Com. v. White, C. ( 2020 )

J-S69035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG WHITE :
:
Appellant : No. 2742 EDA 2018
Appeal from the Judgment of Sentence Entered September 7, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001679-2017
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED MARCH 11, 2020
Appellant, Craig White, appeals from the aggregate judgment of
sentence of six to twelve years of confinement, which was imposed after his
jury trial convictions for: manufacture, delivery, or possession with intent to
manufacture or deliver a controlled substance (113 oxycodone pills); and
knowingly or intentionally possessing a controlled or counterfeit substance by
a person not registered.1 We affirm on the basis of the trial court opinion.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30) and (16), respectively.
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In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. See Trial Court Opinion, filed
March 29, 2019, at 1-3. Therefore, we have no reason to restate them.2
Appellant presents the following issues for our review:
I. Did the trial court err in denying the motion to suppress any
and all evidence recovered from his vehicle and/or his person at
the time of arrest?
II. Did the trial court abuse its discretion in imposing an
excessive/improper sentence given the nature and circumstances
of Appellant and the facts/circumstances of the underlying case;
was Appellant’s sentence not supported by sufficient reasons,
excessive given the nature and circumstances of Appellant, his
lack of any recent criminal history and the facts of the underlying
case, including the fact that the offense was not violent; did the
trial court improperly allow and/or consider, during the sentencing
hearing, the fact that heroin was allegedly recovered from
Appellant when the jury acquitted him of all charges relating to
heroin?
Appellant’s Brief at 5 (trial court’s answers omitted).
Appellant first contends that “the trial court erred in denying the motion
to suppress any and all evidence recovered from his vehicle and/or his person
at the time of arrest.” Id. at 10.
Our scope of review from a suppression ruling is limited to the
evidentiary record created at the suppression hearing. Commonwealth v.
Fulton, 179 A.3d 475, 487 (Pa. 2018).
In reviewing the denial of a suppression motion, our role is to
determine whether the suppression court’s factual findings are
____________________________________________
2 On September 9, 2018, Appellant filed this timely direct appeal. Appellant
filed his statement of errors complained of on appeal on October 30, 2018.
The trial court entered its opinion on March 29, 2019.
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supported by the record and whether the legal conclusions drawn
from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court’s factual
findings are supported by the record, we are bound by these
findings and may reverse only if the court’s legal conclusions are
erroneous. Where, as here, 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 our plenary review.
Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and
internal brackets omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Glynnis Hill,
we conclude Appellant’s first issue merits no relief. The trial court opinion
comprehensively discusses and properly disposes of that question. See Trial
Court Opinion, filed March 29, 2019, at 3–9 (finding: the arresting officers
had probable cause to stop Appellant for vehicular violations, were acting
within their authority when they asked Appellant to step out of the vehicle,
and had probable cause to arrest Appellant based on the warrant for his arrest
and the officers’ discovery of oxycodone on Appellant’s person after one of the
officers heard and felt a sizable amount of loose pills in the Appellant’s left
sweatshirt pocket; Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014),
and Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), can be
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distinguished from the current action). Accordingly, the trial court did not err
when it denied the Appellant’s motion to suppress.
Next, Appellant challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, w]e 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.A. § 9781(b).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(quotation marks and some citations omitted), reargument denied (July 7,
2018). In the current case, Appellant filed a timely notice of appeal, preserved
his issue in a post-sentence motion, and included a statement in his brief
pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). Appellant’s Brief
at 4. The final requirement, whether the question raised by Appellant is a
substantial question meriting our discretionary review, “must be evaluated on
a case-by-case basis. 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.” Manivannan, 186 A.3d at 489 (quotation marks and some citations
omitted).
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In his Rule 2119(f) Statement, Appellant contends that the trial court
abused its discretion in imposing an excessive sentence, because the trial
court did not take into consideration the nonviolent nature of his offenses and
his lack of recent criminal history. Appellant’s Brief at 4. Additionally,
Appellant maintains that “the trial court improperly allowed testimony and/or
considered, during the sentencing hearing, the fact that heroin was allegedly
recovered from Appellant when the jury acquitted him of all charges relating
to heroin.” Id. Finally, Appellant argues that the trial court based his
sentence “solely on the seriousness of the offense while failing to consider all
relevant sentencing factors[.]” Id.
Appellant’s assertion that his sentence was excessive given the
nonviolent nature of his offenses raises a substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1266-67, 1270-71, 1273 (Pa.
Super. 2013) (claim that sentence is excessive in light of conduct at issue
raises substantial question).
Appellant contention that the trial court relied on matters not of record
also raises a substantial question. Commonwealth v. Downing, 990 A.2d
788, 792 (Pa. Super. 2010) (contention that “trial court’s finding that
Appellant possessed the gun for ‘criminal purposes’ [was] not supported by
the evidence, but rather, [was] a mischaracterization of the evidence . . .
raises a substantial question permitting review”); Commonwealth v. Druce,
796 A.2d 321, 334 n.15 (Pa. Super. 2002) (claim trial court relied on evidence
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not of record raised substantial question); Commonwealth v. Roden, 730
A.2d 995, 997 (Pa. Super. 1999) (claim trial court relied on improper factor,
i.e., adverse negative impact appellant’s crimes would have on working
mothers who relied on babysitters, raised substantial question).
Finally, although Appellant’s claim that the trial court failed to consider
the mitigating factor of his lack of a recent criminal record generally would not
raise a substantial question, Commonwealth v. Moury, 992 A.2d 162, 171
(Pa. Super. 2010) (citing Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa.
Super. 1999) (“allegation that the sentencing court failed to consider certain
mitigating factors generally does not necessarily raise a substantial
question”), he has coupled this assertion with a claim that the trial court only
considered the serious nature of his offense, thereby ignoring this factor,
which does raise a substantial question. Commonwealth v. Bricker, 41 A.3d
872, 875 (Pa. Super. 2012) (“averment that the court sentenced based solely
on the seriousness of the offense and failed to consider all relevant factors
raises a substantial question”); Commonwealth v. Ventura, 975 A.2d 1128,
1133 (Pa. Super. 2009) (“Ventura further asserts that the trial court imposed
his sentence based solely on the seriousness of the offense and failed to
consider all relevant factors, which has also been found to raise a substantial
question.”); Commonwealth v. Lawrence, 960 A.2d 473 (Pa. Super. 2008)
(averment that the court sentenced based solely on seriousness of the offense
and failed to consider all relevant factors raises a substantial question).
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Having found that Appellant’s sentencing challenges merit our
discretionary review, we turn to our standard of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation
omitted).
Again, after a thorough review of the record, the briefs of the parties,
the applicable law, and Judge Hill’s well-reasoned opinion, we find no merit in
Appellant’s argument that the trial court abused its discretion by ordering an
excessive sentence for a non-violent crime given his lack of a recent criminal
record. The trial court opinion comprehensively discusses and properly
disposes of that issue. See Trial Court Opinion, filed March 29, 2019, at 9–
11 (finding: Appellant’s sentence was not excessive as he was convicted of
possessing 113 oxycodone pills, a Schedule II narcotic, with intent to deliver
and as he had an extensive criminal record; the trial court considered
Appellant’s arguments that his “conviction was not for a violent crime” and
“that he had not been convicted of a crime since 1998”).
As for Appellant’s insistence that “the trial court improperly considered
the fact that heroin was found in the car in which Appellant was stopped, even
though he was acquitted by jury of all charges related to heroin[,]” Appellant’s
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Brief at 13, Appellant failed to provide any legal authority for his assertion
that the trial court was not permitted to consider this information; this
challenge consequently is waived. Kelly v. The Carman Corporation, 2020
Pa. Super. 35, *35-*36 (filed February 12, 2020) (citing Pa.R.A.P. 2119(a)
(argument shall include citation of authorities); Commonwealth v. Spotz,
18 A.3d 244, 281 n.21 (Pa. 2011) (without a “developed, reasoned,
supported, or even intelligible argument[, t]he matter is waived for lack of
development”); In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012)
(“The argument portion of an appellate brief must include a pertinent
discussion of the particular point raised along with discussion and citation of
pertinent authorities[; t]his Court will not consider the merits of an argument
which fails to cite relevant case or statutory authority” (citations and quotation
marks omitted)); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006)
(appellant’s arguments must adhere to rules of appellate procedure;
arguments that are not appropriately developed, including those failing to cite
any authority in support of contention, are waived on appeal)).
For these reasons, Appellant has failed to demonstrate a manifest abuse
of discretion, and we therefore will not disturb Appellant’s sentence on appeal.
Lekka, 210 A.3d at 350.
Accordingly, we affirm on the basis of the trial court’s opinion. The
parties are instructed to attach the opinion of the trial court in any filings
referencing this Court’s decision.
Judgment of sentence affirmed.
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J-S69035-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/20
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c.o Circulated 02/21/2020 02:52 PM
0
0
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA : CRIMINAL TRIAL DIVISION
CP-51-CR-0001679-2017
CRAIG WHITE, APPELLANT No. 2742 EDA 2018
OPINION
This opinion addresses the issues Appellant Craig White raises in his appeal. The
Appellant's claim lacks merit for the following reasons.
I. CASE HISTORY
On January 22, 2017, police arrested the Appellant for Possession with Intent to Distribute
(PWID), Knowing and Intentional Possession (K+I), and Driving on a Suspended License.' The
Commonwealth filed a complaint the following day. On February 23, 2017, the Appellant was
held for Court on charges of PWID (F), K+I (M), and Driving on a Suspended License (S).2
On August 1, 2017, the Appellant filed a Motion to Suppress.3 On December 8, 2017, the
Honorable Glynnis D. Hill denied the Motion to Suppress. On April 5, 2018, a jury convicted the
Appellant of PWID and K+I. On August 14, 2018, the Court sentenced the Appellant to 7Y2-15
years incarceration.4 On the same day, the Appellant filed a Petition for Reconsideration of
Sentence. On September 7, 2018, the Court granted the Petition and resentenced the Appellant to
6-12 years incarceration. On September 9, 2018, the Appellant filed a Notice of Appeal to the
Pennsylvania Superior Court. On October 11, 2018, the Court ordered the Appellant to file a
1 Philadelphia Police Arrest Report, Docket CP-51-CR-1679-2017.
2 Docket Sheet for CP-51-CR-1679-2017.
3 Id.
4 The K&1 charge merged for sentencing purposes.
Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). On October 30,
2018, the Appellant filed a Statement raising the following issues:5
1. Did the trial court err in denying the motion to suppress any and all evidence recovered
from his vehicle and/or his person at the time of arrest?
2. Was the sentence imposed following conviction excessive/improper given the nature
and circumstances of the Defendant and the facts/circumstances of the underlying case;
sentence was not supported by sufficient reasons, was excessive given the nature and
circumstances of the Petitioner, his lack of any recent criminal history and the facts of
the underlying case. And that the offense was not violent; did the trial court improperly
allow and/or consider, during the sentencing hearing, the fact that heroin was allegedly
recovered from Appellant when the jury acquitted him of all charges relating to heroin?
IL FACTS
On January 22, 2017, Officer Matthew Walsh observed a gray Saab with heavily tinted
windows traveling north on 28th Street.' Officer Walsh then observed the driver of the Saab fail
to signal before turning right onto Wharton Street.7 The driver continued on Wharton to the next
intersection and made a right onto South 271" Street. At that point, Officer Walsh stopped the
Saab.8 Officer Walsh approached the vehicle and saw the Appellant in the driver's seat.9 He then
noticed an orange pharmaceutical pill bottle in a cup holder in the center console.10 The bottle
had no label and had small pill -like items inside." Upon seeing the bottle, Walsh asked the
Appellant if he had any medical problems, and the Appellant told him no.12 During this interaction,
Officer William Fritz looked in the passenger side of the vehicle with his flashlight and observed
small pieces of marijuana on the floorboards.' Officers Walsh and Fritz returned to the patrol car
5 Copied verbatim from the Appellant's Statement of Errors Complained of on Appeal.
6 Notes of Testimony 4/4/2018 pg. 6-7.
7 Id. at 7.
8 Id.
Id. at 9.
'° Id.
" Id.
12 Id. at 11.
13 Id. at 12.
2
to run the Appellant's information, and they discovered that the Appellant had a scofflaw
warrant.14 They further learned that the Appellant was not the owner of the vehicle.t5
When Officer Walsh returned to the vehicle, he noticed that the orange pill bottle in the
cupholder now appeared empty.16 Both officers subsequently had the Appellant step out of the
vehicle and conducted a protective frisk for weapons.17 While the Appellant was being frisked,
Officer Walsh heard pills "jingling" in his sweatshirt.I8 Walsh asked the Appellant what the items
were, but he refused to answer.19 Officer Walsh then felt a large amount of small pills in the
Appellants left sweatshirt pocket.2° These pills were later identified as 113 thirty -milligram pills
of oxycodone.21 The officers then arrested the Appellant and searched the vehicle.22 In the center
console, the officers found small bundles of clear plastic packets23 marked "Aintez Boy," a large
roll of cash totaling $4,652, two cell phones, and a flash drive.24 The contents of the packets tested
positive for heroin.'
HI. DISCUSSION
I. The Court Did Not Err When It Denied the Appellant's Motion to Suppress
The Appellant first alleges that the Court erred when it denied his motion to suppress
evidence obtained from him and the vehicle incident to his arrest. The Court disagrees.
14 Id. at 12-14.
Is Id. The Appellant gave the officers a pink slip and insurance card naming "Mr. Griffin" as the owner.
16 Id. at 14-15.
17 Id. at 15-16.
'8 Id.
19 Id. at 15.
20 Id. at 15-16.
21
Id. at 23. N.T. 4/5/2018 pg. 12.
22 N.T. 4/4/2018 pg. 17.
23 There were 10 bundles consisting of 14 packets each, totaling 140 packets. Id. at 23.
24 Id. at 17, 26.
25 Id. at 24.
3
The standard of review in addressing a trial court's denial of a suppression motion is limited
to whether the factual findings are supported by the record and whether the legal conclusions
drawn from those facts are correct. Commonwealth v. Minnich, 874 A.2d 1234, 1236 (Pa. Super.
2005). Where the prosecution prevails in the suppression court, an appellate court may consider
only the evidence of the prosecution and so much of the evidence for the defense as remains
uncontradicted when read in context of the record as a whole. Id. See also Commonwealth v.
Spieler, 887 A.2d 1271, 1274-1275 (Pa. Super. 2005).
At the suppression hearing, the Appellant's trial counsel argued that the arresting officers
did not have reasonable suspicion nor probable cause to stop, detain, question, search, or arrest the
Appellant, but the Court rejected counsel's argument for several reasons. First, the arresting
officers had probable cause to stop the Appellant. At the suppression hearing, Officer Walsh
testified that on January 22, 2017, he observed the driver of a gray Saab with heavily tinted
windows fail to use his turn signal when turning right onto Wharton Street.26 As there was no
other evidence to refute Officer Walsh's testimony, the Court accepted Walsh's testimony since
officers are authorized to stop a driver who violates the Motor Vehicle Code. 75 Pa.C.S.A. §
6308(b); 75 Pa.C.S.A. § 4524(e); 75 Pa.C.S.A. § 3334.
Second, the arresting officers were acting within their authority when they asked the
Appellant to step out of the vehicle. Under the law, when an officer lawfully stops a vehicle, he
may order the driver or passengers to exit the vehicle while they are lawfully detained "as a matter
of right." Commonwealth v. Wilson, 927 A.2d 279, 284 (Pa. Super. 2007) [citing Pennsylvania v.
Mimms, 434 U.S. 106, 111 (1977)]. Officers may also ask both drivers and passengers to exit the
vehicle out of concern for their own safety. See Mimms, 434 U.S. at 112, supra.
26 N.T. 10/6/2017 pg. 9-10.
4
Third, the officers had probable cause to arrest the Appellant. In Commonwealth v.
Wright, 867 A.2d 1265 (Pa. Super. 2005), the Court held that "probable cause does not involve
certainties, but rather the factual and practical considerations of everyday life upon which
reasonable and prudent men act." Id. at 1268. The Court further held that judges must consider
the "totality of the circumstances," rather than each individual element, when determining whether
probable cause exists. Id. In Wright, a detective was conducting a forgery investigation involving
Richard Wright and Jess Reck. Id. Meanwhile, the detective learned that another officer had filed
charges against Reck and requested that Reck come to the police station to discuss the charges. Id.
When Reck and her friend "Ricky Wright" arrived at the station, the detective arrested "Ricky,"
believing him to be Richard Wright (the suspect). Id. at 1266. While under arrest, the detective
found that "Ricky" possessed a crack pipe and several baggies of cocaine. Id. However, even
though "Ricky" Wright was not the Richard Wright charged in the forgery case, the Superior
Court held that the detective had probable cause to arrest "Ricky" under the totality of the
circumstances. Id.
In the present case, the arresting officers had probable cause to arrest the Appellant when
one considers the totality of the circumstances. For one thing, when Officer Walsh returned to his
patrol car, he ran the Appellant's name through the Mobile Data Terminal (MDT), which indicated
that "Craig White" had a scofflaw warrant. 27 The warrant indicated that Craig White's birthdate
was July 6, 1977, and his address was 2615 Wharton Street.' The MDT also indicated that "Craig
White" had a suspended license (OLN 24997832).29 However, unlike the scofflaw warrant, the
27 Id. at 18-20.
28 Id. at 20.
29 Id. at 61.
5
license the Appellant gave to Officer Walsh (OLN 31241625) was validated by the MDT and
indicated a middle name, a July 6, 1978 birthdate, and a 2611 Earp St. address.3°
The Appellant's trial counsel argued at the suppression hearing that the Appellant's arrest
was invalid because the Commonwealth could not prove that the scofflaw warrant was for the
Appellant.' Counsel cited Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014) in support of this
claim.32 In Johnson, the Pennsylvania Supreme Court reaffirmed its holding in Commonwealth
v. Edmonds, 586 A.2d 887 (Pa. 1991), that there is no "good faith exception" for police officers
in Pennsylvania, and that evidence seized incident to arrest based solely on an expired warrant
must be suppressed. However, these cases must be distinguished from the instant matter. One
distinction is that the arrest warrants in Johnson and Edmonds were expired and invalid. In our
case, the scofflaw warrant was not expired or invalid.' Another distinction is that, while the
Appellant argued that the scofflaw warrant was not his,34 the caselaw he cited does not address
mistaken identity.' A third distinction is that counsel's argument that the Commonwealth could
not prove that the scofflaw warrant was for the Appellant does not accurately reflect the standard
governing whether the officers had probable cause to arrest him.
As previously stated, the determination of whether probable cause existed to arrest the
Appellant depends on the totality of the circumstances. Wright, 867 A.2d at 1268. When Officer
Walsh ran the Appellant's name through the MDT, two licenses came up: one with a warrant and
one without. Both licenses had the same first and last names and birthdays - separated by one
year. Moreover, the addresses listed on the licenses (2615 Wharton Street and 2611 Earp Street)
30 Id. at 61-63, 77-78.
31 Id. at 5-7.
32 Id. at 6-7.
" Id.
34 Id.
35 See Edmonds and Johnson supra.
6
were within one block of each other.' Considering these similarities, it was not unreasonable for
Officer Walsh to conclude that the scofflaw warrant was for the Appellant. On the contrary, it
would have been unreasonable for Officer Walsh to accept as coincidental that two Craig Whites,
with the same birthday, lived one block away from one another. Given the totality of the
circumstances surrounding the scofflaw warrant, the officers had probable cause to arrest the
Appellant pursuant to the standard in Wright. Since the arrest was valid, the officers had authority
to search the Appellant and the area within his control incident to arrest. Commonwealth v.
Simonson, 148 A.3d 792, 799 (Pa. Super. 2016) [citing Chimel v. California, 395 U.S. 752, 763
(1969) and Birchfield v. North Dakota, 136 S. Ct. 2160, 2176 (2016) (search incident to arrest
exception is categorical and permits the search as a matter of course)].
However, even if the officers did not have probable cause to arrest the Appellant
based on the scofflaw warrant, Officer Walsh's discovery of the oxycodone provided him
with probable cause to arrest the Appellant. Walsh discovered the pills by plain feel during a
justified frisk for weapons. Once a defendant has been removed from the vehicle, "the officer is
justified in conducting a limited search for weapons once he [has] reasonably concluded that the
person whom he had legitimately stopped might [be] armed and presently dangerous." Wilson,
927 A.2d at 284. See also Terry v. Ohio, 392 U.S. 1 (1968). When assessing the validity of a Terry
stop, we must examine whether, under the totality of the circumstances, the officer could
reasonably infer that the person might be armed and dangerous. Commonwealth v. Zhahir,
751
A.2d 1153, 1158 (Pa. 2000).
armed
In the case at bar, Officer Walsh reasonably suspected that the Appellant might be
the windows
for a number of reasons. First, Officer Walsh testified at the suppression hearing that
6 Id. at 77-78. The Appellant was pulled over in the immediate vicinity of both addresses.
7
of the Grey Saab were so heavily tinted that he could not see into the vehicle.37 Second, as he
approached the driver's side window, Walsh noticed an unlabeled orange pill bottle containing
items.38 Third, when Walsh asked the Appellant whether he had a medical condition or owned the
pill bottle, the Appellant responded no to both questions.39 Fourth, Officer Fritz observed
marijuana on the floor of the passenger side." Finally, when later returning to the Saab, Walsh
noticed that the orange pill bottle was now empty 41 Given the totality of the circumstances,
Officer Walsh had both reasonable suspicion and probable cause that the Appellant may have
possessed drugs with intent to deliver. Moreover, at a minimum, Walsh was entitled to conduct a
protective frisk for his own safety.
While frisking the Appellant for weapons, Officer Walsh heard and felt a sizable amount
of loose pills in the Appellant's left sweatshirt pocket." Under the plain -feel doctrine, an officer
is authorized to retrieve contraband during a Terry frisk if he immediately recognizes the object as
contraband. Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). In our case, Walsh recovered one
hundred and thirteen loose oxycodone pills from the Appellant's sweatshirt pocket.43 His recovery
under the plain -feel doctrine was valid since 113 loose pills would be immediately apparent as
contraband to any officer conducting a pat do wn.44 After recovering the pills, the officers had
probable cause to arrest the Appellant for possession of narcotics with intent to distribute."
37 Id. at 12.
381d.
39 Id. at 13-15.
4° Id. 16.
41 Id. at 46.
42 Id. at 20-22.
43 Id. at 43.
44 The pill bottle being full of a substance and then suddenly empty upon return to the car further supports the fact
that the loose pills were immediately recognizable as contraband.
45 Additionally, Officer Walsh arguably had independent probable
cause to arrest the Appellant for narcotics
considering 1.) the presence of items in the pill bottle when Walsh first approached, 2.) the Appellant's denial
of ownership of the bottle, and 3.) the noticeable absence of those items during the second encounter.
8
In summary, since the arresting officers had probable cause to
stop the Appellant for
reasonable suspicion to
vehicular violations, probable cause to arrest for the scofflaw warrant,
the Appellant's motion
frisk, and probable cause to arrest for narcotics, the Court properly denied
to suppress. Therefore, his first claim fails.
II. The Appellant's Sentence Is Not Excessive; The Court Did Not Improperly
Consider the Heroin During Sentencing.
A. The Appellant's Sentence Is Not Excessive.
claim
The Appellant's second claim is that the Court imposed an excessive sentence. This
also lacks merit.
discretion.
The sentencing standard of review is whether the Court abused its
may not be found
Commonwealth v. Walls, 592 Pa. 557, 564-565 (2007). "An abuse of discretion
but requires a result
merely because an appellate court might have reached a different conclusion,
lack of support so
of manifest unreasonableness, or partiality, prejudice, bias, or ill -will, or such
as to be clearly erroneous." Id., quoting Grady v. Frito-Lay, Inc.,
839 A.2d 1038, 1046 (Pa. 2003)
(quotations omitted.). Since the Appellant cannot show that his sentence was manifestly
unreasonable, lacking in support, or based in bias or his claim must fail.
In our case, the Appellant was convicted of possessing 113
oxycodone pills with intent to
deliver.46 According to the Pennsylvania Commission on
Sentencing Guidelines, this offense
carries an Offense Gravity Score (OGS) of 11.47 At the time of sentencing, the Appellant had a
Appellant's minimum guideline
Prior Record Score (PRS) of RFEL/REVOC.48 Therefore, the
N.T. 4/5/2018 pg. 55. 35 Pa.C.S. § 780-113(a)(30). The jury also convicted the Appellant of K+I for the
46
Oxycodone, which merged for sentencing purposes. 7'6 Ed. Amendment 3.
47 See the Pennsylvania Commission
on Sentencing Guidelines Comprehensive Offense List,
See also N.T. 8/14/2018 pg. 4.
48 See the Presentence Investigation
Report. See also N.T. 8/14/2018 pg. 3-4.
9
sentence for this
sentence was 10-20 years incarceration." However, the statutory maximum
offense was 71/2 to 15 years. 35 Pa.C.S. § 780-113(0(1). In light of the large quantity of pills the
the Appellant
Appellant intended to distribute, and his extensive prior record, the Court sentenced
the Appellant's
to the statutory maximum of 71/2-15 years incarceration. The Court later granted
6-12 years
Petition for Reconsideration, vacated his sentence, and resentenced him to
incarceration.5° At resentencing, the Court noted that the statutory maximum it
had imposed may
he was a
have been stringent since most of the Appellant's criminal history occurred when
teenager.'
The Appellant continues to argue that his sentence is excessive and not supported by
counsel
"sufficient reasons." The Court disagrees. At the sentencing hearing, the Appellant's
was not for
requested a sentence of 11/2-3 years incarceration.52 She argued that 1.) the conviction
a violent crime and there were no firearms involved, 2.) that the Appellant
was a satisfactory
and 4.) that
parolee who had never tested positive for drugs, 3.) that he was engaged to be married,
he had not been convicted of a crime since 1998.53 However, after considering counsel's
of reasons. First,
arguments, the Court felt comfortable with the sentence it imposed for a number
the fact that the Appellant was convicted of PWID (and not a violent crime
involving a firearm) is
was not convicted
not a convincing argument for further mitigating his sentence. That a defendant
the Appellant
of a worse crime does not mitigate the serious crime he committed. Second, while
he was a satisfactory parolee
may not have tested positive for drugs, it is disingenuous to claim that
the Appellant's potential
when he was arrested for PWID (oxycodone) while on parole.54 Third,
Basic Sentencing Matrix, 7' Ed. Amendment 3.
49 See the Pennsylvania Commission on Sentencing Guidelines
so N.T. 9/7/2018 pg. 18-21.
51 Id.
52 N.T. 8/14/2018 pg. 14.
53 Id. at 10-14.
54 Id. at 20.
10
change in marital status is not a compelling mitigating factor. He does not claim to have children
or be responsible for supporting others financially. Fourth, the Appellant did not express remorse
lack of
or accept responsibility for his crime? Finally, the Court considered the Appellant's
token,
criminality (since he was a teenager in 1998) to be a mitigating circumstance.56 By the same
was that he
the Court could not dismiss the fact that the primary reason for his lack of criminality
profile,
was incarcerated between 1998 and 2012.57 As the Court considered the Appellant's total
his sentence was not excessive.
Overall, there were two major reasons for the Appellant's sentence. First, the Appellant
intent
was convicted of possessing 113 oxycodone pills, a schedule II addictive narcotic, with the
to distribute them. Second, he had an extensive criminal record. Both of these reasons were
justification enough to impose this sentence. Since the Appellant cannot show that his sentence
was improper, his second claim fails.
B. The Court Did Not Err When It Considered the Heroin Found In the Vehicle.
in the
Finally, the Appellant alleges that the Court improperly considered the heroin found
unfounded.
vehicle, since the Appellant was not convicted of possessing it. This claim is also
sentencing
A sentencing court may consider the overall circumstances of a case for
the charges. Sentencing
purposes even in situations where a defendant is acquitted of some of
so long as the conduct is
courts may consider conduct of which the defendant has been acquitted,
148 (1997); see also
established by a preponderance of the evidence. U.S. v. Watts, 519 U.S.
(non-precedential). The
Commonwealth v. Rice, 2018 WL 6804027 (Pa. Super. Dec. 27, 2018)
of the evidence as well as
presence of heroin in the vehicle was established by a preponderance
551d. at 21-22.
56 N.T. 9/7/2018 pg. 18-21.
'N.J. 9/7/2018 pg. 11.
11
140 packets of heroin in the
stipulated by counsel. Officer Walsh testified at trial that he found
the Appellant's counsel
center console of the vehicle after the Appellant was arrested.58 Moreover,
in that location both for the
at the suppression hearing stipulated to the presence of the heroin
Court explicitly stated that it
purposes of the motion and "if [it got] to trial."59 Furthermore, the
Finally, at sentencing, the
was not considering the heroin for the purposes of punishment.°
these reasons, the Court
Appellant's counsel herself noted that "heroin was found in the car."61 For
note, however, is that the
was permitted to consider the heroin at sentencing. What is important to
the Appellant's
Appellant's sentence was based on his convictions (i.e. not the heroin). Therefore,
final claim fails.
58 N.T. 4/4/2018 pg. 17-23.
ss N.T. 10/6/2017 pg. 72-73.
N.T. 8/14/2018 pg. 16.
6I Id. at 12.
12
CONCLUSION
The Appellant's claims should be denied for two reasons. First, the Court properly denied
the Appellant's Motion to Suppress. Officer Walsh had probable cause to arrest the Appellant
were
based on the information relating to the scofflaw warrant. Moreover, even if the warrant
on a
invalid, Walsh was authorized to remove the Appellant from the car and frisk him based
reasonable suspicion that he may have had a weapon. Since the pills in the Appellant's sweatshirt
pocket were immediately apparent as contraband, Walsh also had probable cause to arrest the
Appellant. Therefore, the Appellant's first claim fails.
a
Second, the Appellant's sentence was not excessive. On the contrary, the sentence was
into
significant downward departure from the minimum guideline sentence. Since the Court took
discretion.
consideration all circumstances, and found few mitigating factors, it did not abuse its
Furthermore, the Court did not err during the sentencing hearing when it considered the presence
of heroin in the vehicle. Sentencing courts are permitted to consider conduct of which the
defendant has been acquitted as long as that conduct has been proved by a preponderance
of the
by
evidence. Since the presence of the heroin in the car was testified to at trial, and was stipulated
important
counsel, the Court was permitted to consider this evidence during sentencing. What is
to note, however, is that the Appellant's sentence was based on the crimes he was
convicted of
(not the heroin). Therefore, the Appellant's second claim fails.
For these reasons, the Appellant's claims should be denied.
By the Court,
13
PROOF OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served upon the
following persons on the Lc( th-day of March, 2019.
Smart Communications/PADOC
Craig White
a.k.a. Shariff Moore
DU1901
SCI Waymart
PO Box 33028
St. Petersburg, FL 33733
Gina A. Amoriello, Esq.
1515 Market Street, Suite 1200
Philadelphia, PA 19102
Lawrence Goode, Esq.
Philadelphia District Attorney's Office
3 South Penn Square
Philadelphia, PA 19107
3 3.1\ao 1°1
DATE
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