of the weight of the evidence as the fact
finder is free to believe all, part, or none of the evidence presented and
determines the credibility of the witnesses. As an appellate court, we cannot
substitute our judgment for that of the finder of fact.” (citation omitted)).
Thus, he is not entitled to relief on his weight-of-the-evidence claim.
In his third issue, Appellant challenges the discretionary aspects of his
sentence. An appellant who presents such a challenge must invoke this
Court’s jurisdiction by satisfying a four-part test.
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
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The record reflects that Appellant timely filed a notice of appeal4 and
preserved this issue by including it in his post-sentence motion. Appellant’s
brief also contains a statement pursuant to Pa.R.A.P. 2119(f). Thus, we now
consider whether Appellant has raised a substantial question worthy of
appellate review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation marks
omitted).
Appellant provides the following in his 2119(f) statement:
Appellant respectfully submits that his sentence was excessive
and unreasonable where was [sic] working productively prior to
his incarceration. He acknowledged that he has a drug problem
and needs to rehabilitate himself and make better choices.
4
Appellant was required to file his notice of appeal within thirty days
following entry of the trial court’s order denying Appellant’s timely post-
sentence motions, which occurred on June 25, 2015. See Pa.R.Crim.P.
720(A)(2)(a) (“If the defendant files a timely post-sentence motion, the
notice of appeal shall be filed[] within 30 days of the entry of the order
deciding the motion[.]”). That date, July 25, 2015, was a Saturday; thus,
Appellant filed timely his notice of appeal on the following Monday, July 27,
2015. 1 Pa.C.S. § 1908 (excluding weekends and holidays from the
computation of time when the last day of the time period falls on a weekend
or holiday).
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Appellant had a long history of drug use that has led to his
incarceration in a state penitentiary, and has lost two years of
street time on the state sentence for drug-induced behavior.
Appellant’s Brief at 13-14 (citations omitted).
Appellant’s statement relates to the court’s consideration of mitigating
factors, namely, Appellant’s work history, his drug problem, and his
acknowledgement of that problem and the need to address it. It is unclear,
however, whether he contends that, in sentencing him, the court failed to
consider those factors altogether or failed to consider them adequately.
Nevertheless, our review of the sentencing transcript reveals the following:
[Appellant’s Counsel]: [Appellant] is 28 years old. He was
working as a barber prior to being arrested. As you can
see from the [presentence investigation report (PSI)],
there’s a long history of drug use that kind of obviously led
to some state prison time as well. He has two years of
street time that he will probably lose from that state
sentence most recent and he had three years left on the
actual sentence itself.
***
[Appellant]: Yes. Your Honor, I do have a recent prior drug
history, and I do admit that, you know, that I need help.
At the same time, as you know, rehabilitation to work on
myself and better thinking and judgment and better
decision making that’s about -- that’s it Your Honor.
N.T., 6/15/2015, at 4-5. Based on the foregoing,5 we interpret Appellant’s
argument to be that the court failed to consider mitigating factors
5
As indicated by Appellant’s counsel at the sentencing hearing, the court
also had the benefit of a PSI. “Where the sentencing court had the benefit
of a [PSI], we can assume the sentencing court ‘was aware of relevant
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adequately. “[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa. Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788,
794 (Pa. Super. 2010)). Appellant fails to convince us that such a claim
raises a substantial question in this case. Thus, Appellant is not entitled to
relief on his discretionary-aspects-of-sentencing claim.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.’” Griffin, 65 A.3d at
937 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
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