J-A20028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
DYLAN SCOTT TURPIN                       :
                                         :
                   Appellant             :   No. 1656 MDA 2016

            Appeal from the Judgment of Sentence May 10, 2016
            In the Court of Common Pleas of Cumberland County
            Criminal Division at No(s): CP-21-CR-0000623-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                       FILED FEBRUARY 13, 2018

      Appellant, Dylan Scott Turpin, appeals from the judgment of sentence

entered in the Court of Common Pleas of Cumberland County. On appeal, he

raises two claims of suppression court error and argues the Commonwealth

presented insufficient evidence to sustain his conviction for conspiracy to

deliver a controlled substance (heroin). We affirm.

      Police officers suspected Turpin’s roommate, Ben Irvin, of dealing

narcotics out of the single-family townhouse the pair shared. They

investigated and confirmed their suspicion by setting up a controlled buy

with a confidential informant. The buy took place off the premises, but

officers observed Irvin leave the residence immediately prior to the buy and

return to it directly after. The officers then obtained a warrant to search the

entire residence for, among other things, heroin and drug paraphernalia.

While executing the search of the townhouse, officers found six bags of
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heroin, a handgun, marijuana, and a substantial amount of currency, among

other items, in Turpin’s bedroom.

     Prior to trial, Turpin moved to suppress the contraband found in his

room. He advanced two arguments. First, he claimed the search warrant was

overbroad, as he maintained the law did not permit the officers to search his

bedroom. According to Turpin, his bedroom constituted a separate living

unit. Second, he claimed the handgun was outside the scope of the warrant

and, alternatively, the handgun’s incriminating nature was not immediately

apparent to the officers. After conducting an evidentiary hearing, the

suppression court found no viability to either of these arguments.

     The matter proceeded to a two-day jury trial. The jury heard evidence

offered by the Commonwealth of a rather sophisticated and extensive drug-

dealing operation run from the residence. The jury convicted Turpin on all

six counts, including conspiracy to deliver a controlled substance (heroin).

The trial court subsequently imposed an aggregate period of imprisonment

of 12 to 24 months. After the denial of Turpin’s post-sentence motions, this

timely appeal followed.

     We begin with Turpin’s two suppression issues.

           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


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     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. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).

     Both issues concern a search warrant.

            Pursuant to the “totality of the circumstances” test set
     forth by the United States Supreme Court in [Illinois v.] Gates,
     [462 U.S. 213,] the task of an issuing authority is simply to
     make a practical, common-sense decision whether, given all of
     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. Thus, the
     totality of the circumstances test “permits a balanced
     assessment of the relative weights of all the various indicia of
     reliability (and unreliability) attending an informant’s tip....”
     Gates, 462 U.S. at 234. It is the duty of a court reviewing an
     issuing authority’s probable cause determination to ensure that
     the magistrate had a substantial basis for concluding that
     probable cause existed. In so doing, the reviewing court must
     accord deference to the issuing authority’s probable cause
     determination, and must view the information offered to
     establish probable cause in a common-sense, non-technical
     manner.

Commonwealth v. Torres, 764 A.2d 532, 537-538 (Pa. 2001) (some

citations and quotation marks omitted).

     The affidavit of probable cause details the investigation into Ben Irvin.

Pertinent here, police observed activity at Irvin’s residence that “was


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indicative of drug dealing.” Affidavit of Probable Cause, filed 2/19/15, at 3

(unnumbered). The investigation identified “two other individuals that

seemed to be either living with Irvin or staying with him for periods of time.”

Id., at 2 (unnumbered). One of these roommates was Turpin.

      Officers set up a controlled buy with a confidential informant and

surveilled Irvin’s residence prior to the buy. The officers observed Irvin leave

the residence and drive to the pre-determined meeting location with the

informant. The drug deal occurred and the officers recovered suspected

heroin from the informant. They also observed Irvin return to his residence

after the drug sale. This activity led the affiant to conclude “that Irvin’s

Heroin distribution has been ongoing and that additional Heroin is located

within his residence.” Id., at 4 (unnumbered).

      The search warrant identified heroin, drug paraphernalia, proceeds

from drug sales, and cell phones owned or possessed by Irvin as the items

to be searched for and seized. The premises to be searched was identified as

“[t]he residence at 105 E Green ST Mechanicsburg, PA 17055[,]” which is

described as “single family townhouse” whose “address # ‘105’ is printed

directly beside the front door.” Application for Search Warrant and

Authorization, filed 2/19/15.

      The police executed the search warrant and searched the entire

residence, including Turpin’s bedroom. In his bedroom, they recovered,




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among other items, bags of heroin, a bag of marijuana, currency, and a

stolen handgun.

      Turpin first claims the search warrant was overbroad. The premise for

this argument is Turpin’s belief that the officers were not permitted to search

his private bedroom. We disagree. As explained below, when probable cause

exists to believe that contraband is located within a particular room of a

single,   shared   residence,   Article    1,   Section   8   of   the   Pennsylvania

Constitution does not preclude a search of the entire residence.

      A warrant must “name or describe with particularity the … place to be

searched.”   Pa.R.Crim.P. 205(A)(3).        Paragraph     (A)(3)    is   “intended   to

proscribe general or exploratory searches by requiring that searches be

directed only towards the specific items, persons, or places set forth in the

warrant.” Pa.R.Crim.P. 205, Comment. “[W]arrants should, however, be

read in a common sense fashion and should not be invalidated by

hypertechnical interpretations.” Id. See also Commonwealth v. Carlisle,

534 A.2d 469, 472 (Pa. 1987) (finding “a ‘practical, common-sense’

approach” should be taken in determining “whether the place to be searched

is specified with sufficient particularity[]”).

      “Article 1, Section 8 of the Pennsylvania Constitution affords greater

protection than the Fourth Amendment, … including a more demanding

particularity requirement[.]” Commonwealth v. Korn, 139 A.3d 249, 253




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(Pa. Super. 2016) (citations and material in brackets omitted; brackets

added).

      In order to protect these twin aims, a warrant must describe the
      place to be searched and the items to be seized with specificity,
      and the warrant must be supported by probable cause. The place
      to be searched must be described precise enough to enable the
      executing officer to ascertain and identify, with reasonable effort
      the place intended, and where probable cause exists to support
      the search of area so designated a warrant will not fail for lack of
      particularity.

Id., at 253-254 (citations and quotation marks omtted).

      To support his argument that the warrant was overbroad, Turpin

singularly relies on Commonwealth v. Waltson, 724 A.2d 289 (Pa. 1998).

There, our Supreme Court considered “whether the search of an entire

residence is barred as overbroad pursuant to Article 1, Section 8 where the

affidavit of probable cause for the warrant references only a particular room

within the residence.” Id., at 290.

      The facts in Waltson can be briefly stated. A woman told the police

that her boyfriend was growing marijuana in the basement of their single

unit house. The police obtained a warrant where the place to be searched

listed the residence. And the items to be seized included drugs and drug

paraphernalia. The police executed the warrant and searched the entire

residence. They found the marijuana in the basement—and recovered other

drugs and drug paraphernalia throughout the home.

      The Court found “the scope of the search authorized by the warrant

was lawful if it was limited to places within the premises where the police

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had probable cause to believe that the items to be seized could be found.”

Id., at 293. As the search warrant included drugs and drug paraphernalia

among the items to be seized, the Court concluded, “that the police could

reasonably believe that these items would be found in places other than the

basement and thus, police did not need to limit the scope of the search only

to the basement.” Id. “[T]he scope of the search extends to the entire area

in which the object of the search may be found and properly includes the

opening and inspection of containers and other receptacles where the object

may be secreted.” Id., at 292 (citation and internal quotation marks

omitted).

      Turpin relies on Waltson to distinguish it from this case.

      The search in the present matter, unlike that in Waltson, was not
      limited to the areas under the control of the named resident but
      was expanded into an area under the control of Mr. Turpin, who
      was not the subject of any investigation and who was only
      incidentally referenced in the search warrant as an individual
      living at the residence. Thus unlike in Waltson, the privacy
      interests of an individual other than the named resident were
      implicated by the search of the residence and, in particular, by
      the search of Mr. Turpin’s bedroom, an area of utmost privacy.

Appellant’s Brief, at 17. Simply put, he contends the residence here, a

“single family townhouse,” as described by the affidavit of probable case,

was occupied by two people whose bedrooms must be considered separate

residences. Thus, barring the search of his bedroom.

      Turpin’s reliance on Waltson is mistaken, as a recent decision from

our Court, which Turpin fails to cite, illustrates. In Korn, the police utilized a


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confidential informant to make two controlled buys of Xanax from Korn’s

roommate. Korn and his roommate lived in a two-bedroom apartment. And

the controlled buys took place in Korn’s roommate’s bedroom. The police

obtained a search warrant to search the entire apartment for drugs. The

subsequent search disclosed contraband in Korn’s locked bedroom.

       Korn moved to suppress the seized contraband and the suppression

court agreed, finding: “Despite the fact that Apartment 201 contains multiple

living units, the warrant fails to describe the particular living unit that was to

be searched so as to ensure the other living units, for which no probable

cause existed, were not searched.” Id., 139 A.3d at 251-252 (citation

omitted). A panel of this Court reversed the suppression order.

       The panel observed the suppression “court’s finding that [Korn]’s

bedroom was a ‘separate living unit’ is supported by neither the evidence

presented at the suppression hearing nor applicable case law.” Id., at 254.

In finding the two bedroom apartment did not contain separate living units,

the panel noted “there was no indication that [Korn]’s bedroom had a

separate mailbox, address, or any private entrance.” Id. (citation omitted).

That   Korn’s   bedroom    locked   from   the   inside,   the   panel   reasoned,

“establishes nothing more than the fact that [Korn’s roommate] could not

enter the bedroom at the time of the search.” Id., at 256. After finding the

apartment consisted of a single residential unit, the panel applied Waltson




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and concluded “there was probable cause to search the entire apartment.”

Id.

      Waltson and Korn control this case. The officers suspected Turpin’s

roommate of dealing drugs out of the residence, a single-family townhouse.

And a controlled buy confirmed their suspicion. There was no indication in

the record that Turpin’s bedroom had a separate mailbox, address, or any

private entrance. In fact, when asked at the suppression hearing what he

does with his bedroom when he is not at home, Turpin testified, “I shut my

door.” N.T., Suppression Hearing, 8/11/15, at 37. The officers had probable

cause to search the entire residence for heroin.

      Next, Turpin argues the suppression court erred in failing to suppress

the handgun when its seizure was beyond the scope of the search warrant

and it was not immediately apparent it was contraband. We disagree.

      Detective Jared Huff testified he searched Turpin’s bedroom and found

the handgun after he “moved some things off the TV stand and tilted the TV

stand over and there [it] was.” N.T., Suppression Hearing, 8/11/15, at 28-

29. Following protocol, he “immediately notified the other law enforcement

on scene” he had found a handgun. Id., at 29. Another detective

photographed the handgun, which was laying serial number side up.

      Detective   Troy   McNair   testified   that   once   the   handgun   was

photographed, he picked it up, cleared the weapon, and called in the serial

number. The handgun came back as reported stolen.


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      Officers also found “bags of suspected heroin” and a “small bag of

marijuana” in Turpin’s bedroom. Receipt/Inventory of Seized Property, at 1

(unnumbered) (admitted at suppression hearing as Commonwealth’s Exhibit

1).

      It is true the search warrant did not designate a handgun as an item to

be seized. But “[t]he plain view doctrine provides that evidence in plain view

of the police can be seized without a warrant[.]” Commonwealth v.

Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012) (brackets in original and

added; citations omitted).

      The plain view doctrine applies if 1) police did not violate the
      Fourth Amendment during the course of their arrival at the
      location where they viewed the item in question; 2) the item was
      not obscured and could be seen plainly from that location; 3) the
      incriminating nature of the item was readily apparent; and 4)
      police had the lawful right to access the item.

Id. (citation omitted).

      It is the third prong Turpin challenges. “In determining whether the

incriminating nature of an object is ‘immediately apparent’ to a police officer,

courts should evaluate the ‘totality of the circumstances.’” Commonwealth

v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013) (citations omitted). And

the officer’s belief of the object’s incriminating nature must be supported by

probable cause. See id.

      Here, looking at the totality of the circumstances, the incriminating

nature of the handgun was immediately apparent—the officer recovered it in

the same room as the heroin and marijuana. See United States v.

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Rodriguez, 711 F.3d 928, 936 (8th Cir. 2013) (finding incriminating nature

of guns immediately apparent where they are found in close proximity to

drugs and drug paraphernalia). The totality of the circumstances plainly

reveals the incriminating nature of the handgun was immediately apparent.

     Lastly,       Turpin   challenges     the    evidence    presented     by     the

Commonwealth to prove him guilty of conspiracy to deliver a controlled

substance (heroin).

            In reviewing sufficiency of evidence claims, we determine
     whether the evidence admitted at trial, and all the reasonable
     inferences derived therefrom viewed in favor of the
     Commonwealth as verdict winner, supports the jury’s findings of
     all the elements of the offense beyond a reasonable doubt. A
     sufficiency challenge is a pure question of law. Thus, our
     standard of review is de novo and our scope of review is plenary.

Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017) (internal

quotation marks and citations omitted).

     “The Commonwealth establishes the offense of possession with intent

to deliver when it proves beyond a reasonable doubt that the defendant

possessed      a   controlled   substance     with   the   intent   to   deliver   it.”

Commonwealth v. Little, 879 A.2d 293, 297 (Pa. Super. 2005) (citation

omitted). See also 35 P.S. § 780-113(a)(30). As for criminal conspiracy,

see 18 Pa.C.S.A. § 903(a)(1), the focal point is the agreement made by the

co-conspirators to commit an overt act in furtherance of the agreed upon

crime, see Little, 879 A.2d at 298. Direct evidence of the defendant’s

criminal intent or the conspiratorial agreement is rare. See id. So, “the


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defendant’s intent as well as the agreement is almost always proven through

circumstantial evidence, such as by the relations, conduct or circumstances

of the parties or overt acts on the part of the co-conspirators.” Id. (citation

omitted).

      The Commonwealth presented evidence from two detectives about the

highly unusual number of visitors to the home. For instance, Detective

Mellott testified he observed “a large number of people stopping for very

short periods of time to visit the residence….” N.T., Trial, 3/23/16, at 11-12.

The visitors stayed “a few minutes” at most. Id., at 12. The Commonwealth

also presented evidence the officers recovered over 300 bags of heroin from

the residence. The officers found the heroin in both bedrooms and in a

common area. One of the bags of heroin found in Turpin’s room, labeled

“Blue Magic,” matched bags with same label in Irvin’s bedroom and matched

a bag of heroin recovered from the controlled buy. The Commonwealth also

presented evidence the police found almost $1,000 in cash in Turpin’s

bedroom and that Turpin was unemployed. And they recovered the stolen

handgun from Turpin’s room.

      We find the Commonwealth presented sufficient evidence to sustain

Turpin's conviction for conspiracy to deliver a controlled substance (heroin).

The above-described conduct constitutes sufficient circumstantial evidence of

a conspiracy in which Turpin and Irvin were jointly involved in a drug dealing

operation they ran from their home.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/13/2018




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