Com. v. Greece, D.

J-A27018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID GREECE, :
:
Appellant : No. 1528 WDA 2013
Appeal from the Judgment of Sentence Entered August 29, 2013,
In the Court of Common Pleas of Westmoreland County,
Criminal Division, at No. CP-65-CR-0000587-2011.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 22, 2015
This is an appeal by David Greece, Appellant, from the judgment of
sentence entered by the Court of Common Pleas of Westmoreland County
following a bench trial. For the reasons that follow, we affirm Appellant’s
convictions, vacate the judgment of sentence, and remand for resentencing.
The charges against Appellant arose from a joint investigation by
Westmoreland County Detective Tony Marcocci and Pennsylvania State
Police Trooper Joshua Giran regarding suspected cocaine-trafficking activities
of Appellant in and around Westmoreland County. N.T., 10/7/11, at 107,
119. On January 27, 2011, following the execution of search warrants, the
police arrested Appellant and charged him with possession of cocaine,
possession with intent to deliver cocaine, and possession of drug
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paraphernalia. Appellant filed timely omnibus pretrial motions including
several motions to suppress evidence. The trial court held a hearing on
October 7, 2011, and denied the motions to suppress on February 17,
2012.1 In the interim and with defense counsel’s consent, the
Commonwealth amended the information in August 2012 to include two
additional charges of possession with intent to deliver cocaine and one count
each of corrupt organizations and dealing in proceeds of unlawful activities.
Motion to Amend Information, 8/14/12. Appellant proceeded to trial by
stipulated facts “in that all issues for appeal arose from the suppression
hearing and suppression motion . . . .” Appellant’s Brief at 10.
The stipulated record of facts provides as follows:
[THE COMMONWEALTH]: If witnesses were called to
testify for the Commonwealth in this case, they would testify as
follows.
1. On January 27, 2011, police officers, armed with search
warrants, entered the following residences.
A. 112 Tomato Farm Road, Unity Township.
B. 311 Twin Lakes Road, Unity Township.
C. 207 Klaka Road, . . . Mount Pleasant Township.
Residence A was occupied by Patricia Toscano. At this
residence, police would testify they found approximately 1,170
grams of cocaine.
1
The trial court inadvertently dated its order February 17, 2011.
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Patricia Toscano would testify this cocaine belonged to
David Greece and she purchased the cocaine on his behalf and at
his direction. She would also testify that for a period of
approximately ten months prior to January 27th, she would
purchase cocaine on David Greece’s behalf and with his money,
and deliver the cocaine that she purchased to him. Sometimes
she would store the cocaine at her residence. Toscano would
testify that the cocaine she purchased for Greece was divided
into eighths of a kilogram, each of which costs $5,250.00.
Toscano purchased between four eighths and seven eighths of a
kilo each time. These purchases occurred on average every
three weeks between March of 2010 and January of 2011.
At residence B, which is occupied by David and Paula
Greece and which is in close proximity to residence A, police
would testify that they found 9.79 grams of cocaine and
approximately $16,360.00 in cash. In addition, in excess of 35
firearms, loaded and unloaded, were also found at the Greece
residence.
At residence C, which was occupied by David Greece’s
daughter and son-in-law, Danette Klejka, . . . and John Klejka,
police seized $115,720.00 in cash. This money, according to his
daughter, Danette Klejka, was money she was holding for her
father.
Police stopped David Greece, who was operating a Cadillac
Escalade, and seized from him two loaded firearms.
Police also stopped Paula Greece, who was operating a
Chevrolet pick-up truck. In her purse inside the pick-up, police
seized a loaded firearm, 55.5 grams of cocaine, and $2,045.00
in United States currency.
Paula Greece would testify that the cocaine found in her
purse belonged to her husband, David Greece, and that she
intended to deliver it to another person that morning, and that
she was aware that David Greece was selling cocaine.
The quantities of cocaine referred to previously were sent
to the State Police Crime Lab where it was confirmed that they
were in fact cocaine.
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Both Paula Greece and Patricia Toscano would also testify
that they expected to receive consideration in exchange for their
testimony.
It’s my understanding the defendant would call no
witnesses.
THE COURT: And did you put on the record who the police
officers are that would be testifying to those facts?
[THE COMMONWEALTH]: They would be not limited to,
but they would include Detective Tony Marcocci and Trooper
Josh Giran . . . . If it were a full blown trial it would be a
multitude of police officers but—
THE COURT: Those facts that you just gave me, those
police officers would be able to testify to those. You would have
other people to corroborate that.
[THE COMMONWEALTH] That would be fair to say.
THE COURT: Is this your understanding, [defense
counsel?]
[DEFENSE COUNSEL]: Yes, Your Honor, that’s my
understanding. As the court said, while we stipulate if those
witnesses were called they would so testify, we are including this
testimony would not be true.
* * *
[THE COMMONWEALTH]: [Patricia Toscano] would testify
that she would procure it for Mr. Greece, either bring it to him at
his residence or sometimes store it at his residence for him, but
she was not the one who was actually selling it to others. She
was buying it for him which is still a drug transaction.
THE COURT: And also Detective Marcocci has testified
previously for many courts as an expert witness to the fact that
certain things would indicate that this was possession with intent
to deliver, the amount of cash and so forth, correct?
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[THE COMMONWEALTH]: Correct. In addition to the
testimony of the two accomplices and the co-conspirators, I
believe that there wouldn’t be any opposition to that being
included in the stipulation.
[DEFENSE COUNSEL]: No.
N.T. (Trial), 8/29/13, at 8–13. The trial court convicted Appellant on all
counts and sentenced him on August 29, 2013, to a mandatory minimum
sentence of five to ten years of imprisonment. Appellant filed this timely
appeal. In compliance with the trial court’s Pa.R.A.P. 1925 order, Appellant
filed his concise statement of errors complained of on appeal on October 11,
2013. On January 8, 2014, the trial court filed a statement pursuant to
Pa.R.A.P. 1925 (a)(1) indicating that the reasons for the order giving rise to
the notice of appeal are found in the suppression opinion filed on February
17, 2012.
Appellant raises the following two issues on appeal:
I. Whether the searches of 112 Tomato Farm Road were carried
out in violation of the Fourth Amendment and Article I, § 8 of the
Pennsylvania Constitution?
II. Whether the search warrant for 311 Twin Lakes Road, and
vehicles, etc., related thereto was executed in violation of the
Fourth Amendment of the United States Constitution and Article
I, § 8 of the Pennsylvania Constitution, and violated particularity
and probable cause requirements as well?
Appellant’s Brief at 3 (full capitalization omitted).
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In reviewing the denial of a motion to suppress, we must determine
whether the record supports the suppression court’s factual findings and the
legitimacy of the inferences and legal conclusions drawn from those findings.
Commonwealth v. Harrell, 65 A.3d 420, 433 (Pa. Super. 2013) (citation
omitted). Where the suppression court finds in favor of the prosecution, as
here, our scope of review is limited. “[W]e 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.”
Commonwealth v. Smith, 77 A.3d 562, 568 (Pa. 2013). 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 from them are in error.
Commonwealth v. James, 69 A.3d 180, 186 (Pa. 2013). It is a well-
settled principle that appellate courts must defer to the credibility
determinations of the trial court, which observed the demeanor of the
witnesses and heard them testify. Commonwealth v. Khalifah, 852 A.2d
1238, 1240 (Pa. Super. 2004).
Appellant’s first issue relates to the search of the trailer at 112 Tomato
Farm Road, which was where Patricia Tuscano lived. The suppression court
summarized the testimony at the suppression hearing explaining the
relationship between Tuscano and Appellant and Appellant’s status in
relation to the Tomato Farm Road property, as follows:
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The Commonwealth presented the testimony of Patricia Tuscano,
the resident of 112 Tomato Farm Road. The parties agree that
[Appellant] owns the trailer in which Tuscano lived, and that
[Appellant] and his wife pay rent to a third party for the land on
which the trailer sits, and that the trailer is across the street
from [Appellant’s] residence at 311 Twin Lakes Road. Tuscano
admitted that she had a very close relationship with [Appellant]
and his wife, and that they in fact had acted as her guardians,
and that she called them “mom” and “dad.” (ST 34-35, 66).
She indicated that [Appellant] had a key to her trailer, and
although there was no written lease in effect, she paid rent
regularly to [Appellant] and had resided in the trailer from
sometime in the summer of 2010 until February or March, 2011.
(ST 36-37, 55-56, 66, 76). Tuscano testified that her residency
at the trailer was approved by the land owner, one Mrs.
Alexander. (ST 67). [Tuscano] testified that her brother also
resided at the trailer with her for a brief time, and that while
[Appellant] may have expressed concerns about certain
individuals coming to the trailer, it was up to her to make such
decisions. (ST 88-89). Tuscano acknowledged that [Appellant]
stored tools for maintenance of the trailer at the trailer, but kept
no personal items there (ST 35-36, 71, 74-75). She also
acknowledged that, with her permission, [Appellant] stored large
quantities of cocaine at her trailer. (ST 71-72, 90-92).
Paula Greece testified that she and her husband, the
defendant, owned the trailer in which Tuscano lived, that they
were Tuscano’s landlords, that Tuscano’s brother also lived there
for a period of time, that they (the Greeces) kept tools, paint
and other cleaning materials at Tuscano’s trailer but that they
kept no personal items there, no[r] had they ever slept there.
(ST 56-59). They viewed the trailer as a source of income, and,
although they owned the trailer, they considered it Tuscano’s
home. (ST 59-60). Paula Greece said it was neither her home,
nor her husband’s home. (ST 60).
Suppression Court Opinion, 2/17/12, at 11–12.
Appellant makes three arguments regarding the Tomato Farm Road
search. Appellant asserts that the “actual question” before this Court “is
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whether [A]ppellant’s expectation of privacy has been established ‘in light of
all the surrounding circumstances,’” citing Commonwealth v. Bostick, 958
A.2d 543 (Pa. Super. 2008), in support. Appellant’s Brief at 17. In making
this claim, Appellant advances his disagreement with the suppression court’s
finding that Appellant did not have a reasonable expectation of privacy in the
trailer on the property, and he focuses upon his status as a landlord,
because he owns the trailer. In support, Appellant cites Commonwealth v.
Tobin, 828 A.2d 415 (Pa. Cmwlth. 2003), and Simpson v. City of New
Castle, 740 A.2d 287 (Pa. Cmwlth. 1999). He describes himself as a “quasi-
landlord,” maintaining that as such, he had a reasonable expectation of
privacy to challenge the search on his property.
Appellant also argues that he is entitled to Fourth Amendment
protection “on the basis of the property based analysis discussed in United
States v. Jones, 132 S.Ct. 945 (2012).” Appellant’s Brief at 25. He adds
reference to Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409 (2013), and
Commonwealth v. Arthur, 62 A.3d 424 (Pa. Super. 2013). Appellant
maintains that he had a possessory interest in the trailer; he owned it, had a
key to it, had free access to it, and stored possessions there. Appellant’s
Brief at 28.
Appellant’s third argument related to the Tomato Farm Road search
asserts that the warrant was issued without probable cause. Appellant
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contends that police used the identical affidavit for three separate searches,2
maintaining that the affidavit failed to establish probable because: 1) it
made no mention that drugs are at the trailer, 2) there was no suggestion to
believe that there were drugs at the trailer, and 3) all of the information
related to the trailer was undated, i.e., there was no mention of when the
referred-to events occurred. Appellant’s Brief at 32–33.
There is a two-part test a defendant must meet to establish a right to
challenge the seizure of evidence. He must first show that he exhibited a
subjective expectation of privacy in the area to be searched. Second, he
must demonstrate that the expectation is one “that society is prepared to
recognize as reasonable.” Commonwealth v. Enimpah, ___ A.3d ___,
___, 2014 WL 7369744 *3, 84 MAP 2013 (Pa. 2014)(filed December 29,
2014).
The suppression court underscored Paula Greece’s testimony that 112
Tomato Farm Road was Patricia Toscano’s home, not Paula Greece’s or
Appellant’s residence. Suppression Court Opinion, 2/17/12, at 12; N.T.,
10/7/11, at 60. Citing the holding in Commonwealth v. Strickland, 326
A.2d 379, 382 (Pa. 1974), that “a person is entitled to the protection of the
Fourth Amendment at any residence where he has a reasonable expectation
2
The three search warrants were for Appellant’s residence on Twin Lakes
Road, discussed infra, the residence on Klaka Road of Appellant’s daughter,
Danette Klejka, and Patricia Toscano’s residence on Tomato Farm Road.
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of privacy,” the suppression court determined that the fact that Appellant did
not reside at 112 Tomato Farm Road was not dispositive of the issue. Id. at
382; Suppression Court Opinion, 2/17/12, at 12. Rather, “the court must
examine the totality of the circumstances in order to determine whether
[Appellant] had a reasonable expectation of privacy in Tuscano’s home that
the law will protect.” Suppression Court Opinion, 2/17/12, at 12.
This Court, in Commonwealth v. Bostick, 958 A.2d 543 (Pa. Super.
2008), where the question before us was whether exigent circumstances
justified warrantless entry into a home, described the existence of an
expectation of privacy as follows:
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 the surrounding circumstances.”
Id. at 552 (quoting Commonwealth v. Viall, 890 A.2d 419, 422 (Pa.
Super. 2005)).
In the instant case, the suppression court concluded as follows:
The testimony presented at the time of the suppression
hearing, in addition to the testimony from the preliminary
hearing that was also submitted for this court’s consideration,
clearly established that David and Paula Greece were Tuscano’s
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landlords, even though they considered her to be family.
Tuscano did not live at the trailer rent-free; rather, she paid a
regular monthly amount to [Appellant] in order to stay at the
trailer. The 112 Tomato Farm Road location was nothing more
than an investment income for [Appellant]. Unlike the defendant
in Strickland, supra, who stayed at his grandmother’s residence
five nights per week, [Appellant’s] contacts with the 112 Tomato
Farm Road residence were occasional, irregular and temporary.
He had a key to the residence, he stored items related to the
maintenance of the trailer at that property, and he stored his
quantities of cocaine at that residence.
Suppression Court Opinion, 2/17/12, at 13. The suppression court
discounted the significance of Appellant’s characterization of himself as a
“quasi-landlord” and his reliance on Tobin and Simpson. The suppression
court stated:
Here, though, the expectation of privacy of a landlord in
his commercial property, as is claimed by [Appellant], goes far
beyond that discussed in and recognized by Tobin and Simpson,
supra. This court agrees that, had the searches in this case
been tantamount to an administrative inspection of the
structural integrity of the trailer to ensure compliance with local
building codes and other ordinances, [Appellant’s] expectation of
privacy would have been reasonable. However, given the
totality of the circumstances presented to this court,
[Appellant’s] assertion of such an expectation of privacy is not
reasonable. “In general, to have a reasonable expectation of
privacy, one must intend to exclude others and must exhibit that
intent.” Commonwealth v. Hunter. 963 A.2d 545, 553 (Pa.
Super. 2008), citing Commonwealth v. Lowery, 451 A.2d 245,
247 (Pa. Super. 1982). [Appellant] has presented absolutely no
evidence whatsoever to suggest that he had a reasonable
expectation of privacy in the contents of the trailer such that
society would sanction. Rather, the Commonwealth’s evidence
clearly establishes the opposite: that [Appellant] could not have
had any reasonable expectation of privacy in the contents of that
trailer. He did not live there, he did not control who was present
there, he did not control who lived there, and in fact, Tuscano’s
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brother Frank also resided at the trailer for a period of time.
Tuscano also testified that [Appellant] stored his cocaine at the
trailer on and off the entire time that she lived there, and that
she was a courier for [Appellant] in purchasing cocaine. (ST 69-
10). Although [Appellant] clearly had free entry to the premises
and conducted illegal activities on the premises, there is no
evidence that [Appellant] received mail at the residence, or that
he ate meals at the residence, that he did laundry at the
residence or that he stayed overnight at the residence, or that
he helped out with payment of the bills associated with the
residence. See, e.g., Commonwealth v. Hunter, 963 A.2d 545,
553 (Pa. Super.2008), Commonwealth v. Bostick 958 A.2d 543,
552 (Pa. Super. 2008), Commonwealth v. Lowery, 451 A.2d 245,
247 (Pa. Super. 1982).
Suppression Court Opinion, 2/17/12, at 14–15.
Thus, the suppression court concluded that Appellant had no
reasonable expectation of privacy in Patricia Tuscano’s residence at 112
Tomato Farm Road that either the United States or the Pennsylvania
Constitutions are prepared to protect. In light of the totality of the
circumstances and for the reasons cited above, we agree with the
suppression court that Appellant did not show that he exhibited a subjective
expectation of privacy in the Tomato Farm Road property and did not
demonstrate that any expectation was one that society was prepared to
recognize as reasonable and legitimate. Gordon, 683 A.2d at 259.
The suppression court focused exclusively on whether Appellant had a
reasonable expectation of privacy in 112 Tomato Farm Road; it failed to
address an alternative argument, however, that Appellant was entitled to
Fourth Amendment protection on the basis of the property-based analysis
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discussed in United States v. Jones, 132 S.Ct. 945 (2012),3 and Florida
v. Jardines, ___ U.S. ___, 133 S.Ct. 1409 (2013). In Jones, the Court
considered “whether the attachment of a [GPS] tracking device to an
individual’s vehicle, and subsequent use of that device to monitor the
vehicle’s movements on public streets, constitutes a search or seizure within
the meaning of the Fourth Amendment.” Jones, 132 S.Ct. at 947–948.
Ultimately, under a “property-based approach,” the Court held that such a
trespassory intrusion constituted a search. Id. at 949. Jones established
only that the question of whether a search or seizure occurred at all can be
decided on both property-rights-based analyses and privacy interests; it did
not establish “means independent of the Katz [v. United States, 389 U.S.
347 (1967)] expectation of privacy test to trigger one’s Fourth
Amendment . . . protections.” Appellant’s Brief at 27; Jones, 132 S.Ct. at
951.
We agree with the Commonwealth that this point was made in
Commonwealth v. Arthur, 62 A.3d 424 (Pa. Super. 2013), where we
reiterated that to prevail on a motion to suppress, the defendant must show
that he has a privacy interest that has been infringed upon. Id. at 428
(citing Commonwealth v. Burton, 973 A.2d 428, 434 (Pa. Super. 2009)).
3
Appellant fails to acknowledge that we have held that the holding in Jones
is limited to Fourth Amendment jurisprudence and does not address Article
1, Section 8 of the Pennsylvania Constitution. Commonwealth v. Burgos,
64 A.3d 641, 652 (Pa. Super. 2013).
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Moreover, the existence of a legitimate expectation of privacy is a threshold
question. Arthur, 62 A.3d at 428 n.8. The Arthur Court stated, “[I]t is
evident that while Jones may have reinvigorated the theory of trespass as a
means to assert Fourth Amendment challenges, it did not negate the long-
held principle that a defendant must have standing to challenge the search
at issue and must show some privacy interest. Arthur, 62 A.3d at 430.
We reject Appellant’s claim.
Having concluded that the suppression court correctly determined that
Appellant did not have an expectation of privacy in the Tomato Farm Road
property and did not demonstrate that any expectation was one that society
recognized as reasonable and legitimate, and thereby did not establish a
basis for challenging the search at 112 Tomato Farm Road, we need not
address Appellant’s final argument assailing the search warrant. Assuming
arguendo that Appellant established a basis for challenging the search,
however, we nevertheless reject his contention. In that claim, Appellant
challenges the search warrant for the property, contending it was issued
without probable cause. Appellant’s Brief at 30. Appellant maintains that
the supporting affidavit failed to establish probable cause because: 1) it
made no mention that drugs were at the trailer, 2) there was no suggestion
why there was reason to believe that there were drugs at the trailer, and 3)
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all of the information related to the trailer was undated, i.e., there was no
mention of when the referred-to events occurred. Appellant’s Brief at 12.
The Arthur Court, citing Commonwealth v. Huntington, 924 A.2d
1252 (Pa. Super. 2007), described the principles surrounding probable cause
and the issuance of a search warrant as follows:
In this jurisdiction, the question of whether
probable cause exists for the issuance of a search
warrant must be answered according to the “totality
of the circumstances” test articulated in
Commonwealth v. Gray, 509 Pa. 476, 503 A.2d
921 (Pa. 1985), and its Pennsylvania progeny, which
incorporates the reasoning of the United States
Supreme Court in Illinois v. Gates, 462 U.S. 213,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See
Commonwealth v. Murphy, 916 A.2d 679, 681–
682 (Pa. Super. 2007) (discussing the Pennsylvania
standard for issuing a search warrant). The task of
the magistrate acting as the issuing authority is to
make a “practical, common sense assessment” of
whether, “given all the circumstances set forth in the
affidavit,” a “fair probability” exists that contraband
or evidence of a crime will be found “in a particular
place.” Id. at 682. A search warrant is defective if
the issuing authority has not been supplied with the
necessary information. Id. The chronology
established by the affidavit of probable cause must
be evaluated according to a “common sense”
determination. Id.Huntington, supra at 1255. Further, “probable cause is based
on a finding of the probability, not a prima facie showing, of
criminal activity, and deference is to be accorded a magistrate’s
finding of probable cause.” Commonwealth v. Jones, 506 Pa.
262, 484 A.2d 1383, 1387 (1984) (citations omitted). “We must
limit our inquiry to the information within the four corners of the
affidavit submitted in support of probable cause when
determining whether the warrant was issued upon probable
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cause.” Commonwealth v. Taylor, 850 A.2d 684, 687 (Pa.
Super. 2004), appeal denied, 580 Pa. 697, 860 A.2d 123 (2004)
(citation omitted).
Arthur, 62 A.3d at 432.
In addition, our rules of criminal procedure outline the contents of a
valid search warrant, providing, in pertinent part, as follows:
Rule 206. Contents of Application for Search Warrant
Each application for a search warrant shall be supported by
written affidavit(s) signed and sworn to or affirmed before an
issuing authority, which affidavit(s) shall:
(1) state the name and department, agency, or
address of the affiant;
(2) identify specifically the items or property to be
searched for and seized;
(3) name or describe with particularity the person or
place to be searched;
(4) identify the owner, occupant, or possessor of the
place to be searched;
(5) specify or describe the crime which has been or
is being committed;
(6) set forth specifically the facts and circumstances
which form the basis for the affiant’s conclusion that
there is probable cause to believe that the items or
property identified are evidence or the fruit of a
crime, or are contraband, or are or are [sic]
expected to be otherwise unlawfully possessed or
subject to seizure, and that these items or property
are or are expected to be located on the particular
person or at the particular place described;
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Pa.R.Crim.P. Rule 206(a)(1–6). We conclude that the warrant application by
the Commonwealth met this standard.
A review of the affidavit, in its entirety, stands in stark contrast to the
review suggested by Appellant. Appellant makes repeated references to the
“sole paragraph” describing Patricia Tuscano’s residence in isolation. See
e.g., Appellant’s Brief at 36–38. The law, however, requires a totality-of-
the-circumstances analysis. Commonwealth v. Thompson, 985 A.2d 928(Pa. 2009).
Taken as a whole, the affidavit does not provide stale information, as
asserted by Appellant. Appellant’s Brief at 42–43. Rather, while some of
the information provided dates back to 2007, the affidavit progresses in a
chronology of information gathering. This culminated in a series of
surveillance details over the three months prior to the issuance of the search
warrant, controlled purchases of cocaine over the forty-five days prior to the
issuance of the warrant, as well as a seventy-two-hour window during which
Appellant was seen with cocaine. All of the information in the affidavit
suggests that Appellant’s cocaine trafficking operation was “protracted and
continuous.” Commonwealth v. Davis, 480 A.2d 1035, 1040 (Pa. Super.
1984). The suppression court, although addressing the staleness claim as it
related to the warrant for Appellant’s residence, noted that the historical
information concerning Appellant’s suspected drug trafficking and the
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ensuing investigation was “revived by the inclusion of other, more recent,
information which clearly satisfie[d] the requisite timeliness requirement for
a valid search.” Suppression Court Opinion, 2/17/12, at 4. We agree.
Regarding Appellant’s assertion of a lack of particularity, the
Commonwealth concedes that the instant affidavit failed to list the Tomato
Farm Road address. Commonwealth’s Brief at 36. We reject Appellant’s
assertion that such omission is fatal to the warrant’s validity. See
Commonwealth v. Jefferson, 412 A.2d 882 (Pa. Super. 1979) (failure to
include address in affidavit of place to be searched was not fatal; common
sense, reasonable conclusion to be drawn was that the defendant had hidden
instrumentalities of the crime at his residence, thereby supporting existence
of probable cause.). Appellant’s contrary contention lacks merit.
Appellant’s second issue relates to the warrant for his residence at 311
Twin Lakes Road and “vehicles, etc.” and advances a claim asserting the
absence of probable cause. Appellant’s Brief at 49. Appellant first maintains
that police violated the knock and announce rule when executing the
warrant. Second, Appellant contends the police were overbroad and lacking
in particularity in identifying the premises to be searched. Appellant’s Brief
at 62.
The Commonwealth maintains that the Special Emergency Response
Team (SERT) fully complied with the strictures of the knock-and-announce
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rule. It posits that police herein operated nearly identically to the police in
Commonwealth v. Doyen, 848 A.2d 1007 (Pa. Super. 2004), where the
question was whether the one to two minutes between the announcement of
police presence and the forcible entry was reasonable. The suppression
court in Doyen found that the time was reasonable and denied suppression.
This Court agreed. Id. at 1012.
Pa.R.Crim.P. 207 embodies the knock-and-announce rule and provides
as follows:
Rule 207. Manner of Entry Into Premises
(A) A law enforcement officer executing a search warrant shall,
before entry, give, or make reasonable effort to give, notice of
the officer’s identity, authority, and purpose to any occupant of
the premises specified in the warrant, unless exigent
circumstances require the officer’s immediate forcible entry.
(B) Such officer shall await a response for a reasonable period of
time after this announcement of identity, authority, and purpose,
unless exigent circumstances require the officer’s immediate
forcible entry.
(C) If the officer is not admitted after such reasonable period,
the officer may forcibly enter the premises and may use as much
physical force to effect entry therein as is necessary to execute
the search.
The rule is designed to promote peaceable entry by affording fair warning
and to safeguard legitimate privacy expectations to the degree possible.
Commonwealth v. Kane, 940 A.2d 483, 490 (Pa. Super. 2007) (citing
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Commonwealth v. Morgan, 534 A.2d 1054, 1056 (Pa. 1987)). We have
stated:
The procedural rule subsumes the Fourth
Amendment requirement that officers must
announce their presence upon the execution of a
search warrant and provide residents with some
chance to open the door. See Hudson v.
Michigan, 547 U.S. 586, ___, 126 S.Ct. 2159,
2162–63, 165 L.Ed.2d 56 (2006) (quoting Richards
v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416,
1422, 137 L.Ed.2d 615 (1997)).
Commonwealth v. Sanchez, 589 Pa. 43, 63, 907 A.2d 477,
489 (2006).
There are exceptions to the knock-and-announce
requirement “for situations presenting risks of physical
violence . . . and where announcement would be futile.” Id. In
order to invoke an exception, police must only possess “a
reasonable suspicion that one of these grounds is present.” Id.The circumstances under which the police do not have to
knock and announce their purpose have been more fully
delineated as follows:
Exceptions to the rule have developed on the basis
of the reasonableness of the police officers’ conduct
in particular cases, and include the following: (1)
the police need not engage in the futile gesture of
announcing purpose when the occupants of the
premises remain silent after repeated knocking and
identification, (2) the police are virtually certain that
the occupants of the premises already know their
purpose; (3) the police have reason to believe that
an announcement prior to entry would imperil their
safety; and (4) the police have reason to believe that
evidence is about to be destroyed. These exceptions
to the “knock and announce” rule fulfill the purpose
of the rule in that entry is accomplished with a
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minimum of danger to officers and occupants or
damage to the premises.
Commonwealth v. Morgan, 517 Pa. 93, 97, 534 A.2d 1054,
1056–57 (1987) (citations omitted).
Kane, 940 A.2d at 489–490.
In the case sub judice, the suppression court articulated its position
regarding the Twin Lakes Road affidavit, warrant, and search as follows, and
we adopt the reasoning as our own:
In this case, Pennsylvania State Trooper Brian King
testified that he participated in the serving and execution of the
search warrant at 311 Twin Lakes Road. Trooper King, a
member of the PSP SERT (Special Emergency Response Team),
detailed the manner in which the warrant was in fact served.
This specialized unit was used to execute the warrant at the
Greece residence because law enforcement had information that
there were numerous weapons, specifically automatic rifles, in
the Greece home. (ST 126).
A review of Trooper King’s testimony clearly shows that
the police complied with the requirements of Pa.R.Crim.P. Rule
207. Law enforcement arrived at the Greece property in two
marked units displaying “POLICE” in large letters on the outside
of the vehicles. As they approached the residence with lights
flashing, police announced their presence loudly through the use
of a PA system. Police announced, “Residents at 311 Twin Lakes
Road, this is the state police. Surrender your residence
immediately. We have a search warrant for the residence.” (ST
129-130). The announcement was repeated constantly until the
state police had entered the home.
As they approached the home, police were notified that the
entry had been “compromised,” and that a white female (later
identified as Paula Greece, [Appellant’s] wife) had been located
in the driveway at the back of the residence. Although Paula
Greece was then secured, officers approached the door of the
residence with a heightened sense of caution. As the
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broadcasted announcements continued, police knocked on the
door, announced, “State Police” several times with a waiting
period in between the iterations of “State Police,” and then the
door was “breached.” (ST 131). No one was inside the
premises when the police made the entry. (ST132).
* * *
Based upon Trooper King’s testimony, it is clear that no violation
of Pa.R.Crim.P. Rule 207 occurred in the execution of the
warrant at 311 Twin Lakes Road.
Suppression Court Opinion, 2/17/12, at 9–10.
The Suppression Court also sufficiently addressed the requisite
particularity of the warrant for 311 Twin Lakes Road, as follows:
A warrant is unconstitutional for its lack of particularity or
specificity when it “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.”
Commonwealth v. Bagley, 408 Pa. Super. 188, 195, 596 A.2d
811, 814 (1991).
* * *
A review of the search warrant in this matter clearly shows that
it is not void as overbroad. The affidavit sets forth more than
sufficient probable cause to believe that a cocaine trafficking
business was being conducted from the Greece residence at 311
Twin Lakes Road, that [Appellant] was involved in that drug
trafficking business, that in furtherance of that business,
[Appellant] secreted large quantities of drugs and/or money on
his property, that he had obtained a variety of vehicles and other
items with proceeds of his drug trafficking in an effort to divert
or disguise those proceeds, and that he was in possession of a
large quantity and variety of weapons that he used in conducting
his business. The sufficiency of the description in the warrant
clearly justifies the authorization of the police to search for and
seize the items listed in that portion of the warrant labeled
“items to be searched and seized.” See, e.g., Commonwealth v.
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Rivera, 816 A.2d 282 (Pa. Super. 2003) (The warrant authorizing
police to search for and seize evidence . . . including “any assets,
paraphernalia or other materials related to the sale or use of”
cocaine, was not . . . a general investigatory tool proscribed by
Article 1, Section 8 of the Pennsylvania Constitution and the
Fourth Amendment.).
Suppression Court Opinion, 2/17/12, at 7–8.
The particularity requirements for the contents of search warrants as
expressed in the Pennsylvania Rules of Criminal Procedure require that every
warrant shall “identify specifically the property to be seized” and “name or
describe with particularity the person or place to be searched.” Pa.R.Crim.P.
205 (2), (3). The comment to Rule 205 describes these requirements as
intended to proscribe general or exploratory searches by
requiring that searches be directed only towards the specific
items, persons, or places set forth in the warrant. Such
warrants should, however, be read in a common sense fashion
and should not be invalidated by hypertechnical
interpretations.
Comment, Pa.R.Crim.P. 205 (emphasis added). Thus, when an exact
description of a particular item is not possible, a generic description may
suffice. Commonwealth v. Gannon, 454 A.2d 561 (Pa. Super. 1982).
Like the suppression court, we conclude that the warrant authorizing the
search of 311 Twin Lakes Road fully satisfied the particularity clause.
Finally, we address the sentence imposed in this case. While Appellant
has not challenged the mandatory minimum sentence imposed herein, we
note that challenges to an illegal sentence cannot be waived and may be
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reviewed sua sponte by this Court. Commonwealth v. Melvin, 103 A.3d 1(Pa. Super. 2014). Issues pertaining to the United States Supreme Court’s
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), directly
implicate the legality of the sentence. Commonwealth v. Lawrence, 99
A.3d 116 (Pa. Super. 2014).
As noted, Appellant proceeded to trial by stipulated facts, including the
weight of the drugs recovered by the police. Based on that weight, the trial
court imposed a mandatory minimum sentence pursuant to 18 Pa.C.S. §
7508(a)(3). However, as recent case law holds that 18 Pa.C.S. § 7508 is
unconstitutional in its entirety, we must vacate Appellant’s sentence.
In Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super 289(Pa. Super. 2014) (filed December 31, 2014) (en banc), this Court vacated
and remanded for resentencing without consideration of the mandatory
minimum sentence imposed pursuant to 18 Pa.C.S. § 7508. Relying upon
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),
Commonwealth v. Fennell, ___ A.3d ___, 2014 PA Super 261 (Pa. Super.
2014) (filed November 21, 2014), and Commonwealth v. Valentine, 101
A.3d 801 (Pa. Super. 2014), we reiterated that section 7508 is
“unconstitutional in its entirety.” Vargas, ___ A.3d at ___, 2014 PA Super
289 at *17. We explained our rationale as follows:
[A]s was true with the statutes at issue in Newman and
Valentine, one particular subsection of 18 Pa.C.S.A. § 7508 is
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clearly unconstitutional under Alleyne v. United States, ___
U.S. ___, 133 S.Ct. 2151 (2013). See 18 Pa.C.S.A. § 7508(b).
In particular, Section 7508(b) contains the following
unconstitutional burdens and procedures: it declares that the
substantive, “aggravating facts” contained in Section 7508(a)
are “not ... an element of the crime;” it declares that notice of
either the “aggravating facts” or of the applicability of the
mandatory minimum sentencing statute is “not ... required prior
to conviction;” it declares that the applicability of the mandatory
minimum statute “shall be determined at sentencing;” it declares
that the Commonwealth need only prove the “aggravating facts”
by a preponderance of the evidence; and, it declares that a
judge—and not a jury—is to act as the fact-finder for purposes of
determining the “aggravated facts.” 18 Pa.C.S.A. § 7508(b).
Alleyne rendered all of these burdens and procedures
unconstitutional.
Id. We specifically noted in Vargas that even though the defendant in
Fennell stipulated to the weight of the drugs, as in the instant case, the
court erred in imposing the minimum sentence because 18 Pa.C.S. § 7508 is
unconstitutional in its entirety. Vargas, ___ A.3d at ___, 2014 PA Super
289 at *17; see also Commonwealth v. Cardwell, ___ A.3d ___, 2014
PA Super 263 (Pa. Super. 2014) (filed November 25, 2014) (trial court
violated Alleyne by imposing a mandatory minimum sentence based on the
appellant’s stipulation). Thus, we are compelled to vacate the mandatory
sentence imposed herein.4
4
At sentencing, the trial court also noted the applicability of the mandatory
minimum sentence embodied in 42 Pa.C.S. § 9712.1. In Newman, this
Court confronted a challenge to the mandatory minimum sentence found at
section 9712.1 regarding the proximity between drugs and guns. The
Newman Court concluded that the appellant’s sentence was illegal in light
of Alleyne and required this Court to vacate and remand for resentencing.
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Having found no merit to the suppression issues raised in this appeal,
we affirm Appellant’s convictions. However, we vacate the judgment of
sentence and remand for resentencing.
Judgment of sentence vacated. Case remanded for resentencing
without consideration of any mandatory minimum sentence. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2015
See also Commonwealth v. Ferguson, ___ A.3d ___, 2015 PA Super 1(Pa. Super. 2015) (filed January 5, 2015)(sentence vacated and remanded
for resentencing without consideration of mandatory minimum sentence
embodied in 42 Pa.C.S. § 9712).
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