Commonwealth v. McFarland

278 A.3d 369

COMMONWEALTH of Pennsylvania

v.Jeffrey Dean MCFARLAND, Appellant

No. 204 WDA 2022

Superior Court of Pennsylvania.

Submitted June 6, 2022

Filed June 29, 2022

Russell Montgomery, Public Defender, Hollidaysburg, for appellant.

Katelyn Michelle Hoover, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

OPINION BY MURRAY, J.:

Jeffrey Dean McFarland (Appellant) appeals from the judgment of sentence imposed after a jury found him guilty of unlawfully manufacturing a controlled substance (MCS) and criminal conspiracy.¹ We affirm.

The trial court detailed the relevant facts as follows:

Officer Philip Worthy [(Officer Worthy)] is employed by the Altoona Police Department and is a member of the West Drug Task Force. During the course of his employment, Officer Worthy [learned] that methamphetamine can be manufactured using a one-pot method, using a two liter bottle. During the course of his employment, Officer Worthy [learned] that pseudoephedrine is a main ingredient of manufacturing methamphetamine. Pseudoephedrine is typically distributed in blister packets [purchased at pharmacies or retail stores; this over-the-counter medication is commonly used to treat seasonal allergy and cold symptoms]. Other items [that] can be used for manufacturing methamphetamine are: [lithium ] batteries, camp fuel, muriatic acid, funnels, and coffee filters.

On March 5, 2018, Officer Worthy responded to 2827 Pine Avenue, Altoona, PA, with deputies from the Blair County Sheriff's Office for attempted warrant service on Shawn Amick and Mary Blackie. Upon arrival at the residence, [which was owned by Mary Blackie,] Officer Worthy observed Shawn Amick through a window in the kitchen area of the home. Shawn Amick attempted to leave the residence through the back door once police knocked. This resulted in a brief foot pursuit through the home. Upon entering the living room, Officer Worthy observed Mary Blackie[, Appellant, and his brother/co-defendant,] Randy McFarland [(McFarland) (We collectively refer to Appellant and McFarland as "Defendants").] ...

Once Mary Blackie and Shawn Amick were secured, Officer Worthy noted, in plain sight, a glass smoking pipe consistent with smoking methamphetamine, empty blister packets, [lithium] batteries, and a Mountain Dew bottle with a white crystal substance inside it. The Defendants were seated on chairs [in the living room] near Mary Blackie and the coffee table. The pipe, empty blister packs, and batteries were on the coffee table directly in front of the Defendants.... The Mountain Dew bottle with the white crystal contents was on the floor at the feet and in between Mary Blackie and one of the Defendants. Officer Worthy observed this to be within arm's reach of both Defendants and Mary Blackie. Other officers conducted a protective sweep of the residence for any additional parties and upon doing so, made additional observations of items in plain sight, in various areas of the house, which were suspected of [being used to] manufactur[e] methamphetamine consistent with the one-pot method.

As a result of the observations, Pennsylvania State Police Clandestine Lab was notified and responded to the house. The Clandestine Team concluded that the residence contained a methamphetamine production lab using the one[-]pot method.

To purchase pseudoephedrine, an ingredient of the one-pot manufacturing method, a buyer must show a government issued identification and provide a signature to the pharmacy. The information provided by the buyer, such as name, address, and date of birth, as well as the date, time, brand, and amount of purchase is logged by the pharmacy into a database, known as the National Precursor Log Exchange (NPLEX).^[2] The system limits the amount of pseudoephedrine that can be purchased [by an individual] during a specific period of time.

Officer Worthy identified the NPLEX logs for Mary Blackie, as well as for [Appellant] and [ ] McFarland[. Officer Worthy conducted the NPLEX database searches approximately one week after March 5, 2018.] The logs contained purchases made from 2014 to March 5, 2018. The NPLEX log (Commonwealth Exhibit 1) reveals:

(a) On November 26, 2017, [Appellant] attempted a purchase of Wal-Phed in a 24, a 48, and a 96 count box at 4:34 pm and 4:35 pm[. Wal-Phed contains pseudoephedrine]. He was subsequently blocked from purchasing the items because he exceeded the 9 gram limit within 30 days. This purchase was attempted at the East Plank Road Walgreens.

(b) On November 26, 2017, Mary Blackie successfully purchased a 96 count of Wal-Phed at the same Walgreens store at 4:42 pm.

(c) On January 4, 2018, [Appellant] was blocked from purchasing a 10 count box of pseudoephedrine at 10:47 am at Dick's Pharmacy in Altoona, Pennsylvania.

(d) On this same date, Mary Blackie bought a 10 count box of pseudoephedrine from the same pharmacy at 11:09 am.

(e) On January 28, 2018, Mary Blackie bought a 10 count box of pseudoephedrine at 10:13 am at the Walgreens on East Plank Road in Altoona[,] while [Appellant] was blocked from making this same purchase at 10:21 am.

(f) On February 5, 2018, Mary Blackie purchased a 20 count box of pseudoephedrine at 8:35 pm[. Appellant] made the same purchase at the same store at 8:36 pm.

(g) On February 19, 2018, [Appellant] purchased a 20 count box of pseudoephedrine at 4:22 pm at Walgreens located on East Plank Road in Altoona, Pennsylvania.

(h) At 4:28 pm on the same date, Mary Blackie purchased a 10 count box of pseudoephedrine at 4:29 pm at the same store.

(i) A comparison of the NPLEX logs for [Appellant] and [ ] McFarland reveal that on March 2, 2018, both individuals purchased pseudoephedrine at the Walgreens on East Plank Road in Altoona, Pennsylvania. [Appellant] purchased a 10 count box at 7:42 pm while [McFarland] purchased a 14 count box at 7:49 pm.

The NPLEX logs list numerous purchases and attempted purchases by [Appellant and McFarland; the logs also contained Defendants’ respective dates of birth and driver's license numbers]. Looking at the time frame of January of 2017 through March 2, 2018, Commonwealth Exhibit 1 shows 28 successful purchases and 17 blocked purchases by [Appellant]. All but one of these purchases and attempts at purchase took place at various pharmacies in Altoona. During the same time frame, [McFarland] made 17 purchases and had 12 purchases that were blocked.

A consolidated preliminary hearing for both Defendants was held on May 23, 2018, before the Honorable Magisterial District Judge Benjamin Jones; Officer Worthy testified at said preliminary hearing [as the only witness]. During cross examination, the officer confirmed that the home located at 2827 Pine Avenue, Altoona [(the Pine Avenue house)] is owned by Mary Blackie. The Officer testified that [Appellant] lives at 608 Six Mile Run Road in Defiance, PA. There was no evidence found by the officer to indicate [Appellant] was living at the Pine Avenue house. Officer Worthy admitted that [Appellant and McFarland] did not look impaired on the evening of March 5, 201[8], when the officer encountered them at the Pine Avenue house. Officer Worthy stated [Appellant and McFarland] had no methamphetamine paraphernalia [or other contraband] on their person. The Officer did testify that [McFarland] had approximately three-thousand five-hundred dollars ($3,500.00) in US currency on his person when an inventory of [his] possessions was taken at the Altoona Police Department.

Trial Court Opinion, 9/18/19, at 2-7 (footnote added; citations, paragraph numbering, and some spacing omitted).

At the close of the preliminary hearing, Judge Jones held for court most of the charges against Appellant.³ On November 26, 2018, Appellant filed an omnibus pretrial motion (OPT Motion) seeking, inter alia , suppression of his NPLEX log. See OPT Motion, 11/26/18, at ¶¶ 20-21, 26-27 (asserting Officer Worthy did not secure a search warrant or court order before obtaining the NPLEX log, which contained Appellant's private, protected health information). Appellant's OPT Motion also sought dismissal of all charges. He claimed the Commonwealth had failed to establish a prima facie case where the evidence established he was merely present at the Pine Avenue house and unaware of the drug manufacturing operation.

The trial court held a suppression hearing on May 24, 2019. After the hearing, the court ordered the parties to file memoranda of law on the suppression issue. Order, 5/24/19, at 1-2. The court specifically directed the parties to address a prior opinion authored by a separate Blair County Court of Common Pleas Judge in the analogous case of Commonwealth v. Babcock , CR-403-2012 (Babcock ), where the court addressed whether police required a warrant to conduct an NPLEX search.

The Commonwealth claimed in its memorandum of law that Babcock was directly on point and Babcock ’s holding – that no warrant is necessary to conduct an NPLEX search – applied to Appellant's case. See Memorandum of Law, 6/21/19, at 16 (Babcock "had a very similar factual pattern to the present case as law enforcement located a methamphetamine lab in Mr. Babcock's residence"; and "President Judge Elizabeth A. Doyle opined that law enforcement did not need a warrant to examine the NPLEX logs, as the information contained in such documents was not personal information that created a heightened expectation of privacy."). In his memorandum of law, Appellant argued Babcock is contrary to precedent. Memorandum of Law, 7/24/19, at 7 (unnumbered).

By opinion and order entered September 18, 2019, the trial court denied Appellant's OPT Motion. The case proceeded to trial in February 2020. The jury found Appellant guilty of MCS and conspiracy, and not guilty of the remaining charges. On June 29, 2020, the trial court imposed an aggregate sentence of 3 - 24 months of incarceration, followed by two years of probation.

On July 8, 2020, the Commonwealth filed a post-sentence motion...