Com. v. Gibbs

981 A.2d 274

2009 PA Super 181

COMMONWEALTH of Pennsylvania, Appellee v. Marcus GIBBS, Appellant.

No. 1491 WDA 2008

Superior Court of Pennsylvania.

Submitted May 26, 2009.

Filed September 14, 2009.

Bruce G. Sandmeyer, Erie, for appellant.

Carrie C. Munsee, Asst. Dist. Atty., Erie, for the Com., appellee.

BEFORE: SHOGAN, FREEDBERG and HUDOCK^*, JJ.

OPINION BY FREEDBERG, J.:

¶ 1 Appellant, Marcus Gibbs, appeals from the judgment of sentence entered on August 1, 2008, by the Court of Common Pleas of Erie County. After review, we affirm.

¶ 2 The relevant facts and procedural history of this matter, which are taken from the trial court's opinion filed November 10, 2008, are as follows.

On August 14, 2007, members of the Erie Police Department were conducting an undercover investigation of Appellant's residence, located at 602 East 13th Street, Apartment 1, Erie, Pennsylvania. Police had received information from a confidential informant, John Poole ("Poole"),³ that drugs could be purchased at Appellant's residence. As a result, the police orchestrated a controlled buy at that location.

On August 14th, Poole telephone Mr. Billie Joe Williams ("Williams")⁴, to arrange a purchase of crack cocaine. At approximately 9:00 p.m., Williams called Shanti Israel Bayette ("Bayette"), in order to obtain one half ounce of crack cocaine to deliver to Poole for $700.00. Williams and Bayette agreed (at Bayette's directive) to meet at Appellant's house to consummate the sale to Poole.

After his telephone conversation with Williams, Poole drove Williams to Appellant's residence. While Poole remained in the vehicle, Williams went to Appellant's home and spoke with Appellant on Appellant's porch.⁵ Because Bayette was not yet at the residence, Williams returned to Poole's vehicle and waited. Approximately 20 minutes later, Bayette arrived and entered Appellant's home. Present were Bayette, some "kids", and Appellant. Williams entered the residence and obtained cocaine from Bayette. Because Bayette was "fronting" him the drugs, he did not have to pay Bayette at that time. At all times, Appellant was present at the residence. Williams left in Poole's vehicle. Moments later, police stopped the vehicle and arrested Williams. (This occurred at approximately 9:45 p.m.). They recovered 13.7 grams of crack cocaine from behind the passenger's seat.

After Williams was arrested, Erie Police Department Lieutenant Michael Nolan applied for a search warrant for Appellant's residence. However, concerned that evidence might be destroyed, he decided to secure the residence with assistance from other officers. To do so, officers entered onto the Appellant's porch intending to knock on the door and engage the occupants in conversation.

However, before they could do so, Appellant opened the door. From their vantage point on the porch, police observed stacks of cash and bags of apparent crack cocaine on the kitchen counter within two or three feet of Appellant. They also saw Bayette standing by a countertop holding a large amount of U.S. currency. (He dropped the money once he saw the police).⁶ Appellant was located two to three feet from these items. Upon making these observations, the police entered the residence and secured it and the occupants while they awaited the search warrant. Once the warrant was obtained, police recovered $5,177.00 from the countertop and floor area, $540.00 from Appellant, three stolen handguns from a bedroom, two bags of crack cocaine (2.1 grams and 0.25 grams, respectively), and sandwich baggies.⁷

³ Mr. Poole's identity was disclosed at time of trial.

⁴ Williams, a co-defendant, pled guilty and agreed to cooperate. He is related to Mr. Poole.

⁵ Williams testified that he did not discuss the drug transaction with Appellant. However, he said he told Appellant he was going to meet Bayette at Appellant's house.

⁶ Williams testified that drugs, money, etc. were not on the countertop when Bayette gave him the 13.7 grams of crack cocaine. Given the sequence of events, this Court found that testimony incredible.

⁷ At trial, Appellant's 14 year old brother, Jonathan Keys, testified that at the time of the search he was residing with Appellant and owned the confiscated firearms. This Court found his testimony incredible.

Trial Court Opinion filed 11/10/08 at 1-3.

¶ 3 On December 13, 2007, Appellant filed a motion to suppress alleging the evidence seized was the product of an illegal entry in violation of the United States and Pennsylvania Constitutions. Appellant claimed that the police did not have a warrant to enter upon the front porch and that they failed to establish exigent circumstances. A hearing took placed on January 30, 2008. On March 4, 2008, the trial court issued an opinion denying the motion.

¶ 4 A non-jury trial on the charges against Appellant and his co-defendant took place on June 24, 2008. Appellant was found guilty of possession with intent to deliver,¹ possession of a controlled substance,² conspiracy,³ possession of drug paraphernalia,⁴ and three counts of receiving stolen property.⁵ On August 1, 2008, Appellant was sentenced to the mandatory minimum of sixty (60) to one hundred and twenty (120) months of incarceration on the possession with intent deliver count to be served consecutively to Appellant's sentence for a previous drug conviction; and a sentence of eighteen (18) to thirty-six (36) months of incarceration on the first of the receiving stolen property counts to be served consecutively to the possession with intent to deliver count.⁶ This resulted in an aggregate sentence of seventy-eight (78) to one hundred and fifty-six (156) months of incarceration to be served consecutively to the sentence Appellant was then serving. Appellant filed a post-sentence motion on August 11, 2008, which was denied by order of that same day. Appellant was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Accordingly, Appellant filed the 1925(b) statement, and the trial court subsequently issued its opinion.

¶ 5 On appeal, Appellant raises the following issues for our review:

1. Should the evidence of the police search have been suppressed?

2. Was the evidence presented by the Commonwealth insufficient to sustain the conviction of the charges in the case?

3. Was the verdict against the weight of the evidence because the Commonwealth's evidence did not show Appellant liable for drugs delivered by the co-defendant?

4. Was the sentence excessive?

Appellant's Brief at 7.⁷

¶ 6 Appellant first claims that the trial court erred in denying his motion to suppress. The applicable standard of review is as follows:

[i]n reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 178-79 (1992) (citation omitted).

¶ 7 Absent probable cause and exigent circumstances, warrantless searches and seizures in a private home violate both the Fourth Amendment and Article 1 § 8 of the Pennsylvania Constitution.⁸ Id. at 1255, 609 A.2d 177. These constitutional protections have been extended to the curtilage of a person's home. Id. at n. 1. Curtilage has been defined in constitutional context as in "the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." Id. (citation omitted).

¶ 8 Appellant argues that the front porch constituted curtilage and thus the police viewed the contraband from an unlawful vantage point.⁹ The Commonwealth argues that the porch did not constitute curtilage. Further, the Commonwealth relies on the plain view doctrine to justify the seizure of the evidence. Under the plain view doctrine if an officer views "from a lawful vantage point" an item the incriminating nature of which is immediately apparent, he may seize it Commonwealth v. English, 839 A.2d 1136, 1139 (Pa.Super.2003).

¶ 9 There is no evidence in the record, and Appellant has provided no legal support for his claim that the porch constituted curtilage. The evidence established that there was no front yard or other enclosed space preceding or surrounding the porch; rather, the porch "butt[ed] up" against the sidewalk. N.T. 1/30/08 at 12. There was no gate blocking entry to the porch and nothing else which would indicate that the porch was closed to members of the general public. Id. at 12, 17, 18, 22. Further, the porch was an empty, unenclosed, concrete slab that was used by deliverymen and visitors to the apartment. Id. at 17, 18, 22. Lastly, the evidence reflects that, within minutes of the police entry onto the porch, the porch was also used by a pizza deliveryman and a couple of individuals attempting to purchase contraband. Id. at 18.

¶ 10 The issue of whether a front porch constitutes curtilage has not been addressed by the Pennsylvania Appellate Courts. Our sister states which have addressed the issue are divided. However, even those courts which have found that a front porch constitutes curtilage have generally found no Fourth Amendment violation where the porch in question was used by the general public. See, U.S. v. Titemore, 437 F.3d 251, 259 (2d Cir.2006) (finding no reasonable expectation of privacy in deck attached to home where it constituted part of the principal entryway); Murphy v. Gardner, 413 F.Supp.2d...