Commonwealth v. Bellamy

252 A.3d 656

COMMONWEALTH of Pennsylvania, Appellee

v.Arthur Lee BELLAMY, Appellant

No. 281 MDA 2020

Superior Court of Pennsylvania.

Submitted March 8, 2021

Filed May 14, 2021

Terrence J. McDonald, Dunmore, for appellant.

Anthony J. Martinelli, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY STABILE, J.:

Appellant Arthur Lee Bellamy appeals the March 27, 2018 judgment of sentence entered in the Court of Common Pleas of Lackawanna County ("trial court"), following the nunc pro tunc reinstatement of his direct appeal rights. Upon review, we affirm.

On April 6, 2016, Dunmore Borough Police Department charged Appellant with possession with intent to deliver ("PWID") (heroin), conspiracy to commit PWID, possession of a controlled substance (heroin), and possession of drug paraphernalia.¹ The affidavit of probable cause accompanying the complaint alleged:

On April 5, 2016 at approximately 2110 hours, members of the Dunmore Police Department, Lackawanna County District Attorney's Office Detectives and members of the Lackawanna County Drug Task Force executed a search warrant, approved by Deputy District Attorney Michael Ossont and out of the office of the District Judge Paul Ware, at the Econo Lodge 1175 Kane Street Scranton PA (Room # 229). As Drug Task Force members prepared to make entry to room # 229, they encountered a white male (later identified as John Bell) opening the door to the room. Detectives then made entry into the room and encountered [Appellant] and Avette [McNeil² ] near the bed area. All suspects were taken into custody and made aware of their rights, which they verbally stated they understood.

Detectives then began a search of the room (# 229), where ... Detective Corey Condrad recovered a plastic zip-lock bag containing 10 glassine bags of suspected heroin and $2,519.00 of US currency located in the dresser drawer near the beds. [Detective Condrad] then recovered a men's black Nike sneaker on the floor near the bed. Inside the sneaker, [he] recovered a plastic zip-lock bag containing 400 glassine bags of suspected heroin. Officer Golden (SPD) recovered a womens [(sic)] purse on top of the bed. Inside the purse Officer Golden recovered 1 glassine bag of heroin and a plastic bag containing rubber bands. [Detective Condrad] then recovered a Samsung cellular phone and two LG cellular phones, along with $21.00 of US currency on top of the bed. [Appellant] stated that the Samsung phone belonged to him. All items were photographed at their location. All suspects were then transported to the Dunmore Police Headquarters.

At Dunmore Police Headquarters, Detective [Harold] Zech recovered 5 bags of suspected heroin from inside Bell's under ware [(sic)], during a further search incident to arrest. [Detective Condrad] field tested the heroin with positive results. The Samsung cellular phone was identified as the "target["] cellular phone used by [Appellant] in this investigation. Also, a sum of US currency was identified as pre-recorded, serialized US currency also used during this investigation. [Appellant], Bell, and [McNeil] were then transported to the Lackawanna County Processing Center on drug charges.

All items seized in the investigation were entered and secured into evidence and the heroin will be sent to PSP Wyoming Crime Lab for further testing.

Affidavit of Probable Cause, 4/6/16 (sic). The charges were held for court. On October 21, 2016, Appellant filed an "Omnibus Pretrial Motion," seeking to suppress communication intercepted through the Wiretapping and Electronic Surveillance Control Act (the "Wiretap Act"), 18 Pa.C.S.A. §§ 5701 - 5782. Additionally, he sought to suppress evidence recovered in the room at the Econo Lodge because of the police officers’ alleged failure to comply with Pa.R.Crim.P. 207, which codifies the knock and announce rule.³

The trial court conducted a hearing on the pretrial motion, which spanned two days. At the hearing, the Commonwealth presented the testimony of three police officers. First, the Commonwealth called to the stand Detective Condrad. N.T. Suppression, 4/10/17, at 3. He testified that he had been employed by the Dunmore Police Department for approximately two years. Id. Describing his duties, Detective Condrad testified:

I'm assigned to the drug unit there. Some of my duties are meeting with confidential informants, interviewing those informants, finding out who is selling narcotics. Once we find out, we arrange controlled purchases either in an undercover capacity or have informants go and purchase those narcotics. We also execute search warrants prior to those operations.

Id. at 3-4. Detective Condrad testified that he has been involved in over 500 drug investigations. Id. at 4. He further testified that at 7:00 p.m., on April 5, 2016, he, along with Detectives John Munley and Zech, met with a confidential informant ("CI") about heroin sales in the City of Scranton.⁴ Id. at 4, 19. The CI informed them that

he or she could purchase heroin from a black male known to the informant by the street alias Bo. The informant gave a description of Bo as a black male, heavyset, approximately 6’2, in his 30s. Detectives were familiar with an Arthur Bellamy [(Appellant)] from prior investigations who goes by the street alias Bo. The informant later stated that Bo was selling heroin out of Room 229 at the Econo Lodge. I then obtained a JNET photograph of Bellamy. I provided that photograph to the informant. The informant then positively identified Bellamy as Bo, the person selling heron from [Room] 229.

Id. at 4-5. According to Detective Condrad, the CI provided them with a cellular phone number for purposes of contacting [Appellant]. Id. at 5. Detective Condrad testified that he relayed the information to Deputy District Attorney Ossont, who consensualized the CI. Id. "After the consensualization was over, the [CI] placed an intercepted and recorded phone call to [Appellant]. During the phone call, [Appellant] agreed to meet with the [CI] at Room 229 to sell him or her a quantity of heroin." Id. Detective Condrad recalled that after the phone call, the CI and his or her vehicle were "thoroughly searched for currency and contraband." Id. at 6. Detective Condrad testified that he provided the CI with $100.00 of pre-recorded and serialized US currency to effectuate the heroin purchase from Appellant. Id.

He further testified that, thereafter, he and Detective Zech established surveillance near Room 229 at the Econo Lodge. Id. "I then kept the [CI] under surveillance as he or she travelled from the District Attorney's Office to the Econo Lodge." Id. Detective Condrad recalled that "Detective Zech then kept the [CI] under surveillance as he or she entered the room of 229. Within a few minutes that [CI] was observed exiting that room where he or she then met with me and handed me ten glassine bags of suspected heroin," which field tested positive. Id. at 6-7. According to Detective Condrad, the CI did not meet anyone else on his or her way to or from Room 229. Id. at 7.

Detective Condrad recalled that, after the contraband that the CI purchased from Appellant field tested positive for heroin, Detective Munley prepared and applied for a search warrant for Room 229, which was signed by Magistrate Paul Ware and approved by Deputy District Attorney Ossont. Id. Detective Condrad testified that they executed the search warrant on the same day (April 5, 2016) at 9:10 p.m. Id. Describing the events leading up to the search, Detective Condrad recalled:

We observed a white male exit [Room 229]. That male was later identified as John Bell. Mr. Bell was detained. He was given his Miranda^{[5 ]} warnings which he verbally stated he understood. We then made entry into that room where we encountered [Appellant] and [Ms. McNeil] inside the room near the bed.

Id. at 7-8. Detective Condrad clarified that, as they were approaching and the door opened, they "could see there was [(sic)] additional occupants beside Mr. Bell inside the room." Id. at 8. He testified that the occupants inside were able to see him and he was wearing a tactical police vest, i.e. , a "bullet proof vest that says Police on the front of it." Id.

Detective Condrad further testified that when they entered the room, the police officers said "search warrant." Id. They, however, did not knock on the door, because it opened. Id. Detective Condrad stated that "[o]nce [Appellant] and Mr. Bell observed us, we were in fear that they might destroy evidence or for officer safety that they might have a weapon, therefore, we entered the room without knocking." Id. at 8-9. The occupants, Appellant and Ms. McNeil, were detained. Id. at 9. Thereafter, according to Detective Condrad, Appellant and Ms. McNeil were Mirandized and the room was searched pursuant to the search warrant. Id. The police recovered narcotics, which later tested positive for heroin, U.S. currency, including the $100 in pre-recorded and serialized U.S. currency provided to the CI, and three cell phones. Id. at 9-10. Detective Condrad testified that Appellant claimed ownership of the Samsung cell phone. Id. at 9.

On cross-examination, Detective Condrad confirmed that he had known Mr. Bell prior to encountering him during the execution of the search warrant in this case. Id. at 12. Detective Condrad clarified that when Mr. Bell exited Room 229, he did not close the door and that the door was open. Id. He explained that Mr. Bell was detained and Mirandized in the "doorway portion" of the room. Id. at 13. Detective Condrad stated that Mr. Bell "was brought out of the room and then to make way for the detectives to enter the room." Id. According to Detective Condrad, Appellant and Ms. McNeil observed the police taking Mr. Bell and putting him in handcuffs. Id. When asked how much was the door open, Detective Condrad replied "[e]nough for me to see into the room." Id. Detective Condrad explained:

This was

...