Opinion
J-S08037-14 No. 1426 WDA 2013
03-18-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. EDWARD J. PISANI, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 10, 2013
in the Court of Common Pleas of Elk County
Criminal Division at No.: CP-24-CR-0000266-2010
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and PLATT, J. MEMORANDUM BY PLATT, J.
Retired Senior Judge assigned to the Superior Court.
Appellant, Edward J. Pisani, appeals from the judgment of sentence entered following a bench trial and conviction of possession with intent to manufacture a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. After careful review, we affirm.
See 35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.
The underlying facts of this case are summarized from the trial court's April 9, 2012 opinion disposing of Appellant's omnibus pretrial motion. On July 26, 2010, Pennsylvania State Police Trooper Michael Boltz received a tip from Michael Cherry that Appellant was growing marijuana at his residence on the corner of Second Avenue and Spruce Street in Johnsonburg, Elk County, Pennsylvania.
Trooper Boltz had never met Cherry before speaking with him on the phone, and did not know whether he had a criminal record or pending charges. Cherry was not working for the State Police as a confidential informant, and was not contacted again after giving Trooper Boltz the tip.
On July 28, 2010, Trooper Boltz and Trooper James McIntosh went to Appellant's house at 433 Second Avenue, where they took pictures but saw little activity in or around the house. However, they observed that, despite the ninety-degree temperature outside, the house's windows were closed and covered with sheets or blinds, the second-floor air conditioning unit was not running, and a wire leading to the house appeared to have been spliced from an adjacent power line. These observations heightened the officers' suspicions that the house contained a possible marijuana cultivation operation.
As a result of their observations, Trooper Boltz conducted five trash pulls in August and September of 2010. Trooper Boltz never saw anyone take out the trash; with each trash pull, he confiscated two or more bags from the curb outside Appellant's residence shortly after midnight and took them to the Ridgeway Barracks to investigate their contents.
In the first pull on August 1-2, 2010, the troopers found letters and other identifying information indicating that the bags belonged to Appellant, but they did not find any incriminating items. In the second pull, on August 9, 2010, the troopers found Appellant's mail and suspected marijuana stems, seeds, and part of a leaf covered in tobacco juice. They photographed the suspected contraband and then destroyed it. The troopers did not find any contraband in the third pull conducted on August 15-16, 2010, or the fourth pull on September 7, 2010.
On September 13-14, 2010, the troopers pulled Appellant's trash a fifth time and found poker slips with Appellant's name, marijuana stems, and seeds. They photographed the contraband and discarded the marijuana.
Based on the trash pulls, the history of the investigation, and Trooper Boltz's nineteen years of training and experience, on September 14, 2010, Trooper Boltz applied for and was granted a search warrant for Appellant's house. He and Trooper McIntosh executed the search warrant and, when they discovered the magnitude of the grow operation it contained, they called in the Pennsylvania State Police Clandestine Lab Response Team (CLRT). The police removed nine bags of stems and seeds and dozens of suspected marijuana plants from Appellant's home. They photographed the plants in bundles of ten, sampled a bud or leaf from every seventh plant, and destroyed the remaining portions. They sent 128 samples to the Erie Crime Lab and the University of Mississippi. The Erie Crime Lab tested and returned the samples, but the University of Mississippi inadvertently destroyed their samples before a report could be generated.
Appellant was served with the search warrant and made no statements during or after its execution.
After these investigations, Appellant was charged with two counts of possession with intent to manufacture or deliver a controlled substance, possession of a counterfeit substance, and possession of drug paraphernalia. Appellant filed an omnibus pre-trial motion on December 20, 2010, amended on August 22, 2011. At a hearing on September 9, 2011, Appellant moved, inter alia, for the suppression of the search warrant by attempting to discredit its basis. Specifically, Appellant testified that Michael Cherry, the informant, had burglarized his home on May 8, 2010; that Appellant used blinds, not sheets, to cover his windows; that the wire leading into his house is an old telephone party line; and that the air conditioner being turned off should not have led Trooper Boltz to suspect a grow operation. He contested the dates on which Trooper Boltz pulled his trash and argued that the plants confiscated from the trash pulls had seeds, and the variant he grew was a seedless hybrid. Although he conceded that he may have had some old seeds on the second floor of his house, he claimed it was his practice to take incriminating trash directly to the garbage dump.
At the hearing, Appellant argued that the ideal temperature to grow marijuana is between seventy-five and eighty-two degrees Fahrenheit. Therefore, he contended that the air conditioner not running on a ninety-degree day should not have led Trooper Boltz to suspect that there was a marijuana grow operation inside the house.
The trial court found that the search warrant was supported by probable cause, and denied Appellant's pretrial motions on April 9, 2012. After a bench trial, the court convicted Appellant of the above-mentioned crimes. On April 10, 2013, the court sentenced Appellant for possession with intent to manufacture to not less than twelve months less one day, nor more than twenty-four months less two days, with credit for time served, in Elk County Prison. The court also imposed a sentence of six months' probation for possession of drug paraphernalia to be served concurrently. Appellant filed post-sentence motions, which the trial court denied on August 9, 2013, and Appellant timely appealed.
Pursuant to the trial court's order, Appellant filed a Rule 1925(b) statement on September 17, 2013, and the trial court entered a Rule 1925(a) statement on October 16, 2013. See Pa.R.A.P. 1925.
Appellant raises two questions for our review:
I. Did the trial court err in denying [Appellant's] motion to suppress evidence based upon a lack of probable cause and misinformation contained in the body of the search warrant and the affidavit of probable cause?(Appellant's Brief, at 4).
II. Did the trial court err in denying [Appellant's] motion to dismiss based upon a violation of his due process rights under the Sixth Amendment to the U.S. Constitution as applied to the Commonwealth of Pennsylvania through the Fourteenth Amendment as well as his due process rights under Sections 8 and 9 of Article I of the Constitution of the Commonwealth of Pennsylvania based upon the intentional destruction of evidence prior to his arrest?
In his first issue, Appellant argues that "the information contained in the Affidavit of Probable Cause was insufficient in and of itself to justify the issuance of the search warrant in this matter" and that "testimony at his pre-trial motion hearing clearly established misinformation was contained in the body of the search warrant which, if known to the issuing authority, would likely have resulted in the issuing authority not finding sufficient probable cause to issue the warrant in this matter." ( Id. at 33). We disagree.
When reviewing a challenge to a trial court's denial of a suppression motion, our standard of review 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. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, 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.Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa. Super. 2013) (citation omitted).
"Our Supreme Court has adopted the 'totality of the circumstances' test for determining whether a search warrant was supported by probable cause. This test was first set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983)." Commonwealth v. Otterson, 947 A.2d 1239, 1244-45 (Pa. Super. 2008), appeal denied, 958 A.2d 1047 (Pa. 2008), cert. denied, 556 U.S. 1238 (2009) (one citation omitted).
Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007) (citations and some quotation marks omitted).The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed.This determination must be based on facts described within the four corners of the supporting affidavit. Furthermore, we stress that probable cause exists where there is a probability of criminal activity, not a prima facie showing of such activity.
Here, the affidavit of probable cause filed by Trooper Boltz cited his nineteen years of experience, and summarized the subject of the tip he received, his observations with Trooper McIntosh, the contents of the five trash pulls, and stated his belief that, based upon his training and experience, the residence was being used for a grow operation. ( See Affidavit of Probable Cause, 9/14/10, at 2-3). Appellant "submits there were major discrepancies between the information contained in the search warrant and the facts later established at [his] Omnibus Pre-Trial Motion hearing which should have resulted in the trial court granting [his] Motion to Suppress Evidence." (Appellant's Brief, at 35).
In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), the Supreme Court held a defendant may attack the issuance of a warrant if based on untruthful information. In requiring a truthful basis for the issuance of a warrant, the Court explainedCommonwealth v. Gomolekoff, 910 A.2d 710, 715 (Pa. Super. 2006) (some citations, quotation marks, and emphases omitted).
[t]his does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily.To succeed in attacking a warrant, a defendant must come forward with allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.
Here, Appellant challenges the statements made by Trooper Boltz in the affidavit of probable cause. First, Appellant challenges the tip Trooper Boltz received from Michael Cherry. ( See Appellant's Brief, at 50). Specifically, he objects to Trooper Boltz's testimony, in which he related that Cherry told him "you could smell [the marijuana] while you were standing on the sidewalk." ( Id.; see also N.T. Suppression Hearing, 9/09/11, at 41). Appellant argues that "the information [Trooper Boltz] offered to [the magistrate] in the Affidavit of Probable Cause was completely different than the information he stated he received in his testimony at the Omnibus Pre-Trial Motion hearing in this matter[,]" because in the information, Trooper Boltz did not mention the smell of marijuana, and when questioned at the hearing, he stated that he could only smell the local paper mill. (Appellant's Brief, at 50). As observed by the trial court, "this omission does not in any way invalidate the search warrant or diminish the trooper's credibility," (Trial Court Opinion, 4/09/12, at 8), because the magistrate's finding was limited to the facts described within the four corners of the supporting affidavit. See Dukeman, supra at 341. Whether marijuana could be smelled from the sidewalk was, therefore, irrelevant to the determination of probable cause.
Second, Appellant "submits the trial court should have assessed [Trooper Boltz's] credibility in providing information . . . that he found stems, seeds, and what appeared to be a partial marijuana leaf in a couple of trash pulls outside [Appellant's] residence[.]" (Appellants Brief, at 50-51). Appellant contends that "he did not grow marijuana plants that produced seeds" and "never put any of the marijuana residue including seeds from years earlier, stems, and leaves in his trash for pickup," but instead "took them to dumps a significant distance outside Johnsonburg twice a year." ( Id. at 51). However, the affidavit of probable cause states that, from the trash pulls conducted on August 9, 2010, and September 14, 2010, Trooper Boltz found seeds and stems in the same garbage bags as mail addressed to Appellant at 433 Second Avenue and poker buy-in sheets with Appellant's name on them. Trooper Boltz testified that he documented the contents of these trash pulls in a report and photographed them before discarding the contraband. ( See N.T. Suppression, 9/09/11, at 19-20). Appellant's contention that the contraband found in his trash could not have been his is contradicted by Trooper Boltz's findings.
Third, Appellant contests the dates on which Trooper Boltz conducted the trash pulls, arguing that he "was wrong on three of the five trash pull dates during his testimony and on one of the two trash pull dates he swore to in the Affidavit of Probable Cause[.]" (Appellant's Brief, at 52). He argues that his trash is picked up on Tuesdays, and he "always put[s his] trash . . . out at the same time between 9:00 p.m. and 1:00 a.m. on Monday nights for pick up on early Tuesday morning." ( Id. ).
Although Trooper Boltz "demonstrated uncertainty" regarding some of the dates of the trash pulls, he testified that he simply pulled Appellant's trash whenever it was placed on the curb for pick up. (See Trial Ct. Op., at 9). Furthermore, whether Trooper Boltz correctly noted the days of some of the pulls, or Appellant had placed his trash out earlier than he claimed, the September 14, 2010 trash pull, in which contraband was found, matches local records for trash pickup. ( Id. ). Additionally, Trooper Boltz testified that some of the trash they pulled included bags "for [Appellant's] mother who resides across town," which corroborates with Appellant's claims and further suggests that the trash he pulled was Appellant's. (N.T. Suppression, 9/09/11, at 16, 20; see id. at 40).
Fourth, Appellant argues that "there was nothing physically visible which would have inferred a plant growing operation" because "the wire running into [Appellant's] house . . . was from an old party telephone line and the fact that an air conditioner was not running on a warm day was inconsistent with a grow operation[.]" (Appellant's Brief, at 52). However, Trooper Boltz testified that he believed the wire to be a splice into the power line because "it was going into the house[ and] it wasn't going into a box or anything like that." (N.T. Suppression, 9/09/11, at 46). This supported his suspicion that Appellant's residence was a grow house because "if he did have a Marijuana grow[ operation] set up in there, his electric bill would be higher than normal because they'd be using an extraordinary amount of electricity." ( Id. at 15; see id. at 50 (testifying that, in his training and experience, Trooper Boltz had learned that "people who are involved in large grow operations run up electric bills")). When questioned about the air conditioner being turned off on the day he first observed Appellant's house, Trooper Boltz did not agree with Appellant's claim that "Marijuana grows best in temperatures between 75 and 85 degrees." ( Id. at 65).
Ultimately, "[i]t 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) (citation omitted). Although Appellant challenges the observations which Trooper Boltz, in his experience and training in drug enforcement, believed to be a truthful basis for obtaining a search warrant, he fails to raise any allegation that Trooper Boltz's statements contained any "deliberate falsehood" or "reckless disregard for the truth[.]" Gomolekoff, supra at 715. Although there were some discrepancies between what Trooper Boltz observed and what was ultimately found, the basis for Trooper Boltz's request for a search warrant was contained within the four corners of the affidavit. Thus, the magistrate had a substantial basis for concluding that there was a fair probability that contraband or evidence of a crime would be found in Appellant's house. See Dukeman, supra at 341. Therefore, in the totality of the circumstances, the suppression court did not err in concluding that the search warrant was supported by probable cause, and in denying Appellant's motion to suppress. Otterson, supra at 1244-45. Appellant's first issue does not merit relief.
In his second issue, Appellant asserts that the trial court erred in denying his motion to dismiss "based upon a violation of his due process rights . . . based upon the intentional destruction of evidence prior to his arrest." (Appellant's Brief, at 53). Specifically, he identifies the discarded contraband documented in the trash pulls and contends that "the Commonwealth had a legal obligation to maintain this evidence which it intended to introduce in some fashion against him and, by destroying this evidence prior to [Appellant's] arrest and prior to [Appellant] having an opportunity to inspect it, [he] was precluded from having an opportunity to have this evidence examined by experts for purposes of assisting him in the preparation of his defense and in determining whether these items came from [Appellant's] residence." ( Id. at 53-54). We disagree.
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), a due process violation occurs when the state suppresses or fails to disclose material exculpatory evidence.
This guarantee of access to evidence requires the prosecution to turn over, if requested, any evidence which is exculpatory and material to guilt or punishment, see Brady, . . . and to turn over exculpatory evidence which might raise a reasonable doubt about a defendant's guilt, even if the defense fails to request it, see United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). If a defendant asserts a Brady or Agurs violation, he is not required to show bad faith.Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011), cert. denied, 132 S. Ct. 2377 (2012) (some case citations and quotation marks omitted).
There is another category of constitutionally guaranteed access to evidence, which involves evidence that is not materially exculpatory, but is potentially useful, that is destroyed by the state before the defense has an opportunity to examine it. When the state fails to preserve evidence that is "potentially useful," there is no federal due process violation unless a criminal defendant can show bad faith on the part of the police. Potentially useful evidence is that of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. In evaluating a claim that the Commonwealth's failure to preserve evidence violated a criminal defendant's federal due process rights, a court must first determine whether the missing evidence is materially exculpatory or potentially useful.
Here, Appellant alleges a Brady violation in the destruction of contraband found in the trash pulls from outside his house, arguing that he was deprived of the opportunity to test independently the disputed evidence and that it "had a direct bearing on the credibility and accuracy of the information contained in the Affidavit of Probable Cause[.]" (Appellant's Brief, at 62). He argues that, given the opportunity to test the seeds and stems found in the trash pulls, he could have proven that they were not the same seedless varietal of marijuana plants that he grew "which had no seeds and which were cloned from other plants." ( Id. at 54).
However, we agree with the trial court that Appellant's claim does not fall under Brady, supra. The contraband from the trash pulls is not materially exculpatory, but "potentially useful" to Appellant at best. See Chamberlain, supra at 402. In addition, Trooper Boltz photographed the evidence in question, ( See N.T. Suppression, 9/09/11, at 19), and testified that he identified the seeds and stems based on their appearance, and it has never been his practice to test seeds or stems. ( Id. at 54). Furthermore, he stated that, based on his experience, the leaf was covered in chewing tobacco juice and would not have been testable. ( Id. at 56). Thus, Appellant has failed to make a showing of bad faith on the part of the Commonwealth. See Chamberlain, supra at 402.
Moreover, if the leaves, stems, and seeds were, as Appellant contends, a different type of marijuana than what he cultivated (or indeed, not contraband at all), it would not have changed Trooper Boltz's observations at the time he conducted the trash pulls of what "appeared to be part of a Marijuana leaf", nor the other observations about Appellant's house that were assembled to support a finding of probable cause to issue a search warrant. (Affidavit of Probable Cause, 9/14/10, at 2). As previously discussed, Trooper Boltz was only required to provide evidence of the "probability of criminal activity, not a prima facie showing of such activity" to obtain a search warrant. See Dukeman, supra at 341. Thus, because the evidence related to the probable cause supporting the search warrant, and not Appellant's ultimate innocence or guilt, the critical inquiry was into Trooper Boltz's subjective belief that he found marijuana in Appellant's trash, not what type of marijuana he had found. ( See N.T. Suppression, 9/09/11, at 59); see also Gomolekoff, supra at 715.
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Accordingly, Appellant has failed to raise a successful Brady claim where the Commonwealth failed to preserve "potentially useful" evidence, and Appellant has not shown bad faith on the part of the police. Id. The trial court did not err in denying his motion to dismiss the charges on this ground, and Appellant's second issue does not merit relief.
Judgment of sentence affirmed.
Donohue, J., concurs in the result. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary