Com. v. Miller, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JESSE MILLER
Appellant No. 491 MDA 2014
Appeal from the Judgment of Sentence February 14, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002645-2013
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J. FILED SEPTEMBER 26, 2014
Jesse Miller appeals from the judgment of sentence imposed by the
two counts of persons not to possess firearms,1 three counts of possession
of a controlled substance,2 and two counts of possession of drug
paraphernalia.3 Upon our review, we affirm.
The facts of this matter are as follows:
On May 20, 2013, adult Probation Officer, (APO) Carlo DeAngelo
received information from a known source indicating [Miller] was
in possession of a firearm and that he was selling cocaine.
[Miller] had multiple theft charges in Berks County, a retail theft
____________________________________________
1
18 Pa.C.S. § 6105(a)(1).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(32).
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out of Franklin County, and a prior burglary from 2008 at the
known source explained to
DeAngelo that [Miller] kept a firearm in a locked safe that he
moved between his apartment and his vehicle. The known
source also told DeAngelo that [Miller] was selling cocaine
between Reading and Franklin County. Due to the specifics of
the allegations, a pre-
On May 21, 2013, APO DeAngelo and APO Michael Futrick went
to 211 West Douglass Street, Apartment 2D, Reading
Pennsylvania, to conduct the pre-
apartment and vehicle. Officer Fleming of the Reading Police
Department was contacted prior to the execution of the search
due to the possibility that a firearm may be present. Once at
211 West Douglass Street, [Miller] co
entry of the apartment, whereupon he was immediately
handcuffed for safety reasons. DeAngelo asked [Miller] if there
were any drugs or firearms in the apartment, and [Miller] stated
that there was not. While handcuffed, [Miller] was searched.
car keys, and another key ring in his right front pocket. The
officers then searched the apartment. During the search of the
apartment, Futrick found a locked safe, which the officers then
safe was opened, two revolvers with ammunition were removed
from inside of the safe.
Following the search of the home, officers then searched
the search, officers found
several containers of baggies, a digital scale, a sunglass case
that contained a white chunky substance, a small amount of
powdery substance and two pills. All items discovered in the
search of the residence and vehicles were then turned over to
Officer [Thomas] Fleming [of the Reading Police department].
Both of the recovered firearms were found to be functional by
Officer Fleming. The white powdery substance seized . . . tested
positive for cocaine.
Trial Court Opinion, 4/28/14, at 2-3.
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On May 21, 2013, Officer Fleming filed a criminal complaint against
Miller based on the aforementioned search. Following a preliminary hearing,
Miller was formally arraigned on July 3, 2013.
Prior to trial, Miller filed an omnibus pretrial motion on September 27,
2013, which included a motion to suppress evidence obtained during the
search of his residence and vehicle. Following a hearing on November 4,
A stipulated bench trial followed on February 14, 2014, after which the
court convicted Miller of the above-referenced offenses. Sentencing
occurred on the same day and Miller received an aggregate sentence of
timely appeal followed.
On appeal, Miller argues that APO DeAngelo did not have reasonable
suspicion to search his residence and vehicle and, as such, the court erred in
denying his suppression motion. Our standard of review for the denial of a
suppression motion is as follows:
[W]e are limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. We may consider the
evidence of the witnesses offered by the prosecution, as verdict
winner, and only so much of the defense evidence that remains
uncontradicted when read in the context of the record as a
whole. We are bound by facts supported by the record and may
reverse only if the legal conclusions reached by the court below
were erroneous.
Commonwealth v. McAliley, 919 A.2d 272, 275-76 (Pa. Super. 2007)
(citation omitted).
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findings of fact are based on evidence in the record. Accordingly, we
proceed to examine the legal conclusions drawn from the facts.
The Fourth Amendment of the United States Constitution protects
supported
by probable cause. U.S. Const. Amend. IV. A probationer, however, has a
diminished expectation of privacy under the Fourth Amendment of the
United States Constitution and also under Article 1, Section 8 of the
Pennsylvania Constitution. See Commonwealth v. Williams, 692 A.2d
1031, 1039 (Pa. Super. 1997). Warrantless searches of supervised persons
and their property may occur if:
(2) A property search may be conducted by an agent 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.
...
(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.
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(iv) Information provided by the offender.
(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.
61 Pa.C.S. § 6153(d)(2), (3), (6) (emphasis added).
of real property, vehicle or
personal property which is in the possession or under the control of the
experience and specialized training to make inferences from and deductions
See Commonwealth
v. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008). Reasonable suspicion
may arise from information provided by third parties, including tips from
citizens. See Commonwealth v. Barber, 889 A.2d 587, 593 (Pa. Super.
2005).
Instantly, the suppression court concluded that the search in this
matter was reasonable because APO DeAngelo possessed the requisite
reasonable suspicion to conduct a search of Miller and his property. The trial
court reasoned that although evidence relating to all eight factors
enumerated in section 6153(d)(6) was not presented, a need existed to
probation in light of the
information provided by the known informant. Miller contends this was
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insufficient to establish reasonable suspicion because APO DeAngelo relied
on a tip from an unverified informant. We disagree.
is an indicia of reliability attached to the tip, because the informant has
placed himself or herself at risk for prosecution for giving false information
to the police if the tip Commonwealth v. Altadonna, 817 A.2d
1145, 1152 (Pa. Super. 2003) (citation omitted); see also Commonwealth
v. Hayward, 756 A.2d 23, 34 (Pa. Super. 2000). Here, APO DeAngelo
testified that the informant in question had identified him or herself to him.
N.T. Suppression Hearing, 11/4/13, at 4. Miller further argues that
DeAngelo should have investigated the allegations in order to corroborate
the anonymous tip. However, it is not necessary for probation officers to
observe personally an appellant engaging in illegal activity or suspicious
conduct in order to form reasonable suspicion. See Commonwealth v.
Wright, 672 A.2d 826, 830 (Pa. Super. 1996) (officers may rely upon
information from third parties to form reasonable suspicion).
Based upon the totality of the circumstances, the suppression court
correctly determined that APO DeAngelo possessed reasonable suspicion to
ons, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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