Com. v. Lear, J. ( 2021 )

J-S33012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON ANDREW LEAR :
:
Appellant : No. 864 EDA 2021
Appeal from the Judgment of Sentence Entered March 8, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004921-2020
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 09, 2021
Jason Andrew Lear appeals from the judgment of sentence of three to
eleven and one-half months of incarceration, which was imposed after he was
convicted at a non-jury trial of possession of a controlled substance and
possession of drug paraphernalia. We affirm.
The trial court aptly provided the following factual and procedural
history.
The charges in the instant case arose as a result of the
execution of a search warrant on [Appellant’s] residence and the
detached shed/structures/outbuildings . . . [in] Warrington
Township, Bucks County. The warrant was obtained based on
information received from Lower Moreland Police Department
regarding an ongoing, multijurisdictional investigation into thefts
from vehicles and construction sites in the surrounding area. The
items to be searched for and seized were identified as “snow plow
equipment, tools, construction tools and equipment, bicycles,
backpacks, trail cameras, cellular telephones, and any other times
considered to be contraband.” The probable cause affidavit in
support of the search warrant application outlined more than 25
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such incidents that occurred between September of 2019 and May
15, 2020. Most of the vehicles involved were locked and were
entered by shattering a window of the vehicle. In each theft,
snowplow equipment was taken, i.e. snowplow controllers, metal
plow connects, snowplow mount boots and a salt spreader system.
Video surveillance at several of the crime scenes showed that
those crimes were committed by a man on a bicycle who was
wearing a dark hooded sweatshirt with the hood pulled up. The
perpetrator had a backpack which was used to store the stolen
property.
The search warrant was executed on May 21, 2020. During
the search of a second-floor bedroom of the residence, Detective
Sergeant Kevin Stebner of the Warrington Township Police
Department found a number of items relating to the theft
investigation. One piece of evidence was a spring-loaded center
punch, a tool which resembles a pen and is commonly used by
thieves to break windows to gain entry into locked vehicles or
buildings. Detective Sergeant Stebner also found a glass smoking
pipe. The pipe and the center punch were found in a dresser
drawer in the bedroom. The pipe was wrapped in white paper and
was taped to the spring-loaded center punch. The wrapped pipe
was the same size and shape as the center punch to which it was
affixed. While at the scene, Detective Sergeant Stebner removed
the paper wrapping and found the pipe. A brief visual inspection
revealed that the bowl of the pipe had charring on the outside and
visible burnt residue on the inside. At the time of trial, Detective
Sergeant Stebner had 18 years in law enforcement and
participated in several hundred drug investigations. He testified
that, in his training and experience, a pipe of this type is
commonly used to smoke methamphetamine. The pipe was
therefore taken into evidence and was later sent . . . for analysis.
Laboratory analysis of the burnt residue in the pipe revealed the
presence of methamphetamine, a Schedule II controlled
substance.
On June 8, 2020, [Appellant] was charged with possession
of a controlled substance (methamphetamine) and use
of/possession with intent to use drug paraphernalia (glass
smoking pipe). On March 5, 2021, [Appellant] filed a pretrial
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motion seeking to suppress the glass smoking pipe and the results
of the subsequent laboratory analysis of that pipe.[1] . . .
On March 8, 2021, a suppression hearing was held,[2] and
[Appellant’s] motions were denied and the matter proceeded to a
bench trial. On that same date, [Appellant] was convicted of both
possession charges and was sentenced to pay court costs and to
undergo a term of incarceration of 3 to 11½ months on the
possession of a controlled substance conviction. He was given
credit for the time he had served and was granted immediate
parole. [Appellant] was directed to obtain a drug and alcohol
evaluation and abide by all treatment recommendations. No post-
sentence motions were filed.
Trial Court Opinion, 6/28/21, at 1-3 (cleaned up). This appeal followed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issues for our review:
A. Did Appellant make a knowing, voluntary, and intelligent
waiver of his right to a trial by jury?
B. Did the trial court err in denying the motion to suppress where
the search warrant was not supported by probable cause?
C. Did the trial court err in denying the motion to suppress where
the search exceeded the scope of the search warrant?[3]
____________________________________________
1 Appellant asserted that (1) the search warrant was not supported by
probable cause because the information relied upon was stale; (2) the search
warrant was not supported by probable cause because no nexus existed
connecting the crime under investigation and the paraphernalia seized; (3)
the search warrant failed to comply with the particularity requirements; and
(4) the officers exceeded the scope of the warrant. See First Amended
Omnibus Pre-trial Motion, 3/5/21.
2 The Commonwealth called Detective Sergeant Stebner and admitted the
affidavit of probable cause and photographs taken during the search.
3 Appellant does not address this claim in the argument section of his brief.
Since he completely failed to develop an argument, we deem it waived. See
(Footnote Continued Next Page)
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Appellant’s brief at 8.
In his first issue, Appellant argues that “the record makes clear that
there was no discussion at all regarding the rights Appellant was waiving by
proceeding with a non-jury trial” and “the trial court utterly failed to address
the waiver of a jury trial in any way.” Id. at 12. The trial court, however,
concluded that Appellant waived this issue by failing to raise it at trial or in a
post-sentence motion. Trial Court Opinion, 6/28/21, at 7. We agree.
This Court recently addressed, in a non-precedential decision, the
preservation of jury waiver claims as follows:
In general, claims concerning the validity of a jury waiver colloquy
are subject to the principles of waiver. See, e.g.,
Commonwealth v. Gumpert, 512 A.2d 699, 701-03 (Pa.Super.
1986) (holding that where a defendant failed to object to the
complete absence of a jury waiver colloquy before the trial court,
the issue was waived “insofar as the trial court was denied an
opportunity to correct the deficiency”);2 see also Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”). To the extent that these
issues touch upon areas of constitutional concern, we note that
even issues of “constitutional dimension” may not be raised for
the first time on appeal. Commonwealth v. Strunk, 953 A.2d
577, 579 (Pa.Super. 2008).
______
2 This Court’s holding in Commonwealth v. Gumpert, 512
A.2d 699, 701-03 (Pa.Super. 1986) was largely predicated
upon the language of Pa.R.Crim.P. 1123(a) and 1101, which
have since been repealed. See Pa.R.Crim.P. 1100.
Nonetheless, we find Gumpert remains instructive insofar
as it identifies the utility of requiring defendants to raise
issues related to jury waiver colloquies promptly and holds
____________________________________________
Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“It is not the
obligation of an appellate court to formulate appellant’s arguments for him.”
(cleaned up)).
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that such claims are not non-waivable under generally
applicable procedural principles.
Our review of the transcripts of testimony and the certified
record confirm that [Anderson] asserted this claim for the first
time in his Rule 1925(b) concise statement of errors complained
of on appeal. Accordingly, we are constrained to conclude that
[Anderson] has waived this issue.3 See Pa.R.A.P. 302(a).
______
3 In two recent non-precedential cases, this Court found
waiver in circumstances that are procedurally identical to
the instant case. See Commonwealth v. Butler, 224
A.3d 763 (Pa.Super. 2019) (non-precedential decision at 5)
(finding waiver under Gumpert and Rule 302 where the
defendant “failed to object to the voluntariness of either his
jury trial waiver or his stipulation to the Commonwealth’s
evidence, nor did he otherwise raise these issues in his post-
sentence motions”); Commonwealth v. Gore, 224 A.3d
763 (Pa.Super. 2019) (non-precedential decision at 2)
(same). While these cases are not binding, they do
constitute “persuasive” authority pursuant to Pa.R.A.P.
126(b). Specifically, we cite them here for the proposition
that Gumpert remains good law in Pennsylvania.
Commonwealth v. Anderson, 258 A.3d 502 (Pa.Super. 2021) (non-
precedential decision at 6-7).
Likewise, while Anderson is not binding, we find this series of cases
persuasive and agree that Gumpert remains good law as it pertains to
preservation of jury waiver claims. Instantly, Appellant asserted this claim for
the first time in his Rule 1925(b) statement. Accordingly, it is waived.
Appellant’s remaining issue attacks the trial court’s denial of his omnibus
pre-trial motion to suppress. Appellant’s argument is two-fold: (1) the
warrant was not supported by probable cause because it relied upon stale
information; and (2) the warrant was overbroad insofar as it permitted the
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seizure of “any other items considered to be contraband.” Appellant’s brief at
18-23.
Our review is guided by the following principles:
An appellate court’s 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, 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. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned
up).
We begin with Appellant’s staleness argument. Probable cause exists
where “the facts and circumstances within the officer’s knowledge are
sufficient to warrant a person of reasonable caution in the belief that an
offense has been or is being committed.” Commonwealth v. Martin, 101
A.3d 706, 721 (Pa. 2014). When making a probable cause determination, we
consider the totality of the circumstances from the vantage point of a
“prudent, reasonable, cautious police officer on the scene at the time.” Id.“Settled Pennsylvania law establishes that stale information
cannot provide probable cause in support of a warrant.”
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Commonwealth v. Janda, 14 A.3d 147, 158 (Pa.Super. 2011)
(citation omitted). In particular:
[A]ge of the information supporting a warrant
application is a factor in determining probable cause.
If too old, the information is stale, and probable cause
may no longer exist. Age alone, however, does not
determine staleness. The determination of probable
cause is not merely an exercise in counting the days
or even months between the facts relied on and the
issuance of the warrant. Rather, we must also
examine the nature of the crime and the type of
evidence.
Id. at 158–59 (emphasis added).
. . . In Commonwealth v. Novak, 335 A.2d 773, 775–76
(Pa.Super. 1975), we noted that observation of narcotics seven
weeks prior to applying for a warrant did not provide probable
cause to search the defendant’s residence for drugs. We reasoned
that a stale observation of items that can be quickly disposed of,
such as drugs, does not provide probable cause for a warrant
absent evidence of an ongoing course of conduct on the part of
the defendant. Id. However, more recently we observed
in Janda, that “shoes, unlike drugs, are not an item commonly
disposed of soon after they come into their owner’s possession
[and that] the issuing authority needed to find only a ‘fair
probability’ that the shoes Janda wore during the Berks County
burglary would be found at his apartment.” Janda, 14 A.3d at
159.
Commonwealth v. Hoppert, 39 A.3d 358, 363 (Pa.Super. 2012) (cleaned
up).
According to Appellant, the affidavits in support of the search warrant
did not contain “any recent information which would support the allegation
that proceeds of the alleged thefts would be located in Appellant’s home on
May 21, 2020, the date the warrant was issued.” Appellant’s brief at 19.
Instead, he argues the affidavit details thefts dating back to 2013, as well as
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“numerous thefts which are alleged to have occurred during the period from
October 28, 2019, to February 27, 2020, nearly three months prior to the
issuance of the search warrant[,]” where the actor allegedly fled on a BMX
bike. Id. Appellant further argues that the most recent theft, occurring in
May 2020, was not linked to the other thefts because no BMX bike was
involved and it occurred in a “jurisdiction with no apparent nexus to Appellant
or the other thefts[.]” Id. at 19-20. Finally, Appellant argues that information
concerning eBay accounts believed to be connected to the stolen property was
also stale as it dated to April 30, 2020. Id. at 20.
In evaluating whether there was probable cause for the issuance of the
warrant, the trial court found that the information relied upon was sufficient
and not stale. Specifically, the court explained its reasoning as follows:
[T]he fact that most of the crimes were committed months before
the search warrant was obtained is not determinative since the
criminal conduct did not end in February of 2020. As described in
the probable cause affidavit, the thefts were part of ongoing
criminal activity. The last criminal act in this series of crimes
occurred sometime between May 15 and May 18, 2020, only days
before the warrants were issued. Moreover, [Appellant’s]
argument also ignores the fact that evidence connecting
[Appellant] to the thefts was observed at his residence on the date
the search warrant was issued. Specifically, the warrant states
that law enforcement officers arrested [Appellant] at his residence
at 6:00 a.m. on May 21, 2020, at which time they observed two
vehicles that were involved in two of the theft cases in the
driveway of the residence. A backpack was seen in plain view in
one of those vehicles. Those law enforcement officers also
observed a bicycle matching the bicycle depicted in the video
surveillance of many other thefts and various pieces of equipment
and tools consistent with some of the items taken during the
thefts. Under these circumstances, the issuing authority could
reasonably conclude that there was probable cause to believe that
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the “items to be searched for,” i.e. “Snow plow equipment, tools,
construction tools and equipment, bicycles, backpacks, trail
cameras, cellular telephones and any other items considered to
be contraband” would be found at the premises to be searched.
[Appellant’s] claim that there was no probable cause due to the
staleness of the information provided by the affiants therefore
lacks merit.
Trial Court Opinion, 6/28/21, at 5 (cleaned up).
Upon review of the affidavit of probable cause, we find ample record
support for the trial court’s factual findings. Furthermore, its conclusion that
there was probable cause for the issuance of the search warrant and that the
information relied upon was not stale was legally sound. The facts alleged in
the fourteen-page affidavit, involving a continuing scheme of stealing snow
plow controllers and other tools for resale on eBay, were “sufficient to warrant
a person of reasonable caution in the belief that an offense has been or is
being committed.” Martin, supra at 721. No relief is due.
Lastly, Appellant argues that the phrase “any other items considered to
be contraband” rendered the warrant overbroad. We consider this claim
mindful of the following:
“It is a fundamental rule of law that a warrant must name or
describe with particularity the property to be seized and the
person or place to be searched[;]” this particularity requirement
prohibits both a warrant that is not particular enough and
a warrant that is overbroad. Commonwealth v. Dougalewicz,
113 A.3d 817, 827 (Pa. Super. 2015) (citation omitted).
A warrant that is not particular enough “authorizes a search in
terms so ambiguous as to allow the executing officers to pick and
choose among an individual’s possessions to find which items to
seize[,]” resulting in “the general ‘rummaging’ banned by the
Fourth Amendment.” Id. An overbroad warrant “authorizes in
clear or specific terms the seizure of an entire set of items, or
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documents, many of which will prove unrelated to the crime under
investigation[,]” and “is unconstitutional because it authorizes a
general search and seizure.” Id.However, search warrants should “be read in a common sense
fashion and should not be invalidated by hypertechnical
interpretations. This may mean, for instance, that when an exact
description of a particular item is not possible, a generic
description will suffice.” Commonwealth v. Rega, 933 A.2d
997, 1012 (Pa. 2007) (quoting Pa.R.Crim.P. 205 cmt.).
Accordingly, “where the items to be seized are as precisely
identified as the nature of the activity permits . . . the searching
officer is only required to describe the general class of the item he
is seeking.” Id. (citation omitted). Importantly, “[b]ecause the
particularity requirement in Article I, Section 8 is more stringent
than in the Fourth Amendment, if the warrant is satisfactory under
the Pennsylvania Constitution it will also be satisfactory under the
federal Constitution.” Commonwealth v. Orie, 88 A.3d 983,
1003 (Pa. Super. 2014).
Commonwealth v. Kane, 210 A.3d 324, 332–33 (Pa.Super. 2019) (cleaned
up).
In the instant case, police were searching for specific evidence related
to a string of thefts. The language “and any other items considered to be
contraband” followed language directly related to the thefts, i.e., specific types
of items believed to have been stolen, snow plow controllers, tools,
construction tools and equipment, and specific tools believed to have been
utilized in the commission of the thefts and resale of the stolen items, bicycles,
backpacks, trail cameras, cellular telephones. See Commonwealth v.
Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) (cleaned up) (distinguishing
prior cases, which found noncompliance with the particularity requirement,
based upon “[t]he language ‘or other materials,’ . . . follow[ing] the specific
items ‘assets’ and ‘paraphernalia,’ all of which must be related to . . . the sale
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or use of cocaine . . . which the police clearly had probable cause to believe
had occurred at the residence within 24 to 36 hours preceding execution of
the warrant.”). As the police discovered the drug paraphernalia taped to a
spring-loaded center punch that is commonly used to break windows when
committing vehicle thefts, the paraphernalia was seized within the narrow
scope of the warrant. Consequently, this claim is likewise without merit.
Based on the foregoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Nichols joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2021
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