Opinion
J-A20011-17 No. 2093 MDA 2016
10-24-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. TIMOTHY MARTIN DUKE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 22, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007563-2015 BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Timothy Martin Duke, appeals from the judgment of sentence entered in the York County Court of Common Pleas, following his stipulated bench trial conviction for manufacturing with intent to deliver. We affirm.
35 P.S. § 780-113(a)(30). --------
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add that Appellant timely filed a notice of appeal on December 21, 2016. On December 22, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and after the court granted an extension, Appellant timely complied on January 27, 2017.
Appellant raises the following issue for our review:
WHETHER THE SEARCHES AND SEIZURES CONDUCTED BY THE TROOPERS ON [APPELLANT'S] PROPERTY WITHOUT VALID SEARCH WARRANTS VIOLATED [APPELLANT'S] RIGHTS UNDER THE FOURTH AMENDMENT [OF THE UNITED STATES CONSTITUTION] AND ARTICLE I, SECTION 8 OF THE PENNSYLVANIA CONSTITUTION[?](Appellant's Brief at 4).
Appellant argues the troopers did not have a well-founded, reasonable belief that Appellant's son, the subject of the arrest warrant, resided at Appellant's property and was present when the troopers entered onto Appellant's property. Appellant asserts the information available to the troopers was plainly insufficient to allow them to come onto Appellant's property to inquire about Appellant's son. Specifically, Appellant claims the troopers' information was based solely on a statement from some unidentified person at Appellant's last known address, who said Appellant's son might be found staying with Appellant. Appellant characterizes this information from an unknown source as uncorroborated and speculative. In short, Appellant maintains the troopers lacked firsthand information, a reliable informant, or an adequate factual basis to believe Appellant's son resided with Appellant. Appellant contends the troopers required a search warrant to enter what he calls "the protected curtilage" of Appellant's property without his consent or exigent circumstances. Appellant maintains that absent his consent or exigent circumstances, the troopers were "trespassing" on his property; and the plain view doctrine cannot justify their seizure of the marijuana plants in Appellant's garage.
Appellant continues the troopers cannot create an exigency so they can claim an exception to the warrant requirement, which they did by remaining on Appellant's property after he had made clear he did not consent to the troopers' presence. Finally, Appellant avers the court's reliance on the right of the troopers to engage in a protective sweep or a search incident to his arrest is misplaced, where both their entry on his property and his arrest were illegal because there was no danger or need for a protective sweep under these circumstances. Appellant concludes (1) the evidence obtained as a result of these events should have been suppressed, (2) his conviction should be reversed, and (3) his judgment of sentence should be vacated. We cannot agree.
We review the denial of a suppression motion as follows:
Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.
Commonwealth v. Williams , 941 A.2d 14, 26-27 (Pa.Super. 2008) (en banc) (internal citations and quotation marks 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. Clemens , 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v. Gallagher , 896 A.2d 583, 585 (Pa.Super. 2006)).[W]e may consider 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. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Harry M. Ness, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed February 23, 2017, at 6-16) (finding: troopers had sufficient reasonable belief that subject of arrest warrant, Appellant's son, could be located at Appellant's residence; during encounter with troopers on Appellant's driveway, he became nervous and backed away toward open garage; from driveway, officers could see several weapons inside open garage, including gun; to ensure Appellant did not go for weapon, troopers followed Appellant toward garage; as troopers approached open garage, they smelled marijuana; obvious weapons in open garage presented significant threat of danger to troopers and constituted exigency to permit protective sweep for troopers' safety; search of garage was limited and made for troopers' safety; troopers' cursory visual inspection inside garage revealed marijuana plants in plain view; troopers arrested Appellant and collected marijuana plants from garage; troopers obtained valid search warrant for Appellant's residence and seized additional evidence; all evidence was lawfully obtained). Accordingly, we affirm on the basis of the trial court opinion.
Order affirmed.
Judge Panella concurs in the result.
President Judge Emeritus Ford Elliott notes her dissent. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/24/2017
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