Com. v. Gutierrez

969 A.2d 584

2009 PA Super 55

COMMONWEALTH of Pennsylvania, Appellant v. Antonio GUTIERREZ, Appellee Commonwealth of Pennsylvania, Appellee v. Antonio Gutierrez, Appellant.

No. 710 MDA 2008

No. 806 MDA 2008

Superior Court of Pennsylvania.

Submitted January 20, 2009.

Filed March 30, 2009.

Jonathan H. Kurland, Assistant District Attorney, Reading, for Commonwealth.

Eric J. Taylor, Reading, for Gutierrez.

BEFORE: BOWES, SHOGAN and KELLY, JJ.

OPINION BY BOWES, J.:

¶ 1 Antonio Gutierrez and the Commonwealth have both filed appeals from the judgment of sentence imposed in this case. The Commonwealth complains about the sentencing court's failure to impose a mandatory minimum sentence that it contends is applicable herein. Gutierrez, who we will refer to as Appellant, assails the adequacy of the warrant utilized to search his residence and the sufficiency of the evidence supporting his conviction for possession of a prohibited offensive weapon. We reject the allegations of error raised by Appellant, but conclude that the Commonwealth's position is meritorious. We vacate the judgment of sentence and remand for a new sentencing hearing.

¶ 2 The record establishes the following. On January 2, 2007, police secured a warrant to search 657 Clinton Street, Reading, and Appellant's person for drugs, proof of residency at that location, and other evidence of drug-related activities. The affiant was Reading Police Officer Jose A. Colon, who had been assigned to the Vice and Narcotics Section of the Reading Police Department for approximately twelve years. Officer Colon's affidavit of probable cause indicated that he had conducted an investigation of drug-related activities at 657 Clinton Street with the assistance of a confidential source who had been given the designation of Confidential Source Number 818 ("CS") by the Reading Police Department. Officer Colon further attested that CS was then providing information to that department, and

The CS information provided has proven to be accurate and correct. The information provided has included the names and addresses of area drug dealers, the types of drugs [they are] dealing, manner in which [they are] packaged and a considerable amount of intelligence information. All of the information has been independently verified through the use of various investigative techniques. The CS information has led to several Federal indictments, State and Federal search warrants and to the arrest and conviction of well over 25 persons for the distribution of mostly crack cocaine. One of the more recent was based on information supplied by the CS which led to a search warrant, arrest and conviction of Shelly Smith-Greene for Poss/PWI cocaine of more th[a]n one ounce of crack cocaine.

Furthermore, the CS has been a member of the drug culture in the City of Reading PA and has managed to gain the trust and confidence of area drug dealers and other criminal elements. The CS has become familiar with those persons and their operations. The CS has been exposed to the sight of numerous controlled substances, including cocaine and has become knowledgeable of what these substances look like, how they are packaged for street sales, average street prices and other details involved in the illegal sales of controlled substances.

Affidavit of Probable Cause, 1/2/07, at 3. Within the forty-eight-hour period preceding January 2, 2007, the CS purchased crack cocaine pursuant to a controlled buy at 657 Clinton Street. After the purchase, the CS informed Officer Colon that he had purchased the drugs from Appellant. The CS gave Officer Colon the drugs, and Officer Colon field tested them. They tested positively as cocaine. Officer Colon also searched the files of the Reading Police Department and "located suspect Antonio Gutierrez, [J]r., listed address as 657 Clinton St., Reading[.]" Id. at 4.

¶ 3 After securing the warrant, Officer Colon, with the assistance of other officers, executed it that same day. Police knocked and announced their presence and purpose, and Appellant answered the door and allowed them to enter the residence. Police discovered a plastic sandwich bag containing eighteen smaller plastic packets of cocaine and two other plastic sandwich bags containing bulk cocaine hidden in Appellant's buttocks. In Appellant's pants pockets, there were keys to the house and approximately $200 in cash.

¶ 4 On top of the refrigerator in the kitchen, police found a plate with cocaine, materials associated with cocaine distribution, and a Talon .380 caliber handgun with a magazine containing eight rounds of ammunition. A box of twelve gauge shotgun shells also was located in the kitchen. In the living room, there was a bag of cocaine, two bags of marijuana, and a Winchester twelve gauge shotgun, which had been sawed off and hidden behind the stereo system. Police also found various letters, bills and other documents addressed to Appellant at 657 Clinton Street, Reading.

¶ 5 Appellant was immediately arrested and charged with one count of possession of a controlled substance (cocaine and marijuana), one count of possession of a controlled substance (cocaine) with intent to deliver, and possession of a prohibited offensive weapon with respect to the sawed-off shotgun. The jury returned a guilty verdict on the three charges before it. Since this case pertained to controlled substances, the issue of the amount of drugs possessed by Appellant became pertinent to certain mandatory minimum sentences applicable under The Controlled Substance, Drug, Device and Cosmetic Act. Upon questioning, the jury informed the court that its verdict had been unanimous only with respect to Appellant's possession of the drugs found on his person and that it had not unanimously concluded that Appellant possessed the cocaine found in the kitchen or the cocaine and marijuana located in the living room.

¶ 6 The case proceeded to sentencing on January 23, 2008. Having previously supplied Appellant with notice of its intent to do so, the Commonwealth invoked the mandatory minimum sentencing provision enacted at 42 Pa.C.S. § 9712.1, which provides for a five-year minimum sentence relating to a defendant's conviction of drug charges and the possession of firearms. The sentencing court decided that the Commonwealth had not produced sufficient evidence to support application of the mandatory minimum sentence. It did impose a mandatory minimum sentence relating to the weight of the seized drugs.

¶ 7 Appellant subsequently filed a motion for reconsideration, arguing that the court should not have included the weight of the cocaine found on the refrigerator and in the living room for sentencing purposes. Appellant's sentence was vacated, and on April 2, 2008, a new sentencing hearing was conducted. The court accepted Appellant's position regarding the weight of drugs that he possessed, again refused to apply the mandatory minimum sentencing provision set forth at section 9712.1, and imposed an aggregate sentence of fourteen months to sixty months imprisonment followed by five years probation.

¶ 8 The Commonwealth filed the appeal at 710 MDA 2008, and Appellant filed the appeal at 806 MDA 2008. They were consolidated for our consideration. We will first address Appellant's issues since if he prevails with respect to his request for suppression of all the evidence seized herein, the sentencing issue raised by the Commonwealth would be rendered moot. As noted, Appellant assails the sufficiency of the affidavit of probable cause supporting the search warrant issued in this case.

¶ 9 In determining whether an affidavit supporting the issuance of a search warrant established probable cause for the search, the "totality of the circumstances" approach as set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), is utilized. Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537 (2001). The same standard applies to an analysis conducted under the Pennsylvania Constitution. Id.; Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1986). If the warrant is based upon an anonymous source or a confidential informant, the warrant must support the reliability of the unnamed source or informant with sufficient facts. Torres, supra.

Pursuant to the "totality of the circumstances" test set forth by the United States Supreme Court in Gates, the task of an issuing authority is "simply to make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985) (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332). Thus, the totality of the circumstances test "permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip...." Gates, 462 U.S. at 234, 103 S.Ct. at 2330.

Id. at 537. An affidavit of probable cause to support a search warrant does "not require a prima facie showing of criminal activity" on the part of the occupants of the premises to be searched. Commonwealth v. Wallace, 953 A.2d 1259, 1261 (Pa.Super.2008). "Rather, a determination of probable cause requires only that the totality of the circumstances demonstrates `a fair probability that contraband or evidence of a crime will be found in a particular place.'" Commonwealth v. Brown, 924 A.2d 1283, 1286 (Pa.Super.2007) (quoting Torres, supra at 537 and Gates, supra at 238-39, 103 S.Ct. 2317).

¶ 10 The suppression court does not conduct a de novo review of the issuing authority's determination that probable cause existed for issuance of a warrant; instead, the suppression court's function is to ensure that the issuing authority's probable cause...