Com. v. Snyder, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STEVEN ARTHUR SNYDER
Appellant No. 3069 EDA 2013
Appeal from the Judgment of Sentence September 19, 2013
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001691-2012
BEFORE: OLSON, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 13, 2015
Steven Arthur Snyder appeals from the judgment of sentence imposed
on September 19, 2013, in the Court of Common Pleas of Monroe County. A
jury found Snyder guilty of possession with intent to deliver (PWID),
possession of a controlled substance, possession of drug paraphernalia, and
conspiracy.1 The trial court sentenced him to an aggregate sentence of 22
months to five years’ imprisonment. Thereafter, the trial court granted
Snyder’s motion for reconsideration of sentence and made him eligible for
the State Motivational Boot Camp program. Snyder presents two questions:
(1) “Did the parole officers have the requisite reasonable suspicion to justify
a warrantless search of the accused’s purported residence and then use the
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1
35 P.S. § 780-113(a)(30), (a)(16), (a)(32), and 18 Pa.C.S. § 907,
respectively.
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evidence seized as the basis to obtain a search warrant?” and (2) “Whether
the evidence was sufficient to prove all of the elements of possession with
intent to deliver beyond a reasonable doubt where the primary evidence of
such offense was the conclusion of the police detective that the items found
were for ‘redistribution of marijuana’?”. Snyder’s Brief at 5.
With regard to Snyder’s first issue, the suppression court has
summarized the evidence as follows:
At the time of the search in November 2011, [Snyder] was on
probation following a driving under the influence conviction. On
August 17, 2011 he signed the rules and regulations for
supervision by the Monroe County Probation Department, which
included a notification that [Snyder] inform the probation
department of any changes in residence within 72 hours of the
change.
The Monroe County Probation Department received information
that [Snyder] was not living at the address [Snyder] initially
provided, but was instead residing at 1127 Mt. Tom Road and
was in possession of a firearm – both violations of the terms of
his probation.[2] On November 30, 2011, Probation Officer
Bernard Sikora, and two other probation officers, went to
[Snyder’s] residence. Outside the residence were two vehicles
and one trailer, all registered to [Snyder]. When the probation
officers arrived, a woman, looking out a window, asked what
they were doing. The officers asked her where [Snyder] lived,
and the woman pointed to the corner apartment. [Snyder] later
identified the woman as his grandmother.
When Officer Sikora knocked on the door, [Snyder] opened the
door to the residence. [Snyder] stated that he did not live
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2
When Snyder was placed on probation, he had provided an address other
than the Mt. Tom Road address, and indicated that he was living with his
mother. See N.T., 3/4/2013, at 15–16.
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there, however he turned around and the probation officers were
able to enter the residence.
The kitchen area and living room are an open floor plan. Officer
Sikora requested that [Snyder] show him his room. Off of the
kitchen, [Snyder] brought Officer Sikora to a bedroom that
appeared to be a child’s room.
When asked again where his bedroom was, [Snyder] then
indicated an area “around back of the kitchen.” When Officer
Sikora left the kitchen there was a small hallway, and off that
hallway was a small office and then a bedroom. When Officer
Sikora entered the hallway, he testified he could smell
marijuana. Officer Sikora then observed marijuana on top of the
desk in the office area. [Snyder] was secured in handcuffs and
the marijuana was also secured. Detective Burns, of the Monroe
County District Attorney’s Office was called and asked to obtain
a search warrant for the residence. No further search was
conducted at that time by the probation officers. The probation
officers did also note that [Snyder’s] wallet was in the residence
and there was a carbon copy of a traffic ticket in [Snyder’s]
name, hanging on the refrigerator.
A search warrant was subsequently obtained for “The residence
of Steven A. Snyder located at 1129 Mt. Tom Road, Smithfield
Township, Monroe County[,] Pennsylvania and all of Steven A.
Snyder’s vehicle located on said property.” The warrant includes
a description of the residence.
Suppression Court Opinion, 4/24/2013, at 2–3.
The suppression court, by order entered April 24, 2013, denied
Snyder’s motion to suppress. Snyder proceeded to trial and was convicted
and sentenced as stated above. Following the denial of his post sentence
motion, Snyder filed this appeal.3
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3
Snyder timely complied with the order of the trial court to file a statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
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Our standard of review of a trial court’s denial of a pre-trial motion to
suppress evidence is well established:
An appellate court’s standard of review in addressing a challenge
to a trial court's denial of a suppression motion is limited to
determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. [Because] the prosecution prevailed in the
suppression court, 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 factual findings of the
trial court, we are bound by those facts and may reverse only if
the legal conclusions drawn therefrom are in error.
Commonwealth v. Smith, 85 A.3d 530, 534 (Pa. Super. 2014) (citations
omitted).
Snyder argues the probation officers “did not have the requisite
reasonable suspicion to justify a warrantless search of the premises where
[Snyder] was merely present[.]” Snyder’s Brief at 10. Specifically, Snyder
argues: “Here the probation officers were not investigating any criminal
activity of [Snyder] and he was not engaged in any incriminating conduct at
the time he answered the door. They were merely trying to determine
whether [Snyder] changed his residence.” Id. at 14. Moreover, Snyder
argues a probation officer must have prior approval for a property search.
See id.
Snyder further claims there were no exigent circumstances, since from
the officers’ position at the doorway no contraband was in plain view. He
also asserts that even though he signed a consent to search as a condition
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of his probation, the probation officer was still required to have reasonable
suspicion. Id. at 15, citing Commonwealth v. Wilson, 692 A.2d 1031,
1037 (Pa. 1997). Snyder maintains the probation officers were not lawfully
in the premises when they observed and seized the items found in the
apartment. See id. at 15.
At the time of the search, Officer Sikora was a supervisor with the
Monroe County Office of Probation and Parole. N.T., 3/4/2013, at 4.
Therefore, Officer Sikora derived his authority from 42 Pa.C.S. § 9122,
“Supervisory relationship to offenders,” which provides, in relevant part:
(b) Searches and seizures authorized.
(1) Officers and, where they are responsible for
the supervision of county offenders, State
parole agents, may search the person and
property of offenders in accordance with the
provisions of this section.
****
(iii) Nothing in this section shall be construed to
permit searches or seizures in violation of
the Constitution of the United States or
section 8 of Article I of the Constitution of
Pennsylvania.
(c) Effect of violation. --No violation of this section
shall constitute an independent ground for
suppression of evidence in any probation or parole
proceeding or criminal proceeding.
(d) Grounds for personal search of offender.
(1) A personal search of an offender may be
conducted by an agent:
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(i) if there is a reasonable suspicion to
believe that the offender possesses
contraband or other evidence of
violations of the conditions of
supervision;
(ii) when an offender is transported or
taken into custody; or
(iii) upon an offender entering or leaving
the securing enclosure of a
correctional institution, jail or
detention facility.
(2) A property search may be conducted by an
officer 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 other evidence
of violations of the conditions of supervision.
(3) Prior approval of a supervisor shall be obtained
for a property search absent exigent
circumstances. No prior approval shall be
required for a personal search.
****
(6) 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.
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(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.
42 Pa.C.S. § 9122(b)(1)(iii), (d)(1)-(3), (6).
The statute provides that a probation officer may not conduct a search
that would violate a probationer’s constitutional rights. Id. at §
9122(b)(1)(iii). Rather, the officer must have reasonable suspicion that a
probationer possesses contraband or other evidence of a violation of the
terms of his probation before he conducts a warrantless property search. Id.
at § 9912(d)(2). Further, while the statute proscribes a “property search”4 in
the absence of either exigent circumstances or prior approval from a
supervisor, it also states that “[n]o violation of this section shall
constitute an independent ground for suppression of evidence in any
probation or parole proceeding or criminal proceeding.” Id. at
9122(c),(d)(3) (emphasis supplied). Accordingly, under the clear terms of
the statute, evidence recovered during a warrantless search of a
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4
A “property search” is defined as “[a] warrantless search of real property,
vehicle or personal property which is in the possession or under the control
of an offender.” 42 Pa.C.S. § 9911.
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probationer’s person or property is subject to suppression only if the search
was conducted in violation of the probationer’s constitutional rights.
Here, the suppression court determined that Officer Sikora possessed
reasonable suspicion to search the residence for evidence that Snyder was
living at an unapproved residence, explaining:
[T]here are a number of [] factors that indicate that the
probation officers reasonably concluded that, as the
Pennsylvania State Police said, [Snyder] was residing at the Mt.
Tom residence[, an unapproved residence].
In addition to the information from the police [that Snyder
was not living at the address he initially provided, and was in
possession of a firearm], three vehicles on the property were
registered to [Snyder]. Last, when probation officers arrived at
the Mt. Tom [Road] residence on the day of the search, a
woman that [Snyder] later identified as his grandmother,
pointed to the residence in response to the question of “where
Steven Snyder lived.”
We conclude from these facts that the probation officers
had a reasonable suspicion that [Snyder] had committed a
probation violation in failing to inform the Probation Department
of any address change, as required by the rules and regulations
of his probation. It is well settled that warrantless probation
searches are constitutional based on a probationer’s lessened
expectation of privacy. Acting upon reliable information from
Pennsylvania State Police regarding the violation, receiving
confirmance [sic] of [Snyder’s] residence from [Snyder’s]
grandmother and the presence of a number of vehicles
registered to [Snyder] at the property, probation officers
conducted a lawful warrantless walk-through of the apartment.
The warrantless search of the residence initiated by
probation officers was directly related to the suspected probation
violation. The probationer provides limited consent to
warrantless searches by signing the probation agreement.
Commonwealth v. Williams, 692 A.2d 1031 (Pa. 1997).
However, a search is only reasonable where the probation
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officers have a reasonable suspicion that the probationer has
committed a violation of the rules and regulations of probation
and the search is reasonably related to the probation officer’s
duty to assure compliance with the rules and regulations of
probation.” Commonwealth v. Hughes, 836 A.2d 893 (Pa.
2003).
The probation officers in the instant case acted upon
information from the Pennsylvania State Police that not only was
[Snyder] residing at an address other than the address provided
to the probation department, but also that [Snyder] was in
possession of prohibited firearms. No firearms were located.
However, the test for reasonable suspicion is not considered
from the knowledge gained after a search, but rather considers
the information known to officers at the time of the initiated
search. At the time of the search, the officers had reliable
information that required a home visit to determine whether
there were firearms in the residence and determine whether
[Snyder] was residing at the Mt. Tom [Road] address.
Suppression Court Opinion, 4/24/2013, at 4–6.
We agree with the above sound analysis. Applying the factors set
forth in Subsection 9122(d)(6) to the facts of this case, we find the record
supports the suppression court’s determination that Officer Sikora had
reasonable suspicion that warranted the search of the residence. Therefore,
we reject Snyder’s claim to the contrary.
Further, Snyder argues the search warrant authorized the search of
the wrong apartment, and, as such, was invalid.5 However, Snyder’s
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5
The suppression court noted Snyder had not raised the issue in his
suppression motion, but rather had raised the issue in his brief in support of
the motion. Despite Snyder’s failure to include the argument in the motion
to suppress, the court addressed the issue, and this Court will also do so,
since the issue was considered by the court in denying the motion. See
Suppression Court Opinion, 4/24/2013, at 6.
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argument ignores the fact that, although the warrant was issued for 1129
Mt. Tom Road, as opposed to 1127 Mt. Tom Road, the warrant included a
detailed description of the residence to be searched, and “[a]ll descriptions
of the searched residence at 1127 Mt. Tom Road corroborate [the warrant’s]
description of the residence.” 6 Suppression Court Opinion, 4/24/2013, at 7.
As such, no relief is due on this claim. See Commonwealth v. Belenky,
777 A.2d 483, 487 (Pa. Super. 2001) (incorrect address did not invalidate
warrant where description in the affidavit matched appellant’s apartment in
every other respect and did not affect ability to identify the premises to be
searched).
Accordingly, we conclude Snyder’s challenges to the denial of his
suppression motion present no basis upon which to disturb the decision of
the suppression court.
The final argument raised by Snyder is as follows:
The evidence was insufficient to prove all of the elements of
possession with intent to deliver beyond a reasonable doubt
where the primary evidence of such offense was the conclusion
of the police detective that the items found were for
redistribution.
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6
“The application state[d], ‘the residence is an apartment on the left side of
a two story beige or yellowish house. The apartment has a screened in
porch with a white door leading to the apartment.’ [Application for Search
Warrant, 11/30/11].” Suppression Court Opinion, 4/24/2013, at 7.
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Snyder’s Brief at 16. As such, Snyder is contending the Commonwealth
failed to prove the element of intent to deliver the marijuana found at his
residence.
Snyder’s Rule 1925(b) statement, however, only includes a sufficiency
challenge with regard to the element of actual physical or constructive
possession, and a challenge to the court’s evidentiary ruling in qualifying the
Commonwealth’s witness to testify as an expert.7 We further note that the
trial court’s opinion did not address the issue of sufficiency of the evidence
with regard to the element of intent to deliver. See Trial Court Opinion,
12/18/2013. Therefore, we conclude that Snyder’s final issue has been
waived.8
Accordingly, we affirm.
Judgment of sentence affirmed.
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7
See Snyder’s Pa.R.A.P. 1925(b) Statement, 11/25/2013 (“[T]here was no
evidence that [Snyder] was in actual physical or constructive possession of
any of the controlled substances and contraband and/or currency found in
the apartment occupied by his girlfriend and not [Snyder]. The court also
erred in allowing a detective from the Monroe County Drug Task Force to
testify as an expert.”).
8
In any event, this argument is meritless. See Commonwealth v.
Watley, 81 A.3d 108, 114 (Pa. Super. 2013) (noting standard of review of
sufficiency claim requires that appellate court view the evidence admitted at
trial, and all reasonable inferences drawn therefrom, in a light most
favorable to the Commonwealth as verdict winner; recognizing expert
testimony, while not necessary, “can be beneficial”), appeal denied, 95 A.3d
277 (Pa. 2014).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2015
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