J-S15016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANZORA ARNEZ SMITH : : Appellant : No. 992 WDA 2018
Appeal from the Judgment of Sentence Entered September 29, 2017 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003149-2016
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 26, 2019
Appellant, Franzora Arnez Smith, appeals from the judgment of
sentence entered following his convictions of one count of conspiracy of
possession with intent to deliver (“PWID”), two counts of PWID, one count of
possession of drug paraphernalia, two counts of simple possession of a
controlled substance, one count of person not to possess a firearm, and one
count of receiving stolen property.1 We affirm.
From April 20, 2016, until May 19, 2016, Appellant and his co-
defendant, Stephen Barry-Gibbons (“Juan”), were persons of interest in
relation to a drug trafficking investigation and surveillance being conducted at
1055 West 30th Street by the City of Erie Police Department. During the course
____________________________________________
1 18 Pa.C.S. § 903, 35 P.S. §§ 780-113(a)(30), (a)(32), (a)(16), 18 Pa.C.S. §§ 6105(c)(2) and 3925(a), respectively. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S15016-19
of the investigation, several confidential informants were involved in
controlled purchases of narcotics from Appellant and Juan. On the evening of
May 19, 2016, while en route to a controlled purchase, the police stopped the
vehicle in which Appellant was a passenger and placed him under arrest.
Appellant was charged with the crimes stated above. On January 20, 2017,
Appellant filed a motion to suppress all evidence obtained pursuant to the
traffic stop and search of Appellant. A hearing was held on April 19, 2017,
following which the motion to suppress was denied.
On August 16, 2017, at the conclusion of a three-day jury trial, Appellant
was convicted of all charges. On September 29, 2017, the trial court
sentenced Appellant to serve an aggregate term of incarceration of eighteen
to thirty-six years. On February 6, 2018, Appellant filed a pro se post-
sentence motion, which the trial court denied on February 9, 2018. After
some procedural maneuvering, Appellant was granted leave by the trial court
to appeal nunc pro tunc. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
A. Whether the trial court committed an abuse of discretion and/or error of law when it denied the Appellant’s omnibus motion to suppress?
B. Whether the Commonwealth failed to present sufficient evidence to find the Appellant guilty beyond a reasonable doubt of conspiracy of [PWID] and [PWID]?
Appellant’s Brief at 3 (full capitalization omitted).
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We address Appellant’s contentions in reverse order because he would
be entitled to discharge if the evidence was insufficient to support the verdict.
“Because a successful sufficiency of the evidence claim warrants discharge on
the pertinent crime, we must address this issue first.” Commonwealth v.
Toritto, 67 A.3d 29, 33 (Pa. Super. 2013). Moreover, we do not review that
type of allegation based upon a diminished record; instead, we consider all
evidence adduced, even that which Appellant claims should be suppressed.
See Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)
(explaining that “in conducting our [sufficiency] analysis, we consider all of
the evidence actually admitted at trial and do not review a diminished
record”).
Appellant argues that the Commonwealth did not present sufficient
evidence to convict Appellant of the crimes of conspiracy of PWID and PWID.2
Appellant’s Brief at 13-16. With regard to his conviction of conspiracy,
2 We observe that the argument portion of Appellant’s brief also contains discussions challenging whether the Commonwealth presented sufficient evidence to support the convictions of person not to possess a firearm and receiving stolen property. Appellant’s Brief at 16-17. However, these specific challenges were not set forth in Appellant’s Pa.R.A.P. 1925(b) statement. Thus, we are constrained to conclude that these specific arguments are waived for purposes of appellate review. See Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998) (holding that where a trial court directs a defendant to file a concise statement pursuant to Pa.R.A.P. 1925, any issues not raised in that statement shall be waived). See also Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa. Super. 2008) (noting that Lord “requires a finding of waiver whenever an appellant fails to raise an issue in a court-ordered Pa.R.A.P. 1925(b) statement”).
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Appellant contends that the record fails to establish that Appellant and Juan
had any agreement that promoted or facilitated the commission of the crime
of PWID. Id. at 14. Primarily, Appellant claims the Commonwealth failed to
present evidence connecting Appellant to Juan or the apartment at 1055 West
30th Street. Id. In addition, Appellant asserts that “there is absolutely
nothing that established that the Appellant committed any overt act in
furtherance of a conspiracy with [Juan].” Id. at 15.
Our standard of review is well established:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder[’s]. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
The crime of criminal conspiracy is set forth in Section 903 of the Crimes
Code which provides, in relevant part, as follows:
§ 903. Criminal conspiracy.
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(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
(b) Scope of conspiratorial relationship. — If a person guilty of conspiracy, as defined by subsection (a) of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, to commit such crime whether or not he knows their identity.
(c) Conspiracy with multiple criminal objectives. — If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.
* * *
(e) Overt act. — No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
18 Pa.C.S. § 903.
Furthermore, we have explained the following:
A conviction for criminal conspiracy, 18 Pa.C.S.A. § 903, is sustained where the Commonwealth establishes that the defendant entered an agreement to commit or aid in an unlawful act with another person or persons with a shared criminal intent and an overt act was done in furtherance of the conspiracy.
The essence of a criminal conspiracy is the common understanding that a particular criminal objective is to be
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accomplished. Mere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient. Rather, the Commonwealth must prove that the defendant shared the criminal intent, i.e., that the Appellant was “an active participant in the criminal enterprise and that he had knowledge of the conspiratorial agreement.” The defendant does not need to commit the overt act; a co-conspirator may commit the overt act.
A conspiracy is almost always proven through circumstantial evidence. “The conduct of the parties and the circumstances surrounding their conduct may create ‘a web of evidence’ linking the accused to the alleged conspiracy beyond a reasonable doubt.” The evidence must, however, “rise above mere suspicion or possibility of guilty collusion.”
Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en
banc) (citations omitted).
We initially address whether the Commonwealth presented sufficient
evidence that Appellant and Juan had any agreement that promoted or
facilitated the commission of the crime of conspiracy of PWID. Specifically,
Appellant contends that the Commonwealth failed to present physical
evidence that connected Appellant to the 1055 West 30th Street property.
Appellant’s Brief at 14.
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Our review of the record reflects that the Commonwealth presented
testimony from Andre Collins, who managed the rental of the apartment at
1055 West 30th Street. N.T., 8/14/17, at 30-50. Mr. Collins testified that Juan
had been renting the apartment from July of 2015 through May of 2016. Id.
at 33-34. Mr. Collins further stated that he had seen two or three other
individuals going in and out of Juan’s apartment. Id. at 41.
Also, Sergeant Matthew Benaci, a County Detective with the Erie County
District Attorney’s Office, testified at Appellant’s trial. N.T., 8/15/17, at 36-
65. Sergeant Benaci stated that, when Appellant was searched incident to his
arrest, the police discovered two keys in Appellant’s pocket. Id. at 46. The
officer testified that “[t]hese keys fit the front outside exterior door to 1055
West 30th Street, as well as fit the secondary inside door that led into the
apartment.” Id. Sergeant Benaci explained, “It was the second floor
apartment, so [there] was a lower door that locked as well as a staircase that
also opened the second [door] into the apartment.” Id. at 46-47. Police also
recovered from Juan an identical set of keys that opened those doors. Id. at
47.
In addition, Detective Michael Chodubski, a member of the Drug Unit at
the Erie Police Department, testified on the first day of Appellant’s trial. N.T.,
8/14/17, at 80-141. During his testimony, Detective Chodubski narrated a
series of photographic slides showing the exterior of 1055 West 30th Street,
which were taken during poice surveillance of the property. Id. at 83-87. The
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series of photographs depicted Appellant leaving the property and then
returning to the property, putting his hand up to the deadbolt of the exterior
door, and then entering the property. Id. at 85-87. The testimony offered
by Sergeant Benaci and Detective Chodubski was sufficient to connect
Appellant to the apartment rented by Juan at 1055 West 30th Street.
Appellant’s contrary claim that there was not sufficient evidence to associate
him with the apartment lacks merit.
Further, Appellant asserts that the Commonwealth failed to establish
that an overt act was performed in furtherance of the conspiracy. Appellant’s
Brief at 15. Appellant claims there was no mention of a controlled buy
performed by Appellant, which would have established an overt act in
furtherance of the conspiracy. Id.
Our review of the record reflects the following transpired during
testimony offered by Detective Chodubski:
Q. And to your knowledge, was there anything recovered from [Appellant’s] person that pertained to the two prior [controlled] buys on May 3rd and May 11th?
A. There was a quantity of, I believe, cocaine and heroin and a sum of money, I believe it was around $1,500, [$]1,543 if I remember. And in that $1,500, there was $40 of the recorded buy money that we used in previous buys.
N.T., 8/15/17, at 29. This circumstantial evidence establishing Appellant’s
possession of proceeds from previous controlled purchases conducted during
the investigation is sufficient to prove an overt act was conducted by Appellant
in furtherance of his conspiracy with Juan to commit PWID. Hence, Appellant’s
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challenge to the sufficiency of the evidence to establish a conspiracy lacks
merit.
In addition, Appellant argues that the Commonwealth presented
insufficient evidence to establish that he committed the crime of PWID.
Appellant’s Brief at 15-16. Specifically, Appellant claims that, although the
record establishes he was in possession of heroin when he was arrested, the
Commonwealth failed to “introduce evidence as to exactly how much heroin
was found on the Appellant.” Id. at 16.
In order to uphold a conviction of PWID pursuant to 35 P.S. § 780-
113(a)(30), the Commonwealth must prove beyond a reasonable doubt that
the defendant possessed a controlled substance and did so with the intent to
deliver it. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.
2000) (en banc). “The intent to deliver may be inferred from an examination
of the facts and circumstances surrounding the case.” Commonwealth v.
Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002). Factors that may be
relevant in establishing that drugs were possessed with the intent to deliver
include the particular method of packaging, the form of the drug, and the
behavior of the defendant. Aguado, 760 A.2d at 1185. Moreover, we have
held that circumstantial evidence is reviewed by the same standard as direct
evidence–that is, that a decision by the trial court will be affirmed “so long as
the combination of the evidence links the accused to the crime beyond a
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reasonable doubt.” Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa.
Super. 2003) (citations omitted).
Our review of the record reflects that, under the totality of the
circumstances, the following circumstantial evidence is sufficient to sustain
Appellant’s conviction of PWID. Here, Detective Chodubski also testified on
the second day of Appellant’s trial. N.T., 8/15/17, at 23-36. The detective
stated the following regarding what was discovered during the search of
Appellant at the time of his arrest:
Yes, in his rear pocket was a wallet that contained his photo I.D. We were able to identify him at that time as [Appellant]. And in his front right pocket was sandwich baggies containing quantities of heroin and crack cocaine. Also in the pockets was approximately – it was actually $1,534 cash, of which contained controlled confidential funds.
Id. at 44. Detective Chodubski was then handed the sandwich baggies while
testifying and described the contents:
Yes. So inside this bag, this is sealed in our evidence packaging and then the blue tape you see here was from the Pennsylvania State Police Crime Lab, which they will field test the drugs, tell you what it is, how much they weigh. And in this case, it was sandwich baggies that had numerous knotted sandwich baggies in it and these are all very, very small doses, street level sales, packaged for street level sales of heroin and crack cocaine. So there’s little amounts of them and then they would take a corner of a sandwich baggy, put the drugs in it, tie it up real tight and then cut it and that’s what you get. It’s very small, very easily concealed, and … the drugs are contained in that. And that’s very common for the Erie drug trade and how a drug is packaged.
Id. at 45.
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This evidence, viewed in a light most favorable to the Commonwealth,
is sufficient to establish that, when the police apprehended him, Appellant had
possession of multiple packets of heroin and crack cocaine prepared for street
sale. Appellant was also in possession of a significant sum of currency, which
included money that had been utilized in previous controlled purchases by
confidential informants. Given the totality of the circumstances, the
Commonwealth presented sufficient evidence to establish that Appellant
possessed the packets of narcotics with the intent to deliver. Accordingly,
Appellant’s assertion that the Commonwealth failed to present sufficient
evidence to prove his possession of narcotics with intent to deliver lacks merit.
We next address Appellant’s argument that the trial court erred in failing
to grant his motion to suppress. Appellant’s Brief at 9-13. Appellant claims
that the police lacked the necessary probable cause to stop the vehicle in
which he was a passenger and conduct a warrantless arrest. Id. at 11. In
addition, Appellant contends that there were no exigent circumstances present
that would have justified the warrantless arrest. Id. at 11-13. We disagree.
With respect to an appeal from the denial of a motion to suppress, our
Supreme Court has stated the following:
Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing the ruling of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record ... Where the record supports the findings of the suppression court,
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we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). “It is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.
2006). Moreover, we note that our scope of review from a suppression ruling
is limited to the evidentiary record that was created at the suppression
hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).
Further, we are aware that Pa.R.Crim.P. 581, which addresses the
suppression of evidence, provides in relevant part as follows:
(H) The Commonwealth shall have the burden . . . of establishing that the challenged evidence was not obtained in violation of the defendant’s rights.
Pa.R.Crim.P. 581(H).
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the “right of each individual to be let alone.” Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).
Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).
To secure the right of citizens to be free from intrusions by police, courts
in Pennsylvania require law enforcement officers to demonstrate ascending
levels of suspicion to justify their interactions with citizens as those
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interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d
621, 624 (Pa. Super. 2000).
It is undisputed that:
[s]tate case law recognizes three categories of interaction between police officers and citizens, which include: (1) a mere encounter, or request for information, which need not be supported by any level of suspicion, but which carries no official compulsion to stop or to respond; (2) an investigative detention, which must be supported by reasonable suspicion as it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest; and (3) arrest or custodial detention, which must be supported by probable cause.
Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en
banc).
“An arrest is defined as any act that indicates an intention to take the
person into custody and subjects him to the actual control and will of the
person making the arrest. . . . The test is an objective one, i.e., viewed in
the light of the reasonable impression conveyed to the person subjected to
the seizure rather than the strictly subjective view of the officers or the
persons being seized.” Commonwealth v. Butler, 729 A.2d 1134, 1137 (Pa.
Super. 1999) (quoting Commonwealth v. Rodriquez, 614 A.2d 1378, 1384
(Pa. 1992)).
It is well settled that the police may make a warrantless arrest if
probable cause exists. Commonwealth v. Santiago, 736 A.2d 624, 629-
630 (Pa. Super. 1999). Probable cause for an arrest exists if the facts and
circumstances within the knowledge of the police officer at the time of the
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arrest are sufficient to justify a person of reasonable caution in believing the
suspect has committed or is committing a crime. Id. at 630. Probable cause
justifying an arrest is determined by the totality of the circumstances.
Commonwealth v. Colon, 777 A.2d 1097 (Pa. Super. 2001). Probable cause
does not require certainty, but rather exists when criminality is one reasonable
inference, not necessarily even the most likely inference. Commonwealth
v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004). We have long stated
that in determining whether probable cause existed in a particular situation,
a court will look not just at one or two individual factors, but will consider the
“totality of the circumstances” as they appeared to the arresting officer.
Commonwealth v. Dennis, 612 A.2d 1014, 1016 (Pa. Super. 1992).
Applying these standards to the instant case, we conclude that the
Commonwealth presented sufficient facts at the suppression hearing to
establish probable cause, thereby justifying Appellant’s arrest. In addressing
the claim that the police lacked probable cause to justify the arrest, the trial
court offered the following:
There was ample justification for Appellant’s seizure given the probable cause for his criminal activities … .
Attached hereto and incorporated herein is the Rule 1925(a) Opinion for the appeal of Appellant’s co-defendant, [Juan], at Erie County Docket Number 3148 of 2016. As outlined in detail therein, Appellant was an active participant in a conspiracy to distribute heroin on multiple occasions from March 30, 2016 until the time of Appellant’s arrest on May 19, 2016. The police investigation included multiple sales of heroin to confidential informants by Appellant acting in concert with [Juan]. For the reasons set forth in the attached Opinion, there was more than
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probable cause to arrest Appellant for felony drug offenses on May 19, 2016.
Trial Court Opinion, 2/21/18, at 1-2. We observe that the trial court’s opinion
at Commonwealth v. Barry-Gibbons, Erie County Docket No. 3148 of 2016,
includes an exhaustive recitation of the facts presented at the suppression
hearing that support the determination that the police possessed probable
cause to make a warrantless arrest, and we adopt that discussion as our own. 3
Barry-Gibbons Trial Court Opinion, 2/21/18, at 1-7. As the trial court
ultimately observed:
All of the three confidential informants were corroborated by the surveillance conducted by the police, who observed [Juan] and [Appellant] in action, starting from 1055 West 30 th Street to the designated meeting sites. Both [Juan] and [Appellant] had a house key to enter 1055 West 30th Street. [Juan] was a lessee at 1055 West 30th Street since July, 2015.
Barry-Gibbons Trial Court Opinion, 2/21/18, at 10.
The totality of the facts, within the knowledge of the police at the time
of the Appellant’s arrest, was sufficient to justify a person of reasonable
caution in believing that Appellant had committed a crime and was in the
process of proceeding to yet another drug transaction. Santiago, 736 A.2d
at 629-630. Therefore, the police possessed probable cause necessary to
permit the warrantless arrest of Appellant, and the suppression court properly
3 The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.
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denied Appellant’s motion to suppress. Hence, Appellant’s contrary argument
lacks merit.
In addition, with regard to Appellant’s allegation that there were no
exigent circumstances present to justify the warrantless arrest, the trial court
offered the following analysis, which we adopt as our own:
There were also exigent circumstances that justified the warrantless arrest of Appellant. At the time of his arrest on May 19, 2016, Appellant was likely en route to another sale of heroin to a confidential informant. As part of the undercover drug investigation of Appellant and [Juan], the police had a variety of contacts with customers of Appellant and his co-defendant. Some of these contacts were with admitted heroin addicts who were buying their heroin from Appellant and/or [Juan] but were not working as confidential informants with the Erie Police Department. These addicts were not arrested or taken into custody. Thus, the distinct possibility existed that these addicts would tip off the police investigation to Appellant and/or [Juan].
Coupled with these circumstances was the concern for the safety of the confidential informant who was about to engage in another buy from Appellant. If Appellant was arrested after this transaction, it would expose that confidential informant and place him/her in harm’s way.
Lt. Nolan described the events of May 19, 2016 and his reasons to act at that time:
“... another drug transaction was imminent, it was very likely they were en route to that transaction. So, based on everything – that’s why I went into the lengthy explanation - everything stacked up and led me to believe that there was probable cause at that point to take [Appellant] in custody, stop the vehicle and proceed with the investigation.
Q. Well, you had - - you were aware that through the investigation, they were trying to - - the confidential informant was trying to - - the confidential informant
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was trying to do controlled buys with [Appellant], right?
A. Yes.
Q. And is it your testimony that there were actual controlled buys done by [Appellant]?
Q. And so the reason why you would not allow this last controlled buy to move forward prior to making the traffic stop is what?
A. Because all of the informants in this case were fearful about these individuals. [Juan] was well known to have a prior murder conviction. So, they were fearful of being exposed as working with the police. They didn’t want to suffer any retaliation. So, we knew the 19th was the day this was all going to go down. The fact that [Appellant] was on the way to meet the informant, I didn’t want to let him get that close, because I didn’t want - - that would, to me, would reduce the likelihood that he would be able to clearly identify that that informant who ordered up those drugs had set him up. And, therefore, that was providing a layer of protection to the CI.
Pre-Trial Hearing Transcript p. 28-29.
Based on the foregoing explanation, there were exigent circumstances that necessitated the warrantless arrest of Appellant on May 19, 2016.
Trial Court Opinion, 2/21/18, at 2-3.
In summary, the police possessed probable cause necessary to permit
the warrantless arrest of Appellant, and attendant exigent circumstances were
present to justify the arrest. Therefore, the suppression court properly denied
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Appellant’s motion to suppress, and Appellant’s contrary argument lacks
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/26/2019
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COMMONWEALTH OF PENNSYLVANIA : 1N THE COURT OF COI\1MON PLEAS
v. : OF ERIE COUNTY, PENNSYLVANIA
STEPHEN BARRY-GIBBONS : DOCKET NO. 3148 OF 2016
RULE 1925 (A) OPlNION
The jury trial and sentencing in this matter were before a Senior Judge, the Honorable
Judge Michael E. Dunlavey. This Court presided over Appellant's pre-trial Motion to
Suppress.
� µ This Opinion addresses the challenge on appeal to the denial of Appellant's Mo�n to ("") Suppress. The remaining issues raised in Appellant's Concise Statement;l�tt� � . � ,., ri 3-? b3 ;,;: 0 waived and/or premature. ""tJ on N ..,, >-no ,__. nc :::o C10:Z -0 P1 IJ\ C --1 :::C ("? O::U-< ,_. --1 - •• 0 :::0 MOTION TO SUPPRESS v) u, CJl o <./i
In his written Motion to Suppress, Appellant argues there was not probable cause for
the issuance of the search warrant for Appellant's apartment.
An evidentiary hearing was held on April 19, 2017. The Commonwealth adduced the
testimony of Lieutenant Michael Nolan and Sargeant Michael Chodubski. The
Commonwealth introduced the search warrant in question, which was issued on May 19,
2016, with Sgt. Chodubski as the affiant.
Sgt. Chodubski has been an officer with the Erie Police Department since September,
1996 and a member of the Drug and Vice Unit since November, 2002. He has been involved
in at least 17 5 investigations of the trafficking of all forms of illegal drugs, including heroin
and cocaine.
� .-. .... . ,
.: Kl ' __.,,, \.. :-·J.. C/,1 As of the date of the suppression hearing, Lt. Nolan had been a police officer for the
City of Erie for 25 years, including the last 22 years with the Drug and Vice Unit. Lt. Nolan
was also the head of the Drug and Vice Unit. He has likewise been involved in hundreds of
investigations and arrests for drug offenses for all forms of illegal drugs. In sum, both officers
were seasoned, experienced investigators in the field of drug trafficking.
Lt. Nolan was involved in a prior investigation of Appellant. On January 3, 2007, Appellant was arrested by the Erie Drug and Vice Unit for various offenses related to his
possession of over 200 grams of cocaine and nearly 5 grams of heroin. Appellant was
convicted of felony drug offenses and a criminal conspiracy. Appellant was sentenced to 4 to
10 years of incarceration. This history was known to Lt. Nolan when the investigation of this
case unfolded.
On March 30, 2016, Sgt. Chodubski debriefed a person about his/her supplier of
heroin. This person, who would become Confidential Informant # I (CI I) in the search
warrant for this case, identified his/her supplier of heroin as "Juan". When shown a
photograph of Appellant , CI I positively identified Appellant as Juan, his/her heroin dealer.
Appe11ant informed CI 1 that he regularly travels to Detroit to get heroin and that he would
have a supply of heroin to sell whenever needed by CI 1. To contact him when CI I wanted to
buy heroin, Appellant provided two phone numbers, 865-440-3931 and/or 814-572-0836.
Appellant informed CI I that if he was out of town, he would give one of the two phones to a
person called "D", who could seJl Appellant heroin to CI I. "D" was described by CI I as a
tall, light-skinned male. Within the last two months, CI l bought heroin from Appellant
and/or "D" at least 15 times.
2 CI I was no stranger to the Erie Drug and Vice Unit. CI 1 had previously provided
information on at least 6 individuals involved in drug trafficking in the City of Erie and made
controlled buys for law enforcement in the past. According to Sgt. Chodubski, CI I has never
misled or provided false information in the past to law enforcement.
As a result of the March 30, 2016 conversation with Sgt. Chodubski, CI l agreed to
make a controlled buy from Appellant. However, at that time, Appellant was out of town so
CI 1 would make the buy from D. Thereafter a controHed buy was arranged. CI 1 was
searched and no drug contraband was found. CI 1 called 865-440-3931 and arranged a drug
buy with D, who directed CI l to meet him in the area of East 26th Street and East Avenue. CI
I was given buy money by the police. Surveillance was set up in the area and CI 1 was
observed by the police meeting with a tall, light-skinned male. A hand-to-hand exchange was
observed during a brief meeting between CI 1 and D. CI 1 met immediately afterwards with
the police and turned over the heroin purchased from D. No contraband or money was found
on CI 1. All of the events before, during and after the drug deal were observed by the constant
police surveillance of CI 1.
This same scenario was repeated on April 11, 2016. CI 1 told the police that Appellant
was still out of town. CI 1 called D at 865-440-3931 and was told to meet him at East 27th
and Perry Streets. All of the same police controls were in place and corroborated CI l's
purchase of heroin from D at that time.
On April 20, 2016, CI I informed Sgt. Chodubski that Appellant was in town so a
controlled buy could be arranged. This information was corroborated when CI I caUed 865-
440-3931 and Appellant answered the phone. Appellant informed CI 1 that he was shopping
at a nearby mall, the Millcreek Mall, and would call him when he was done. CI I's
3 information was corroborated when the police found Appellant shopping at the Millcreek
Mall. Thereafter the police kept Appellant under continual surveillance, including when he
left the mall driving a white Chrysler with an Ohio license plate that came back to a rental
company. There was a female passenger in Appellant's vehicle. Appellant drove from the
mall to his apartment at 1055 West 30th Street in the City of Erie. The two exited the Chrysler
and entered Appellant's apartment through the west side door of the building.
By that time, CI I was unavailable to make a controlled buy. Nonetheless, the police
kept Appellant's building under surveillance. Shortly, Appellant emerged alone from his
building, entered the white Chrysler and drove several blocks away, meeting with an
individual who was then unknown to the police. The individual met with Appellant briefly,
the two then parted ways. Appellant drove back to his apartment.
Unbeknownst to AppelJant, the individual who met with him was subsequently
stopped by the police, who inquired about the interaction with Appellant. The individual
provided a host of details about purchasing heroin from Appellant. This individual
subsequently became confidential informant #2 (Cl 2) in the search warrant in this case. CI 2
admitted that he/she had just bought heroin from Appellant. When shown a picture of
Appellant, CI 2 positively identified him as Juan, his/her supplier of heroin. CI 2 went on to
say that Juan had given a phone number of 865-440-3931 to call when heroin was needed. CI
2 stated that Juan leaves town often and told CI 2 that when he was unavailable, another male
would answer the phone and give instructions where to meet. Among the males CI 2 met to
buy heroin using the phone number provided by Appellant was a tall, light-skinned male.
Notably, all of the information provided by CI 2 independently corroborated all of the
information provided by CI 1, including Appellant's identity as Juan; Appellant's phone
4 number of 865-440-393 l - the same number as used for CI l's two prior buys from D; the
availability of heroin from a tall, light-skinned male if Appellant was out of town; and the
directions where to meet to consummate the deal.
In addition, CI 2 gave the police the name of "JB" as another black male CI 2 bought
heroin from in Appellant's absence using Appellant's phone number. The transactions
involving CI 2 and JB occurred on the west side of Erie, in the area of West 32nd and Cascade
Streets.
JB, whose identity was not then known to the police, would later become involved in
sales to CI 1 under the same scenario as described by CI 2. Upon his subsequent arrest, JB
would be identified as Franzora Smith, Appellant's co-defendant in this case.
On May 3, 2016, a controJJed buy was arranged through CI 1. At this time, CI I told
the police that Appellant was out of town so CI I was not sure who would be answering
Appellant's phone. CI I called 865-440-3931 and JB answered. Cl 1 informed the police JB is
believed to be Appellant's cousin. JB instructed CI 1 to meet him on the west side of Erie at
West 26th and Cranberry Streets. CI l was searched and no contraband was found. CI 1 was
given buy money. Surveillance was set up at Appellant's apartment at 1055 West 30th Street
and at the meeting site. A tall black male. identified by CI 1 as JB, was observed by the
surveillance team exiting the west side door of Appellant's building and walking to the area of
West 26th and Cranberry. There JB met with CI I and exchanged heroin for cash. JB was then
observed walking directly back to Appellant's apartment building at 1055 West 30th Street
and using a key to gain entrance through the west side door.
On May 11, 2016, another controJled buy occurred. Appellant was again out of town
but CI I was given a new number to call, to-wit: 814-806-6877. When CI l called this new
5 number, JB answered and directed CI l to again meet him in the area of West 26th and
Cranberry Streets. The same controls were utilized by the police. Surveillance was again in
place at Appellant's apartment, 1055 West 30th Street, and the meeting site. The police
observed JB leave the west side door of Appellant's apartment building, enter a tan Mercury
vehicle and drive to the meeting site. There, CI 1 entered JB's vehicle for a short time where
JB sold heroin to CI 1 using the EPD buy money.
After JB's sale of heroin to CI 1, the police continued surveillance of JB and observed
another individual enter JB's vehicle, stay for a short time, then exit. This individual was not
known to the police.
Once that individual was out of JB's sight, he/she was stopped by the police and
questioned about what just occurred inside the tan Mercury vehicle. This individual, who
became confidential informant #3 (CI 3) in the search warrant in this case, advised the police
that he/she was a heroin addict and that he/she had just bought heroin from the B/M in the tan
Mercury. CI 3 went on to relate that Appellant was the supplier of heroin. When shown
Appellant's picture, CI 3 positively identified the person therein as "Juan." According to CI
3, Juan transports heroin into Erie from Detroit and has other people selling it for him. Juan
gave CI 3 a phone number to call to buy heroin. If Juan was out of town, another person
would answer the phone and arrange where the deal would occur. CI 3 used Appellant's
phone number to buy heroin from a tall, light-skinned male in the area of East rr: and East
Avenue. CI 3 stated these sales used to occur on the east side of Erie, lately all of the
transactions have been on the west side of Erie.
Notably, the phone number CI 3 used to call Appellant was 814-806-6877, which is
the same number CI 1 was given and used for the May 11, 2016 controlled buy from JB on
6 the west side of Erie. During this latest transaction with JB, CI 3 was given a new number to
call for the next transaction, 920-371-1787. CI 3 believed this latest number was Juan's
personal phone number.
On May 19, 2016, CI 3 contacted Sgt. Chodubski and related that "Juan" had called
and was in town with a new supply of heroin. The police then set up surveillance at
Appellant's apartment at 1055 West 30th Street. Parked there was a silver Dodge Charger with a Michigan registration plate that came from a rental company. Around 4:20 p.m., the police
observed Appellant exit his apartment building alone, enter the silver Charger and drive to the
area of West 34th and Cascade Streets. A short time later, a white female entered Appellant's
vehicle and exited after several minutes. Appellant then drove off.
The white female was then stopped by the police and asked about her encounter with
Appellant. The woman admitted she was a heroin addict and that her supplier of heroin was
recently arrested. Her supplier gave the person she just met with her phone number. She was
then called on her phone from the number of920-371-1787 and told to meet at West 34° and 1
Cascade, where she would be fronted a quantity of heroin. When she saw a silver Charger pull
into the area, her phone rang. She got into the silver Charger and was provided 5 grams of
heroin for $500. This person told the white female that the quality of this heroin was not that
strong, but that he was going out of town for another supply of heroin. She then exited the
vehicle. Notably, Appellant was positively identified by the police surveillance team as the
driver/sole occupant of the silver Charger during the sale of heroin to the white female.
Also on May 19, 2016, Sgt. Chodubski spoke to the landlord for 1055 West 30th Street
and learned that Appellant signed a lease for the upstairs apartment in that building in July,
2015.
7 Based on the foregoing, there was a wealth of probable cause for the issuance of a
search warrant on Appellant's apartment at 1055 West 3011t Street on May 19, 2016. Given his
20 years of experience as a police officer, including 14 years working solely in the Drug and
Vice Unit, Sgt. Chodubski readily knew what was occurring. It was equally obvious to the
seasoned eyes of Lt. Nolan, who conducted a majority of the police surveillance in this case
and knew Appellant from Appellant's prior conviction for trafficking in cocaine and heroin in 2007.
One does not even need the experience and training of these officers to recognize what
was occurring. Very simply, Appellant was importing heroin into Erie from Detroit. He would
provide his customers with a phone number to call to buy heroin. The customer was directed
to meet at -a certain area of Erie. These transactions occurred in different areas to avoid
detection and so that the customers would not know where Appellant was keeping his supply
of heroin for security purposes. If Appellant was unavailable to sell when the customer would
call, Appellant had associates such as D or m sell heroin for him.
In order to stay ahead of police detection, Appellant's operation had to be mobile.
Hence, the drug deals were first occurring on the east side of Erie. Appellant was likely using
2710 East Avenue as a "stash" house, i.e. where he would hide his drug supply. Thereafter,
the deals were moved to the west side of Erie, where Appellant used 1055 West 3ot11 Street as
a stash house. At different times, Appellant and JB were seen leaving from 1055 West 30th
Street and not stopping at any other locations to pick up heroin prior to separate heroin sales
to CI 1, CI 3 and the white female. The phone numbers provided to customers by Appellant
were used for a limited time and then changed. The person providing the heroin would vary.
The person selling the heroin made the determination where the best place was to meet.
8 These conclusions are not whimsical or speculative. Instead, these conclusions are
based on the reliable information provided independently by four separate people. The first
person was CI I, who had a proven history of providing trustworthy information to the police.
CI I provided the factual basis for Appellant's entire operation. These details include
Appellant's street name as Juan; that Juan frequently goes to Detroit to re-supply with heroin
to sell in Erie; Juan provided a phone number to call to buy heroin; the phone number would
change; the call would be answered by Appellant or his subordinate D, later another
subordinate known as JB; the buyer would be directed to the meeting site, which was never at
Appellant's stash house.
All of the information provided by CI I from March 30, 2016 onward was
corroborated by CI 2 on April 11, 2016. CI 2 was a separate customer of Appellant. CI 2 had
no idea what information CI I had given to the police, yet CI 2 confirmed everything CI 1
previously provided to the police about Appellant's trafficking of heroin.
In turn, CI I and CI 2 were independently corroborated en toto by the information given by CI 3 on May 11, 2016. CI 3 was yet another customer of Appellant who had no idea
what CI I and CI 2 had told the police. Yet all three of these confidential informants
identified Appellant via a photograph as "Juan", their Detroit heroin dealer. Each confidential
informant separately outlined the same modus operandi of Juan, including the phone numbers
given by Appellant, the names of Appellant's associates and the manner in which the deals
were structured.
In addition, these three confidential informants were corroborated by the white female
heroin addict who bought heroin from Appellant on May 19, 2016 at West 34th and Cascade
Streets. This woman had no knowledge of what the three confidential informants told the
9 police. Yet, she admitted she bought heroin that day from Appellant, who called her from the
same number recently given to CI 3 on May 11, 2016. Appellant told her he gets his heroin
from Detroit.
All of the information provided by the three confidential informants and the white
female heroin addict was not only consistent, but current, starting March 30, 2016 through the
date of the search warrant on May 19, 2016.
All of the three confidential informants were corroborated by the surveillance
conducted by the police, who observed Appellant and JB in action, starting from 1055 West
30th Street to the designated meeting sites. Both Appe1lant and JB had a house key to enter
1055 West 301h Street. Appellant was a lessee at 1055 West 30tlt Street since July, 2015.
Appellant was driving a white Chrysler rental car with an Ohio license plate on April
20, 2016 in Erie. Appellant was next seen driving a silver Dodge Charger rental car with a
Michigan license plate on May 19, 2016 in Erie. To state the obvious, Detroit is located in
Michigan and Ohio is between Michigan and Pennsylvania. It is common for drug dealers to
insulate themselves from law enforcement by the use of various rental cars.
The police in this case were also acting on infonnation provided by at least one
concerned neighbor of 1055 West 30th Street, who observed activity that caused him/her to
report suspicious drug activity to the police.
To allege there was not probable cause for the search warrant issued on May 19, 2016
is to tum a blind eye to the reality of what was occurring. Accordingly, this is a baseless claim
on appeal.
IO ISSUES THAT ARE WAIVED
In Paragraphs 2 (a-c) of his Concise Statement of Matters Complained of On Appeal,
Appellant raises suppression issues that were not preserved in his Motion to Suppress.
Specifically, for the first time, Appellant claims that all evidence seized after his alleged
illegal arrest should be suppressed. Paragraph 2(a). Likewise, Appellant now contends it was
error in "failing to suppress all evidence seized from Appellant's vehicle without probable cause to secure a search warrant." Paragraph 2(b). Thirdly, Appellant argues it was error not
to grant suppression because 1055 West 30th Street was "searched prior to obtaining probable
cause to secure a search warrant." Paragraph 2(c).
These issues were not raised or preserved in Appellant's written Motion to Suppress as
filed on December 30, 2016. Accordingly, these issues were not raised or addressed at the
suppression hearing held in this matter on April 19, 2017. Hence these issues were not
preserved for appeal and are waived.
To the extent Paragraph 2(c) can be construed as a challenge to the probable cause for
the search warrant, that issue has not been waived. However, it has been exhaustively
examined in the preceding section.
11 PREMATURE ISSUES
The remaining issues in Appellant's Concise Statement of Matters allege various claims of ineffective assistance of trial counsel. These claims cannot be addressed based on the
existing record. Accordingly these claims are premature and can be raised as part of a petition
for relief under the Post Conviction Relief Act.
BY THE COURT:
I
GHAM, JUDGE
cc: District Attorney's Office Stephen Barry-Gibbons JS2304, SCI Huntingdon, 1100 Pike Street, Huntingdon PA 16654-1112