Com. v. Coleman, D.

J-A13001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEON COLEMAN,
Appellant No. 71 WDA 2015
Appeal from the Judgment of Sentence of November 13, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015970-2012
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED: June 30, 2016
Appellant, Deon Coleman, appeals the judgment of sentence entered
on November 13, 2014 in the Criminal Division of the Court of Common
Pleas of Allegheny County. We affirm.
The trial court summarized the relevant facts as follows:
The credible facts adduced at [Appellant’s] suppression hearing
established the following events: Pittsburgh Police officers,
including Officer Abel, were dispatched to the area of North
Charles Street and Kenn Avenue in the City of Pittsburgh for a
report of a robbery. At the scene, the victim reported that he
was operating a jitney and had a passenger in his vehicle. The
passenger exited the vehicle and advised the victim that a friend
was coming to pay the fare. A short, young, thin black male
then approached the victim’s vehicle and pointed a gun at the
victim while demanding money. The victim gave the black male
money and the black male fled down North Charles Street. The
victim observed the black male enter a door on the far left end
of row houses. The victim relayed these observations to Officer
Abel.
J-A13001-16
Officer Abel went to the residence where the black male was
observed entering. He knocked on the door. Nobody
immediately answered. A second floor window was then opened
and [Appellant] looked out and asked who was knocking. Officer
Abel identified himself as “Pittsburgh Police” and asked
[Appellant] to come to the door. After a minute or two, Officer
Abel knocked on the door again. [Appellant] answered the door.
[Appellant] did not fit the description of the black male that was
provided by the victim.
Upon answering the door, [Appellant] was advised that a witness
had seen a robbery suspect enter the residence. [Appellant]
advised Officer Abel that nobody was in the residence. Officer
Abel informed [Appellant] that he was still going to check inside
the residence. Officer Abel asked [Appellant] to step out of the
residence. [Appellant] advised Officer Abel that he did not have
permission to enter the residence. Other officers detained
[Appellant] and Officer Abel entered the residence. Officer Abel
was able to clear the residence and he did not find anyone inside
the residence. He did, however, find heroin and
benzylpiperazine, commonly referred to as ecstasy, in the
bedroom sitting in plain view on the dresser. This room was the
same room [Appellant] occupied when he addressed Officer Abel
from the second floor window.
Officer Abel returned outside. He advised [Appellant] that he
found cocaine in the residence. [Appellant] blurted out that the
substance wasn’t cocaine: it was ecstasy. Officer Abel then
explained that he knew the substance was ecstasy but he
misidentified it because he wanted to get [Appellant] to admit
that the substance was ecstasy. At that point, [Appellant’s]
girlfriend showed up at the residence. After encouragement
from [Appellant], she told Officer Abel that she would not
consent to a search of the residence. Officer Abel and other
officers then secured the scene and Officer Abel obtained a
search warrant to search the residence. During the search,
Officer Abel discovered 698 stamp bags of heroin (22.71 grams)
from the upstairs bedroom closet. [Officer Abel also recovered]
11 blue pills (benzylpiperazine), one pink pill (benzylpiperazine),
a clear-knotted bag of partially crushed pills (benzylpiperazine)
and $2,135[.00] from the upstairs bedroom.
After th[e trial c]ourt granted in part and denied in part
[Appellant’s] suppression motions based on the evidence set
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J-A13001-16
forth above, [Appellant] proceeded to a stipulated non-jury trial.
Prior to the commencement of trial, the following exchange
occurred on the record:
[Assistant District Attorney]: This is going to go in by way
of stipulation. I would move t[o] incorporate all of the
previous testimony the [trial c]ourt has taken during the
course of the suppression hearing and then would
supplement that with additional facts.
THE COURT: Is that the way we are proceeding, [defense
counsel]?
[Defense Counsel]: That’s the way I have offered to
proceed and will stipulate. If there’s something [the
assistant district attorney] says I won’t stipulate to, I will
speak up, but I don’t anticipate that will occur.
[Following the non-jury trial, the court found Appellant guilty of
simple possession1 and possession with intent to distribute
(benzylpiperazine),2 simple possession3 and possession with
intent to distribute (heroin),4 and possession of drug
paraphernalia.5 On November 13, 2014, the court sentenced
Appellant to an aggregate term of 51 to 156 months’
incarceration. After the trial court denied post-sentence
motions, Appellant filed a timely notice of appeal on January 12,
2015. Pursuant to order of court, and after extensions of time in
which to obtain transcripts, Appellant filed a concise statement
of errors complained of on appeal on June 26, 2015. The trial
court issued its opinion on November 5, 2015.]
Trial Court Opinion, 9/5/15, at 2-3.
____________________________________________
1
35 P.S. § 780-113(a)(16).
2
35 P.S. § 780-113(a)(30).
3
35 P.S. § 780-113(a)(16).
4
35 P.S. § 780-113(a)(30).
5
35 P.S. § 780-113(a)(32).
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J-A13001-16
Appellant raises the following questions for our review:
Did the trial court err when it failed to order suppression in this
case, as police did not have consent to search the property
where [Appellant] was found, and there were no exigent
circumstances to obviate the need for a search warrant?
Is the sentence imposed in this case manifestly excessive in that
sentencing was based, in part, upon facts not of record and the
sentencing court’s previous cases, none of which had relevance
to [Appellant’s] need for rehabilitation, the society’s need for
protection, and the gravity of [Appellant’s] offense?
Appellant’s Brief at 6.
We carefully reviewed the certified record, the submissions of the
parties, and the thorough opinion of able the trial court. Based upon our
review, we concur in the trial court’s conclusion that the Commonwealth
established exigent circumstances that obviated the need for a search
warrant. We also agree with the trial court that it did not abuse its
discretion in fixing the sentence imposed in this case. Because we find that
the trial court adequately and accurately addressed the claims presented on
appeal, we adopt the trial court’s opinion as our own and direct the parties
to include a copy of the court’s opinion in all future filings related to our
disposition of this appeal.
Judgment of sentence affirmed.
-4-
J-A13001-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2016
-5-
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TN THE COURT OF.COMJ\10N PLEAS OF ALLEGHENY COUi'.'TY. PENNSYLVANIA
CRIMINAL DIVTSION
COMMON\.VEALTH OF PENNSYLVANIA )
)
vs. ) CC No. 201215970
)
DEON COLEMAN, )
)
Defendant )
)
OPINION
Mariani, J.
This is a direct appeal in which the defendant appeals the Judgment of Sentence
of November 13, 2014 which became final on December 12, 2014 when this Court
denied post-sentencing motions. After a stipulated non-jury trial, the defendant was found
guilty of possession and possession with intent to deliver benzylpipcrazine. possession
and possession with intent to deliver heroin and possession of drug paraphernalia.
Relative to the conviction for possession with intent lo deliver heroin, this Court
sentenced the defendant to a term of imprisonment of not less than 33 months nor more
than l 20 months. Relative to the conviction for possession with intent to deliver
benz.ylpipcrazine, this Court sentenced the defendant to a consecutive term of
imprisonment of not less than 18 months nor more than 36 months. No additional
penalties were imposed at the remaining counts. This timely appeal followed.
APPENDIX A
The credible facts adduced at the suppression hearing established the following
events: Pittsburgh Police officers. including Officer Abel, were dispatched lo the area of
North Charles Street and Kenn A venue in the City of Pittsburgh for a report of a robbery.
At the scene, the victim reported that he was operating a jitney and had a passenger in his
vehicle. The passenger exited the vehicle and advised the victim that a friend was coming
to pay the fare. A short, young, thin black male then approached the victim's vehicle
and pointed a gun at the victim while demanding money. The victim gave the black male
money and the black male fled down North Charles Street. The victim observed the
black male enter a door on the far left end of row houses. The victim relayed these
observations to Officer Abel.
Officer Abel went to the residence where the black male was observed entering.
He knocked on the door. Nobody immediately answered. A second floor window then
opened and the defendant looked out and asked who was knocking. Officer Abel
identified himself as "Pittsburgh Police" and asked the defendant to come to the door.
After a minute or two, Office Abel knocked on the door again. The defendant answered
the door. The def end ant did not fit the description of the black male that was provided by
the victim.
Upon answering the door. the defendant was advised that a witness had seen a
robbery suspect enter the residence. The defendant advised Officer Abel that nobody was
in the residence. Officer Abel informed the defendant that he was still going to check
2
inside the residence. Officer Abel asked the defendant to step out of the residence. The
defendant advised Officer Abel that he did 1101 have permission to enter the residence.
Other officers detained the dcfcndant and Officer Abel entered the residence. Officer
Abel was able to clear the residence and he did 110! find anyone inside the residence. He
did, however. find heroin and bcnzylpiperaz ine. commonly referred to as ecstasy, in the
upstairs bedroom sitting in plain view on the dresser. This room was the same room the
defendant occupied when he addressed Officer Abel from the second floor window.
Officer Abel returned outside. He advised the defendant that he found cocaine in
the residence. The defendant blurted out that the substance wasn't cocaine: it was
ecstasy. Officer Abel then explained that he knew the substance was ecstasy but he
misidentified it because he wanted to get the defendant to admit that the substance was
ecstacy. At that point, the defendant's girlfriend showed up at the residence, After
encouragement from the defendant, she told Officer Abel that she would not consent to a
search of the residence. Officer Abel and other officers then secured the scene and
Officer Abel obtained a search warrant to search the residence. During the search,
Officer Abel discovered 698 stamp bags of heroin (22.71 grams) from the upstairs
bedroom closet. 11 blue pills (benzylpiperazine), one pink pill (benzylpipernzine). a
clear-knotted bag of partially crushed pills (bcnzylpipcrazine) and $2, 135 from the
upstairs bedroom.
After this Court granted in part and denied in part the defendant's suppression
motions based on the evidence set forth above. the defendant proceeded to a stipulated
3
non-jury trial. Prior to the commencement of trial. the following exchange occurcd on
the record:
MR. SACHS (the Assistant District Attorney): This is
going lo go in by way of stipulation. I would move the
incorporate all of the previous testimony the Court has
taken during the course of the suppression hearing and then
would supplement that with additional facts.
THE COURT: Is that the way we are proceeding, Mr.
Haber?
MR. HABER (defense counsel): That's the way I have
offered to proceed and will stipulate. If there's something
Mr. Sachs says I won't stipulate lo, I wilt speak up hut I
don't' anticipate that will occur.
A non-jury trial then occurred and the def end ant was convicted and sentenced as
set Forth above. This appeal followed.
Defendant first claims that the drugs and money seized from the residence should
have been suppressed because Officer Abel did not have lawful cause to initially enter the
residence without a search warrant. The Fourth Amendment to the United States
Constitution and Article l, Section 8 of the Pennsylvania Constitution protect individuals
from unreasonable searches and seizures, thereby ensuring the "right of each individual to
be let alone." In the Interest of D.M., 566 Pa. 445m 781 A.2d 1161, 1163. (Pa. 200 I);
C9mmonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593, 596 (Pa.Super, 1990). As a
general rule, a search warrant is required before police may conduct any search.
Commonwealth v. White, 669 A.2d 896, 900 (Pa. 1995). A warrantlcss search or seizure
is presumptively unreasonable under the Fourth Amendment, subject to a few specifically
established, well-delineated exceptions. Horton v. California, 496 U.S. 128, 134, n.4.
4
110 S.CI. 231, 110 L.Ed.2d 112 (1990). Warraruless searches are also presumptively
unreasonable under Article I. Section 8 of the Pennsylvania Constitution. Commonwealth
v. McCree, 924 A.2d 621, 627 (Pa. 2007).
This Court believes that the warrantless entry was justified by exigent
circumstances. As sci forth in ConJmonwcahh v. Walker, 836 A.2d 978, 981 (Pa. 2003)
citing Commonwealth v. Roland, 637 269. 271 (Pa. 1994). the Pennsylvania Supreme
Court has identified a number of factors to consider in determining whether a search is
justified by exigent circumstances:
( 1) the gravity of the offense; (2) whetherthere is a
reasonable belief that the suspect is armed; (3) whether
there is a clear showing of probable cause; (4) whether
there is a strong showing that the suspect is within the
premises to be searched; (5) whether there is a likelihood
that the suspect will escape; (6) whether the entry was
peaceable; (7) the time of the entry, i.e., day or night; (8)
whether the officer was in hot pursuit of a fleeing felon; (9)
whether there is a likelihood that evidence may be
destroyed; and ( l 0) whether there is a danger to pol ice or
others.
Additionally. it has been well established that exigent circumstances exist where
there is a threat of physical harm. Commonwealth v. Ehrsam, 355 Pa. Super. 40. S 12
A.2d I 199 (Pa.Super. 1986). Sec Commonwealth v. Fickes, 969 A.2d 1251. 1255
(Pa.Super. 2009)(Exigent circumstances exist where there is a "danger to police or other
persons inside ... the dwelling"). Justice Castille. in Commonwealth v. Revere. 585 Pa.
262. 888 A.2d 694 (Pa. 2005), referred to "exigent circumstances" as a term of an that
5
describes a situation in which "a more orderly process must yield to an urgent necessity
for immediate action." Id. at 698 fn.5.
Exigent circumstances to search a residence have been held to exist when officers
arc 111 "hot-pursuit" of a suspected offender who enters a residence. See War~k:D.,
Maryland Pe1)itentjj}~ Hayden. 387 U.S. 294. 87 S. Ct. 1642. 18 L. Ed. 2d 782( 1967)(Exigent circumstances existed for entry into a residence where police received
reports of an armed robbery and where the suspect entered the home less than five
minutes before the police arrived); Commonwealth v. Dommel, 885 A.2d 998 (Pa.Super,
2005)(Police lawfully entered a residence in hot pursuit where they were following a DUI
suspect); Comm_onwcalth v, Jeny. 470 A.2d 601 (Pa.Super. 1983)(Exigent circumstances
existed for police to enter home and arrest armed robbery suspects where the crime
occurred only 15 minutes previously and one block away). This Court believes that
probable cause existed for Officer Abel to enter the residence. Officer Abel properly
relied on a report of a robbery victim that the armed suspect [led the scene and entered a
specific, identified residence. The report to Officer Abel occurred minutes after the
armed robbery and the victim was very specific and identified the exact location where he
observed the armed actor enter. There was a risk of physical harm to the residents and to
the police officers in pursuit due to the fact that an armed individual entered the residence
in an effort to flee from the police. Under these circumstances. this Court believes that
immediate action was warranted lo enter the residence to pursue an anned robbery
suspect. Accordingly. the suppression motion was denied.
6
Defendant next complains that this Court erred in permitting the introduction of
the defendant's testimony from a prior civil eviction proceeding against the defendant al
trial. The defendant did not object to the admission of this evidence at trial and,
therefore, this issue is waived. See Pa.R.A.P. 302(a) (stating that "issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.");
Commonwealth v. Lawson, 789 A.2d 252. 253 (Pa. Super. 200 I )(explaining that "even
issues of constitutional dimension may not be raised for first time on appeal. "):
Co111monwcalth v. Cain, 906 A.2d 1242, 1244; (Pa.Super. 2006). As set forth above,
defendant's counsel stipulated to the use of all testimony from the suppression hearing
and indicated that he would advise the Court if he had any objection to additional
evidence elicited by the Commonwealth. He did not offer any such objections to the
testimony from the civil matter. Accordingly, this claim is waived.
Defendant's last claim is that this Court imposed a manifestly excessive sentence.
A claim that a sentence is excessive is a challenge to the discretionary aspects of the
sentence. Commonwealth v. Hoag. 665 A.2d 1212 (Pa. Super. 1995). This claim is.
however, unfounded. This Court's sentence was proper. A sentencing judge is given a
great deal of discretion in the determination of a sentence, and that sentence will not be
disturbed on appeal unless the sentencing court manifestly abused its discretion."
Commonwealth v. Boyer, 856 A2d 149, 153 (Pa. Super. 2004), citing Commonwealth v.
Kenner, 784 A.2d 808, 811 (Pa.Super, 200 I) appeal denied, 568 Pa. 695, 796 A.2d 979(2002); 42 Pa.CS.A. §9721. An abuse of discretion is not a mere error of judgment; it
involves bias, partiality. prejudice, ill-will. or manifest unreasonableness. See
7
Con.1n.mn.~raltl1~._.FIQr_~ 92 I A.2d SI 7. 525 (Pa.Super. 2007), citing C9mn~_gm~al1h_y_,
Busanet, 817 A.2d J060. l076(Pa. 2002).
The imposition of consecutive rather than concurrent sentences lies within the
sound discretion of the sentencing court. Challenges to the exercise of this discretion
ordinarily do not raise a substantial question. ~ommonwealth v. Pass, 914 A.2cl 442, 446-
47 (Pa.Super. 2006). Commonwealth v. Lloyd, 878 A.2d 867. 873 (Pa. Super. 2005),
appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (citing Commonwealth v. I-loag. 665
A.2d 1212, 1214 (Pa. Super. 1995). Title 42 Pa.CS.A. § 9721 affords the sentencing
court discretion to impose its sentence concurrently or consecutively to other sentences
being imposed at the same time or to sentences already imposed. ~gmmonwealth v.
Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (citing Commonwealth v. Graham, 661 A.2d
1367, 1373 (1995)). "In imposing a sentence, the trial judge may determine whether,
given the facts of a particular case, a sentence should run consecutive to or concurrent
with another sentence being imposed." Commonwealth v. Perry) 883 A.2d 599 (Pa.
Super. 2005), quoting Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa.Supcr.2003);
see also Commonwealth v. L.N., 787 A.2d 1064, 1071 (Pa.Super.2001 ). appeal denied
569 Pa. 680, 800 A.2d 931 (2002). As the Superior Court has stated in Commonwealth
v. Mastromarino. 2 A.Jc! 581, 587 (Pa.Super. 20 I 0). "[ t [hus, in our view, the key lO
resolving the preliminary substantial question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to. what appears upon its face to be, an
excessive level in light of the criminal conduct at issue in the case."
8
Furthermore, the "! s ]entencing court has broad discretion in choosing the range of
permissible confinements which best suits a particular defendant and the circumstances
surrounding his crime." BQX.~.!:. supra, quoting CQ!runonwcallh v. Moore, 617 A.2d 8, 12
( 1992). Discretion is limited, however, by 42 Pa.CS.A. §972 l(b), which provides that
a sentencing court must formulate a sentence individualized to that particular case and
that particular defendant. Sect ion 9721 (b) provides: ''It lhe court sh al I follow the general
principle that the sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense, as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the defendant
Bo)'.er, supra at 153, citing 42 Pa.CS.A. §9721 n». Furthermore,
In imposing sentence, the trial court is required to consider
the particular circumstances of the offense and the
character of the defendant. The trial court should refer to
the defendant's prior criminal record. age, personal
characteristics, and potential for rehabilitation. However,
where the sentencing judge had the benefit of a presentence
investigative report, it will be presumed that he or she was
aware of the relevant information regarding the defendant's
character and weighed those considerations along with
mitigating statutory factors.
Boyer. supra at I 54, citing Commonwealth v. Burns, 765 A.2d I 144, 1150-11 SI
(Pa.Super. 2000) (citations omitted).
Moreover, "the sentencing court must state its reasons for the sentence on the
record." Royer, supra at 154, citing 42 Pa.C.S.A. § 972l(h). The sentencing judge can
satisfy the requirement that reasons for imposing sentence be placed on the record by
indicating that he or she has been informed by the presentcnce report; thus properly
9
considering and weighing all relevant factors. _Doye_r. supra, citing J3urns, supra, citing
~9mmonwcal1..h v,_Lgill!., 451 Pa.Super. 219, 679 A.2d 237 (1996). Additionally,
"where a sentence is within the standard range of the guidelines, Pennsylvania law views
the sentence as appropriate under the Sentencing Code". Commonwealth v. Moury, 992
A.2d 162. 171 (Pa. Super. 2010) see also Commonwealth v. Cruz-Centeno, 447 Pa.
Super. 98. 668 A.2d 536 (Pa.Super. 1995). appeal denied, 544 Pa. 653, 676 A.2d 1195{ 1996) (stating combination of PS I and standard range sentence, absent more, cannot be
considered excessive or unreasonable).
The record in this case supports the sentence imposed by this Court. The
sentencing record reflects that this Court considered the prcsentence report. the testimony
presented al trial and at sentencing and all other relevant factors. The defendant did not
object to the substance of the information contained in the presentcnce report. Each
sentence imposed was within the standard range of the sentencing guidelines. Although
the sentences were imposed consecutively, they were done so to recognize that the
defendant was involved in the trafficking of two separate drugs. The sentencing record
reflects that in imposing sentence, the Court considered the that the defendant had
previous convictions for dealing drugs and that he had served substantial prison time for
those offenses. This Court was convinced that the defendant continues lo choose not to
conform his conduct to the dictates of the laws prohibiting drug trafficking. The Court
further recognized the impact that the defendant's conduct had on society in general by
circulating drugs into the community and contributing to the many unfortunate
IO
//
;',:
consequences of drug use. Based on these facts, this Court does not believe the
sentence imposed in this case was excessive.
Accordingly, the judgment should be affirmed.
By the Court:
11