Commonwealth v. Wright

270 A.3d 1144 (Table)

COMMONWEALTH of Pennsylvania

v.Phillip WRIGHT, Appellant

No. 180 EDA 2020

Superior Court of Pennsylvania.

Filed December 16, 2021

MEMORANDUM BY PELLEGRINI, J.:

Phillip Wright (Wright) appeals from the judgment of sentence entered in the Court of Common Pleas of Delaware County (trial court) following his jury conviction of two counts each of possession with intent to deliver a controlled substance (PWID) and possession of drug paraphernalia.¹ Wright raises several challenges to his conviction, including the trial court's denial of his motion to suppress evidence. He also challenges the legality of his sentence based on double jeopardy-merger principals and the discretionary aspects of his aggregate sentence. Because we agree with Wright that his sentence is illegal, we vacate his judgment of sentence and remand for resentencing.

I.

A.

The relevant facts and procedural history of this case are as follows. On April 23, 2019, at 6:10 a.m., police executed a search warrant on Wright's apartment. The residence is part of a larger apartment building, but it has its own separate entrance. Just prior to Detective Michael Honaker's application for the search warrant, the confidential informant (CI) overheard Wright inform another individual that he had renewed his supply of cocaine with a large quantity and that he was packaging it for street sale. Detective Honaker had conducted four controlled buys of cocaine from Wright at his residence through the CI during April 2019.

During execution of the search warrant, a drug dog "alerted" on various areas of the apartment. Police found a small leather pouch inside the mailbox located outside and to the immediate right of Wright's front door. The pouch contained 46 green and clear plastic bags of cocaine along with drug packaging materials. The dog also "alerted" on a trashcan on the front porch directly next to Wright's apartment. The trashcan contained a large Utz potato stick can holding two bags of cocaine, drug packaging materials, a digital scale, a cardboard funnel, numerous empty plastic baggies containing cocaine residue and two bottles of Inositol.² A water bill with Wright's name and address were also in the trashcan. Although he was not employed, $12,245.00 in United States currency was found in an air fryer in his kitchen and $631.00 in small denominations on his person. At the time of his arrest in this case, Wright was on electric home monitoring for his prior convictions of two drug possession charges.

B.

Wright filed an omnibus pretrial motion challenging the legality of the search, arguing that the trashcan and mailbox were outside of the scope of the search warrant. The search warrant included a "SPECIFIC DESCRIPTION OF PREMISES AND/OR PERSON TO BE SEARCHED" which provided as follows:

2112 WEST 3^rd STREET, CHESTER CITY, DELAWARE COUNTY, PENNSYLVANIA 19103. This residence is a single house converted into apartments. It is a three story red brick and tan siding with an opened front porch made of stone and red brick pillars . There are two visible front entrance ways to the residence. There is a main entranceway with a dark colored front interior door and directly to the left of this door is a brown entranceway door with the number #1 and a white aluminum storm door directly covering this interior door. This is the entranceway that is being utilized by Philip Wright a/k/a Philly Moe. There is a series of black mailboxes on the wall between the two front door entranceways .

(Exhibit C-1) (emphases added). The trial court denied the motion to suppress on July 18, 2019, following a hearing.

C.

Wright proceeded to a jury trial and was found guilty of the above-stated offenses. The trial court ordered preparation of a pre-sentence investigation report (PSI). At the December 26, 2019 sentencing hearing, the court heard extensive argument from the Commonwealth and defense counsel. The Commonwealth emphasized that the current offenses were Wright's fifth and sixth PWID charges, he had two prior possession convictions, and that he was on electric home monitoring at the time of the instant offenses. In contrast, defense counsel emphasized Wright's family considerations in that he is a father to four children and characterized him as having a low risk of recidivism given his age of 51 years. Wright was offered his right to allocution and waived it. (See N.T. Sentencing, 12/26/19, at 14).

After it considered the PSI and acknowledged on the record that Wright's incarceration was difficult for his entire family, the trial court sentenced Wright to an aggregate term of 14.25 to 40 years’ incarceration followed by two years of probation. (See id. at 20). Specifically, it imposed consecutive standard-range sentences of 114 to 240 months’ incarceration on the first PWID count and 57 to 240 months on the second PWID count, and to consecutive terms of one year of probation on each of the two possession of drug paraphernalia counts.

After sentencing, Wright filed a timely pro se notice of appeal and a pro se motion for reconsideration of sentence. The trial court denied Wright's motion and appointed counsel to represent him. Wright and the trial court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

II.

A.

Wright first challenges the trial court's denial of his motion to suppress evidence.³ He maintains that "the search of a trashcan and mailbox on the porch of a multi-unit building exceeded the scope of the premises to be searched contained in the search warrant." (Wright's Brief, at 26). Wright claims there was no indication prior to the search that the trashcan or mailbox were under his sole control or that they would contain controlled substances.

"A search warrant may be issued to search for and to seize: ... (2) property that is or has been used as the means of committing a criminal offense; or (3) property that constitutes evidence of the commission of a criminal offense." Pa.R.Crim.P. 201 (2), (3).

The Fourth Amendment categorically prohibits the issuance of any warrant except one ‘particularly describing the place to be searched and the persons or things to be seized.’ Maryland v. Garrison , 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), quoting U.S. CONST. amend. IV. This requirement is meant to prevent general searches and "ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Id. Along those lines, "the scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that it may be found." Id.

* * *

This court has recognized that the wording of Article I, Section 8 [of the Pennsylvania Constitution] is similar to the language of the Fourth Amendment. But, this does not demand that the interpretation of the two provisions be identical. The text of Article I, Section 8, "as nearly as may be," has been interpreted as requiring more specificity in the description of items to be seized than the federal particularity requirement. This requirement makes general searches impossible and prevents the seizure of one thing under a warrant describing another.

* * *

This court has explained that the twin aims of Article I, Section 8 are the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause. Probable cause is determined based on the totality of the circumstances. The totality of the circumstances test is satisfied where the police officers have a reasonable belief that the items to be seized are related to criminal conduct and that those items are presently located in the place to be searched.

In order to protect these twin aims, a warrant must describe the place to be searched and the items to be seized with specificity, and the warrant must be supported by probable cause. The place to be searched must be described precisely enough to enable the executing officer to ascertain and identify, with reasonable effort, the place intended, and where probable cause exists to support the search of the area so designated, a warrant will not fail for lack of particularity. Thus, where a search warrant adequately describes the place to be searched and the items to be seized the scope of the search extends to the entire area in which the object of the search may be found and properly includes the opening and inspection of containers and other receptacles where the object may be secreted .

Commonwealth v. Turpin , 216 A.3d 1055, 1063–64, 1066-67 (Pa. 2019) (emphasis added; original brackets omitted).

In this case, the trial court found that the search of the trashcan and mailbox did not exceed the scope of the search warrant. It noted that the items were located directly outside of Wright's residential entrance and explained:

The search warrant contained descriptions of defendant's residence which included listing a description of the porch, as well as the mailbox. The search warrant included specific language describing the premises to be searched as "opened front porch made of stone and red brick pillars." (Exhibit C-1). The search warrant also specifically listed "mailboxes on the wall between the two front door entryways." (Id. ). The drugs seized in this matter were found on the open porch in a trashcan located outside of defendant's door and in the mailboxes located between the entryways. Therefore, the areas where the drugs were found were listed in the description of places to be searched and not beyond the scope of the search warrant.

(Trial Court Opinion, 12/30/20, at 3) (citation formatting provided).

We agree with the trial court's assessment that the scope of the search warrant clearly included the front porch and mailbox area, and that it extended to "the entire area in which [controlled substances] may be found and properly include[d] the opening and inspection of containers and other receptacles where the [drugs] may be...