Com. v. Wright, X.

• Court: Superior Court of Pennsylvania
• Decided: May 20, 2019
• Docket: 1529 MDA 2018
• Status: Unpublished

Opinion

J-S16037-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : XAVIER CHRISTOPHER WRIGHT, : : Appellant : No. 1529 MDA 2018

Appeal from the Judgment of Sentence Entered September 5, 2018 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005578-2017

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: MAY 20, 2019

Xavier Christopher Wright (“Wright”) appeals from the judgment of

sentence imposed following his conviction of persons not to possess firearms

and altering or obliterating marks of identification.1 We affirm.

Pennsylvania Board of Probation and Parole Agent Matthew Fleming

(“Agent Fleming”) had been supervising Wright since approximately July

2017. At some time prior to September 28, 2017, Agent Fleming received

information from another parole agent that Wright was in possession of a

firearm and drugs. Agent Fleming subsequently obtained his supervisor’s

approval to search Wright’s residence.2 On September 28, 2017, Wright ____________________________________________

1 18 Pa.C.S.A. §§ 6105, 6117.

2 At the time Agent Fleming received the tip and obtained approval to search, Wright was residing at 666 Schuylkill Street in Harrisburg, Pennsylvania. However, because Wright had told Agent Fleming that he was in the process of moving, Agent Fleming did not conduct the search until after Wright had relocated to 1611 Boas Street in Harrisburg. J-S16037-19

reported to the parole office for his regular weekly visit. Agent Fleming

detained Wright, and informed Wright that he had reason to believe that his

residence contained evidence of parole violations.

Agent Fleming and other parole agents then transported Wright to his

residence at 1611 Boas Street. After securing the residence, the agents

brought Wright inside and conducted a search in his presence. The agents

found a digital scale, as well as a handgun. Upon finding the handgun, the

agents called the Harrisburg City Police for assistance. Harrisburg City Police

Officer Anthony Fiore provided Wright with Miranda3 warnings, after which

Wright gave the police consent to search the remainder of his apartment. The

police search revealed no additional contraband. Wright was subsequently

arrested and charged with the above-mentioned crimes.

On April 5, 2018, Wright filed an Omnibus Pre-Trial Motion, including a

Motion to suppress evidence recovered from his apartment during the search

by the parole agents. Wright asserted that the search was unsupported by

reasonable suspicion, and that he did not consent to the search. The

suppression court conducted a hearing, after which the court directed the

parties to file post-hearing briefs. The suppression court denied Wright’s

Omnibus Pre-Trial Motion on July 30, 2018.

Following a bench trial, Wright was convicted of persons not to possess

firearms and altering or obliterating marks of identification. The trial court

____________________________________________

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

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sentenced Wright to an aggregate term of 48 to 120 months in prison, with

credit for time served, plus fines and costs. Wright filed a timely Notice of

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

Wright now raises the following claim for our review:

Whether the [suppression] court erred in denying [Wright’s] [M]otion to suppress evidence[,] where [parole] officers conducted a warrantless search of 1611 Boas Street in Harrisburg, Pennsylvania, without reasonable suspicion that a [parole] violation had taken place at said address, in violation of Article I, Section 8 of the Pennsylvania Constitution[,] and the Fourth Amendment to the United States Constitution?

Brief for Appellant at 5.

We adhere to the following standard of review:

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court’s factual findings and legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for 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, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation

omitted).

Wright claims that the suppression court erred in denying his Motion to

suppress, because the search of his apartment by parole agents was

unsupported by reasonable suspicion. See Brief for Appellant at 12-18.

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According to Wright, Agent Fleming received the tip that Wright possessed

contraband at least 20 days prior to the search.4 Id. at 16, 17. Additionally,

Wright argues that the information was “outdated and stale” because Agent

Fleming received the tip while Wright was still residing at 666 Schuylkill Street.

Id. at 16. Wright asserts that because he moved to a new residence, further

investigation was required to determine whether the tip was still valid. Id. at

17. Further, Wright claims that his alleged consent to search the residence is

“immaterial,” because Agent Fleming lacked reasonable suspicion to place him

in custody. Id. at 18.

“It is well settled that in exchange for early release from prison, the

parolee cedes away certain constitutional protections enjoyed by the populace

in general.” Commonwealth v. Murray, 174 A.3d 1147, 1155 (Pa. Super.

2017) (citation, quotation marks and brackets omitted); see also 61

Pa.C.S.A. § 6153(a) (explaining that the purpose of parole “is to assist the

offenders in their rehabilitation and reassimilation into the community and to

protect the public.”). Thus, a parole officer is not required to obtain a warrant

based on probable cause before conducting a parole search. Commonwealth

v. Gould, 187 A.3d 927, 935 (Pa. Super. 2018). Instead, a parole agent may

conduct a property search of an offender “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 ____________________________________________

4 It is not clear from the certified record exactly when Agent Fleming received this information from the other parole agent.

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conditions of supervision.” 42 Pa.C.S.A. § 6153(d)(2); see also Murray, 174

A.3d at 1155 (explaining that reasonable suspicion is sufficient for parole

searches due to the assumption that a parolee is more likely to violate the

law).

“[A] search of a parolee’s property will be deemed reasonable if the

evidence shows that: (1) the parole officer had reasonable suspicion that the

parolee committed a parole violation; and (2) the search was reasonably

related to the parole officer’s duty.” Murray, 174 A.3d at 1155-56.

Additionally, section 6153(d)(6) provides that “[t]he existence of reasonable

suspicion to search shall be determined in accordance with constitutional

search and seizure provisions as applied by judicial decision[,]” and allows

courts to consider, inter alia, “[i]nformation provided by others.” 42 Pa.C.S.A.

§ 6153(d)(6), (d)(6)(ii). Additionally, in order to establish reasonable

suspicion, a parole agent need not personally observe the appellant engage in

illegal activity or suspicious conduct. Commonwealth v. Altadonna, 817

A.2d 1145, 1152 (Pa. Super. 2003). “[Parole agents] may rely upon

information from third parties in order to form reasonable suspicion.” Id.;

see also 42 Pa.C.S.A. § 6153(d)(6)(ii).

In its Order denying Wright’s Omnibus Pre-Trial Motion, the suppression

court considered Wright’s claim, and concluded that the search of Wright’s

residence was supported by reasonable suspicion. See Suppression Court

Order, 7/30/18, at 2-3. Specifically, the suppression court concluded that

Agent Fleming possessed reasonable suspicion to search Wright’s apartment

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based on the information he received from the other parole agent, Wright’s

indication that his previous residence had been burglarized, and the

information that Wright’s drugs and firearm were stolen from the first

residence. See id.

The suppression court’s findings are supported by the evidence

presented at the suppression hearing. At the suppression hearing, Agent

Fleming testified that he had been supervising Wright since approximately July

2017. See N.T., 5/14/18, at 4-5. Agent Fleming testified that during a

telephone conversation with another parole agent, he received information

that Wright was in possession of a firearm and drugs. See id. at 5; see also

id. at 11 (testifying that the parole agent received the tip from another

offender). Based on the parole agent’s tip, Agent Fleming spoke with his

supervisor, and obtained approval to search Wright’s residence. See id. at 6;

see also id. at 6, 11-12 (wherein Agent Fleming stated that at the time he

obtained approval for the search, Wright was residing at 666 Schuylkill

Street). Agent Fleming testified that he did not immediately proceed with the

search, because Wright had told Agent Fleming during a visit that he was in

the process of changing residences after his room was burglarized. See id.

at 12; see also id. (wherein Agent Fleming stated that a few days later, he

received a call informing him that Wright’s “room was burglarized and his

drugs and firearm were stolen….”). Based on this information, and after

conferring with his supervisor, Agent Fleming determined that “the tip was

accurate and worth investigating.” Id.

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On September 28, 2017, Wright reported to the parole office for his

regularly scheduled weekly visit. See id. at 6-8; see also id. at 7 (wherein

Agent Fleming explained that Wright had been given weekly reporting

instructions after providing a urine sample that tested positive for PCP). Agent

Fleming testified that he detained Wright when he arrived at the parole office.

See id. at 7. According to Agent Fleming, he explained to Wright that he had

reason to believe that Wright’s residence contained evidence of parole

violations, and that he would like to search the residence. See id. Agent

Fleming testified that he asked Wright for permission to search the residence,

and Wright freely consented. See id. at 7, 9.

Thereafter, Agent Fleming, and “at least three” other parole agents,

transported Wright to his residence at 1611 Boas Street and secured the

apartment. Id. at 6, 9, 10; see also id. at 14 (wherein Agent Fleming

testified that he used Wright’s key to enter the residence). Additionally, Agent

Fleming stated that he told Wright to have a seat, and he and the other agents

conducted their search in Wright’s presence. See id. at 9. Agent Fleming

testified that the agents found a digital scale, as well as a firearm. See id.

Agent Fleming stated that he and the other agents stopped the search

immediately after finding the firearm, and called the police to request

assistance. See id.

Upon review, we conclude that the evidence of record supports the trial

court’s factual findings. See Arnold, 932 A.2d at 145. Agent Fleming

received a tip from another parole agent that Wright was in possession of a

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firearm and drugs. The parole agent had obtained this information from an

offender he was supervising at the time. See Altadonna, 817 A.2d at 1152

(concluding that reliance on information from parolee-informant was

reasonable, despite a lack of testimony regarding his reliability, because the

parolee-informant would have placed himself at risk had he given false

information). Based on this information, Agent Fleming obtained his

supervisor’s approval to search Wright’s residence. See 42 Pa.C.S.A.

§ 6235(d)(3) (providing that “[p]rior approval of a supervisor shall be

obtained for a property search absence exigent circumstances.”). Although

Agent Fleming did not immediately conduct the search (instead waiting until

Wright had relocated to the 1611 Boas Street residence), we do not agree

with Wright’s assertion that the delay rendered the information “outdated and

stale,” particularly in light of the information Agent Fleming later received that

drugs and a firearm had been stolen from Wright’s 666 Schuylkill Street

residence. Thus, based on the totality of the circumstances, we discern no

error in the suppression court’s determination that Agent Fleming had

reasonable suspicion to believe that Wright had committed a parole violation.

See Murray, 174 A.3d at 1155-56; see also Arnold, 932 A.2d at 145.

Moreover, we note that Wright consented to Agent Fleming’s search of his

residence, and there is no indication from the record that Wright’s consent

was the result of duress or coercion. See generally Commonwealth v.

Smith, 77 A.3d 562, 568-69 (Pa. 2013) (stating that the validity of consent

to searches and seizures must be evaluated under the totality of the

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circumstances to determine whether the consent was the result of a free and

unconstrained choice). Therefore, Wright is not entitled to relief on his claim.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/20/2019

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