Opinion
9 MDA 2023 J-A27007-23
08-29-2024
COMMONWEALTH OF PENNSYLVANIA v. KASHIF M. ROBERTSON Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION-SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered December 20, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004147-2020
Benjamin D. Kohler, Esq.
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E [*]
MEMORANDUM BY LAZARUS, J.
Kashif M. Robertson appeals from the judgment of sentence, entered in the Court of Common Pleas of Dauphin County, following his convictions of two counts of person not to possess a firearm and one count each of possession of firearm with altered manufacturer's number, possession with intent to deliver (PWID)-cocaine, and PWID-marijuana. After careful review, we affirm.
Robertson purports to appeal from the jury's verdict. However, "[i]n criminal cases[,] appeals lie from [the] judgment of sentence rather than from the verdict of guilt." Commonwealth v. O'Neill, 578 A.2d 1134, 1335 (Pa. Super. 1990); see also Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa Super. 2011) (en banc). Instantly, Robertson's judgment of sentence was entered on December 20, 2022. We have corrected the caption accordingly.
Id. at § 6110.2(a).
5 P.S. § 780-113(a)(30).
Id.
Relevant hereto, at the time of these offenses, Robertson was serving a probationary term of 23 months at Docket Number CP-22-CR-0002276-2017 (No. 2276-2017). We adopt the following factual summary provided by the trial court in its order and opinion denying Robertson's omnibus pre-trial motion:
The history of that case has been previously summarized by this Court. See Commonwealth v. Robertson, 283 A.3d 392 (Pa. Super. 2022) (Table). In short, Robertson was sentenced at No. 2276-2017 on August 8, 2019, to a period of 6 to 23 months' incarceration with 6 months of time credit. See id. Consequently, on August 3, 2020, 12 months later, Robertson was still serving probation at No. 2276-2017.
[Probation Officer] Richard Anglemeyer [(PO Anglemeyer)] . . . of Dauphin County Probation Services [(DCPS)] testified that he was supervising [Robertson]. [Robertson] signed a document titled Rules of Probation and Parole on October 1, 2019, at a revocation hearing. The major conditions included are refrain from violation of protection from abuse orders, local, state, or federal penal laws[,] and refrain from overt behavior. There are three additional pages of conditions.
On August 13, 2020, PO Anglemeyer made a visit to [Robertson's registered address]. PO Anglemeyer testified that he made a prior visit to [Robertson] approximately three weeks to a month prior to [the August 13, 2020] visit. During th[e prior] visit, PO Anglemeyer found [Robertson] smoking marijuana in the back of a vehicle. He counseled [Robertson] on the proper use of medical marijuana and did not violate [Robertson]'s probation. During the visit on August 13, 2020, PO Anglemeyer pulled into [Robertson]'s
driveway and parked[.] PO Anglemeyer testified that he did not park behind [Robertson]'s vehicle. PO Anglemeyer exited his vehicle and started walking up the steps. At that time, [Robertson] exited the driver's side of [his] vehicle. PO Anglemeyer asked [Robertson] what he was doing, and [Robertson] stated that he was smoking marijuana in his vehicle. PO Anglemeyer detected the odor of burnt marijuana coming from [Robertson]. PO Anglemeyer requested permission to search [Robertson, and Robertson consented]. Nothing was found on [Robertson's] person. PO Anglemeyer then asked [Robertson] for permission to search the vehicle, and [Robertson consented]. [PO Anglemeyer recovered t]hree cellular phones, approximately $700.00 in U.S. currency, and multiple baggies of a green leafy substance inside clear plastic baggies [from] the vehicle. [Robertson] was detained at this point[, and Robertson] denied consent to search his cellular phones.
[Robertson was feeling lightheaded and] requested an ambulance, and one was provided. PO Anglemeyer asked for consent to go into [Robertson's] home. [Robertson] responded that [PO Anglemeyer] could go into the home and search everything but his mother's room. [Robertson] left the scene in an ambulance.
Upon entering [Robertson's] room, PO Anglemeyer saw a clear glass jar with green leafy substance consistent with marijuana. The jar did not have any markings on it. PO Anglemeyer determined that this was a violation of probation and informed the police. The police then contact[ed] the Dauphin County Drug Task Force and a search warrant was [obtained].
Magisterial District Judge Kenneth Lenker (hereinafter "MDJ Lenker") testified that he signed the search warrant on August 13, 2020 . . . at 11:25 a.m. MDJ Lenker believed that there was enough probable cause to approve the search warrant after reviewing the information provided. [Robertson]'s name [and address] appeared on the search warrant. . . [but it] did not specifically mention the curtilage of the home.
[Detective] Joshua Dupler [(Detective Dupler)], with the Dauphin County Drug Task Force, testified that he received a request from probation to obtain a search warrant for [Robertson's] home. Detective Dupler had the warrant reviewed and signed by MDJ Lenker and proceeded to the scene. . . . The items found during the search include[d]: a small mason jar containing marijuana in
a nightstand in the basement bedroom, a cellular phone in the basement bedroom nightstand, a bag of suspected crack cocaine in the ceiling in [Robertson]'s bedroom, a Dutch Master bag containing suspected marijuana in the ceiling of [Robertson]'s room, several plastic bags found in the ceiling in [Robertson]'s room, a vacuum-sealed bag of marijuana in a green bookbag found in the garage, pistol magazine plates in a green bag in the basement, a purple Crown Royal bag containing $5,000.00 cash in the ceiling, a Gucci bag containing over $30,000.00 cash in the ceiling, a Charter Arms .38 special firearm that was found [outside of a window on the southside of the house], a Smith [&] Wesson Bodyguard .380 found with the previous firearm, and a plastic bag containing paraphernalia found [with the firearms].
Detective Dupler testified that it is standard procedure to search around the [outside of the] house when searching a house. Once the search was completed, Detective Dupler returned to the station with the evidence and prepared charges against [Robertson]. It was determined that the Smith [&] Wesson Bodyguard .380 firearm was stolen out of Lower Paxton Township. [Detective Dupler also testified that the items listed on the search warrant did not include the items that were found by probation prior to police arriving.]
Probation [O]fficer Brandon Rigel [(PO Rigel), was with PO Anglemeyer on August 13, 2020, and] testified that he searched [Robertson]'s vehicle on August 13, 2020. PO Rigel testified that, upon arriving at [Robertson]'s home, [Robertson] exited his vehicle and stated that he was smoking marijuana. PO Anglemeyer asked [Robertson] for consent to search the vehicle, [Robertson] gave consent, and PO Rigel began searching the vehicle. PO Rigel located a clear sandwich baggy containing suspected marijuana in the center console, another black bag behind the driver's seat containing another clear baggy containing suspected marijuana, over $700.00 in cash, and three cellular phones in the same black bag. [Robertson] was detained without incident at that point, stated that he felt lightheaded, and requested an ambulance. PO Rigel stated that the search of the vehicle stopped once violations of supervision were found. PO Rigel testified that the marijuana found was not packed as medical marijuana.Order and Opinion, 10/5/22, at 2-5.
On August 13, 2020, the Commonwealth charged Robertson with, inter alia, the above-mentioned offenses. After a defense continuance, Robertson proceeded to a preliminary hearing on October 29, 2020, after which all charges were held for trial. The case was assigned to the Honorable Deborah E. Curcillo (hereinafter "trial court" or "trial judge"), and trial was scheduled for February 17, 2021.
The Commonwealth additionally charged Robertson with one count each of receiving stolen property, see 18 Pa.C.S.A. § 3925, and PWID-drug paraphernalia, see 35 P.S. § 780-113(a)(33). The Commonwealth withdrew these two offenses prior to the jury trial.
On November 27, 2020, Robertson filed a motion to proceed pro se. The trial court conducted a Grazier hearing on December 8, 2020, after which the trial court permitted Robertson to proceed pro se, but appointed Shawn M. Dorward, Esquire, as standby counsel. See N.T. Hearing, 12/8/20, at 1-9; see also Order, 12/10/20, at 1.
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
On January 4, 2021, Robertson filed a motion to compel discovery. On January 20, 2021, the Commonwealth filed the Criminal Information against Robertson, formally charging him with the above-mentioned offenses. On January 21, 2021, the trial court granted Robertson's motion to compel discovery.
On February 17, 2021, the trial court conducted a hearing, at which Robertson argued the Commonwealth had not complied with the trial court's order to provide discovery. Ultimately, the trial court agreed with Robertson, credited the continuance to the court, rescheduled trial for April 12, 2021, and directed the Commonwealth to comply with the discovery order.
On April 5, 2021, seven days prior to trial, Robertson filed a motion for extension of time to file an omnibus pre-trial motion. Thereafter, the trial court granted the extension request. Ultimately, due to court calendar conflicts, Robertson's trial was rescheduled again.
We note that Robertson's case was rescheduled several more times due, in part, to the trial court's calendar, but also due to the numerous motions and petitions filed by Robertson as detailed supra and infra. Ultimately, Robertson proceeded to a two-day jury trial on December 12-13, 2022.
On September 13, 2021, Robertson filed a motion to impose sanctions against the Commonwealth for failure to produce discovery. The trial court ordered the Commonwealth to file a response. The Commonwealth filed a response, in which it indicated that the outstanding discovery had not been requested by Robertson until July 9, 2021, and that the Commonwealth was waiting for the Pennsylvania State Police Laboratories to provide the requested discovery. On October 13, 2021, the trial court denied Robertson's motion to impose sanctions, and ordered that Robertson file "any pre-trial motions . . . within fourteen (14) days of the date the Commonwealth provides the Laboratory materials." Order, 10/13/21, at 1 (emphasis omitted).
On October 19, 2021, Robertson filed objections to the trial court's acceptance of the Commonwealth's response. On the same day, Robertson filed a second motion to compel discovery. On October 26, 2021, the trial court denied Robertson's second motion to compel discovery.
On November 10, 2021, Robertson filed a writ of habeas corpus. On the same day, Robertson filed an omnibus pre-trial motion, in which he contended, inter alia, that the probation officers lacked reasonable suspicion that Robertson had committed a probation violation, lacked the reasonable suspicion to seize Robertson, and lacked the authority to impose probationary conditions that were not imposed by the sentencing court. See Omnibus Pre-Trial Motion, 11/10/21, at 1-66. Additionally, Robertson argued that his consent to search was the product of an unlawful detention and, in the alternative, Robertson's consent was involuntary and was coerced. See id. Robertson also challenged the subsequent search warrant and, in particular, that the search warrant did not include the curtilage of the home. See id. On November 12, 2021, Robertson filed a motion to dismiss pursuant to Pa.R.Crim.P. 600.
We mention only the claims that Robertson has now raised on appeal before this Court. There are several other claims that are not relevant to the instant appeal.
On November 19, 2021, Robertson filed a motion for disqualification of the trial judge. On December 6, 2021, Robertson filed a supplemental omnibus pre-trial motion and a supplemental motion to dismiss pursuant to Rule 600. On December 7, 2021, Robertson filed another motion for disqualification of the trial judge.
On December 13, 2021, the Commonwealth filed separate responses to Robertson's writ of habeas corpus and his Rule 600 motion. On December 14, 2021, the Commonwealth filed a response to Robertson's omnibus pre-trial motion.
Also, on December 14, 2021, the trial court conducted a consolidated hearing, at which it addressed Robertson's motions to disqualify, writ of habeas corpus, Rule 600 motions, and bifurcated Robertson's suppression claims. The trial court denied Robertson's motions to disqualify and his Rule 600 motions. See Order, 1/12/22, at 1 (denying Robertson's Rule 600 motions); Order and Opinion, 1/24/22, at 1-4 (unpaginated) (denying Robertson's motions for disqualification). On February 2, 2022, the trial court conducted the second portion of the bifurcated pre-trial hearing. The next day, the trial court ordered that the parties file briefs. Ultimately, due to numerous continuance requests from both parties, the parties' briefs were not filed until July 26, 2022, and September 20, 2022, respectively.
The trial court bifurcated the suppression hearing due to its length and ordered that the remaining witnesses were to appear on February 2, 2022, to testify. See N.T. Pre-Trial Hearing (Day 1), 12/14/21, at 142-150; see also Order, 1/20/22, at 1. The court scheduled the suppression hearing for January 20, 2022; however, standby counsel tested positive for COVID-19 and the hearing was continued. See Order, 1/20/22, at 1.
In particular, the trial court ordered Robertson to file a brief within 20 days of the date of the order. Roberton requested four continuances, all of which the trial court granted. On April 25, 2022, Robertson filed his brief. Additionally, on May 16, 2022, Robertson filed a motion for extension of time to file a supplemental brief. The trial court granted Robertson an additional 30 days. On June 22, 2022, Robertson filed another motion for extension of time to file his supplemental brief, and the trial court granted Robertson another 30 days. On July 20, 2022, Robertson filed a third request for extension of time, which the trial court granted. Ultimately, Robertson filed his supplemental brief on July 26, 2022. Subsequently, the Commonwealth had 20 days from the filing date of Robertson's brief, to file its own brief. We note that after Robertson filed his brief, he also filed a new motion for dismissal, a motion to reopen the suppression record, a motion for reconsideration of his Rule 600 motion, a supplemental brief in support of his omnibus pre-trial motion, and a supplemental motion for dismissal. The trial court directed the Commonwealth to file separate responses to each of Robertson's filings. During this time, the Commonwealth requested two extensions of time to file its brief, which the trial court granted. As a result, the Commonwealth's brief was not filed until September 20, 2022.
On December 12-13, 2022, Robertson proceeded to a jury trial, after which he was convicted of the above-mentioned offenses. The trial court deferred sentencing and ordered the preparation of a pre-sentence investigation report. On December 20, 2022, the trial court conducted a sentencing hearing, at which it sentenced Robertson to an aggregate sentence of six to twelve years' incarceration followed by seven years' probation.
Robertson filed a timely, counseled, notice of appeal. Both Robertson and the trial court have complied with Pa.R.A.P. 1925. Robertson now raises the following issues for our review:
We note that on February 15, 2024, this Court remanded the matter to the trial court for a determination of whether Robertson had violated this Commonwealth's ban on hybrid representation. See Memorandum, 2/15/24, at 1-6. Additionally, we directed the trial court to determine whether Roberston had, at any point, yielded his pro se status in favor of counsel's representation and, if so, what, if any, impact that had on Robertson's Rule 600 claim. See id. Upon remand, the trial court conducted an additional hearing, at which it concluded that Robertson had not yielded his pro se status until the final day of the jury trial. See Supplemental Trial Court Opinion, 7/10/24, at 1-4. Additionally, the trial court concluded that the additional filings by standby counsel were done at either the trial court's direction, or on behalf of Robertson. See id. Further, the trial court explained that standby counsel's additional motions filed on behalf of Robertson were actually pro se motions that Robertson had provided to standby counsel to file in order to meet filing deadlines. See id.; see also N.T. Supplemental Rule 600 Hearing, 5/13/24, at 5-8, 10-11 (Attorney Doward and Robertson explaining why Attorney Doward filed some of Robertson's motions). The trial court, therefore, concluded that its prior Rule 600 findings and calculations were still supported by the record. After review, we agree with the trial court's determination that Robertson and his counsel did not violate this Commonwealth's ban on hybrid representation. Accordingly, we address his Rule 600 claim infra.
1. Did the trial court err when it found that the Commonwealth did not violate Robertson's Pennsylvania rule[-]based right pursuant to [Rule] 600 and his separate and distinct right to a speedy trial under the Sixth Amendment of the United States Constitution when he was brought to trial beyond 365 days?
2. Did the trial court err when it denied Robertson's [omnibus pre-trial motion], where its findings of fact and conclusions of law were unsupported by the record and in legal error[,] where [Robertson] did not have any court[-]ordered conditions of supervision in order for [DCPS] to possess a reasonable suspicion to conduct unannounced probation or parole visits?
3. Did the trial court err when it denied Robertson's [omnibus pre-trial motion, where] the Commonwealth's failure to establish a reasonable suspicion for [DCPS] to search and seize his person or his mother's vehicle based on the vague statement that he smoked medical marijuana without any corroborating evidence to support this claim?
4. Did the trial court err when it denied Robertson's [omnibus pre-trial motion,] under Franks v. Delaware, 438 U.S. 154 (1978),based on the State and Federal standards?
5. Did the trial court err when it denied Robertson's [omnibus pre-trial motion] when it found the search warrant permitted the search of the curtilage of the home even though this area was not described in the search warrant with any particularity; [MDJ Lenker] testified that the warrant did not include the curtilage of the home; and the Commonwealth failed to present any witnesses at the suppression hearing that could support the seizure of the evidence found in the curtilage under any exception to the warrant requirement?
6. Did the Commonwealth fail to present sufficient evidence to support the jury's finding of guilt as to [possession of a firearm with manufacturer number altered], etc., where the evidence did not prove that Robertson possessed the firearm or that the manufacturer's number was sufficiently altered?
In Franks, the United States Supreme Court held that,
[w]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the findings of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.Id. at 154.
Brief for Appellant, at 1-2.
In his first claim, Robertson argues that the trial court erred in denying his Rule 600 motions. See id. at 43-58. Robertson claims that from the date he was charged, August 13, 2020, and the date he was brought to trial, December 12, 2022, 851 days had passed in violation of Rule 600. Id. at 49-50. Robertson contends that the Commonwealth requested numerous briefing extensions and failed to exercise due diligence in bringing him to trial. See id. at 49-52. In support of his argument, Robertson posits that the Commonwealth "provided no evidence of what effort it made to obtain" discoverable materials. See id. at 51, 53. Robertson acknowledges that the Dauphin County Court of Common Pleas was subject to two judicial emergencies during this time, due to the COVID-19 pandemic, but that these emergencies only account for 108 days. See id. at 49. Robertson is not entitled to relief on this claim.
"In evaluating Rule 600 issues, our standard of review . . . is whether the trial court abused its discretion." Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en banc).
The proper scope of review . . . is limited to the evidence on the record of the Rule 600 evidentiary hearing[] and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party.
Additionally, when considering the trial court's ruling, this Court is not permitted to ignore the dual purpose behind Rule 600. Rule 600 serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society. In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
* * *
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be
construed in a manner consistent with society's right to punish and deter crime.Id. at 1238-39 (internal citations and quotation marks omitted).
Rule 600 provides, in relevant part, as follows:
(A) Commencement of Trial; Time for Trial
* * *
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.Pa.R.Crim.P. 600(A)(2)(a). "Rule 600 generally requires the Commonwealth to bring a defendant . . . to trial within 365 days of the date the complaint was filed." Hunt, 858 A.2d at 1240. To obtain relief, a defendant must have a valid Rule 600 claim at the time he files his motion for relief. Id. at 1243.
"The mechanical run date is the date by which the trial must commence under Rule 600." Commonwealth v. McNear, 852 A.2d 401, 406 (Pa. Super. 2004).
It is calculated by adding 365 days (the time for commencing trial under Rule 600) to the date on which the criminal complaint is filed. The mechanical run date can be modified or extended by adding to the date any periods of time in which delay is caused by the defendant. Once the mechanical run date is modified accordingly, it then becomes an adjusted run date.Id. In the context of Rule 600, "excludable time" is differentiated from "excusable delay" as follows:
"Excludable time" is defined in Rule 600(C) as the period of time between the filing of the written complaint and the defendant's
arrest, provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant's attorney; [and/or] (b) any continuance granted at the request of the defendant or the defendant's attorney. "Excusable delay" is not expressly defined in Rule 600, but the legal construct takes in[to] account delays [that] occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence.Hunt, 858 A.2d at 1241 (internal citations and footnote omitted).
In determining whether any time constitutes excludable delay under Rule 600, a trial court must determine whether the time is a "delay in proceedings," and whether the delay should be excluded based on an analysis of the Commonwealth's due diligence. Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017). Time that is "necessary to ordinary trial preparation" or "attributable to the normal progression of a case simply is not a 'delay' for the purposes of [R]ule 600." Id. If time constitutes a "delay," it is excludable when it falls under the "wide variety of circumstances [encompassed by Rule 600] under which a period of delay was outside the control of the Commonwealth and not the result of the Commonwealth's lack of diligence." Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013) (citations and quotation marks omitted).
"A Rule 600 motion requires a showing of due diligence by a preponderance of the evidence for the Commonwealth to avail itself of an exclusion." Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010) (citation omitted). "Due diligence is fact-specific, to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put forth a reasonable effort." Id. Reasonable effort includes such actions as the Commonwealth listing the case for trial prior to the run date to ensure that the defendant was brought to trial within the time prescribed by Rule 600. See Commonwealth v. Aaron, 804 A.2d 39, 43-44 (Pa. Super. 2002); Commonwealth v. Hill, 736 A.2d 578, 592 (Pa. 1999).
Trial courts "must exercise judgment in distinguishing between delay attributable to the court and that which should be allocated to a party." Mills, 162 A.3d at 325. Judicial delays "arising out of the court's own scheduling concerns . . . where a trial[-]ready prosecutor must wait several months due to a court calendar . . . should be treated as 'delay' for which the Commonwealth is not accountable." Id. Nevertheless, the Commonwealth must act diligently through all stages of the case, and its due diligence must be assessed before the court makes determinations regarding judicial delay. See Commonwealth v. Harth, 252 A.3d 600, 617-18 (Pa. 2021) (adopting Justice Wecht's concurrence in Mills, supra).
In this case, the Commonwealth filed charges against Robertson on August 13, 2020. Thus, the mechanical run date for Rule 600 purposes was August 13, 2021. Robertson's trial began on December 12, 2022, 486 days beyond the initial mechanical run date. Accordingly, the relevant question is whether there existed at least 486 days of excludable time. Integral to this question is whether the Commonwealth acted with due diligence.
As we summarized supra, Robertson filed an almost endless stream of pre-trial motions. At his preliminary hearing, Robertson requested a continuance resulting in a 21-day delay. On November 27, 2020, after his case was assigned to the trial court, Robertson filed his Grazier motion, which was scheduled for a hearing on December 8, 2020, resulting in an 11-day delay. On January 4, 2021, during the COVID-19 emergency, Robertson filed a motion to compel discovery. On April 5, 2021, Robertson began filing his series of motions for extensions of time to file his omnibus pre-trial motion, which he ultimately filed on November 10, 2021, and resulted in the scheduling of a bifurcated pre-trial hearing for December 14, 2021, and February 2, 2022, a 303-day delay. As a result of this hearing, the parties were ordered to file briefs. Ultimately, the briefs were delayed due to five separate continuances requested by Robertson, until he filed both his brief and his supplemental brief. However, as we noted supra, even during the time the Commonwealth was allotted to file its responsive brief, Robertson filed another request to supplement his brief, as well as a supplemental motion for dismissal on September 19, 2022. After additional motions, briefs, and supplements filed by Robertson, the trial court disposed of all his omnibus claims on November 8, 2022, resulting in a 279-day delay.
As noted supra, this hearing was bifurcated due to the extensive testimony required. We observe that Robertson agreed to the bifurcation and to the February 2, 2022 date.
Tallying all of Robertson's delays results in a minimum of 613 days attributable to either Robertson or the trial court when the Commonwealth had acted with due diligence. Furthermore, throughout the many Rule 600 orders issued in this case, the trial court consistently found that the Commonwealth was acting with due diligence. See Order and Opinion, 11/8/22, at 1; Trial Court Opinion, 2/27/23, at 1-5 (summarizing Rule 600 procedural history); Supplemental Trial Court Opinion, 7/10/23, at 1-4 (summarizing procedural history and Commonwealth's due diligence). After review, we conclude that the record supports the trial court's Rule 600 determinations, and we afford Robertson no relief on this claim.
Moreover, we observe that Robertson conceded that there were 108 days of excludable time due to the COVID-19 emergency in Dauphin County. See Order and Opinion 11/8/22, at 3-5; Brief for Appellant, at 49. If we were to include this time in our tally, it would result in at least 721 days of excludable time.
In his second issue, Robertson argues that the trial court erred in concluding that he was subject to any probation conditions pursuant to his probation imposed at No. 2276-2017. See Brief for Appellant, at 59-62. Robertson relies upon this Court's decision in Commonwealth v. Koger, 255 A.3d 1285 (Pa. Super. 2021) rev'd 294 A.3d 393 (Pa. 2023). Robertson contends that he was never informed of any probation conditions and, consequently, he avers that he could not have been lawfully subjected to any searches or seizures by his probation officers. See Brief for Appellant, at 59-62. We disagree.
In Koger, this Court explained that, when the Commonwealth seeks to prove a violation of probation, the Commonwealth must prove that the defendant was advised of the specific conditions of his probation or show that he has committed a new crime. See id. at 1289-90. Ultimately, the Commonwealth appealed this Court's decision in Koger, and our Supreme Court reversed, in part, concluding that this Court had improperly expanded our Supreme Court's prior holding in Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019). Foster pertained only to probationers, whereas this Court, in Koger, applied Foster to both probation and parole. See Commonwealth v. Koger, 295 A.3d 699 (Pa. 2023). Our Supreme Court, accordingly, reversed this Court's decision in Koger to the extent that this Court had improperly expanded Foster. See id. at 710-11.
Instantly, we conclude that Koger is wholly inapplicable to Robertson's case and, therefore, his claim fails. As noted infra, Koger applies to revocation of probation proceedings. In the instant case, Robertson was charged with a new crime. Any revocation proceedings that Robertson was subject to because of these convictions are not before us. Accordingly, we conclude that Koger is of no moment to the instant case and afford Robertson no relief on this issue.
In his third claim, Robertson asserts that the trial court erred in concluding that the probation officers had reasonable suspicion to search and seize Robertson. See Brief for Appellant, at 62-66. Robertson posits that, even if he were subject to specific probation conditions, the facts articulated by PO Anglemeyer failed to rise to the level of reasonable suspicion. See id. Robertson relies upon our Supreme Court's decision in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), for the proposition that the "plain smell" of marijuana cannot support, on its own, reasonable suspicion to conduct a search. See Brief for Appellant, at 62-66. Robertson is entitled to no relief.
An appellate court's 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 only consider 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, the appellate court is bound by those findings and may reverse only if the court's legal conclusions are erroneous. Where 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 [de novo] review.Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned up).
The aim of probation and parole is to rehabilitate and reintegrate a lawbreaker into society as a law-abiding citizen. See Commonwealth v. Chambers, 55 A.3d 1208, 1212 (Pa. Super. 2012). The institution of probation and parole assumes a probationer or parolee is more likely than the ordinary citizen to violate the law. See Commonwealth v. Moore, 805 A.2d 616, 619 (Pa. Super. 2002). Consequently, probationers and parolees have limited Fourth Amendment rights because of a diminished expectation of privacy. See id.; see also Chambers, supra (stating probationers' and parolees' Fourth Amendment constitutional rights are virtually indistinguishable). This Court has previously explained that probation officers, like parole officers:
[A]re in a supervisory relationship with their offenders. The
purpose of this supervision is to assist the offenders in their rehabilitation and reassimilation into the community and to protect the public. Supervision practices shall reflect the balance of enforcement of the conditions of parole and case management techniques to maximize successful parole completion through effective reentry to society. As such, probationers and parolees are subject to general and individual rules of conduct and supervision described at sentencing and/or in the parole agreement.Commonwealth v. Smith, 85 A.3d 530, 536 (Pa. Super. 2014) (internal citations and quotation marks omitted).
The statute governing the supervisory relationship between probation officers and probationers and the concomitant rights of probationers, in effect at the time of this case, provided in relevant part:
§ 9912. Supervisory relationship to offenders
(a) General rule.--Officers are in a supervisory relationship with their offenders. The purpose of this supervision is to assist the offenders in their rehabilitation and reassimilation into the community and to protect the public.
(b) Searches and seizures authorized.--
(1) Officers and, where they are responsible for the supervision of county offenders, State parole agents may search the person and property of offenders in accordance with this section.
** * (d) Grounds for personal search.--
(1) A personal search of an offender may be conducted by an officer:
(i) if there is reasonable suspicion to believe that the offender possesses contraband or other evidence of violations in the conditions of supervision;
** *
(2) A property search may be conducted by an officer 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 in violations of the conditions of supervision.
(3) Prior approval of a supervisor shall be obtained for a property search absent exigent circumstances. No prior approval shall be required for a personal search.
(4) A written report of every property search conducted without prior approval shall be prepared by the officer who conducted the search and filed in the offender's case record. The exigent circumstances shall be stated in the report.
(5)The offender may be detained if he is present during a property search. If the offender is not present during a property search, the officer in charge of the search shall make a reasonable effort to provide the offender with notice of the search, including a list of the items seized, after the search is completed.
(6)The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In
accordance with such case law, the following factors, where applicable, may be taken into account:
(i) The observations of the officers.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of the officers with the offender.
(vi) The experience of officers in similar circumstances.
(vii) The prior criminal and supervisory history of the offender.
(viii) The need to verify compliance with the conditions of supervision.42 Pa.C.S.A. §§ 9912(a), (b)(1), (d) (effective September 19, 2016 to June 29, 2021).
The legislature amended this statute on June 30, 2021, effective immediately.
"Essentially, [s]ection 9912 authorizes county probation officers [to] search a probationer's person or property[] if there is reasonable suspicion to believe the probationer possesses contraband or other evidence of violations of the conditions of supervision." Chambers, supra at 1214. "Reasonable suspicion to search must be deemed consistent with constitutional search and seizure provisions as applied by judicial decisions[.]" Id.
In establishing reasonable suspicion, the fundamental inquiry is an objective one, namely, whether the facts available to the officer
at the moment of the intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability.Moore, supra at 619-20 (internal citations, brackets, and quotation marks omitted).
"[T]he threshold question . . . is whether the probation officer had a reasonable suspicion of criminal activity or a violation of probation prior to the . . . search." In re J.E., 907 A.2d 1114, 1119 (Pa. Super. 2006) (emphasis omitted). It is axiomatic that reasonable suspicion requires more than a mere hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. See Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super. 2014) (en banc) (citing Navarette v. California, 572 U.S. 393, 397 (2014); United States v. Sokolow, 490 U.S. 1, 7 (1989)). Additionally, we observe that it is a general condition of probation to refrain from acquiring new charges. See Commonwealth v. Foster, 214 A.3d 1240, 1250 (Pa. 2019).
Here, the trial court found that PO Anglemeyer was credible. See Order and Opinion, 10/5/22, at 1-7. PO Anglemeyer testified that, as he approached the vehicle, Robertson exited the vehicle and PO Anglemeyer could smell burnt marijuana. See id. at 1-5 (summarizing suppression hearing testimony). As PO Anglemeyer began speaking with Robertson, Robertson admitted to smoking marijuana in the vehicle. See id. Additionally, PO Anglemeyer testified that on a prior visit, he had counseled Robertson that he should not be smoking marijuana, as that was still prohibited conduct even under the Medical Marijuana Act (MMA). See id.; see also N.T. Suppression Hearing (Day 1), 12/14/21, at 32. Consequently, based upon the unique relationship between a probation officer and the probationer, we conclude that PO Anglemeyer's prior conversation with Robertson about proper methods to use marijuana, combined with the both the smell of marijuana and Robertson's confession to smoking marijuana, gave PO Anglemeyer the requisite reasonable suspicion to search Robertson and his vehicle.
35 P.S. § 10231.304(b)(1) ("It is unlawful to [s]moke medical marijuana.").
Additionally, we note that our Supreme Court's decision in Barr is distinguishable from this case. We emphasize that, in Barr, our Supreme Court found that the smell of burnt marijuana alone cannot sustain a finding of probable cause. See Barr, at 41. However, our Supreme Court simultaneously acknowledged that possession of marijuana is still illegal for those who are not qualified under the MMA. See id. Thus, the Supreme Court concluded that the smell of marijuana could still lead to a warrantless search when evaluating the totality of the circumstances. See id. Furthermore, as we stated supra, probable cause is a higher standard than the instantly applicable reasonable suspicion. See Carter, supra.
Moreover, we observe that Robertson consented to these searches. See id. at 3-5. Indeed, as the trial court concluded, POs Anglemeyer and Rigel testified that they requested Robertson's consent prior to searching Robertson, the vehicle, or the home. See id. at 1-5, 7-8. Robertson provided consent for the POs to search all three. See id. Thus, even if the smell of marijuana and PO Anglemeyer's observations did not support a finding of reasonable suspicion, Robertson's consent gave the POs an alternative basis to conduct lawful searches. See id.; see also Commonwealth v Valdivia, 195 A.3d 855, 861 (Pa. 2018) (consensual search is an exception to warrant requirement). Accordingly, we grant Robertson no relief on this claim.
In his fourth claim, Robertson argues that the trial court erred in denying his Franks motion. See Brief for Appellant, at 66-71. Robertson contends that PO Anglemeyer made material misrepresentations to Detective Dupler who, in turn, relied upon those misrepresentations to search Robertson's mother's home in violation of Franks. See Brief for Appellant, at 69-71. Robertson avers that PO Anglemeyer lied about how much marijuana Robertson possessed and that he never informed Detective Dupler that Robertson had a valid medical marijuana card. See id. at 70-71. We disagree.
In addressing a Franks claim, courts of this Commonwealth have held that "misstatements of fact will invalidate a search warrant and require suppression of the fruits of the search only if the misstatements of fact are deliberate and material." Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa. Super. 2011) (citations omitted, emphasis added). Additionally,
[w]hile we have recognized that the veracity of facts establishing probable cause recited in an affidavit supporting a search warrant may be challenged and examined, . . . we have not suggested that every inaccuracy will justify an exclusion of evidence obtained as a result of the search.Commonwealth v. Monte, 329 A.2d 836, 842-43 (Pa. 1974) (citations and footnote omitted). The factual determination of whether a misstatement was deliberately made is within the sole province of the suppression court sitting as fact finder, who is free to believe all, part, or none of the evidence. See Baker, 24 A.3d at 1017.
Upon review of the record, as noted supra, the trial court found both PO Anglemeyer and Detective Dupler credible. See Order and Opinion, 10/5/22, at 6-7. Additionally, the trial court determined that PO Anglemeyer did not lie to Detective Dupler about the amount of marijuana he observed. See id. Further, we note that it is of no moment whether Detective Dupler was aware of Robertson's medical marijuana card. It is clear from the record, and reflected in the warrant, that PO Anglemeyer observed unapproved marijuana in the vehicle and in the home registered as Robertson's probation address. See N.T. Suppression Hearing (Day 1), 12/14/21, at 32 (PO Anglemeyer testifying 2305 Clayton Avenue was Robertson's address); id. at 33-42 (PO Anglemeyer testifying, during his search, he observed multiple baggies of marijuana packed in unapproved plastic bags; marijuana in clear glass jar in Robertson's room); id. at 33-38 (PO Anglemeyer testifying MMA requires specific approved packaging from dispensary); id. at 40-43 (PO Anglemeyer testifying based upon his observations that he recommended Dauphin County Drug Task Force secure search warrant); see also id. at 108-09, 114-15 (Detective Dupler testifying he acquired search warrant based upon PO Anglemeyer's observations). Furthermore, due to their conversation, both Robertson and PO Anglemeyer knew that Robertson, even with his medical marijuana card, was not allowed to smoke marijuana or possess marijuana in any container other than the original packaging. See id. at 32; see also Order and Opinion, 10/5/22, at 1-7. Thus, Robertson's possession of the marijuana, in improper packaging pursuant to the MMA, was prohibited by both his probation and by law, which gave rise to the requisite probable cause to support Detective Dupler's warrant. See 35 P.S. § 10231.303(b)(6) (requiring medical marijuana to be kept in original packaging). Consequently, we discern no material misstatements, let alone deliberately-made material misstatements. See Baker, supra. Accordingly, Robertson is not entitled to relief on this issue.
In his fifth claim, Robertson argues that the trial court erred in concluding that the curtilage of the home was included in the Commonwealth's search warrant. See Brief for Appellant, at 71-75. Robertson contends that, at the suppression hearing, MDJ Lenker testified that the word "curtilage" does not appear in the search warrant. See id. at 75. Robertson asserts that the search warrant only included the "residence of 2305 Clayton Avenue," did not include the curtilage, and that, therefore, the trial court erred by not suppressing the firearms recovered in the curtilage of the home. See id. We disagree.
Robertson's claim is a suppression claim and, thus, we incorporate our previously stated standard of review. See Smith, supra. We further observe:
It is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched. . . . The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad. These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officer to pick and choose among an individual's possessions to find which items to seize. This will result in the general "rummaging" banned by the [F]ourth [A]mendment. A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation. . . . An overbroad warrant is unconstitutional because it authorizes a general search and seizure.
* * *
The language of the Pennsylvania Constitution requires that a warrant describe the items to be seized as nearly as may be. . . . The clear meaning of the language is that a warrant must describe the items as specifically as possible. This requirement is more stringent than that of the Fourth Amendment, which merely requires particularity in the description. The Pennsylvania Constitution further requires the description to be as particular as is reasonably possible. . . . Consequently, in any assessment of the validity of the description contained in a warrant, a court must initially determine for what items probable cause existed. The sufficiency of the description must then be measured against those items for which there was probable cause. Any unreasonable discrepancy between the items for which there was probable cause and the description in the warrant requires suppression. An unreasonable discrepancy reveals that the description was not as specific as was reasonably possible.
The legal principles applicable when reviewing the sufficiency of an affidavit to determine whether it establishes the probable cause necessary for the issuance of a warrant are also well[-]established.
Before an issuing authority may issue a constitutionally valid search warrant, [the issuing authority] must be furnished with information sufficient to persuade a reasonable person that
probable cause exists to conduct a search. The information offered to demonstrate probable cause must be viewed in a common sense, nontechnical, ungrudging[,] and positive manner. It must also be remembered that probable cause is based on a finding of the probability, not a prima facie showing[,] of criminal activity, and that deference is to be accorded a magistrate's finding of probable cause.
Hearsay information is sufficient to form the basis of a warrant so long as the magistrate has been provided with sufficient information to make a "neutral" and "detached" decision about whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.Commonwealth v. Rivera, 816 A.2d 282, 290-91 (Pa. Super. 2003) (citations and quotations omitted).
Additionally, the "curtilage" of a home is entitled to constitutional protection from unreasonable searches and seizures, as individuals have a reasonable expectation of privacy that society is prepared to accept. See Commonwealth v. Fickes, 969 A.2d 1251, 1256 n.1 (Pa. Super. 2009). The United States Supreme Court has defined "curtilage" as the area "immediately surrounding and associated with the home" and has stated that the curtilage is "part of the home itself for Fourth Amendment purposes." Commonwealth v. Eichler, 133 A.3d 775, 784 (Pa. Super. 2016) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)) (emphasis added). In the context of a house, curtilage "means a small piece of land, not necessarily enclosed, around a dwelling house and generally includes buildings used for domestic purposes in the conduct of family affairs[.]" Commonwealth v. Cihylik, 486 A.2d 987, 922 (Pa. Super. 1985) (citations omitted). Whether or not an area constitutes curtilage is case-specific and depends on several factors including "its proximity to the dwelling, whether it is within the enclosure surrounding the dwelling, and its use as an adjunct to the domestic economy of the family." Id. at 991-92.
Instantly, as we noted supra, the trial court found PO Anglemeyer and Detective Dupler credible. See Order and Opinion, 10/5/22, at 1-7. Additionally, the trial court found that MDJ Lenker had sufficient information to find that probable cause existed for the warrant. See id. at 9-11.
After review of the foregoing caselaw, we conclude that the curtilage is part of the home. See Eichler, supra. Consequently, whether the warrant mentioned the curtilage as an area to be searched is irrelevant where the warrant was to search "the residence of 2305 Clayton Avenue." See id. Indeed, 2305 Clayton Avenue is the house Robertson had registered with probation. See N.T. Suppression Hearing (Day 1), 12/14/21, at 32. Thus, in light of Eichler, we conclude that the trial court did not err in finding the curtilage of the home was included in the meaning of "the residence of 2305 Clayton Avenue." See Order and Opinion, 10/5/22, at 9-10; see also Eichler, supra. Accordingly, we afford Robertson no relief.
In his sixth issue, Robertson argues that the Commonwealth failed to present sufficient evidence to sustain his conviction of possession of firearm with altered manufacturer's number. See Brief for Appellant, at 76-81.
Robertson has waived this claim for our review. In his Rule 1925(b) concise statement, Robertson raised a sufficiency challenge to the elements of 18 Pa.C.S.A. § 6117, relating to altering or obliterating marks of identification. See Pa.R.A.P. 1925(b) Concise Statement, 1/19/23, at 4-5 (unpaginated). Section 6117 pertains to individuals who altered or obliterated the manufacturer's number on a firearm, not to mere possession of said firearm. See 18 Pa.C.S.A. § 6117(a). Robertson was not charged with, or convicted of, a violation of section 6117. Consequently, Robertson's sufficiency challenge is waived. See Pa.R.A.P. 1925(b)(4)(ii) (requiring appellant concisely identify each error with sufficient detail to identify issue); see also id. at (b)(4)(vii) (issues not raised in accordance with this paragraph are waived). Based upon the foregoing, we affirm Robertson's judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
[*]Former Justice specially assigned to the Superior Court.