Commonwealth v. Mosley

245 A.3d 1115 (Table)

COMMONWEALTH of Pennsylvania v. Andrew MOSLEY, Appellant

No. 406 WDA 2020

Superior Court of Pennsylvania.

Filed December 30, 2020

MEMORANDUM BY SHOGAN, J.:

Appellant, Andrew Mosley, appeals from the March 6, 2020 judgment of sentence entered in the Court of Common Pleas of Fayette County following a nonjury trial. We affirm.

The trial court, the Honorable Nancy D. Vernon, summarized the procedural history as follows:

Appellant was found guilty of Receiving Stolen Property, 18 Pa.C.S.A. § 3925(a), Possession of Firearm Prohibited, 18 Pa.C.S.A. § 6105(a)(1), three counts of Possession with Intent to Deliver, 35 [P.S.] § 780-113(a)(30), and four counts [of] Possession, [ 35 P.S.] § 780-113(a)(16).

Appellant was sentenced to a term of incarceration of five to ten years on Count 2—Possession of Firearm Prohibited and three to six years on Count 3—Possession with Intent to Deliver[,] and no further penalty was imposed for the remaining convictions.

Opinion in Support of Non-Jury Verdict, 4/6/20, at 1.

The suppression court, the Honorable Steve P. Leskinen, summarized the background of the case, as follows:

[Appellant] was on State Parole when Pennsylvania State Parole Agents, namely Agent Derrick Eberhardt, Agent Timothy Murphy, and Agent Rhonda Bogus, along with other members of law enforcement, performed a Probation Check on [Appellant] at his residence in Fayette County on February 8, 2018. Agent Eberhardt testified that they needed numerous members of law enforcement present because [Appellant] had a history of attempting to run from them. Agent Murphy was at the back of the residence and alerted Agent Eberhardt that he observed, through a window, an individual present in the home. The door to the interior of [Appellant's] residence was not secure[,] and when Agent Eberhardt knocked, it opened; Agent Eberhardt entered the residence.

[Appellant] was on State Parole and his Conditions Governing Parole, signed by [Appellant], was admitted into evidence. One of the conditions was that [Appellant] expressly consented to the search of his person, property, and residence without a warrant by agents of the Pennsylvania Board of Probation and Parole.

[Appellant] was the only individual present during this event[,] and Agent Eberhardt observed [Appellant] continuing to nervously look[ ] back and forth at a room and Agent Eberhardt when he tried to make contact with [Appellant]. Pursuant to his observations, Agent Eberhardt placed [Appellant] in custody and performed a search on [Appellant's] person; [Appellant] had five (5) strips of Suboxone on his person[,] and he did not have a prescription for Suboxone. Agents performed a safety sweep of [Appellant's] residence[,] and Agent Murphy found, in plain view, a white substance in small baggies that [was] contained in a larger bag, which appeared to be consistent with crack cocaine. Agent Murphy called for Agent Eberhardt to observe the potential contraband, Agent Eberhardt testified that he attempted to pass off [Appellant] into another Agent's custody then [Appellant], at that time, tried to run away, but he was unsuccessful.

At this time, some of the law enforcement officers left the residence to obtain a search warrant to conduct a search of the residence. In the interim, [Appellant] made some inculpatory statements to members of law enforcement that remained at his residence. The Agents testified that [Appellant] was never read his Miranda^[1] rights but they never asked [Appellant] any questions or interrogated him in any way. The Agents testified that [Appellant] was visibly disappointed in his actions and was talking aloud to himself. [Appellant] made statements to the effect that he was a bad drug dealer, he should not have purchased a gun, and that he was trying to get money quick to help his mother. When the law enforcement officers returned with a search warrant, their subsequent search of the residence uncovered a Springfield XD-45 semi–automatic firearm in [Appellant's] bedroom.

Suppression Court Opinion, 6/21/18, at unnumbered 1–2.

Appellant filed an omnibus pretrial motion on May 16, 2018. Judge Leskinen held a suppression hearing on June 13, 2018, following which he denied the suppression motion. Appellant pled guilty on February 5, 2019, but filed a motion to withdraw the plea, which was granted on February 26, 2019. Appellant proceeded to trial before Judge Vernon on February 25, 2020, and was convicted and sentenced as described supra . Appellant filed a timely appeal; both Appellant and the trial court complied with Pa.R.A.P. 1925. The trial court relied on the Opinion and Order filed June 21, 2018, by Judge Leskinen for the disposition of the issue raised in Appellant's Pa.R.A.P. 1925(b) statement.

Appellant raises the following two issues on appeal:

Question 1: Whether the suppression court erred by not suppressing evidence recovered from Appellant and Appellant's residence when authorities lacked reasonable suspicion to search Appellant's person and property?

Question 2: Whether the suppression court erred by not suppressing Appellant's statement to authorities that he possessed a controlled substance?

Appellant's Brief at 7 (full capitalization omitted). ²

The standard of review an appellate court applies when considering an order denying a suppression motion is well established. "On review from an order suppressing evidence, we ‘consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted.’ " Commonwealth v. Johnson , 202 A.3d 125, 127 (Pa. Super. 2019). "This Court is bound by the factual findings of the suppression court where the record supports those findings and may only reverse when the legal conclusions drawn from those facts are in error." Commonwealth v. Haynes , 116 A.3d 640, 644 (Pa. Super. 2015). Because the Commonwealth prevailed in the suppression court, we consider only the Commonwealth's evidence and the evidence presented by Appellant that remains uncontradicted. Commonwealth v. Harlan , 208 A.3d 497, 499 (Pa. Super. 2019). Additionally, we may consider only the evidence presented at the suppression hearing. In re L.J. , 79 A.3d 1073, 1085–1087 (Pa. 2013).

Our Supreme Court has summarized state parole agents' authority and duties with respect to parolees as follows:

[S]tate parole agents' authority and duties with respect to parolees are prescribed by two sections of the Prisons and Parole Code. Section 6152 declares agents to be peace officers and provides them with police power to arrest without warrant any parolee under supervision for violating parole conditions. See 61 Pa.C.S. § 6152. Section 6153 deems parole agents to be in a "supervisory relationship with their offenders," aimed at assisting parolees in rehabilitation and reassimilation and protecting the public. Id . § 6153(a). This section further outlines the procedures and requirements for agents to search the person and property of offenders, see id . § 6153(b)(1), (d), and provides that such searches must comport with the protections of the United States and Pennsylvania Constitutions, see id . § 6153(b)(2). Another provision prevents the exclusion of evidence from parole or criminal proceedings based solely on a violation of the statute. See id . § 6153(c).

Commonwealth v. Mathis , 173 A.3d 699, 701–702 (Pa. 2017) (footnote omitted).

We note that Appellant cites case law only for the standards that apply to evaluation of his case; he does not cite to any cases that support his argument. In his first issue, Appellant asserts that the "mere fact that he was looking to the rear of the residence does not amount to reasonable suspicion [to search] pursuant to 61 Pa.C.S. § 6153." Appellant's Brief at 14. Appellant further contends that the Commonwealth failed to present evidence that Agent Eberhardt "reasonably believed" Appellant was "armed and dangerous." Id. Finally, Appellant posits that "there was no reasonable suspicion articulated by the state parole agents to justify a search of Appellant's residence." Id. at 16.

The suppression court responded to these claims, and they are supported by the record. The suppression court stated:

In this case, [Appellant's] signed parole agreement was entered into evidence and he consented to warrantless searches of his person, property, and residence. Even with this signed agreement, Agents still need to have reasonable suspicion to conduct a search. When Agent Eberhardt entered the residence, he intended to make contact with [Appellant], as he did, he observed [Appellant] acting odd and nervously looking back and forth between he and a room in [Appellant's] residence. Based on Agent Eberhardt's observations, experience, [Appellant's] history of offenses, and his proclivity to run from law enforcement, Agent Eberhardt had reasonable suspicion that [Appellant] was in possession of contraband and was justified to detain [Appellant], search his person and the residence.

When Agent Murphy entered the room [Appellant] was nervous, ... he found, in plain view, a white substance in multiple baggies contained in a larger bag; the substance was observed to be consistent with crack cocaine. After these observations, the law enforcement officers applied for a warrant to search the residence, a valid warrant was obtained and the ensuing search uncovered a Springfield XD-45 semiautomatic firearm in [Appellant's] bedroom. [Appellant] was a person who was not supposed to possess a firearm.

Suppression Court Opinion, 6/21/18, at unnumbered 4.

Contrary to Appellant's suggestion, and as supported by the suppression court and the record, Agent Eberhardt's reasonable suspicion was not based solely on Appellant's furtive movements. Our review of the record substantiates that Appellant "kept looking like he wanted to go back to the rear of the residence. He kept like starting to step...