Commonwealth v. Yorgey

188 A.3d 1190

COMMONWEALTH of Pennsylvania, Appellee

v.Christian John YORGEY, Appellant

No. 3376 EDA 2016

Superior Court of Pennsylvania.

Submitted December 12, 2017

Filed May 24, 2018

Christian J. Yorgery, appellant, pro se.

Daniel C. Bardo, Robert M. Falin, Kevin R. Steele, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

OPINION BY DUBOW, J.:

Appellant, Christian John Yorgey, appeals from the Judgment of Sentence entered by the Montgomery County Court of Common Pleas following his conviction of one count of Possession of Drug Paraphernalia and two counts of Possession of a Small Amount of Marijuana.¹ On appeal, he challenges the trial court's denial of his Motion to Suppress. Appellant's counsel filed a Petition to Withdraw as Counsel and a Brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981), and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). After careful review, we grant counsel's Petition to Withdraw and affirm Appellant's Judgment of Sentence.

We summarize the relevant facts, as gleaned from the certified record, the suppression hearing, and the trial court's Pa.R.A.P. 1925(a) Opinion, as follows. On December 3, 2015, someone in Appellant's home called 911 to report a domestic dispute at the family's apartment. Corporal Michael Slattery and Officer Jeremy Bonner of the Lower Providence Township Police Department responded to the call.

As they entered the apartment building, Appellant was walking down the stairs from the second-floor apartment. The officers informed Appellant of their purpose, and Officer Bonner remained downstairs with Appellant while Corporal Slattery went upstairs to Appellant's apartment. Corporal Slattery knocked on the door and, after securing the dogs, Ms. Yorgey, Appellant's wife, opened the door and invited him inside the apartment. She then explained to Corporal Slattery that the domestic dispute had been a verbal argument.

Officer Cherelle Cutting arrived in the apartment shortly thereafter, and pointed out to Corporal Slattery that a gold-colored marijuana grinder was sitting in plain view on the floor next to the sofa. When asked about the grinder, Ms. Yorgey told the police officers, "That's not mine. That's [Appellant's] grinder." N.T. Suppression, 7/1/16, at 22, 35. She also stated "[t]hat's where he sits at the couch. He'll do drugs at the table there. He'll smoke his marijuana there. I don't smoke marijuana. I'm on too many medications.... I don't like when he smokes in the house." Id. at 23, 35.

Corporal Slattery then went back downstairs to speak with Appellant, patted him down for weapons, and took him into custody for possession of drug paraphernalia, i.e. , the marijuana grinder. In conducting a search incident to arrest, Corporal Slattery found a "one-hitter" in Appellant's right-side back pocket.² Appellant then informed Corporal Slattery that before they transported him to county jail, he wanted to get his cell phone from his truck. Officer Bonner retrieved the phone from the truck, and then informed Corporal Slattery that he had noticed a strong odor of marijuana coming from inside the vehicle. When Corporal Slattery asked Appellant about the odor, Appellant told him that he would find marijuana in the center console of his truck and gave his permission to retrieve it. Officer Bonner then retrieved a small amount of marijuana and a lit smoking bowl from Appellant's truck.

The Commonwealth charged Appellant with the above offenses. Represented by Kevin Horan, Esq., of the public defender's office, Appellant filed a Motion to Suppress seeking the exclusion of all physical evidence obtained by police officers. At the suppression hearing, Appellant specifically alleged that the officers did not have consent to enter the apartment and lacked probable cause to arrest him for constructive possession of the marijuana grinder.

On July 1, 2016, the suppression court held a hearing on the motion. Corporal Slattery testified to the above facts. Id. at 10–39. Officer Cutting briefly testified that she first observed the marijuana grinder on the floor of the Yorgey apartment and that Ms. Yorgey had unequivocally stated that the marijuana grinder belonged to Appellant. Id. at 63–64.

Ms. Yorgey testified for the defense that she did not hear the police knock on the door and did not invite the police inside. Id. at 45–48, 51. She further testified that she smokes marijuana, but the marijuana grinder was not hers, and could have belonged to her son, to her nephew, or to Appellant. Id. at 53–56, 58. She also testified that the marijuana grinder was on the floor beside her, and that she had handed it to the police officers when they noticed it. Id. at 53, 57.

Finding the testimony of Corporal Slattery and Officer Cutting more credible than Ms. Yorgey, the court denied the Motion to Suppress, concluding that the evidence recovered by the police officers in the Yorgey's apartment was sufficient to give rise to probable cause for Appellant's arrest. Id. at 86. Because the police officers had lawfully arrested Appellant for his constructive possession of the grinder, the evidence seized from Appellant's person and his truck was not "fruit of the poisonous tree" and was admissible at trial.

Following a trial, a jury found Appellant guilty of the Drug Paraphernalia offense. The court found him guilty of the two Possession of a Small Amount of Marijuana offenses.³ On September 26, 2016, the trial court imposed an aggregate sentence of 150 days of probation, a $100 fine, and the automatic suspension of his license temporarily.⁴ N.T. Trial, 9/26/16, at 212–14. Appellant did not file a Post–Sentence Motion.⁵

On October 26, 2016, public defender Christa M. Miller, Esq., filed a timely appeal on Appellant's behalf. On November 10, 2016, Appellant filed a pro se Pa.R.A.P. 1925(b) Statement alleging that trial counsel was ineffective for failing to subpoena relevant evidence and witnesses. Attorney Miller subsequently filed a Motion for Leave to Withdraw due to a conflict created by Appellant's claim of her colleague's ineffectiveness. The trial court granted Attorney Miller's Motion and appointed Bonnie–Ann Brill Keagy, Esq., to represent Appellant on direct appeal. The court ordered new counsel to file an amended Pa.R.A.P. 1925(b) Statement.

On February 3, 2017, counsel filed an amended Rule 1925(b) Statement asserting that the trial court erred in denying Appellant's Motion to Suppress because "[n]o exigent circumstances existed to support the search of either the residence or the vehicle." Pa.R.A.P. 1925(b) Statement, filed 2/3/17, at 1. On April 26, 2017, counsel filed a Brief and a Petition to Withdraw pursuant to Anders and Santiago , supra .

Appellant did not file a response to counsel's Anders Brief, 2017 WL 3503862.

In her Anders Brief, counsel raised one issue:

Did the trial court err when it failed to suppress evidence obtained as the result of the warrantless searches of [Appellant's] residence and vehicle at the time of [Appellant's] arrest when no exigent circumstances existed to support the search of either the residence or the vehicle?

And ers Brief at 5 (capitalization and suggested answers omitted).

On August 18, 2017, this Court certified this case for en banc review⁶ regarding the following issue:

Whether the scope of the appellate court's independent review of the certified record, once Counsel seeks permission to withdraw representation, necessitates: (1) a comprehensive review of the record for any issues that Counsel might have overlooked; (2) review limited to the issues either Counsel or the pro se appellant raised; or (3) review limited to the issues raised by either Counsel or pro se appellant, and issues that the appellate court is obligated to review sua sponte . Compare Commonwealth v. Flowers , 113 A.3d 1246 (Pa. Super. 2015) (espousing comprehensive review), with Commonwealth v. Baney , 860 A.2d 127 (Pa. Super. 2004) (limiting review to issues raised in Anders brief and pro se response), and Commonwealth v. Schmidt , ( Pa. Super. June 14, 2017) (Gantman, P.J., concurring) (suggesting middle ground level of review, in which appellate court examines entire record for issues raised in briefs and for other issues appearing on face of record which court can raise sua sponte )[.]

Order Directing En Banc Certification, 8/18/17, at 1–2. The parties have filed supplemental briefs addressing this issue.

Before we address the merits of this appeal, we must determine whether counsel has complied with the procedures provided in Anders and its progeny. Commonwealth v. Goodwin , 928 A.2d 287, 292 (Pa. Super. 2007) (en banc ).

In Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court addressed "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." Id. at 739, 87 S.Ct. 1396. California had permitted Anders's attorney to withdraw based on a simple letter stating, "I will not file a brief ... there is no merit to the appeal." Id. at 742, 87 S.Ct. 1396. After concluding that the California procedures violated the Fourteenth Amendment's principles of substantial equality and fair process, the Supreme Court outlined a permissible procedure. Id. at 744, 87 S.Ct. 1396.

The Supreme Court acknowledged that in cases that involve frivolous appeals, counsel may request and receive permission to withdraw without depriving the indigent defendant of his right to representation, provided certain safeguards are met. Id. at 741–42, 87 S.Ct. 1396. Thus, Counsel who wishes to withdraw must file a petition to...