Com. v. Allen, C.

• Court: Superior Court of Pennsylvania
• Decided: September 30, 2019
• Docket: 641 WDA 2019
• Status: Unpublished

Opinion

J-S50040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHEINO STARR ALLEN : : Appellant : No. 641 WDA 2019

Appeal from the Judgment of Sentence Entered April 22, 2019 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001936-2017

BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 30, 2019

Appellant, Cheino Starr Allen, appeals from the aggregate judgment of

sentence of 12 to 60 months of confinement which was imposed after his

convictions at a stipulated bench trial for two counts of receiving stolen

property and one count each of possession of marijuana and use of or

possession with intent to use drug paraphernalia.1 We affirm.

On March 6, 2018, Appellant filed an omnibus pretrial motion which

included: (1) a motion to suppress all evidence obtained pursuant to a search

warrant that Appellant alleged was both unlawfully issued and unlawfully

executed; (2) a motion to suppress all evidence obtained pursuant to

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 3925(a) and 35 P.S. § 780-113(a)(31), (32), respectively. J-S50040-19

Appellant’s arrest, which he alleged was an unlawful arrest; and (3) a motion

to suppress Appellant’s verbal statements to investigators, which Appellant

contended were made following an involuntary waiver of his constitutional

rights. Omnibus Pretrial Motion, 3/6/2018, at ¶¶ 40-91.

On August 8, 2018, the suppression court2 held a hearing3 on Appellant’s

motions. At the conclusion of the hearing, the suppression court ordered the

parties to file briefs. On August 13, 2018, to aid the parties in filing their

briefs, the suppression court made the following findings of fact:

1. Scott Patterson is an agent with the Attorney General’s Office, where he has been so employed for the last two and a half years.

2. Prior thereto, Agent Patterson was a patrol officer with the Farrell/Southwest Regional Police Department since 2009.

3. Agent Patterson is experienced with controlled buys, having done more than 100 in his career.

4. Agent Patterson has also performed numerous search warrants.

5. In October of 2017, Agent Patterson was involved in an investigation involving [Appellant].

6. A search warrant involving [Appellant] was executed by the Mercer County [Critical Incident Response Team [(“CIRT”)] at 0602 hours on October 25, 2017.

2The suppression court was presided over by the Honorable Daniel P. Wallace. The trial court was presided over by the Honorable John C. Reed. 3 Our scope of review from a suppression ruling is limited to the evidentiary record created at the suppression hearing. Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).

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7. The CIRT Team performed a knock and announce and proceeded to clear the residence while Agent Patterson and the search team remained outside.

8. Inside the residence, the CIRT Team found Jaquanna Tyler, her infant son, and two pit bulls.

9. Once the CIRT Team completed clearing the residence, the search team entered the residence and began to perform a search.

10. In the upstairs northeast bedroom, a small amount of marijuana and a .40 caliber pistol was found.

11. A second firearm was found downstairs in a plastic container.

12. Both firearms were determined to be stolen, one from Butler County and the other from Mercer County.

13. In the master bedroom, [Appellant]’s wallet and men’s clothing was found.

14. Approximately 15 pairs of men’s shoes and men’s clothing were found in the bedroom.

15. In the residence, face masks and gloves were also found, along with digital scales. $225 was found in the wallet that contained [Appellant’s] ID.

16. An access card belonging to Brandon Gilchrest, a known drug user, was also found in the residence.

17. In the master bedroom, a THC gummy bear was also found.

18. At that point, Agent Patterson asked Jaquanna Tyler to contact [Appellant]. She did so and [Appellant] returned to the residence. [Appellant] was Mirandized[4] at the residence and he understood the Miranda warnings. After being Mirandized, [Appellant] admitted that the guns and marijuana were his. There were no threats of any kind made to [Appellant] while he was in the residence answering the questions.

19. The firearms were loaded.

4 Miranda v. Arizona, 384 U.S. 436 (1966).

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20. On cross examination, Agent Patterson testified that there was no continued surveillance of the residence at 623 Fruit Avenue, Farrell, Pennsylvania.

21. The search warrant was dated October 23, 2017, and there was a requirement that it be executed by October 25, 2017.

22. Agent Patterson reported that other police officers also filed reports concerning the search of 623 Fruit Avenue, Farrell, PA.

23. Pursuant to standard operating procedure, Agent Patterson called the CIRT commander to advise him of the search warrant that he had for 623 Fruit Avenue and thereafter, the CIRT commander would take care of organizing the execution of the search warrant.

24. Other individuals that were on scene in addition to the CIRT Team members were Officer Settle, the K-9 officer, Assistant District Attorney Reichart, State Trooper [Bradley] Wolak, and Detective Songer.

25. The CIRT Team performed the entry into the residence while the rest of the search team remained in the perimeter.

26. Aside from the knock and announce, it was difficult for Agent Patterson to hear the CIRT Team.

27. Agent Patterson confirmed with the CIRT commander by text the entry time.

28. The house was dark at the time of the execution of the search warrant.

29. Again, two individuals were determined to be in the residence, they being Jaquanna Tyler and her infant.

30. At some point in time, the crowd began to gather outside the residence and eventually become unruly.

31. When questioned, Jaquanna Tyler said she was the only resident of the house, aside from her infant, and that [Appellant] would baby-sit the infant on occasion. She also indicated that everything in the house belonged to her.

32. There were no indicia of [Appellant] connecting him to the upstairs firearm.

33. 623 Fruit Avenue, Farrell, PA, is owned by a Thomas Dean.

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34. There was no lease obtained showing that [Appellant] was leasing the residence.

35. Jaquanna Tyler was advised that in order to avoid arrest, she was to call [Appellant]. She proceeded to do so. [Appellant] came to the residence but initially refused to come into the house.

36. Detective Songer eventually persuaded [Appellant] to come into the house due to the crowd becoming unruly.

37. Once [Appellant] was inside the house, he was Mirandized and, again, he indicated his understood his Miranda rights.

38. Defendant admitted to Detective Songer that he knew that Jaquanna Tyler would likely go to jail due to what was found in the residence.

39. The .38 that was found on the first floor was stolen from Mercer and was stolen on August 13, 2017.

40. There was no transaction between the confidential informant [(“C.I.”)] and [Appellant] performed at the residence. There was no witness observing drug cutting at the residence. There was no recovery of buy money from [Appellant]. There were no dates of transactions aside from the week of the transaction.

41. There was no monitoring of the house nor were there complaints of the neighbors.

42. The Porsche owned by [Appellant]’s mother and operated by [Appellant] for the last two years was not at the residence.

43. There were no fingerprints on any guns.

44. Trooper Wolak participated in Jaquanna Tyler’s interview.

45. On redirect, Agent Patterson testified that [Appellant] originally was from Detroit[,] Michigan.

46. [Appellant] had an extensive criminal record.

47. The [C.I.] used in the controlled buys was a trustworthy source.

48. The C.I. performed three buys. The exact date of the controlled buys was limited to the week of the buy in the affidavit

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attached to the search warrant in order to keep the [C.I.] protected.

49. No one but the C.I. and [Appellant] performed the drug transactions in question.

50. [Appellant] delivered heroin to the C.I. from 623 Fruit Avenue, Farrell, PA, and returned to 623 Fruit Avenue, Farrell, PA.

51. It would be common that [Appellant] would not be on the deed to the residence.

52. Agent Patterson testified that [Appellant] would have been charged regardless of whether he came back to 623 Fruit Avenue at the request of Jaquanna Tyler.

53. The search warrant was sealed.

54. Jaquanna Tyler’s work records were never pulled in order to determine whether [Appellant] was baby-sitting.

55. Corporal Daniel Young is a Hermitage police corporal and also the assistant commander of the Mercer County CIRT Team.

56. On October 25, 2017, at 0530 hours, Corporal Young and the CIRT Team performed a pre-op briefing.

57. At 0600 hours, the CIRT Team arrived at the target residence.

58. The CIRT Team arrived at the front of the residence and the CIRT Team was stacked up according to standard operating procedure.

59. The CIRT Team performed a knock and announce and used the following phrase: “Police. Search warrant. Come to door.” They performed this knock and announce for close to a minute.

60. They then proceeded to breach the door and “break and rake” a side window and utilized a diversionary device.

61. Eventually Corporal Young testified that Jaquanna Tyler was directed to sit on the couch in a living room.

62. After the CIRT Team is done clearing the residence, the search team was deployed.

63. The standard operating procedure for the CIRT Team to perform their pre-op meeting was at 0530.

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64. There were 10 to 12 CIRT Team members participating in the execution of the search warrant.

65. The standard operating procedure is that when the CIRT Team arrived at the site, the commander, or in this case, the assistant commander, Corporal Young, would call Mercer County Dispatch.

66. While executing the search warrant, the CIRT Team utilized a secure radio at the scene.

67. Corporal Young testified that he did not see when Jaquanna Tyler was first seen by other CIRT Team members.

68. The CIRT Team stayed on the scene until 0822 hours.

69. Finally, Corporal Young testified there were two pit bulls located in the residence.

70. The parties stipulated that Officer Jamie Brown did not enter the house prior to the command to do so.

71. Trooper Brad Wolak is a trooper with the Pennsylvania State Police.

72. On October 25, 2017, Trooper Wolak was assisting Agent Patterson in the search of the residence in question.

73. Trooper Wolak indicated he spoke to Jaquanna Tyler at some point.

74. In the search of the residence, Trooper Wolak confirmed that in the upstairs bedroom, Jaquanna Tyler’s handgun, which was legally purchased and owned, and edible marijuana was found.

75. In the game room located upstairs, a stolen gun was found. Also found upstairs was [Appellant]’s wallet and men’s clothing.

76. In the residence, masks and gloves were found, which are used in the prepping of heroin. Also found was a mason jar with a false bottom.

77. Finally, in the hallway located downstairs, a handgun was found in a bank bag along with a bank statement. The handgun was determined to be stolen.

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78. Trooper Wolak testified that [Appellant] eventually agreed to come in the residence, at which time he was Mirandized.

79. Trooper Wolak testified that there were no threats or coercion used during the questioning of [Appellant] following his being Mirandized.

80. [Appellant] said he broke his phone.

81. [Appellant] also said during questioning that he stayed there at the residence but did not live there.

82. On cross examination, Trooper Wolak testified that he was inside the residence when [Appellant] arrived.

83. He also testified that the crowd was becoming unruly and that [Appellant] had been handcuffed outside the residence.

84. Trooper Wolak testified that [Appellant] initially refused to come inside of the residence but then agreed.

85. Trooper Wolak also testified that Jaquanna Tyler and the infant were found in the residence when the search warrant was executed and that Jaquanna Tyler legally owned and possessed one of the guns that was found.

86. Finally, [Appellant] initially denied ownership of the stolen handguns and marijuana

Findings of Fact, 8/13/2018, at 1-11. After the parties had filed their briefs,

on October 30, 2018, the suppression court denied Appellant’s omnibus

pretrial motion in its entirety and entered an opinion in support of its order.

On February 15, 2019, Appellant agreed to a stipulated bench trial, and

the notes of testimony from the suppression hearing were entered into

evidence. Appellant was convicted of the aforementioned charges, and he

was sentenced on April 22, 2019. Later that same day, he filed a timely notice

of appeal and the following statement of errors complained of on appeal:

AND NOW, comes the Defendant, Cheino Allen, and files this Concise Statement of Matters Complained of on Appeal:

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1. Defendant contends that his conviction is against the sufficiency of the evidence.

2. Defendant contends that his conviction is against the weight of the evidence.

3. Defendant contends that the trial court committed reversible error by denying his pretrial motion to suppress evidence because the search warrant was issued unlawfully as there was insufficient information contained within the warrant that would allow a neutral and detached magistrate and/or judge to conclude that there was sufficient probable cause to believe evidence of a crime would be located inside the residence subject to the search warrant.

4. Defendant contends that the trial court committed reversible error by denying his pretrial motion to suppress evidence as he was subjected to an unlawful arrest of his person by the investigating police officers following the execution of the search warrant.

5. Defendant contends that the trial court committed reversible error by denying his pretrial motion to suppress evidence because the statements he made during his custodial interrogation were the product of duress, coercion and undue influence and, therefore, there was no valid waiver of his Constitutional right against self-incrimination as guaranteed by the Fifth Amendment of the United States Constitution and Article I §9 of the Pennsylvania Constitution.

6. Defendant contends that the trial court committed reversible error by denying his Petition for Writ of Habeas Corpus Relief because the Commonwealth failed to demonstrate a prima facie case concerning any of the charges filed against him.

Statement of Matters Complained of on Appeal, 4/22/2019, at 1-2. The trial

court entered its opinion pursuant to Pa.R.A.P. 1925(a) on May 30, 2019.

Appellant now presents the following issues for our review:

[1.] Challenge to the Executed Warrant - Whether the Pennsylvania Attorney General’s Office violated the “knock and announce” rule by failing to allow for a reasonable opportunity for peaceful entry into the target home?

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[2.] Challenge to Sufficiency of Evidence -- Whether the evidence introduced at trial was insufficient to prove [Appellant]’s guilt to two counts of Receiving Stolen Property, involving a firearm, Possession of Marijuana and Possession of Drug Paraphernalia?

[3.] Challenge to the Search Warrant — Whether the Pennsylvania Attorney General’s Office failed to establish the existence of probable cause in the application of the search warrant when they did not sufficiently show that evidence of a crime would be recovered from the target address?

[4.] Challenge to the Legality of Arrest - Whether [Appellant]’s warrantless arrest was unlawful since the Pennsylvania Attorney General’s Office lacked probable cause that [Appellant] committed a violation of law?

[5.] Challenge to the Legality of Statement - Whether [Appellant]’s constitutional rights against self incrimination were violated when he made statements that were not a product of a voluntary waiver due to the overzealous and threatening behaviors from the Pennsylvania Attorney General’s Office?

Appellant’s Brief at 7-8 (issues re-ordered to facilitate disposition).

Preliminarily, we note that Appellant’s first challenge, concerning the

execution of the search warrant, was not included in his statement of errors

complained of on appeal, which is reproduced in its entirety above. Compare

Statement of Matters Complained of on Appeal, 4/22/2019, at 1-2, with

Appellant’s Brief at 8. Appellant hence has failed to preserve this issue for

appeal. See Pa.R.A.P. 1925(b)(4)(ii), (vii) (“The Statement shall concisely

identify each ruling or error that the appellant intends to challenge with

sufficient detail to identify all pertinent issues for the judge”; “[i]ssues not

included in the Statement and/or not raised in accordance with the provisions

of this paragraph (b)(4) are waived”); In re A.B., 63 A.3d 345, 350 (Pa.

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Super. 2013) (appellant’s concise statement of matters complained of on

appeal must properly specify error or errors to be addressed on appeal);

Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007).

We further observe that “[i]n order to preserve a challenge to the

sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement

must state with specificity the element or elements upon which the appellant

alleges that the evidence was insufficient.” In re J.G., 145 A.3d 1179, 1189

(Pa. Super. 2016) (citation omitted). In his Rule 1925(b) statement,

reproduced in its entirety above, Appellant does not state with specificity the

element or elements upon which he alleges that the evidence was insufficient

-- or even which of his convictions he is challenging.5 Statement of Matters

Complained of on Appeal, 4/22/2019, at 1 ¶ 1. Appellant has therefore failed

to preserve his challenge to the sufficiency of the evidence. See J.G., 145

A.3d at 1189.

5 Although Appellant’s statement of questions involved clarifies that Appellant is challenging the sufficiency of the evidence as to all of his convictions, this statement also fails to specify which element or elements Appellant is challenging. Appellant’s Brief at 7.

To the extent that the “Argument” section of his brief indicates that he is challenging the element of possession for all of the charges, id. at 19, and assuming that Appellant had preserved his sufficiency challenge, we would still conclude that Appellant’s claim merits no relief and that the trial court opinion dated May 30, 2019, comprehensively discusses and properly disposes of that issue. See Trial Court Opinion, filed May 30, 2019, at 14-16.

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Next, we consider Appellant’s remaining suppression issues in light of

the following standard of review:

In reviewing the denial of a suppression motion, our role is to determine 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. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, 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.

Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and

internal brackets omitted).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable

Daniel P. Wallace we conclude Appellant’s suppression issues merit no relief.

The suppression court opinion dated October 30, 2018, properly discusses and

disposes of those questions. See Suppression Court Opinion, filed October 30,

2018, at 5–6, 8-12 (not paginated) (finding: (1) examining the search

warrant in the light of the totality of the circumstances, the suppression court

found that probable cause existed for the issuance of the search warrant;

(2) “there was sufficient probable cause to [a]rrest [Appellant] without a

warrant,” because his “arrest was made pursuant to the illegal guns and

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marijuana found in the residence”; and (3) Appellant made his statement to

Agent Patterson that the illegal firearms and drugs were his and not Tyler’s

after he had been given his Miranda warnings and had knowingly, voluntarily,

and intelligently waived those rights). Accordingly, we affirm on the basis of

the suppression court’s opinion of October 30, 2018. The parties are

instructed to attach the opinion of the suppression court in any filings

referencing this Court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/30/2019

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CLERK J\ND H!:G!.'Trn IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

vs. No. 1936 CR 2017

CHEINO STARR ALLEN

OPINION

Wallace, J.

Presently before the Court is the defendant's Omnibus Pretrial Motion to

Suppress Evidence and Statements

Facts

Chieno Allen ("Allen") is challenging the application of the search warrant, the

execution of the search warrant, Allen's arrest without a search warrant, and the

statements made by Allen to police. Testimony regarding these challenges was heard on

August 8, 2018. Following the receipt of testimony> this Court issued Findings of Fact

regarding the same which are summarized below.

Attorney General Agent Scott Patterson was involved in an investigation

involving Allen. Pursuant to a confidential informant's interactions with Allen, a search

warrant was obtained and executed by the Mercer County Critical Incident Response

Team ("CIRT") team at 0601 hours on October 25, 2017 for 623 Fruit Avenue, Farrell,

PA. This particular warrant was dated October 23, 2017 and was required to be executed