Commonwealth v. Carey

249 A.3d 1217

COMMONWEALTH of Pennsylvania

v.Robert Tirrelle Devante CAREY, Appellant

No. 206 MDA 2020

Superior Court of Pennsylvania.

Submitted January 19, 2021

Filed April 19, 2021

Bradon E. Toomey, Public Defender, Carlisle, for appellant.

Courtney E. Hair Larue, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.^*

OPINION BY McCAFFERY, J.:

Robert Tirrelle Devante Carey (Appellant) appeals from the judgment of sentence entered in the Cumberland County Court of Common Pleas following his jury conviction of two counts of possession with intent to deliver controlled substances (PWID)¹ (cocaine and oxycodone) and related offenses. Appellant argues the trial court erred when it denied his motion to suppress based on an invalid warrant and the unlawful execution of that warrant. He also insists the court's imposition of a 12-month period of re-entry supervision pursuant to 61 Pa.C.S. § 6137.2 is an unconstitutional ex post facto punishment. Because we agree the application of Section 6137.2 is unconstitutional as applied to Appellant, where he committed the underlying offenses before the effective date of the statute, we vacate that part of his sentence. In all other respects, we affirm.

We glean the following facts from the affidavits of probable cause supporting two search warrants executed in this case, as well as the testimony presented at the suppression hearing.² On October 26, 2018, a Carlisle Police officer attempted to initiate a traffic stop of a black Chevrolet Impala operated by Appellant. Search Warrant & Authorization, 2/13/19, Affidavit of Probable Cause at ¶ 2 (Body Warrant). Appellant did not stop, but rather fled the scene in his car at a high rate of speed. Id. He then pulled into a parking lot and fled from the vehicle on foot. Id. During his escape, Appellant "kicked in a rear door at 136 W Louther St gaining entry into a residence which he did not have permission to be in." Id. He successfully evaded capture, and a warrant was issued for his arrest. Id. Appellant was also wanted for a parole violation "with the original charges being related to [felony] firearms possession[.]" Id. Appellant's "lengthy criminal history" includes charges of robbery, carrying a firearm without a license, and delivery of narcotics. Id.

On February 12, 2019, the Carlisle Police Department received a tip through "Crimewatch" that Appellant was "staying at 1820 Heishman Gardens in North Middleton Township" with Lanajah Hodge,³ and that he was driving a "white Nissan SUV." Body Warrant at ¶ 3. That same day, the Carlisle Police Department conducted surveillance of the Heishman Gardens residence at approximately 7:30 p.m. Id. Officers "observed a dark colored Honda Civic registered to Lanaja[h] Hodge parked in the driveway of 1820 Heishman Gardens." Id. Ms. Hodge's driver's license lists the Heishman Gardens residence as her address. Id. Carlisle Police Sergeant Joshua Bucher⁴ returned the next day at about 2:30 p.m., at which time he "observed a white ... Nissan Rogue sitting in the driveway at 1820 Heishman Gardens." Id. Sergeant Bucher then applied for a warrant to search 1820 Heishman Gardens for Appellant. The warrant was approved at 3:00 p.m. on February 13th.

At approximately 6:20 a.m. the next morning, February 14, 2019, the Cumberland County Special Response Team executed the warrant at 1820 Heishman Gardens. Search Warrant & Authorization, 2/14/19, Affidavit of Probable Cause at ¶ 4 (Search Warrant); N.T., Suppression H'rg, at 13. Hampden Township Police Officer Jason Wayne Julseth was the team leader for the Special Response Team. See N.T., Suppression H'rg, at 12, 14. Officer Julseth testified that the team was "briefed that it was going to be a high risk search warrant involving possible drugs and a gun." Id. at 13. He explained that he had members of the team stationed at the front and back of the residence, as well a "full coverage around the sides." Id. at 15. Officer Julseth testified the team could not see inside the residence because the windows "were draped." Id. Therefore, they did a "knock-and-announce" where they banged on the door, "waited about 10 seconds, and then ... manually breached the door open[.]" Id. Officer Julseth stated the team did not "make entry" at that time, but rather "h[e]ld the threshold." Id. He explained that about ten seconds later, Appellant "appeared out of the back" and the officers "called him out." Id. at 16. Officer Julseth stated Appellant was not handcuffed until he was "outside the threshold of his residence." Id. at 17. The team then "called out" Hodge as well before entering the residence to check for "other persons." Id. at 20.

Sergeant Bucher testified that, once inside the residence, he "smelled a strong odor of burnt marijuana" and noticed several "partially smoked marijuana ‘blunts’ " in an ash tray in plain view. Search Warrant at ¶ 4. Based on his observations, he obtained a second warrant for 1820 Heishman Gardens to search for additional marijuana. Id. at ¶¶ 6-7. The second warrant was executed at approximately 8:40 a.m. Id. at ¶ 7. During the execution of that warrant, officers observed "individually packaged baggies of suspected crack cocaine, oxycodone and [P]ercocet pills," as well as additional drug packaging materials, and a loaded firearm. Id. Sergeant Bucher applied for, and was granted, a third search warrant to seize the additional drugs and firearm. Id. at ¶ 9.

Ms. Hodge's suppression hearing testimony concerning the officers’ execution of the body warrant differed from that of Officer Julseth. She claimed that she and Appellant were sleeping when she heard "someone outside say whoever is in the residence of 1820 Heishman Gardens ... come outside." N.T., Suppression H'rg, at 26. She did not hear anyone knock on the door. Id. at 27. Ms. Hodge testified that "two seconds later," she and Appellant came out of the bedroom and "there were already people inside" the house. Id. at 26-27. She stated that the officers "had guns everywhere" and immediately arrested Appellant and put her in handcuffs. Id. at 27.

Appellant was subsequently arrested and charged with two counts each of PWID (cocaine and oxycodone) and possession of controlled substances (cocaine and oxycodone), and one count each of persons not to possess firearms, receiving stolen property, possession of a small amount of marijuana, and possession of drug paraphernalia.⁵ Appellant filed a pre-trial omnibus motion seeking suppression of the drugs and weapon recovered during the search, as well as dismissal of the firearms charge. The Honorable Albert H. Masland conducted a suppression hearing on August 30, 2019. After permitting the parties to file briefs, Judge Masland denied the pre-trial motion on November 5, 2019.

The case proceeded to a jury trial before the Honorable Thomas A. Placey. On December 11, 2019, the jury returned a verdict of guilty on all the drug charges, and not guilty on the firearms and receiving stolen property offenses. On January 13, 2020, the trial court sentenced Appellant to an aggregate term of 45 to 90 months’ imprisonment. Because Appellant had a state parole violation, with a maximum date of January 17, 2021, the court noted that Appellant's "aggregate sentence" was more than four years. See N.T., 1/13/20, at 7-8. Thus, the trial court determined it was required to impose an additional 12-month period of reentry supervision pursuant to 61 Pa.C.S. § 6137.2. Id. at 8-9, 12. This timely appeal follows.⁶

Appellant asserts three issues on appeal:

I. Did the court err when it denied Appellant's motion to suppress when it found that there was a valid search warrant to search a home where [Appellant] was found as a guest?

II. Did the court err in denying Appellant's motion to suppress when it found that the execution of the warrant was procedurally lawful?

III. Is 61 Pa.C.S. § 6137.2 an unlawful statute that imposed an illegal twelve month period of re-entry supervision upon Appellant?

Appellant's Brief at 6 (some capitalization omitted).

Appellant's first two issues challenge the trial court's denial of his suppression motion. Our standard of review is well-established:

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. The suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress.

Commonwealth v. Harlan , 208 A.3d 497, 499 (Pa. Super. 2019) (citation omitted).

Appellant first contends the body warrant was issued without adequate probable cause. He insists the affiant failed to sufficiently corroborate the anonymous tip received through Crimewatch. See Appellant's Brief at 12-13. Appellant maintains:

Nothing in the warrant application linked [Appellant] to Ms. Hodge. The warrant application did not note whether the plates on the Nissan Rogue were linked to [Appellant]. No officer ever saw [Appellant] enter or leave the residence. The residence was not a known address of [Appellant].

Id. at 13. Thus, he argues the information contained in the...