Com. v. Styer, T.

• Court: Superior Court of Pennsylvania
• Decided: July 23, 2021
• Docket: 932 EDA 2020
• Status: Unpublished

Opinion

J-S18036-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TREMAYNE STYER : : Appellant : No. 932 EDA 2020

Appeal from the Judgment of Sentence Entered February 20, 2020 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000318-2019

BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JULY 23, 2021

Appellant, Tremayne Styer, appeals from the judgment of sentence

imposed following his convictions of persons not to possess a firearm and

firearms not to be carried without a license.1 For the reasons set forth

below, we affirm Appellant’s convictions but vacate his judgment of sentence

and remand for resentencing.

On December 5, 2018, a confidential informant working with the

Chester County Multijurisdictional Drug Task Force arranged to purchase $80

of crack cocaine from Ahmad Boggs. The informant and Boggs met in the

parking lot of a convenience store in Thorndale, Pennsylvania, and the

informant entered the rear seat of a Black Cadillac SUV to complete the ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 6105(a)(1) and 6106(a)(1), respectively. J-S18036-21

purchase. After the informant stepped out of the vehicle, officers converged

and ordered the three occupants of the SUV to exit. Appellant exited from

the driver’s seat of the vehicle, and he was handcuffed by a police officer.

While patting Appellant down, the officer discovered a loaded 9 millimeter

handgun in Appellant’s left jacket pocket.

A preliminary hearing was held on January 23, 2019, and the charges

were held over for trial.2 On August 27, 2019, Appellant filed an omnibus

pre-trial motion, in which he sought the suppression of evidence obtained

through the search conducted at the time of his arrest. Following a hearing

on October 10, 2019, the trial court entered an order denying the motion.

On January 6, 2020, Appellant proceeded to a non-jury trial based

upon stipulated facts. The trial court found Appellant guilty of both firearms

offenses. On February 20, 2020, the trial court sentenced Appellant to 7½

years to 14 years of imprisonment on the persons not to possess a firearm

count and a concurrent term of 3½ to 7 years of imprisonment on the

firearms not to be carried without a license count. Appellant filed a timely

appeal.3

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2 Appellant was also initially charged with conspiracy to commit possession of a controlled substance with intent to deliver, 18 Pa.C.S. § 903(a), and possession of drug paraphernalia with intent to deliver, 35 P.S. § 780- 113(a)(33), but these charges were withdrawn prior to trial. 3 Appellant filed his concise statement of errors complained of on appeal on

July 7, 2020, and the trial court filed an opinion on December 28, 2020.

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Appellant raises two issues on appeal. First, he argues that the trial

court erred in denying his suppression motion because the officers did not

have any basis to arrest or search him when there was no evidence that he

was involved in any illegal conduct. Second, Appellant argues that the

sentence imposed as to the persons not to possess a firearm offense was

illegal because the minimum sentence exceeded one-half of the maximum

sentence.

We first address Appellant’s suppression issue. Appellant contends

that the record at the suppression hearing revealed that his arrest and

subsequent search incident to arrest was not supported by probable cause

as he was merely present at the scene of a crime rather than an active

participant in a criminal act. Appellant asserts that, while there was

justification to ask him to exit the vehicle, the officers on the Chester County

Multijurisdictional Drug Task Force were investigating the activities of Boggs

and were not aware of any facts connecting Appellant to the distribution of

drugs or any other illegal activity. Instead, the officers’ observations only

revealed that Appellant was the driver of a vehicle from which Boggs sold a

controlled substance to the confidential informant. According to Appellant,

any conclusion that the officers may have reached that he was aware of the

drug sale between Boggs and the confidential informant was speculative and

did not rise to the level of probable cause of criminality.

Our standard of review of a trial court’s ruling on a suppression motion

is “whether the factual findings are supported by the record and whether the

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legal conclusions drawn from those facts are correct.” Commonwealth v.

Rosario, 248 A.3d 599, 607 (Pa. Super. 2021) (citation omitted). We are

bound by the facts found by the trial court so long as they are supported by

the record, and we review its legal conclusions de novo. Id. at 607-08. The

trial court has sole authority to pass on the credibility of witnesses and the

weight to be given to their testimony. Id. at 608. “Our scope of review is

limited to the record developed at the suppression hearing, considering the

evidence presented by the Commonwealth as the prevailing party and any

uncontradicted evidence presented by the defendant.” Commonwealth v.

Kane, 210 A.3d 324, 329 (Pa. Super. 2019) (citation and brackets omitted).

Under the Fourth Amendment, searches and seizures without a

warrant are presumptively unreasonable. Commonwealth v. Wilmer, 194

A.3d 564, 567 (Pa. 2018). Law enforcement officers generally must have a

warrant to arrest an individual in a public place, but they may conduct a

warrantless arrest when they have probable cause to believe that a felony

has been committed and the person to be arrested is the felon.

Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014). Once an officer

conducts a valid warrantless arrest, he may conduct a search incident to the

arrest to remove weapons or potential evidence from the arrestee’s person.

Wilmer, 194 A.3d at 568 n.7; Commonwealth v. Simonson, 148 A.3d

792, 799 (Pa. Super. 2016) (noting that the search incident to arrest

exception to the warrant requirement applies categorically and no case-by-

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case analysis is necessary regarding whether the particular arrestee may be

in possession of weapons or evidence).

We employ a totality-of-the-circumstances test when determining

whether probable cause exists to support a warrantless arrest. Martin, 101

A.3d at 721. “Probable cause exists where the facts and circumstances

within the officer’s knowledge are sufficient to warrant a person of

reasonable caution in the belief that an offense has been or is being

committed[.]” Id. (citation omitted).

Probable cause is made out when the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. The question we ask is not whether the officer’s belief was correct or more likely true than false. Rather, we require only a probability, and not a prima facie showing, of criminal activity.

Id. (citation omitted; emphasis in original). While the location of an

individual in relation to a criminal act may be relevant in the probable cause

inquiry, mere presence at the scene of a crime is not sufficient to establish

probable cause for an arrest. Commonwealth v. Reece, 263 A.2d 463,

466 (Pa. 1970); Commonwealth v. Wilson, 631 A.2d 1356, 1359 (Pa.

Super. 1993).

At the suppression hearing, the parties relied upon the record

developed at the January 23, 2019 preliminary hearing. N.T., 10/10/19, at

2. At the preliminary hearing, Officer Brandon Seibert of the Downingtown

Borough Police Department testified that on or around November 22, 2018,

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he was in contact with a confidential informant who had identified Boggs as

a crack cocaine dealer. N.T., 1/23/19, at 10-11. The officers arranged for

the informant to make a “controlled buy” of $80 worth of crack cocaine from

Boggs in the parking lot of a convenience store in Thorndale. Id. at 12-13,

23-24. Boggs arrived at the location in a Black Cadillac SUV registered to

Timothy Chaffin, and the informant entered the vehicle to complete the

purchase. Id. at 13-14. After the purchase, the informant gave the

substance he had bought to Officer Seibert, who determined based on his

experience that it was consistent with crack cocaine. Id. at 14-16. The

informant was under constant surveillance throughout the purchase. Id. at

26.

On December 5, 2018, Officer Seibert arranged for the confidential

informant to make a second controlled buy of $80 worth of crack cocaine

from Boggs. Id. at 16-17, 28. The second purchase occurred in the parking

lot of the same convenience store as the first one. Id. at 17, 23-24. Boggs

arrived in the same Black Cadillac SUV as he had for the earlier transaction.

Id. at 18, 28-29. The informant entered into the left rear door of the SUV;

Appellant was seated in the driver’s seat of the vehicle, Boggs was in the

front passenger seat, and Newton was in the rear of the vehicle. Id. at 18-

19, 37. The informant successfully completed the purchase of drugs from

Boggs and exited the vehicle. Id. at 19, 30-31. Within seconds of the

informant getting out of the SUV, “assisting officers [] move[d] in and t[ook]

the vehicle down.” Id. at 19, 33. The officer who removed Appellant from

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the driver’s seat of the vehicle searched him and found the handgun in his

left front jacket pocket. Id. at 19, 35.

In denying the suppression motion, the trial court observed that

officers had reason to believe that Appellant was performing an essential

role in the drug dealing operation, as the “wheelman” who drove the dealer

to the location of the sale. N.T., 10/10/19, at 5-7. The trial court explained

that he was “okay with [the arrest and search in] this particular case

because you have the driver of a car in a drug deal and [the officers]

watched the drug deal go down.” Id. at 8-9. The trial court concluded that

the officers therefore had probable cause to arrest Appellant and search him.

Id. at 9.

Upon review, we conclude that the trial court’s findings that the

officers reasonably believed that Appellant had a role in Boggs’s drug dealing

enterprise are supported by the record. The confidential informant working

with police identified Boggs as a dealer of crack cocaine, which was

corroborated when the informant purchased a substance from Boggs that

appeared to be crack cocaine a few weeks prior. See Commonwealth v.

Gagliardi, 128 A.3d 790, 795-96 (Pa. Super. 2015) (noting that a

confidential informant may be considered a trustworthy source of

information where a prior tip has been independently corroborated, such as

where the informant previously stated that he could purchase drugs from a

particular individual and then consummated a controlled buy from that

individual). Officers then set up a second controlled buy in December 2019,

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and Boggs arrived in the same Black Cadillac SUV to the same location

where the first transaction took place. The officers thus could reasonably

believe based on the facts and circumstances within their knowledge that

there was a “probability” that Appellant was involved in the delivery of a

controlled substance as the “driver” or “wheelman” for the operation. N.T.,

10/10/19, at 6, 8; Martin, 101 A.3d at 721 (emphasis omitted).4

Moreover, we reject Appellant’s contention that the officers lacked

probable cause based on his “mere presence” at the scene where they had

no foreknowledge of his involvement in criminality. Reece, 263 A.2d at

466. Appellant was not merely present at the scene, but rather he drove a

known drug dealer to the location of a pre-arranged sale of a controlled

substance. Appellant also remained in the vehicle while the drug transaction

took place. This matter is thus distinguishable from cases where the courts

of this Commonwealth have found that police lacked probable cause to

effectuate an arrest or search over people they merely encountered in the

4 Appellant’s challenge to the denial of suppression motion does not rest on

the fact that his arresting officer did not testify at the preliminary hearing. However, we observe that the facts and circumstances known to Officer Seibert may be imputed to the arresting officer as the record is clear that the officers were working together as a coordinated team for the purposes of this investigation. See Commonwealth v. Yong, 177 A.3d 876, 888-90 (Pa. 2018) (holding that when officers are working closely as a team, and one of them has probable cause to arrest an individual, that knowledge can be imputed to the officer who makes the arrest even without evidence that the information was actually conveyed).

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vicinity of criminal activity. Cf. Reece, 263 A.2d at 465-66 (holding that

police lacked probable cause to arrest and search individual who showed up

at an apartment where a “pot party” was expected to occur); Wilson, 631

A.2d at 1359 (holding that officers executing search warrant at drug house

lacked probable cause to arrest and search the defendant based upon his

mere presence in the house and his flight from the officers). Accordingly,

we conclude that the trial court properly denied the suppression motion.

Next, Appellant argues that his sentence on the persons not to possess

a firearm count was illegal under the Sentencing Code because the minimum

of 7½ years was greater than one half of the maximum imposed of 14 years.

A claim that a sentence is illegal presents a pure question of law as to which

our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Derrickson, 242 A.3d 667, 673 (Pa. Super. 2020).

Section 9756(b)(1) of the Sentencing Code provides that the sentencing

court “shall impose a minimum sentence of confinement which shall not

exceed one-half of the maximum sentence imposed.” 42 Pa.C.S. §

9756(b)(1). This provision of the Sentencing Code is mandatory, and any

sentence in derogation of this provision is illegal unless specifically

authorized by statute. Commonwealth v. Postie, 110 A.3d 1034, 1044

(Pa. Super. 2015); Commonwealth v. Van Fossen, 749 A.2d 510, 510

(Pa. Super. 2000).

In the instant matter, the trial court imposed a minimum sentence of

7½ years on the persons not to possess a firearm count, which was greater

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than half of the maximum sentence of 14 years. No justification was offered

for the illegal sentence, and indeed the trial court acknowledged its error

and requested that this Court remand this matter for resentencing. Trial

Court Opinion, 12/28/20, at 4. Therefore, we agree with Appellant that his

sentence for persons not to possess a firearm was illegal. See 42 Pa.C.S. §

9756(b)(1).

Accordingly, we affirm Appellant’s convictions but vacate the February

20, 2020 judgment of sentence and remand this matter to the trial court for

resentencing. See Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa.

Super. 1999) (holding that if a trial court errs in sentencing on one count in

a multi-count case, then all sentences for all counts must be vacated).

Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/23/2021

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