J-S07039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ROYCE BRIAN CARTER
Appellant No. 1046 MDA 2014
Appeal from the Judgment of Sentence March 14, 2014 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005618-2012
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 22, 2015
Royce Brian Carter appeals the judgment of sentence entered March
14, 2014, in the Dauphin County Court of Common Pleas. Carter was
sentenced to a mandatory minimum term of 60 to 120 months’
imprisonment following his non-jury conviction of possession with intent to
deliver (“PWID”) cocaine and possession of drug paraphernalia.1 On appeal,
Carter challenges the trial court’s denial of his motion to suppress evidence
recovered during a vehicle stop, as well as the weight of the evidence
supporting his convictions. Although we conclude the issues raised on
appeal are meritless, for the reasons set forth below, we are, nevertheless,
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1 35 P.S. §§ 780-113(a)(30) and (a)(32). J-S07039-15
constrained to vacate the judgment of sentence and remand for
resentencing.
Carter was arrested on September 4, 2012, after a search of his
vehicle by State Parole Officer George Baird (“PO Baird”) revealed more than
25 ounces of cocaine. The facts underlying the vehicle stop and Carter’s
subsequent arrest are as follows. On September 4, 2012, Carter was on
state parole for a prior PWID conviction. Detective Corey Dickerson, of the
Dauphin County Drug Task Force, learned from a confidential informant
(“CI”) that Carter was dealing drugs. The CI arranged to purchase one
ounce of crack cocaine from Carter for $1,400.00. Detective Dickerson
supplied the CI with the buy money, and drove the CI to the meeting
location. The CI turned over the funds to Carter who told the CI he had to
go get the drugs, and he was going to get another ounce for himself. After
Carter left in his vehicle, officers from the Drug Task Force followed him to a
housing project, and observed him enter a residence, then return to his
vehicle and leave the area.
Detective Dickerson, who was working in plain clothes in an unmarked
vehicle, relayed information to uniformed Officer Joshua Hammer, of the
Harrisburg Police Street Crimes Unit, that Carter committed two traffic
violations, specifically he failed to use a turn signal and had illegally tinted
windows. Officer Hammer, who was in uniform and driving a marked
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vehicle, proceeded to conduct a traffic stop of Carter’s vehicle shortly
thereafter.2 After confirming that Carter had no outstanding warrants or
license suspensions, Officer Hammer issued Carter a warning for the
violations and told him he was free to leave.
In the meantime, Officer Darrin Bates, also of the Street Crime Unit,
arrived at the vehicle stop to provide back-up to Officer Hammer. PO Baird
was on patrol with Officer Bates that evening. The trial court summarized
PO Baird’s testimony at the suppression hearing as follows:
PO Baird testified that he had been patrolling with Officer Bates on the evening of the arrest. Baird stated that he was familiar with [Carter] because [Carter’s] PO, Georgia Latshaw, mentioned in an earlier meeting that she had received information [Carter] had been dealing drugs. PO Baird approached [Carter] after Officer Hammer ended the traffic stop with him because it was an opportunity to make a contact with a person on parole. Baird stated that prior to the encounter, he had no knowledge of the ongoing drug investigation involving Officer Dickerson.
PO Baird described his encounter with [Carter]. He stated that he knew [Carter] had been stopped for an illegal window tint and had been given a verbal warning by Officer Hammer. [Carter] told Baird that he was in the area because he had dropped off a co-worker at the Park Apartments, but he could not provide the co-worker’s name. [Carter] also said that he did not have anything illegal on him and consented to a search of his person which was conducted without incident. [Carter had $140.00 in cash on his person.] Baird stated that he noticed [Carter] had bloodshot eyes and “significant” pupils so he asked if he was on drugs to which [Carter] replied that he doesn’t ____________________________________________
2 Detective Dickerson stated he passed the information on to Officer Hammer because he was in plain clothes and he wanted to maintain the confidentiality of his CI’s identity. N.T., 6/25/2013, at 19-20.
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smoke weed. Baird testified that, since his eyes indicated [Carter] was under the influence of drugs or alcohol, he decided to question him about whether he had anything in the car that should not be there based on his status as a parolee. [Carter] refused consent to search the car. Baird said [Carter] started pacing, throwing up his hands and repeating that it wasn’t his car which Baird characterized as “flipping out.” During Baird’s interaction with [Carter] he did not attempt to flee, nor did he hide or discard any potential contraband. PO Baird stated that at the time of the stop, he did not have any information regarding any known parole violations. Baird did not alert the police officers of suspicion of DUI.
PO Baird proceeded to search the vehicle, found crack cocaine in the front center console, reported the findings to Officer Bates who secured the drugs and made the arrest.
Trial Court Opinion, 11/18/2014, at 7-8 (record citations omitted).
Testing of the narcotics recovered from Carter’s vehicle revealed 26.6
grams of cocaine. Carter was subsequently charged with PWID and
possession of drug paraphernalia. On January 24, 2013, Carter filed a
pretrial motion to suppress the evidence recovered during PO Baird’s search
of Carter’s person and vehicle. Although the trial court initially denied the
motion without first conducting a hearing, the court subsequently granted
Carter’s motion for reconsideration and conducted a suppression hearing on
June 25, 2013. Thereafter, on October 8, 2013, the court, once again,
denied Carter’s motion.
The case proceeded to a non-jury trial on January 10, 2014, at which
time Carter and the Commonwealth agreed to incorporate the testimony
presented at the suppression hearing. On January 24, 2014, the trial court
entered a verdict of guilty on both charges. Carter was sentenced on March
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14, 2014, to a mandatory minimum term3 of 60 to 120 months’
imprisonment for his conviction of PWID and a concurrent term of six to 12
months’ imprisonment for possession of paraphernalia. Carter filed a timely
post-sentence motion challenging the weight of the evidence, and seeking
modification of his sentence. In addition, counsel, who had been retained
for trial, filed a motion to withdraw. The trial court initially denied counsel’s
petition to withdraw until after the disposition of Carter’s post-sentence
motion. Thereafter, on May 21, 2014, the trial court entered an order
denying Carter’s post-sentence motion and granting counsel’s motion to
withdraw. This timely appeal followed.4
In his first issue, Carter challenges the trial court’s denial of his motion
to suppress the cocaine recovered during the warrantless search of his
vehicle. He argues that PO Baird did not have reasonable suspicion to
conduct a search of either his person or his vehicle. Further, Carter
contends the search of his vehicle was unlawful because there were no
3 Pursuant to 18 Pa.C.S. § 7508, the trial court imposed a mandatory five years’ imprisonment for Carter’s possession of more than 10 grams but less than 100 grams of cocaine. 18 Pa.C.S. § 7508(a)(3)(ii) (five year mandatory minimum when defendant has prior PWID conviction). 4 Carter filed a pro se notice of appeal, and attached a certificate of indigency. On July 15, 2014, this Court remanded the appeal to the trial court for appointment of counsel. Subsequently, the court appointed counsel and ordered him to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Counsel complied with the court’s directive and filed a concise statement on August 27, 2014.
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exigent circumstances present, and PO Baird failed to obtain prior approval
for the search from his supervisor.
Our review of a trial court’s denial of a pretrial motion to suppress
evidence is well-settled:
In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution’s witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings.
Commonwealth v. Colon, 31 A.3d 309, 312 (Pa. Super. 2011) (quotation
omitted), appeal denied, 42 A.3d 1058 (Pa. 2012).
At the time of the search, Carter was on parole for a prior PWID
conviction. Therefore, PO Baird derived his authority to search Carter’s
person and property from 61 Pa.C.S. § 6153, which “specifically grants
authority to parole agents to conduct personal searches and property
searches of parolees without a warrant and without probable cause.”
Commonwealth v. Curry, 900 A.2d 390, 393 (Pa. Super. 2006). The
statute provides, in relevant part:
(b) Searches and seizures authorized.--
(1) Agents may search the person and property of offenders in accordance with the provisions of this section.
(2) Nothing in this section shall be construed to permit searches or seizures in violation of the Constitution of the
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United States or section 8 of Article I of the Constitution of Pennsylvania.
(c) Effect of violation.--No violation of this section shall constitute an independent ground for suppression of evidence in any probation or parole proceeding or criminal proceeding.
(d) Grounds for personal search of offender.--
(1) A personal search of an offender may be conducted by an agent:
(i) if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision; …
(2) A property search may be conducted by an agent if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.
(3) Prior approval of a supervisor shall be obtained for a property search absent exigent circumstances. No prior approval shall be required for a personal search.
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(6) The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with such case law, the following factors, where applicable, may be taken into account:
(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of agents with the offender.
(vi) The experience of agents in similar circumstances.
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(vii) The prior criminal and supervisory history of the offender.
(viii) The need to verify compliance with the conditions of supervision.
61 Pa.C.S. § 6153(b)(1)-(2), (d)(1)-(6).
Accordingly, although a parole agent may not conduct a search that
would violate a parolee’s constitutional rights, an agent may subject a
parolee to a warrantless search if the agent has reasonable suspicion that
the parolee possesses contraband or other evidence of a violation of the
terms of his parole. Id. at § 6153(b)(2), (d)(1)(i). See Curry, supra, 900
A.2d at 394 (“Because ‘the very assumption of the institution’ of parole is
that the parolee is ‘more likely than the ordinary citizen to violate the law,’
the agents need not have probable cause to search a parolee or his
property; instead, reasonable suspicion is sufficient to authorize a search.”)
(citation omitted).
In the present case, the trial court determined, based on the totality of
the circumstances, PO Baird had reasonable suspicion that a search of
Carter’s person or vehicle would yield evidence of a parole violation. The
court opined:
As part of his duties, PO Baird routinely works along with the Dauphin County Drug Task Force by riding with police officers to afford him more access to offenders, just as he did on the night of [Carter’s] arrest. When PO Baird arrived at the traffic stop, he was already in possession of information that [Carter] might be involved in selling drugs as it had been relayed by [Carter’s] assigned PO, Georgia Latshaw. He and Officer Bates also found out that Officer Hammer had stopped [Carter] for an illegal window tint which [Carter] also confirmed.
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Once Officer Hammer concluded his encounter with [Carter], PO Baird saw an opportunity to interact with an individual who he knew was on parole. [Carter] agreed to a search of his person which yielded $140. Subsequent to searching his person, PO Baird testified he chose to go into [Carter’s] car based upon his observations of him throughout the duration of the encounter and knowledge of his history. [Carter] was present in an area known for high crime and drug sales; he had a history of selling drugs, a fact voluntarily confirmed by [Carter] when asked, and he could not provide the name of the purported co-worke[r] he had dropped off in the area. Baird stated that he observed bloodshot eyes and “significant pupils” and when [Carter] asked if he was under the influence of alcohol or drugs, he merely responded that “he doesn’t smoke weed” with no response regarding other drugs or alcohol. Of significance to the reasonable suspicion analysis is the fact that [Carter] was agreeable to a search of his person, but when questioned about any possible contraband in the car his demeanor quickly switched to a highly agitated state despite claiming the vehicle belonged to his mother. After asking [Carter] a second time whether the car contained anything that Baird, as a Parole Officer, should be aware of[, … Carter] responded that he didn’t know. This Court finds that reasonable suspicion of a parole violation was established by the record presented by the Commonwealth at the Suppression Hearing.
Trial Court Opinion, 11/18/2014, at 14-15.
Our independent review of the record reveals the trial court’s findings
are supported by PO Baird’s testimony at the suppression hearing. See
Colon, supra. It merits emphasis that Carter initially consented to a
search of his person. PO Baird explained the circumstances surrounding
Carter’s consent as follows:
I asked him (Carter) if he had anything else on him that he shouldn’t have on him as far as weapons, drugs, things of that nature. He stated he didn’t have anything on him and that I was free to search him.
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N.T., 6/25/2013, at 72. Although the body search yielded nothing
incriminating, we find the trial court properly determined the totality of the
circumstances surrounding PO Baird’s encounter with Carter supported the
agent’s reasonable suspicion that Carter had contraband or other evidence of
a parole violation in his vehicle. These circumstances included: (1) PO
Baird’s observation of Carter’s bloodshot eyes and “significant” pupils; 5 (2)
PO Baird’s knowledge that Carter’s parole agent suspected he was dealing
drugs; (3) Carter’s sudden change in demeanor when PO Baird asked if
there was contraband in the vehicle; (4) Carter’s evasive answers to PO
Baird’s questions, including his inability to name the co-worker he claimed to
have driven home, and his statement that “he doesn’t smoke weed” when
asked if he was under the influence of drugs or alcohol; 6 (5) Carter’s
presence in a high crime area; and (6) PO Baird’s knowledge of Carter’s
history of selling drugs. See 61 Pa.C.S. § 6153(d)(6). Accordingly, we
detect no abuse of discretion on the part of the trial court in determining
that PO Baird possessed reasonable suspicion to search Carter’s vehicle.
Carter also contends, however, that the search was unlawful because
there were no exigent circumstances justifying the warrantless search of his
vehicle. Carter states that, by the time PO Baird confronted him, he had ____________________________________________
5 N.T., 6/25/2013, at 73. 6 Id.
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been released by Officer Hammer with a verbal warning and told he was free
to leave. Carter’s Brief at 18. Further, Carter asserts PO Baird failed to
obtain prior approval for the search from his supervisor pursuant to Section
6153(d)(3), although the agent admitted he had the ability to do so. See
Id. at 17.
With respect to Carter’s argument that no exigent circumstances
existed to justify the warrantless search, we, like the trial court, rely on the
definition of “exigent circumstances,” found in 61 Pa.C.S. § 6151.
“Exigent circumstances.” The term includes, but is not limited to, suspicion that contraband or other evidence of violations of the conditions of supervision might be destroyed or suspicion that a weapon might be used. Exigent circumstances always exist with respect to a vehicle.
Id. (emphasis supplied). See also Trial Court Opinion, 11/18/2014, at 16.
Accordingly, PO Baird’s reasonable suspicion that Carter had contraband in
his vehicle was sufficient, under the statute, to justify a warrantless search
without prior approval from a supervisor.
Nevertheless, even if we were to find prior approval was required,
Section 6153(c) explicitly states “[n]o violation of this section shall
constitute an independent ground for suppression of evidence in any
probation or parole proceeding or criminal proceeding.” 61 Pa.C.S. §
6153(c). Thus, under the clear terms of the statute, evidence recovered
during a warrantless search of a parolee’s person or property is subject to
suppression only if the search was conducted in violation of the parolee’s
constitutional rights. As we concluded supra that PO Baird possessed the
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requisite reasonable suspicion to justify the search of Carter’s vehicle, and,
therefore, Carter’s constitutional rights were not violated, he is entitled to no
relief on this claim.
Next, Carter contends the verdict was against the weight of the
evidence because the evidence presented by the Commonwealth
demonstrated that he possessed the cocaine purely for his personal use. In
support of his argument, Carter emphasizes the testimony from the
suppression hearing that he asked the CI to “front” him the money for the
sale because he intended to purchase drugs for his own use. Carter’s Brief
at 20. Moreover, he notes that no “distribution paraphernalia” was
recovered from his vehicle. Id. Rather, the drugs were found in a single
bag.7
Appellate review of a weight of the evidence claim is well-established:
A weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one’s sense of justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20, 744 A.2d 745, 751–52 (2000); Commonwealth v. Champney, 574 Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review, an appellate court does not substitute its judgment for the finder of fact and consider the underlying question of whether the verdict is against the weight of the evidence, but, rather, determines ____________________________________________
7 We note that Carter’s paraphernalia conviction was based upon his possession of the “clear plastic sandwich bag filled with crack cocaine used to store and transport illegal drugs.” Police Criminal Complaint, 9/4/2012, at 4, Offense # 002. No use-paraphernalia was found on his person or in his vehicle.
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only whether the trial court abused its discretion in making its determination. Widmer, 560 Pa. at 321–22, 744 A.2d at 753; Champney, 574 Pa. at 444, 832 A.2d at 408.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S.Ct. 1792 (2014). Moreover, a challenge to the weight of the evidence
“must be preserved either in a post-sentence motion, by a written motion
before sentencing, or orally prior to sentencing.” Commonwealth v.
Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, 69 A.3d 601
(Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.
Here, although Carter preserved his weight challenge in a post-
sentence motion, he argued only that “[t]he nature and quality of the
evidence and testimony presented at trial failed to establish guilt.”
Defendant’s Post Sentence Motion, 3/25/2014, at ¶ 17. He did not present
the specific claim he now raises on appeal. For that reason, his weight claim
is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
Nevertheless, even if we were to address the issue on appeal, we
would conclude he is entitled to no relief based upon the following cogent
analysis provided by the trial court:
It is well established that “[i]n Pennsylvania, the intent to deliver may be inferred from possession of a large quantity of [a] controlled substance.” Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008)[, appeal denied, 964 A.2d 894 (Pa. 2009)] quoting Commonwealth v. Brown, 904 A.2d 925, 931- 932 (Pa. Super. 2006) (citations omitted), appeal denied, 591 Pa. 710, 919 A.2d 954 (2007). The evidence adduced at trial established that when [Carter] was stopped by Officer Hammer, [he] had just left a controlled drug buy. The evidence
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confiscated from his vehicle was tested by the PSP forensics lab which concluded it was 26.6 grams of crack cocaine, a very large amount of cocaine. No drug paraphernalia was found on [Carter’s] person or in the car to indicate that he was personally using the cocaine. This Court weighed the significant evidence and properly inferred that [Carter] possessed the intent to deliver the illegal drugs found in the vehicle.
Trial Court Opinion, 11/18/2014, at 21. Carter has provided us with no
basis upon which to conclude the trial court abused its discretion in denying
his challenge to the weight of the evidence. Accordingly, even if the claim
were not waived, we would find it to be meritless.
Although we have concluded that the two issues raised by Carter on
appeal merit no relief, we are, nevertheless, compelled to vacate the
judgment of sentence and remand for resentencing in light of the United
States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.
2151 (U.S. 2013).
In the present case, the trial court imposed a mandatory minimum
sentence pursuant to 18 Pa.C.S. § 7508, a statute that has been found to be
constitutionally infirm in light of the United States Supreme Court’s decision
in Alleyne, supra. See Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc); Commonwealth v. Vargas, 108 A.3d 858 (Pa
Super. 2014) (en banc) (applying Newman to Section 7508). Although
Carter did not contest the imposition of the mandatory minimum sentence
on appeal, “a challenge to a sentence premised upon Alleyne … implicates
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the legality of the sentence and cannot be waived on appeal.” Newman,
supra, 99 A.3d at 90.8 Moreover, this Court may address the legality of a
defendant’s sentence sua sponte. Commonwealth v. Watley, 81 A.3d
108, 118 (Pa. Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa.
2014).
In Alleyne, the United States Supreme Court held “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne,
supra, 133 S.Ct. at 2155 (emphasis supplied). Applying that mandate, this
Court, sitting en banc, concluded that Alleyne rendered the mandatory
minimum sentencing provision of 42 Pa.C.S. § 9712.1 unconstitutional. See
Newman, supra. Furthermore, the Newman Court found the offending
language of the statute, which permitted a trial court to determine at
sentencing whether the elements necessary to increase the mandatory
minimum sentence were proven beyond a preponderance of the
evidence, invalidated the statue as a whole. See Id., 99 A.3d at 98
(“Section 9712.1 can no longer pass constitutional muster.”). The Newman
Court also concluded, “it is manifestly the province of the General Assembly
8 We note that, in Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014), the Pennsylvania Supreme Court granted allocatur to consider, inter alia, “[w]hether a challenge to a sentence pursuant to Alleyne [] implicates the legality of the sentence and is therefore non-waivable.” Id.
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to determine what new procedures must be created in order to impose
mandatory minimum sentences in Pennsylvania following Alleyne. We
cannot do so.” Id. at 102.
Following the dictates of Newman, another en banc panel in Vargas,
supra, concluded the mandatory minimum provisions set forth in Section
7508, which are structured in the same manner as Section 9712.1, are also
constitutionally infirm. Vargas, supra, 108 A.3d at 876-877. Moreover,
this Court has declined to carve out an exception when a defendant is
convicted in a non-jury trial. See Commonwealth v. Bizzel, 107 A.3d 102
(Pa. Super. 2014) (vacating mandatory minimum sentence imposed
pursuant to 18 Pa.C.S. § 6317(b) following non-jury trial as violative of
Alleyne).
Therefore, although we conclude the claims raised by Carter on appeal
are without merit, we must, nevertheless, vacate the judgment of sentence
and remand for resentencing in light of the erroneous imposition of the
mandatory minimum sentence pursuant to Section 7508.
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Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Olson, J., joins in this memorandum decision.
Bender, P.J.E., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/22/2015
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