Opinion
J-S08012-17 No. 475 WDA 2016
05-23-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. NORMAN J. BARONY, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence dated March 15, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000649-2012 CP-07-CR-0000650-2012 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J. MEMORANDUM BY SOLANO, J.:
Appellant, Norman J. Barony, Jr., appeals from the March 15, 2016, aggregate judgment of sentence of one to ten years' incarceration, imposed following a bench trial that resulted in Appellant's conviction of two counts each of conspiracy - manufacture, delivery, or possession of a controlled substance with an intent to manufacture or deliver; intentional possession of a controlled substance by a person not regulated; use/possession of drug paraphernalia; and manufacture, delivery, or possession of a controlled substance with intent to manufacture or deliver. We affirm.
18 Pa.C.S. § 903 and 35 P.S. § 780-113(a)(16), (32), (30), respectively.
In its opinion and order entered August 13, 2013 and its opinion and order entered August 28, 2014, the trial court fully and correctly sets forth the relevant facts of this case. See Trial Ct. Op., 8/13/13, at 1-3; Trial Ct. Op., 8/28/14, at 2-6. Thus, we have no reason to restate them at length here.
This case involves telephone conversations from July 27 to August 4, 2011, between Appellant and a now-deceased confidential informant that were recorded by Pennsylvania State Police with the informant's consent. Trial Ct. Op., 8/28/14, at 3 (citing N.T., 5/30/13, at 12). The conversations were about a marijuana growing operation.
According to Appellant's Brief, at 8, the confidential informant died on October 10, 2012.
The case also involves a "trash pull" by the Pennsylvania State Police from a road near Appellant's residence. The "trash pull" was conducted on August 4, 2011, subsequent to the recorded phone calls, by Pennsylvania State Trooper Charles Schaefer, who has been employed by the Pennsylvania State Police since 1995 and "has been primarily investigating drug offenses since January of 1998." It was done on Pine Street, a road near Appellant's residence that is marked as a "private drive." Trial Ct. Op., 8/13/13, at 1-2, 8, 11 (citing N.T., 5/30/13, at 14); Trial Ct. Op., 8/28/14, at 2, 4 (citing N.T., 5/30/13, at 14). "Burgmeier's Hauling had access to this street, and Trooper Schaefer rode with the hauling company to collect the trash that had been discarded or abandoned" there Trial Ct. Op., 8/13/13, at 8; see also id. at 2 (citing N.T., 5/30/13, at 14); Trial Ct. Op., 8/28/14, at 4. The trash had been put "out from the house along the roadway" on a date after the previous times Trooper Schaefer had driven by that house. N.T., 5/30/13, at 14. As a result of the trash pull, Trooper Schaefer found "indicia indicating the residence was [Appellant]'s," a marijuana stem, and an empty box of Herbal Clean — a substance used to clean tetrahydrocannabinol ("THC") out of a person's system prior to a drug test. Trial Ct. Op., 8/13/13, 2-3, 11 (citing N.T., 5/30/13, at 14-16, 21); Trial Ct. Op., 8/28/14, at 4 (citing N.T., 5/30/13, at 15).
Following the trash pull, on August 5, 2011, Trooper Schaefer obtained a warrant to search Appellant's house. Trial Ct. Op., 8/13/13, at 3; Trial Ct. Op., 8/28/14, at 5-6 (citing Commonwealth's Ex. 1). During the resulting search, troopers found nine marijuana plants, growing paraphernalia, and marijuana seeds in Appellant's bedroom. Criminal charges were filed against Appellant based on this evidence. Id. at 6.
On September 12, 2012, Appellant filed an omnibus pretrial motion, which included a motion to suppress the trash pull and a motion to suppress the evidence obtained during execution of the search warrant for insufficient probable cause and for staleness of the information upon which the warrant was based. On August 13, 2013, the trial court denied the motions to suppress the trash pull and the evidence from the search.
Between September 2013 and November 2014, the trial court granted at least nine motions for continuance. Appellant was scheduled to plead guilty on January 12, 2015, but, during his colloquy, he changed his mind and asked to go to trial. Appellant was convicted on November 20, 2015, and sentenced on March 15, 2016.
On April 4, 2016, Appellant filed a notice of appeal to this Court. Appellant raises three questions for our review:
I. Whether the trial court erred by denying Appellant's motion to suppress with regard to the legality of the trash pull[.]Appellant's Brief at 5.
II. Whether the trial court erred by denying Appellant's motion to suppress based on insufficient probable cause for issuance of a search warrant due to the unreliability of the confidential informant and the violation of Appellant's Sixth Amendment right to confront witnesses against him[.]
III. Whether the trial court erred by denying Appellant's motion to suppress despite the use of stale information as the basis for the search warrant[.]
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth 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 suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. The suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress.Commonwealth v. Freeman , 150 A.3d 32, 34-35 (Pa. Super. 2016) (citations omitted).
Appellant's first issue is that the trial court erred by denying his motion to suppress with regard to the legality of the trash pull. Appellant's Brief at 11. Appellant contends that he had "an actual or subjective expectation of privacy with respect to the bag searched and seized by Trooper Schaefer" and that his "actual and subjective expectation of privacy in the materials located on his property and in the curtilage is one which society is prepared to accept as reasonable." Id. at 13, 15. He adds that "[t]he bag seized by Trooper Schaefer was neither voluntarily relinquished into the hands of third parties" nor "located in an area sufficiently exposed to the public to defeat Appellant's claim to protection under the Fourth Amendment and Article I, Section 8" of the Constitution of Pennsylvania. Id. at 16, 18.
Appellant's third issue is that "the trial court erred by denying [his] motion to suppress despite the use of stale information as the basis for the search warrant" - specifically, the information Trooper Schaefer obtained from the confidential informant. Appellant's Brief at 26, 28. Appellant contends that "all evidence seized during the execution of the search warrant and all fruit of the poisonous tree discovered thereafter should have been suppressed from trial." Id. at 31.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Elizabeth A. Doyle, we conclude that Appellant's first and third issues merit no relief. The trial court opinion of August 13, 2013, comprehensively discusses and properly disposes of Appellant's first issue, relating to his motion to suppress the trash pull. The trial court opinion of August 28, 2014, comprehensively discusses and properly resolves Appellant's third issue, relating to his motion to suppress evidence seized pursuant to the search warrant "despite the use of stale information," noting in particular that the search warrant was based on information from the trash pull that was not stale
See Trial Ct. Op., 8/13/13, at 3-8 (holding: (1) the law is clear that putting trash out for collection is an act of abandonment that terminates Fourth Amendment protections, citing Commonwealth v. Perdue , 564 A.2d 489 (Pa. Super. 1989), appeal denied , 574 A.2d 68 (Pa. 1990); (2) Appellant's argument that he did not contract with Burgmeier's Hauling for garbage removal "does not alter the pertinent inquiry . . . as to whether the trash was discarded or abandoned so as to terminate [Fourth] Amendment protections"; (3) the trash was "away from the house along Pine Street," "was at the end of a cement driveway on [Appellant's] property," and was set out in bags "as close to the road as possible without blocking traffic"; (4) the location of the trash placement does not qualify as curtilage and hence does not have a heightened expectation of privacy (citing N.T., 5/30/13, at 14); (5) other Pine Street property owners had also placed their trash alongside the street for collection; and (6) Pine Street, notwithstanding the "private drive" sign and "the fact that the street was not a through street" was not a private road because the sign did not preclude public access, it had no gatekeepers, other residents lived on the street, and the garbage hauling company had access to the street (citing Id. at 37, 59)).
See Trial Ct. Op., 8/28/14, at 8-9 (holding: (1) the trash pull occurred on August 4, 2011; (2) the affidavit of probable cause for the search warrant was dated August 5, 2011, the search warrant was issued that same day, and the affidavit referenced the evidence from the trash pull that occurred the prior day; and (3) "[t]here is nothing about the facts to indicate that the criminal activity was attenuated by the passage of time"). --------
Appellant's remaining claim is that there was "insufficient probable cause for issuance of a search warrant due to the unreliability of the confidential informant and the violation of Appellant's Sixth Amendment right to confront witnesses against him." Appellant's Brief at 20. Appellant states that the confidential informant "was unreliable because he passed away in the midst of the case and was not able to have his actions and motive verified." Id. at 20-21. Appellant concedes, however, that the confidential informant died after his suppression hearing. Id. at 8.
"The requisite probable cause must exist at the time the warrant is issued and be based on facts closely related in time to the date of issuance." Commonwealth v. Jones , 484 A.2d 1383, 1387 (Pa. 1984). Contrary to Appellant's claim, he could have called the confidential informant to testify at the suppression hearing because the informant was still alive at that time. Although Appellant had that opportunity, he chose not to exercise it. See Commonwealth v. Bonasorte , 486 A.2d 1361, 1374 (Pa. Super. 1984) (en banc) (defendant may obtain production of a confidential informant at a suppression hearing if he shows that production is material to his defense, reasonable, and in interest of justice); Commonwealth v. Johnson , 33 A.3d 122, 127 (Pa. Super. 2011) (same), appeal denied , 47 A.3d 845 (Pa. 2012); Commonwealth v. Baker , 946 A.2d 691, 693 (Pa. Super. 2008). Even without the recorded calls between Appellant and the confidential informant, the evidence from the legal trash pull of the marijuana stem, the empty Herbal Clean container, and indicia of Appellant's residency were sufficient to establish probable cause to support the search warrant at the time it was issued. See Jones , 484 A.2d at 1387; see also Trial Ct. Op., 8/13/13, 2-3, 11 (citing N.T., 5/30/13, at 14-16, 21); Trial Ct. Op., 8/28/14, at 4 (citing N.T., 5/30/13, at 15). Therefore, Appellant's claim that the trial court erred in denying his motion to suppress the evidence obtained by police during the execution of the search warrant is meritless. See id.; compare Appellant's Brief at 20-21.
For the reasons stated above, we affirm the judgment of sentence. The parties are instructed to attach a copy of the trial court's opinion of August 13, 2013, and its opinion of August 28, 2014, to all future filings that reference this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/23/2017
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