J-S06022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LACIONE ROBINSON : : Appellant : No. 1986 EDA 2019
Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003729-2018
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 16, 2020
Lacione Robinson appeals from the judgment of sentence entered
following his conviction for Persons not to Possess, Use, Manufacture, Control,
Sell, or Transfer Firearms.1 He challenges the denial of his motion to suppress
and the trial court’s overruling of his objections to the admission of certain
evidence. He also claims that the evidence at trial was insufficient. We affirm.
Robinson was convicted in 2011 of Possession with Intent to Deliver
(“PWID”), a felony offense that precludes him from possessing a firearm.2 The
trial court sentenced him to prison, and in 2018, while on parole from that
conviction, parole agents searched Robinson’s residence. The agents
discovered a firearm wrapped in a pair of men’s sweatpants in one room of
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1 18 Pa.C.S.A. § 6105.
2 35 P.S. 780-113(a)(30). J-S06022-20
the house. In that same room, they observed “a small amount of marijuana,
[Robinson’s] employment identification card, a card addressed to ‘King
La’cione,’ an Access Card with [Robinson’s] name on it, a digital scale, and
mail with [Robinson’s] name on it” but bearing a different address. Trial Ct.
Op., filed 8/15/19, at 17. The Commonwealth charged Robinson as above.
Robinson filed a motion to suppress, claiming that the parole agents did
not have reasonable suspicion or probable cause to search the house or the
room where the agents found the firearm. Pre-Trial Motion, filed 11/13/18, at
¶ 12. He also maintained that because the search was illegal, all evidence
recovered in the house was fruit of the poisonous tree. Id. at ¶ 17. Robinson
also moved to preclude his statements to police. Id. at ¶¶ 19, 20.
The court held a hearing on the suppression motion at which Agents
Dominic Compano, Lauren Dimaria, and Anthony Sube testified. N.T., Pre-trial
Motions Hearing, 1/3/19. The trial court then denied the motion, making the
following findings of fact:
State Parole Agent Dominic Compano was assigned to supervise the Defendant, Lacione Robinson, and had been doing so since the case was transferred to the Allentown office from the Philadelphia office in March of 2018. Agent Compano met [Robinson] on March 14, 2018. At that time, [Robinson] agreed to the terms and conditions of his state parole. He also indicated that he resided at a recovery house located at 1311 Chew Street, Allentown, Lehigh County, Pennsylvania.
On April 26, 2018, Agent Compano attempted a field contact with [Robinson] at the recovery house to no avail. The first home contact that Agent Compano had with [Robinson] was on May 7, 2018, in which he visited the recovery house
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located at 1311 Chew Street, Allentown. At that time, [Robinson] produced a positive urine test for amphetamines, opiates, and marijuana. Agent Compano reiterated to [Robinson] the rules of state parole in that drug use was prohibited, and issued [Robinson] a written warning. . . .
***
Subsequently, on July 25, 2018, Agent Compano went to the recovery house located at 1311 Chew Street, Allentown and spoke with two (2) residents there. Agent Compano showed these residents a photograph of [Robinson], and they related that [Robinson] had not lived at the recovery house for a month.
On July 26, 2018, after at least ten (10) days of having his whereabouts unknown, [Robinson] reported to the State Parole Office and spoke with Agent Compano. [Robinson] again tested positive for drugs, specifically, amphetamines, opiates, and oxycodones [sic]. In addition, [Robinson] did not provide any evidence of employment. [Robinson] displayed a negative attitude, was argumentative, and would not provide a firm address to Agent Compano. Therefore, Agent Compano approached [Robinson’s] girlfriend and asked her where [Robinson] was living. The girlfriend provided an address of 547 West Allen Street, Allentown, Lehigh County, Pennsylvania. At this time, Agent Compano placed [Robinson] on GPS monitoring to track his movements and to learn the location of his residence.
On August 21, 2018, [Robinson] reported to the State Parole Office and spoke with Agent Compano. [Robinson] provided a negative urine. However, [Robinson] was again argumentative and told Agent Compano that he would not obtain full time employment because he was not a slave. Having concerns about supervising [Robinson], Agent Compano requested that [Robinson] return later that day to speak with his supervisor who was not in the office at that time.
When the supervisor returned to the office, Agent Compano discussed the case with her. Specifically, Agent Compano related to his supervisor that [Robinson] was violating his parole by not furnishing him with an address, not obtaining employment, and by providing earlier positive urines. At
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that time, the GPS data was reviewed by them, and it revealed that [Robinson] was all over the City of Allentown during all different times of the day. In addition, the GPS showed that [Robinson] was not residing at 547 West Allen Street, Allentown, but at 546 North 4th Street, Allentown, Lehigh County, Pennsylvania. Based on his training and experience, and in light of the facts and circumstances, Agent Compano believed that [Robinson] was either using or distributing drugs in contravention of his conditions of supervision and the law.
As requested, [Robinson] returned in the afternoon on August 21, 2018 to speak with Agent Compano’s supervisor. At that time, [Robinson] was detained and placed in shackles and handcuffs. A search of [Robinson’s] person located $960.00 in his pocket. [Robinson] was advised by Agent Compano and the supervisor that they planned to search his residence for contraband. . . .
On August 21, 2018, Agent Compano requested that State Parole Agents Lauren Dimaria and Anthony Sube provide assistance in the within matter. They were instructed to go to [Robinson’s] residence located at 547 West Allen Street, Allentown to secure the residence in order to preserve any evidence for the impending search. However, Agents Dimaria and Sube were unable to locate the residence and learned that it was an invalid address. When they communicated this information to Agent Compano, Agent Compano confronted [Robinson] and his girlfriend who both then stated that he resided with the girlfriend at 546 North 4th Street, Allentown.
Agent Dimaria and Agent Sube went to 546 North 4th Street, Allentown and maintained surveillance of the residence from their vehicle. They observed . . . a middle aged woman, exit the residence to the porch area. . . . Shortly thereafter, an individual approached from the rear of their vehicle and ran onto the porch and handed a cell phone to the middle aged woman. At that time, Agent Dimaria and Agent Sube exited their vehicle and quickly approached the residence. Based on their observations, they were concerned that word had gotten out about the impending search and that evidence could be destroyed.
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Agent Dimaria approached the middle aged woman and presented her with a photograph of [Robinson.] The woman stated that the person in the photograph was her daughter's boyfriend, and that he stays there on occasion with her daughter in the middle upstairs bedroom. . . . Agent Dimaria asked if she could go inside the residence and search the middle upstairs bedroom that the woman had identified as [Robinson’s] and her daughter's. The girlfriend's mother agreed and directed them upstairs to the bedroom that they utilized.
Agent Dimaria and Agent Sube entered the residence and went to the second floor middle bedroom. Agent Sube lifted the mattress off the box spring which revealed a rolled up pair of light gray men's sweatpants. Agent Dimaria picked up the sweatpants, and contained therein was a Dan Wesson Arms .357 Magnum handgun. Agent Dimaria proceeded to unload the firearm and make the gun safe until she could furnish it to the Allentown Police Department upon their arrival. Further search of the bedroom revealed a small amount of marijuana in a baggie in a cup by the television, [Robinson’s] identification card, male clothing and shoes, and a piece of mail with [Robinson’s] name on it but an address different than 546 North 4th Street, Allentown.
Trial Ct. Motion Op., filed 1/28/19, at ¶¶ 1, 2, 5, 6, 8, 9, 10, 11, 12, 13, 14
(footnote-omitted).
Robinson waived his right to counsel and proceeded pro se with a bench
trial. See N.T., Trial, 5/20/19, at 5. During trial, he objected on the basis of
relevance to the admission of the GPS tracking information. Id. at 35. He
noted that the witness had testified during the suppression hearing that “it
could be inaccurate.” Id. The trial court overruled the objection, stating that
“if the GPS has you at the address where the gun was found, then that would
be relevant.” Id. at 36. The trial court found Robinson guilty of the firearms
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charge and sentenced him to a term of 5 to 10 years’ incarceration. This timely
appeal followed.
Robinson asks us to review the following issues:
I. Did the trial court err by not suppressing a gun found by state parole agents after they illegally entered and searched 546 N. 4th Street in violation of Mr. Robinson’s rights under the Fourth and Fourteenth Amendments of the United States Constitution and/or Article I, Section 8 of the Pennsylvania Constitution?
II. Did the trial court err by not suppressing Mr. Robinson’s statements made to state parole agents after he was initially taken into custody in violation of rights under the Fifth and Fourteenth Amendments of the United States Constitution and/or Article I, Section 9 of the Pennsylvania Constitution?
III. Did the trial court err by admitting inaccurate, unreliable, and therefore, irrelevant GPS location data at trial which the Commonwealth used to establish Mr. Robinson’s connection to 546 N. 4th Street?
IV. Was the evidence at trial insufficient to prove, beyond a reasonable doubt, that Mr. Robinson constructively possessed a firearm hidden underneath a mattress in an unsecured bedroom to which anyone residing in or visiting the residence had access at any time prior to the search merely because three of his documents were in the room?
Robinson’s Br. at 4 (footnote omitted).
Our standard of review of the denial of a motion to suppress “is limited
to determining whether the suppression court’s factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct.” Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015)
(citation omitted). Where the Commonwealth prevailed before the
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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.” Id. (citation omitted). We are
bound by the factual findings of the trial court where they are supported by
the record, but we are not bound by the legal conclusions. See id.
“[P]arolees agree to ‘endure warrantless searches’ based only on
reasonable suspicion in exchange for their early release from prison.”
Commonwealth v. Curry, 900 A.2d 390, 394 (Pa.Super. 2006) (quoting
Commonwealth v. Appleby, 856 A.2d 191, 195 (Pa.Super. 2004)).
“[Parole] agents need not have probable cause to search a parolee or his
property; instead, reasonable suspicion is sufficient to authorize a search.”
Id. A search will be deemed reasonable “if the totality of the evidence
demonstrates: (1) that the parole officer had a reasonable suspicion that the
parolee had committed a parole violation, and (2) that the search was
reasonably related to the parole officer’s duty.” Commonwealth v. Gould,
187 A.3d 927, 935 (Pa.Super. 2018) (citation omitted).
Pursuant to 61 Pa.C.S.A. § 6153(d)(6), the following factors may be
considered in determining whether reasonable suspicion exists when a parole
officer searches a parolee’s residence:
(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
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(v) The experience of the agents with the offender.
(vi) The experience of agents in similar circumstances.
(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.A. § 6153(d)(6). “Parole officers may likewise form reasonable
suspicion that a parolee is staying at a location other than their approved
residence based on personal observations and third-party information.”
Gould, 187 A.3d at 936.
Robinson alleges that “[t]he trial court’s conclusions about reasonable
suspicion fail to address the nexus or reasonable relationship between any of
Mr. Robinson’s behaviors and the search of 546 N. 4th Street.” Robinson’s Br.
at 33-34. He maintains that his “failure to provide employment verification
many have been a violation, but it bore no relationship to 546 N. 4th Street.”
Id. 31. He adds that “the purported drug use and possession of a syringe”
had no connection to the Fourth Street address, and “Agent Compano’s belief
that Mr. Robinson was ‘probably selling drugs’ was pure speculation.” Id. at
31, 32.
Here, the trial court concluded that “the evidence seized as a result of
the search of [Robinson’s] residence - need not be suppressed.” Trial Ct.
Motion Op. at 21.
The record is replete with evidence that [Robinson] was involved in criminal activity and violating his parole, including, but not limited to, [Robinson’s] positive urine
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screens, [Robinson’s] syringe located in the vehicle of [Robinson’s] girlfriend, the large amount of cash found on [Robinson’s] person despite having no verifiable employment, [Robinson’s] whereabouts unknown and his lying about the location of his residence, and the GPS monitor placing his whereabouts all over the City of Allentown at all hours of the day.
Id. We agree.
The evidence established that Robinson had violated the conditions of
his parole by failing to work; “not giving me any firm address”; and “[t]here
have been address changes without my permission.” N.T., Motions Hearing,
at 21. On one occasion, in July 2018, Agent Compano visited Robinson’s
approved address and residents told him that “he no longer lives there. He
hadn’t lived there for a month.” Id. at 9, 14. Additionally, Agent Compano
testified that Robinson’s urine tests came back positive for drugs on two
separate occasions. Id. at 9, 15. Furthermore, Robinson admitted that he was
residing at the Fourth Street residence. Id. at 24. This evidence collectively
established that the parole agents had reasonable suspicion to search the
Fourth Street residence. Gould, 187 A.3d at 935, 936.
Next, Robinson claims “[t]he trial court erred by not suppressing Mr.
Robinson’s statements made to state parole agents after he was taken into
custody at the parole office and before the search” of the Fourth Street house.
Robinson’s Br. at 34. He argues that the court should have suppressed his
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statement to Agent Compano about where he resided because he was not
read his Miranda3 rights. See id. at 36.
“Parolees, like any other individual, must be given Miranda warnings
when subject to custodial interrogation.” Commonwealth v. Cooley, 118
A.3d 370, 376 (Pa. 2015). Custodial interrogation occurs when law
enforcement officers either question a person or conduct themselves in a way
that they should reasonably anticipate will elicit an incriminating response,
after they have taken the person into custody or otherwise deprived the
person of freedom of action in any significant way. Id.
Robinson appears to have been subject to custodial interrogation when
he gave Agent Compano the Fourth Street address, as he was in “belt and
shackles” at the time. N.T., Motions Hearing, at 23. However, pages 76-100
of the pretrial motions hearing are missing from the certified record and the
missing portion appears to be where the parties argued the Miranda issue.
Without that part of the transcript, we cannot tell whether Robinson raised a
Miranda claim at all, or if he did, the arguments he made, as the Miranda
claim was not in the written motion to suppress. Having failed to provide this
Court with a complete record, Robinson has waived this issue.
Moreover, even if Robinson had preserved this claim, any error was at
most harmless. There was plenty of evidence that Robinson was living at the
Fourth Street address other than Robinson’s un-Mirandized statement. Such
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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evidence included the statement of Robinson’s girlfriend that Robinson lived
at that address, her mother telling agents on the scene that Robinson resided
there, statements from those at Robinson’s approved residence that he no
longer lived there, and the GPS tracking information linking him to the Fourth
Street address.
Next, Robinson challenges the trial court’s decision to admit the GPS
tracking information. He argues that it was erroneous for the court to allow
this admission of this evidence because “the data had limitations on the
accuracy of its listed locations; thus permitting the fact finder to speculate
about Mr. Robinson's location.” Robinson’s Br. at 38.
The admission of evidence is left to the discretion of the trial court. See
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014). Thus,
absent an abuse of discretion, we will not disturb an evidentiary ruling. Id. at
10. An abuse of discretion occurs when there is an “overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.” Id. (citation omitted).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc)
(citation omitted). “Evidence is relevant if it tends to establish a material fact,
makes a fact at issue more or less probable, or supports a reasonable
inference or presumption regarding a material fact.” Commonwealth v.
Kennedy, 959 A.2d 916, 923 (Pa. 2008). Evidence that is logically relevant
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is subject to exclusion if its probative value is outweighed by a danger of unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence. Pa.R.E. 403.
Here, when the trial court overruled Robinson’s objection to the
admission of the GPS tracking information, it found that the evidence was
logically relevant because the GPS information placed Robinson at the
residence where the gun was found. It thus made it more probable than not
that he in fact resided at the Fourth Street residence. Furthermore, Robinson’s
objection went to the weight and not the admissibility of the evidence.
Robinson did not proffer any evidence or otherwise attempt to support his
bare argument that the GPS evidence was unreliable. He instead relied on
pure argumentation, which rendered the issue one of weight and not
admissibility. The trial court did not abuse its discretion in admitting this
evidence.
Robinson’s final claim is that the evidence was insufficient to show that
he had constructive possession of the gun. He argues that “one photo ID, an
Access card, and one piece of mail with an old address on a dusty TV stand in
the room is not evidence that Mr. Robinson ever stayed in that room or that
he was the one who put those items there.” Robinson’s Br. at 44.
Our standard of review for a sufficiency claim is to view the evidence in
the light most favorable to the Commonwealth as verdict winner with all
reasonable inferences drawn in its favor. See Commonwealth v. Miklos,
159 A.3d 962, 967 (Pa.Super. 2017). Evidence is sufficient where “it
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establishes each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.” Id. (quoting
Commonwealth v. Lynch, 72 A.3d 706, 708 (Pa.Super. 2013)).
To sustain a verdict for Persons not to Possess, Use, Manufacture,
Control, Sell, or Transfer Firearms, the Commonwealth had to prove beyond
a reasonable doubt that Robinson “possessed a firearm and that he was
convicted of an enumerated offense that prohibits him from possessing, using,
controlling, or transferring a firearm.” Commonwealth v. Thomas, 988 A.2d
669, 670 (Pa.Super. 2009); 18 Pa.C.S.A. § 6105(a).
“Where a defendant is not in actual possession of the prohibited items,
the Commonwealth must establish that the defendant had constructive
possession to support the conviction.” Commonwealth v. Parrish, 191 A.3d
31, 36 (Pa.Super. 2018), appeal denied, 202 A.3d 42 (Pa. 2019). To prove
constructive possession, the Commonwealth must show that the defendant
had “‘power to control the contraband and the intent to exercise that control.’”
Id. (citation omitted). The Commonwealth may establish constructive
possession by presenting a totality of circumstances that prove the requisite
power and intent to control. Id. Furthermore, constructive possession “may
be proven by circumstantial evidence.” Id. at 36-37 (citation omitted).
Here, the trial court found that the Commonwealth sufficiently proved
constructive possession beyond a reasonable doubt. It reviewed the evidence
and concluded that the totality of the circumstances supported a finding that
Robinson constructively possessed the firearm found in the bedroom.
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Evidence that the court credited included the statement from the mother of
Robinson’s girlfriend that Robinson lived in the bedroom where the agents
found the gun; the agents finding the gun inside men’s sweatpants; and the
agents’ discovery of numerous personal items belonging to Robinson in the
room, such as Robinson’s employment identification card, a card addressed to
“King La’cione,” a Department of Public Welfare “Access” card with Robinson’s
name on it, and mail bearing Robinson’s name. See 1925(a) Op., filed
8/15/19, at 16-17. Furthermore, the court pointed out that as police were
driving him to police headquarters, Robinson spontaneously said, "I am not
mad about this. You got me; you got me good." Id. at 17. The evidence was
sufficient to prove Robinson’s constructive possession of the gun. Therefore,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/16/2020
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