Opinion
J-A25003-19 No. 1960 MDA 2018
02-24-2020
COMMONWEALTH OF PENNSYLVANIA Appellee v. DURON HAROLD SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 31, 2018
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0004080-2017 BEFORE: STABILE, McLAUGHLIN, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
Appellant Duron Harold Smith appeals from the October 31, 2018 judgment of sentence entered in the Court of Common Pleas of Dauphin County ("trial court"), following his jury convictions for possession with intent to deliver ("PWID") a controlled substance (crack cocaine), and possession of drug paraphernalia. Upon careful review, we affirm.
35 P.S. § 780-113(a)(30), (32), respectively.
On June 24, 2017, Detective Nicholas Ishman, Harrisburg Police Department, charged Appellant with the foregoing crimes. In his affidavit companying the criminal complaint, Detective Ishman stated that, on June 23, 2017:
[Appellant] was taken into custody by State Parole Agent Allen Shipley [("Officer Shipley")] for parole violations. [Appellant] was removed from a vehicle that was parked in front of [Appellant's] residence of 1901 Boas Street, in the City of Harrisburg,
Pennsylvania. On [Appellant's] seat was a green Crown Royal Bag containing a large amount of suspected crack cocaine and [a] digital scale. Search incident to arrest produced 2 cell phones and $1237 in US currency.Affidavit of Probable Cause, 6/24/17. The charges were held for court. On November 16, 2017, Detective Ishman applied for and obtained a warrant to search the two cell phones. On January 11, 2018, Appellant filed an omnibus pre-trial motion ("First Suppression Motion"), alleging that Officer Shipley's search and seizure of the vehicle violated both the federal and Pennsylvania constitutions and, consequently, seeking the suppression of all evidence obtained from the alleged illegal search.
In Commonwealth v. Fulton , 179 A.3d 475 (Pa. 2018), our Supreme Court cautioned that "if a member of law enforcement wishes to obtain information from a cell phone, get a warrant. The failure to do so [violates a defendant's] rights under the Fourth Amendment to the United States Constitution." Id. at 489. This requirement, however, does not apply to parolees. As detailed infra , we specifically have held that a warrantless search of cell phone is proper when the search involves a parolee and the parole officer has reasonable suspicion to believe there was a violation of parole. See Commonwealth v. Murray , 174 A.3d 1147, 1156 (Pa. Super. 2017), appeal denied , 187 A.3d 204 (Pa. 2018).
On January 22, 2018, the trial court held a hearing on the First Suppression Motion, at which the Commonwealth offered the testimony of Officer Shipley. He testified that he has been employed with the State Board of Probation and Parole since 2013, but has worked as a parole officer since 2005. N.T. Hearing, 1/22/18 at 4. Describing his duties as a state parole officer, Officer Shipley testified "I am currently assigned to the Harrisburg City Street Crimes Unit. With that unit, I supervise cases that are high risk offender cases, maximum supervision, those with criminal histories that include but not limited to firearms, drug sales, robberies, violent crimes." Id. With respect to his interaction with parolees, Officer Shipley stated:
my caseload is relatively small in order to make sufficient contacts with a maximum level. And those parolees that are at maximum level need to be seen twice a month, two—two face-to-face contacts a month. One I usually see in the office; the second I usually see out at their home, at their residence.Id. at 5. Officer Shipley testified that, in June 2017, he was supervising Appellant, who was on parole for a PWID conviction in Dauphin County. Id. at 5-6. Officer Shipley specifically recalled an encounter with Appellant on June 18, 2017 that occurred between 7:00 and 9:00 p.m. Id. at 6. He testified:
I observed [Appellant] getting into a vehicle, the passenger's side of a vehicle. I observed that vehicle then complete a U-turn in the middle of the street, and then it pulled up on the side of - the side entrance to 1901 Boas Street. And then I saw [Appellant] quickly get out of the vehicle. At that time he was with a female who also quickly exited the vehicle. I asked my police partner at that if - and I don't - like, I have to refer to my notes, but I do have who my partner was at the time of that incident - that I would like to make contact with [Appellant]. We subsequently pulled behind the vehicle. I made contact with [Appellant] at the - at the side of the house.Id. at 7 (sic). Describing his observations of Appellant, Officer Shipley stated:
At that time he smelled of alcohol. He had a large sum of money in cash. I asked him at that point in time, you know, what—he was on GPS monitoring for a pending DUI charge. We continued him on supervision and on the street so he can fight these charges from the street, so to speak. And those charges occurred approximately April 2017. But I did smell alcohol on his breath. He had a large sum of money in his pockets. I asked him, I said, is there anything illegal in the car that he got out of? He said - he said no. I said, Do you mind if I search it? He said, "No, you can't search," which is fine. I understand that. I asked the driver of the vehicle, and the driver then said no. I asked [Appellant] what he was doing on this evening. He said, we went—we were going to go get some chicken wings, is what he explained to me.Id. at 7-8 (sic). Officer Shipley recalled leaving the scene after this encounter and Appellant was not taken into custody at that point. Id. at 8-9. On June 22, 2017, Officer Shipley discussed the June 18 incident with his supervisors who were aware of Appellant's pending DUI charge. Id. at 9. As a result, Officer Shipley and his supervisors decided to arrest Appellant for a technical parole violation triggered by his alcohol consumption on June 18, 2017. Id.
On June 23, 2017, Officer Shipley and Detective Ishman went to Appellant's residence to take him into custody for parole violation. Id. at 10. Upon arrival, they observed two males sitting in a parked white sedan. Id. at 11. Officer Shipley testified that as he approached the vehicle, he saw Appellant, wearing a baseball cap and sitting "slumped down" in the front passenger seat. Id. He then recalled Appellant telling the driver (subsequently identified as Appellant's brother) to "pull off, bro; pull off, bro." Id. Officer Shipley testified that "[a]t that time I immediately went to the passenger's side of the vehicle and placed [Appellant] into custody." Id. After he detained Appellant, Officer Shipley recalled putting his head into the vehicle to instruct the driver to put the vehicle in park. Id. at 12. In so doing, Officer Shipley observed a green, cinch Crown Royal bag on the passenger seat where Appellant was sitting and where his left leg or the seatbelt fastener would have been. Id. at 13-14. Officer Shipley testified that he opened the bag and recovered scales and crack cocaine, which he then handed over to Detective Ishman. Id. at 12.
On February 27, 2018, the trial court denied Appellant's First Suppression Motion. On April 19, 2018, Appellant filed a second omnibus pre-trial motion ("Second Suppression Motion"), challenging the search of the cell phones. In support, Appellant argued, inter alia, that (1) the affidavit of probable cause accompanying the search warrant did not set forth adequate probable cause; and (2) the search warrant itself was overbroad.
On May 3, 2018, the trial court conducted a hearing on the Second Suppression Motion, at which the Commonwealth introduced the testimony of Detective Ishman who testified that he had been employed by the Harrisburg Police Department for over ten years and currently is assigned to the Vice and Organized Crime Unit. N.T. Hearing, 5/3/18 at 4. Detective Ishman testified that he has been involved in hundreds of narcotics investigations and arrests. Id. Detective Ishman testified that upon hearing Appellant tell the driver to pull off, Officer Shipley removed Appellant from the vehicle and took him into custody. Id. at 6. Thereafter, according to Detective Ishman, Officer Shipley "recovered a Crown Royal bag from the passenger seat of the vehicle that contained a large amount of crack cocaine." Id. Specifically, Detective Ishman testified that Officer Shipley handed the Crown Royal bag to him. Id. at 6-7. Therein, Detective Ishman found "[a] large amount of crack cocaine[.]" Id. Detective Ishman relayed that he recovered a digital scale and five sandwich bags containing various amounts of crack cocaine. Id. at 7-8. Detective Ishman testified that he also searched Appellant and the search yielded $1,237.00 and a cell phone. Id. at 8. Detective Ishman further testified that he searched the vehicle and recovered an additional cell phone that was found on the floor of the passenger seat. Id. Detective Ishman also testified that he eventually applied for a warrant to search the cell phones, in particular "[p]hone records, text messages, social media posts, messages, drugs, drug transactions, drug proceeds, and drug sales." Id. at 10. Detective Ishman explained that in his experience and given his training, "it's typical and happens very often that drug dealers use cell phones to set up drug transactions via text messages, via phone - phone calls. And also I've seen Facebook Messenger being used quite often." Id. He also explained that drug dealers usually possess multiple phones. "They use [a work] phone for the drugs, for drug dealing, and then another phone for personal life, much like someone would do when they would have a job and have a work phone as well." Id. at 10-11.
In his affidavit of probable cause accompanying the search warrant, Detective Ishman stated in relevant part:
As [Officer] Shipley approached the vehicle [Appellant] was heard telling the driver of the vehicle, Lawrence Johnson, "Cmon man pull off, pull off." [Officer] Shipley arrived at the passenger side of the vehicle, removed [Appellant] and took him into custody. I told Johnson to put the car in park and keep his hands where I could see them. Johnson first put the vehicle in drive and appeared as if he was going to pull off, he did eventually put the vehicle in park. [Officer] Shipley recovered a Green Crown Royal Bag from [Appellant]'s seat. Located inside the bag was 5 sandwich bags containing various amounts of suspected crack cocaine and a digital scale. Many of these bags had torn holes in them, a characteristic consistent with street level drug trafficking. The 5 bags were contained in one clear ziplock bag.
Search incident to [Appellant] produced $1237 (denominations 2-100, 49-20s, 2-10s, 4-5s and 17-1s) from various pockets of [Appellant]'s jeans and a cell phone. A further search of a the vehicle produced a cell phone from the floor in front of
[Appellant]'s seat. These two cell phones and US Currency were collected as evidence.Affidavit of Probable Cause, 11/16/17. Detective Ishman testified that they were able to extract data only from the Samsung phone. N.T. Hearing, 5/3/18 at 19-20. On July 27, 2018, the trial court granted in part and denied in part Appellant's Second Suppression Motion. The motion was granted only to the extent that the court found the search warrant to be partially overbroad. As a result, the trial court limited the admission of evidence obtained from the search of the cell phones temporally, i.e., the Commonwealth's use of the evidence was restricted in time from June 18, 2017 through June 23, 2017.
Once at base the suspected crack cocaine was field tested and did show a positive test for the presence of cocaine. The digital scale and the ziplock bag containing all the suspected crack cocaine were sent to forensics for fingerprinting. The money will be sent to be ion scanned.
[I am] requesting a search warrant for the two cell phones recovered from the person of [Appellant] and the floor of the vehicle where [Appellant] was sitting. It is [my] experience that drug dealers often use cell phones to facilitate drug transactions with drug users and other drug dealers. It is also [my] experience that drug dealers often have numerous cell phones to facilitate their transactions. During these interactions the drug dealers and drug users often make phone calls and send text messages. For this reason [I am] requesting a search warrant for the Samsung and Tracfone cell phones recovered during this investigation to search for information regarding drug transactions. These cell phones have been secured in police custody since the time of this incident.
In curing the defect in the search warrant, the trial court relied upon United States v. Santiago-Rivera , 2017 WL 4551039, *12-16 (M.D. Pa. October 12, 2017).
The case proceeded to a jury trial, at which the trial court allowed, over Appellant's objections, the Commonwealth to introduce and admit into evidence information extracted from the Samsung cell phone. N.T. Trial, 10/23/2018 at 22-27. In specific, Appellant asserted an authentication objection pursuant to Pa.R.E. 901(a). The Commonwealth also presented the expert testimony of John Goshert, Chief Detective for the Dauphin County Criminal Investigation Division. Id. at 165-66. The Commonwealth asked Chief Goshert to answer a hypothetical question that contained the facts underlying this case. Id. at 171-73. Appellant timely objected, arguing, among other things, that Chief Goshert may not be given a hypothetical based on the facts of the case. Id. at 173-74. The trial court overruled the objection. Id. at 174. On October 24, 2018, the jury found Appellant guilty of PWID and possession of drug paraphernalia. On October 31, 2018, the trial court sentenced Appellant to an aggregate term of 42 to 120 months' imprisonment. Appellant did not file any post-sentence motion; he timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents four issues for our review:
In reviewing appeals from an order denying suppression, our standard of review is limited to determining
whether [the trial court's] factual findings are supported by the record and whether [its] legal conclusions drawn from those facts are correct. When reviewing the rulings of a [trial] court, the appellate court considers only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. When the record supports the findings of the [trial] court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.Commonwealth v. Griffin , 116 A.3d 1139, 1142 (Pa. Super. 2015). Our scope of review is limited to the evidence presented at the suppression hearing. In re interests of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013). We have explained:
Our standard of review over evidentiary rulings requires us to determine whether the trial court abused its discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.Commonwealth v. Henkel , 938 A.2d 433, 440 (Pa. Super. 2007) (internal citations omitted), appeal denied , 955 A.2d 356 (Pa. 2008).
I. Did the court err in denying [Appellant's] motion to suppress the fruits of a state parole agent's warrantless vehicle search after arresting [Appellant] for a technical violation of parole?Appellant's Brief at 5 (unnecessary capitalizations omitted).
II. Did not the court err in denying [Appellant's] motion to suppress the extraction of data from [Appellant's] cell phone when: (a) the affidavit supporting the search warrant did not set forth probable cause; and (b) the search warrant itself was overly broad?
III. Did not the court err in admitting communications extracted from a cell phone when the Commonwealth failed to authenticate such evidence under [Rule] 901 by establishing [Appellant's] authorship of such communications?
IV. Did not the court err in permitting a police witness to give an expert opinion regarding [Appellant's] intent to deliver crack cocaine when that opinion was based on a hypothetical that embraced the entirety of the evidence presented at trial and not the limited factors permitted under the decisional law?
Preliminarily, we need not address Appellant's second issue on appeal because, as noted earlier, the warrant requirement for cell phones is generally inapplicable to parolees. "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." Murray , 174 A.3d at 1155 (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 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. In Murray , we held that the evidence established that the parole agent's search of the appellant's cell phone was based on reasonable suspicion that the appellant had committed a parole violation. There, the parole agent testified at the suppression hearing that the appellant admitted to possessing a firearm after an altercation with a housemate, which was a violation of his parole. The agent also testified that based on his prior experience, he believed that the appellant's cell phone could contain additional evidence of a parole violation, such as conversations about the firearm or photographs of the appellant with the firearm. Id. at 1156. Instantly, Officer Shipley or Detective Ishman had ample reasons to search Appellant's cell phone (Samsung) considering that a Crown Royal bag containing a large amount crack cocaine and a digital scale was discovered on the seat where Appellant had been sitting prior to his arrest by Officer Shipley for a technical parole violation.
With respect to Appellant's remaining issues, after careful review of the record and the relevant case law, we conclude that the trial court accurately and thoroughly addressed their merits. See Trial Court Opinion, 1/25/19, at 4-13. We agree with the trial court's conclusion that Officer Shipley had reasonable suspicion to search the vehicle, in particular the Crown Royal bag sitting in plain view. The Crown Royal bag could have yielded additional evidence of Appellant's parole violation. The trial court did not abuse its discretion in overruling Appellant's authentication challenge because the Commonwealth, through testimony, "was able to establish and properly authenticate that [Appellant] was using the phone around the same time as the texts that were previously introduced indicating drug sales." Id. at 12. Finally, the trial court concluded that Appellant's challenge to the hypothetical question posed to Chief Goshert was without merit. Accordingly, we affirm the trial court's October 31, 2018 judgment of sentence. We further direct that a copy of the trial court's January 25, 2019 opinion be attached to any future filings in this case.
Pa.R.E. 704 provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue." Moreover, it is well-settled that the Commonwealth may ask an expert a hypothetical question so long as "there is evidence of record supporting the hypothetical." Commonwealth v. Galvin , 985 A.2d 783, 801 (Pa. 2019). "[A]n expert may give an opinion in response to a hypothetical, provided the set of facts assumed in the hypothetical is eventually supported by competent evidence and reasonable inferences derived therefrom." Commonwealth v. Petrovich , 648 A.2d 771, 772 (Pa. 1994).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/24/2020
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