Commonwealth v. Otterson

947 A.2d 1239, 2008 Pa. Super. 85, 2008 Pa. Super. LEXIS 641
CourtSuperior Court of Pennsylvania
DecidedApril 29, 2008
Docket1968 EDA 2006
StatusPublished
Cited by19 cases

This text of 947 A.2d 1239 (Commonwealth v. Otterson) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Otterson, 947 A.2d 1239, 2008 Pa. Super. 85, 2008 Pa. Super. LEXIS 641 (Pa. Ct. App. 2008).

Opinion

OPINION BY

LALLY-GREEN, J.:

¶ 1 Appellant Patrick H. Otterson appeals from the judgment of sentence entered on July 20, 2006, in the Court of Common Pleas of Montgomery County, following his conviction for possession with intent to deliver (“PWID”) marijuana, 1 violation of the Uniform Firearms Act, 2 and related offenses. This case is before us once again on remand from our Supreme Court. We affirm.

¶ 2 The relevant facts and procedural history of this case were fully set forth in the trial court opinion as follows:

On March 30, 2006, [Appellant] was convicted of three separate Bills of Informa *1241 tion for violation of the Controlled Substance, Drug, Device, and Cosmetic Acts (the “Drug Act”) and for possession of a firearm. The main Bill charged three counts of violation of the Drug Act for possession and manufacture of marijuana plants between October 27, 2004[,] and October 29, 2004[,] at 420 West Warren Street, Norristown, Montgomery County, Pennsylvania (hereinafter, the “Warren Street property”). Bill of Information 9849.1 charged the same counts for possession and manufacture of marijuana plants between October 29, 2004[,] and October 80, 2004[,] at 1202-1208 Sterigere Street, Norristown, Montgomery County, Pennsylvania (hereinafter, the “Sterigere Street property”). Bill of Information 9849.2 charged [Appellant] with the same three counts for continuous manufacture and possession of marijuana plants between March 5, 2003[,] and October 30, 2004[,] at both the Sterigere Street property and the Warren Street property. These convictions were the result of events that took place between October 27 and October 30, 2004.
On October 27, 2004, Officer Eugene Parsley of the Norristown Police Department executed a search warrant on the Warren Street property. As a result of the search, the police seized 64 marijuana plants, hydroponic lamps, two light timers, a timer for an air conditioner, duct work, and filter and fluorescent lights, among other items. The Affidavit of Probable Cause executed by Officer Parsley may be summarized as follows:
On August 31, 2004, Detective Michael Altieri of the Montgomery County Narcotics Enforcement Team received information from Upper Moreland Police Detective James Kelly that a confidential source provided him with information that the Warren Street property was abandoned, and that there was marijuana growing inside the residence at that location. The confidential source stated that he/she has seen marijuana plants growing in pots on the first floor inside that residence;
On August 31, 2004, Detective Altieri went to the Warren Street property to corroborate the information from Detective Kelly. It appeared that the property was locked up; the windows were all covered; and an air conditioner was running on the second floor, front;
A resident of the 400-block of West Warren Street told Detective Altieri that a white male lives at the Warren Street property on a part-time basis; that he drives a silver pick-up truck; only arrives once a week, stays for a couple of hours and then leaves; Periodic checks of the property by the police revealed that the lights on the first floor stayed on all night. A check of the entire neighborhood by the police failed to locate the pick-up truck;
The detective learned that [Appellant] is the lessee of 420 West [Warren] Street, Norristown, Pennsylvania, and that [Appellant] had been arrested in the past for possession of a small amount of marijuana;
On September 14, 2004, an anonymous female called the Norristown Police to report that marijuana was being grown inside the Warren Street property; that no one lives there, and that it was just a “front.” In response to the call, Officer Christopher Narkin went to the location and observed that the residence was locked up, and the windows were covered so no one could see inside. He reported his findings to Detective Altieri because he felt that there was something suspicious *1242 about how the residence was covered up;
On September 16, 2004, a second anonymous female called Detective Altieri and stated that marijuana was growing inside the Warren Street property. She said that a white male arrives about once a week and removes large trash bags from the residence under the cover of darkness and loads them onto his pick-up truck, that the air conditioners and lights operate on a timer, and that the man does not live there. She also said that one of the neighbors has seen marijuana growing on the first floor and that she and the neighbors feared for their safety and preferred to remain anonymous for this reason;
Periodic checks of the property by the investigating police officers during the month prior to the issuance of the search warrant on October 27, 2004[,] failed to reveal any sign of [Appellant] or the pick-up truck. Yet, the lights were seen to be always lit on the first floor, the windows and doors were covered up and the air conditioner was running on the second floor, even in extremely cool weather.
On October 8, 2004, [the trial court] issued a sealed search warrant for the use of a thermal imaging device at the Warren Street property.
On October 12, 2004, the thermal imaging scan was conducted, but due to the cold weather conditions (surrounding properties had their heat on), an accurate reading could not be obtained. Two air conditioners on the second floor were running, despite the cold weather;
On October 27, 2004, Detective Jeffrey Koch reported to Detective Alti-eri that an unknown female had telephoned the Drug Tip Hotline and left a message that marijuana was growing inside the Warren Street property; that no one lives there; that a suspicious male goes to the residence periodically; and that the neighbors have smelled strange odors emanating from the property;
On October 27, 2004, Officer Parsley and Detective Altieri spoke to a confidential informant who told them that he/she smelled the strong odor of “skunk weed” or “homegrown” marijuana coming from the Warren Street property;
On October 27, 2004, Officer Parsley and Detective Altieri also spoke to another confidential informant who reported that he/she personally had seen marijuana growing inside the Warren Street property. This person also said that, after the police began to investigate the property in late August, the occupant appeared to clear up the overgrown weeds and also covered the windows more thoroughly so no one could see inside. The confidential informant also said the air conditioners still go on every night, even with the cold weather;
Both confidential informants said that the occupant only comes to the residence periodically and that he “hasn’t been seen there since last week.”
While the officers were executing the search warrant at the Warren Street property, [Appellant] arrived.

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Bluebook (online)
947 A.2d 1239, 2008 Pa. Super. 85, 2008 Pa. Super. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-otterson-pasuperct-2008.