Com. v. Costello, B.

J-S78008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BRENDAN BRIAN COSTELLO
Appellee No. 1206 MDA 2014
Appeal from the Order Entered July 1, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0008589-2013
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 09, 2015
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the York County Court of Common Pleas, which granted Appellee,
Brendan Brian Costello’s, motion to suppress. We reverse and remand for
further proceedings.
The relevant facts and procedural history of this case are as follows.
On October 18, 2013, the police obtained information from a confidential
informant (“CI”) regarding marijuana at 336 West Cottage Place, York City
(“the residence”). In anticipation of a search warrant, the police secured the
residence. When the police obtained a search warrant, they searched the
residence and found marijuana, mushrooms, drug packing material, and
scales. The police arrested Appellee and charged him with possession with
intent to deliver (“PWID”).
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Mark Mastrangelo, who lived at the residence, testified that he spoke
to Appellee two days later, on October 20, 2013, and Appellee told Mr.
Mastrangelo that Appellee was expecting a package in the mail. Appellee
told Mr. Mastrangelo the package would arrive at either the residence or
another home nearby, and that Mr. Mastrangelo should not touch the
package because it contained marijuana. On October 21, 2013, Mr.
Mastrangelo noticed a package on the front porch of the residence and called
Appellee to inform him of its arrival. Appellee again told Mr. Mastrangelo not
to touch the package. After obtaining information from the CI that Appellee
was receiving a large amount of marijuana through the mail, Officer Lentz
and another police officer went to the residence on October 22, 2013, to see
if a package had arrived. Upon noticing a package on the porch, the officers
approached the residence. The package was addressed to a James Moffet at
the residence address, and was from a Jessica Harris in Eureka, California.
The officers determined Mr. Moffett did not live at the residence, seized the
package, and brought it to the police station. The officers opened the
package, discovered marijuana, and immediately obtained a search warrant.
The York County District Attorney amended the original criminal
complaint to charge Appellee with an additional count of PWID. On January
16, 2014, Appellee filed a motion to suppress the drugs found at the
residence and in the package. The court held a suppression hearing on May
2, 2014. On July 1, 2014, the court denied the motion as to the search of
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the residence but suppressed the drugs found in the package. The
Commonwealth timely filed a notice of appeal on July 16, 2014. That same
day, the court ordered the Commonwealth to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the
Commonwealth timely complied on August 1, 2014.
The Commonwealth raises the following issue for our review:
WHETHER THE [SUPPRESSION] COURT ERRED IN
GRANTING [APPELLEE’S] SUPPRESSION REQUEST WHERE
[APPELLEE] LACKED A REASONABLE EXPECTATION OF
PRIVACY IN THE PACKAGE SUPPRESSED BY THE
[SUPPRESSION] COURT?
(Commonwealth’s Brief at 4).
The following principles guide our analysis of the Commonwealth’s
issues:
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review and
consider only the evidence from the defendant’s witnesses
together with the evidence of the prosecution that, when
read in the context of the entire record, remains
uncontradicted. The suppression court’s findings of fact
bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law,
however, are not binding on an appellate court, whose
duty is to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Clinton, 905 A.2d 1026, 1029-30 (Pa.Super. 2006)
(quoting Commonwealth v. Boulware, 876 A.2d 440, 442 (Pa.Super.
2005)).
The Commonwealth argues Appellee lacked a reasonable expectation
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of privacy in the package. Specifically, the Commonwealth avers Appellee
was neither the sender nor the addressee of the package. The
Commonwealth asserts the label on the package indicated the sender was
Jessica Harris, and the package was addressed to James Moffet, an
individual who did not live at the residence. The Commonwealth also claims
Appellee presented no evidence to prove he intended to continue living at
the residence or that he was the legal owner or tenant of the residence. The
Commonwealth alleges that, after Appellee’s arrest on October 18, 2013,
Appellee went to stay with his girlfriend and no longer possessed a key or
stored possessions at the residence. The Commonwealth also alleges
Appellee “abandoned” the package when he did not retrieve it. The
Commonwealth asserts the package was delivered to the residence on
October 21, 2013, and Mr. Mastrangelo informed Appellee on that date that
the package had arrived. The Commonwealth contends Appellee did not
indicate to Mr. Mastrangelo that Appellee would pick up the package. The
Commonwealth maintains Appellee left the package on the porch until the
police seized the package on October 22, 2013. The Commonwealth
concludes this Court should reverse the suppression court’s order granting
Appellee’s motion and remand for further proceedings. We agree.
“[A] defendant charged with a possessory offense has standing to
challenge a search.” Commonwealth v. Perea, 791 A.2d 427, 429
(Pa.Super. 2002), appeal denied, 568 Pa. 736, 798 A.2d 1288 (2002). To
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prevail, however, in a challenge to the search and seizure, a defendant
accused of a possessory crime must also establish, as a threshold matter, a
legally cognizable expectation of privacy in the area searched.
Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.Super. 1998),
appeal denied, 556 Pa. 675, 727 A.2d 130 (1998) (quoting Commonwealth
v. Carlton, 549 Pa. 174, 180, 701 A.2d 143, 145-46 (1997)).
An expectation of privacy will be found to exist when the
individual exhibits an actual or subjective expectation of
privacy and that expectation is one that society is
prepared to recognize as reasonable. In determining
whether a person’s expectation of privacy is legitimate or
reasonable, the totality of the circumstances must be
considered and the determination will ultimately rest upon
a balancing of the societal interests involved. The
constitutional legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual
asserting the right but on whether the expectation is
reasonable in light of all of the surrounding circumstances.
Commonwealth v. Viall, 890 A.2d 419, 422 (Pa.Super. 2005) (internal
citations and quotation marks omitted) (emphasis added). “The
determination [of] whether [a] defendant has met this burden is made upon
evaluation of the evidence presented by the Commonwealth and the
defendant.” Commonwealth v. Powell, 994 A.2d 1096, 1103-04
(Pa.Super. 2010) (quoting Commonwealth v. Burton, 973 A.2d 428, 435
(Pa.Super. 2009) (en banc)). Nevertheless, our Supreme Court has held the
Commonwealth need not establish the lawfulness of a warrantless search
and seizure when a defendant initially fails to raise a legitimate expectation
of privacy. See Commonwealth v. Millner, 585 Pa. 237, 258, 888 A.2d
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680, 692 (2005). Under those circumstances, there would be no basis on
which a trial court could properly grant a defendant’s motion to suppress.
See id.
Instantly, Appellee had automatic standing to challenge the search of
the package because he was charged with PWID, a possessory offense. See
Perea, supra. Nevertheless, as a threshold matter, Appellee failed to raise
in his motion to suppress or at the suppression hearing any legally
cognizable expectation of privacy in the package. See Strickland, supra.
Therefore, the Commonwealth was not required to establish the lawfulness
of the warrantless search of the package, and the suppression court had no
basis on which to grant Appellee’s suppression motion. See Millner, supra.
Moreover, even if Appellee had raised an expectation of privacy, he did
not show an actual or subjective expectation of privacy in the package and
that his expectation was one society is prepared to recognize as reasonable.
See Viall, supra. Therefore, considering all uncontradicted evidence
presented by Appellee and the Commonwealth, the suppression court erred
in granting Appellee’s motion to suppress. See Clinton, supra.
Accordingly, we reverse the court’s order granting Appellee’s suppression
motion regarding the package, and we remand for further proceedings.
Order reversed; case remand for further proceedings. Jurisdiction is
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2015
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