J-A13001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DEON COLEMAN,

                        Appellant                   No. 71 WDA 2015


      Appeal from the Judgment of Sentence of November 13, 2014
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0015970-2012


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                      FILED: June 30, 2016

     Appellant, Deon Coleman, appeals the judgment of sentence entered

on November 13, 2014 in the Criminal Division of the Court of Common

Pleas of Allegheny County. We affirm.

     The trial court summarized the relevant facts as follows:

     The credible facts adduced at [Appellant’s] suppression hearing
     established the following events:    Pittsburgh Police officers,
     including Officer Abel, were dispatched to the area of North
     Charles Street and Kenn Avenue in the City of Pittsburgh for a
     report of a robbery. At the scene, the victim reported that he
     was operating a jitney and had a passenger in his vehicle. The
     passenger exited the vehicle and advised the victim that a friend
     was coming to pay the fare. A short, young, thin black male
     then approached the victim’s vehicle and pointed a gun at the
     victim while demanding money. The victim gave the black male
     money and the black male fled down North Charles Street. The
     victim observed the black male enter a door on the far left end
     of row houses. The victim relayed these observations to Officer
     Abel.
J-A13001-16


     Officer Abel went to the residence where the black male was
     observed entering.        He knocked on the door.          Nobody
     immediately answered. A second floor window was then opened
     and [Appellant] looked out and asked who was knocking. Officer
     Abel identified himself as “Pittsburgh Police” and asked
     [Appellant] to come to the door. After a minute or two, Officer
     Abel knocked on the door again. [Appellant] answered the door.
     [Appellant] did not fit the description of the black male that was
     provided by the victim.

     Upon answering the door, [Appellant] was advised that a witness
     had seen a robbery suspect enter the residence. [Appellant]
     advised Officer Abel that nobody was in the residence. Officer
     Abel informed [Appellant] that he was still going to check inside
     the residence. Officer Abel asked [Appellant] to step out of the
     residence. [Appellant] advised Officer Abel that he did not have
     permission to enter the residence.      Other officers detained
     [Appellant] and Officer Abel entered the residence. Officer Abel
     was able to clear the residence and he did not find anyone inside
     the residence.        He did, however, find heroin and
     benzylpiperazine, commonly referred to as ecstasy, in the
     bedroom sitting in plain view on the dresser. This room was the
     same room [Appellant] occupied when he addressed Officer Abel
     from the second floor window.

     Officer Abel returned outside. He advised [Appellant] that he
     found cocaine in the residence. [Appellant] blurted out that the
     substance wasn’t cocaine: it was ecstasy. Officer Abel then
     explained that he knew the substance was ecstasy but he
     misidentified it because he wanted to get [Appellant] to admit
     that the substance was ecstasy. At that point, [Appellant’s]
     girlfriend showed up at the residence. After encouragement
     from [Appellant], she told Officer Abel that she would not
     consent to a search of the residence. Officer Abel and other
     officers then secured the scene and Officer Abel obtained a
     search warrant to search the residence. During the search,
     Officer Abel discovered 698 stamp bags of heroin (22.71 grams)
     from the upstairs bedroom closet. [Officer Abel also recovered]
     11 blue pills (benzylpiperazine), one pink pill (benzylpiperazine),
     a clear-knotted bag of partially crushed pills (benzylpiperazine)
     and $2,135[.00] from the upstairs bedroom.

     After th[e trial c]ourt granted in part and denied in part
     [Appellant’s] suppression motions based on the evidence set

                                    -2-
J-A13001-16


        forth above, [Appellant] proceeded to a stipulated non-jury trial.
        Prior to the commencement of trial, the following exchange
        occurred on the record:

          [Assistant District Attorney]: This is going to go in by way
          of stipulation. I would move t[o] incorporate all of the
          previous testimony the [trial c]ourt has taken during the
          course of the suppression hearing and then would
          supplement that with additional facts.

          THE COURT: Is that the way we are proceeding, [defense
          counsel]?

          [Defense Counsel]:       That’s the way I have offered to
          proceed and will stipulate.       If there’s something [the
          assistant district attorney] says I won’t stipulate to, I will
          speak up, but I don’t anticipate that will occur.

        [Following the non-jury trial, the court found Appellant guilty of
        simple possession1 and possession with intent to distribute
        (benzylpiperazine),2 simple possession3 and possession with
        intent to distribute (heroin),4 and possession of drug
        paraphernalia.5    On November 13, 2014, the court sentenced
        Appellant to an aggregate term of 51 to 156 months’
        incarceration.    After the trial court denied post-sentence
        motions, Appellant filed a timely notice of appeal on January 12,
        2015. Pursuant to order of court, and after extensions of time in
        which to obtain transcripts, Appellant filed a concise statement
        of errors complained of on appeal on June 26, 2015. The trial
        court issued its opinion on November 5, 2015.]

Trial Court Opinion, 9/5/15, at 2-3.
____________________________________________


1
    35 P.S. § 780-113(a)(16).
2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(16).
4
    35 P.S. § 780-113(a)(30).
5
    35 P.S. § 780-113(a)(32).



                                           -3-
J-A13001-16



      Appellant raises the following questions for our review:

      Did the trial court err when it failed to order suppression in this
      case, as police did not have consent to search the property
      where [Appellant] was found, and there were no exigent
      circumstances to obviate the need for a search warrant?

      Is the sentence imposed in this case manifestly excessive in that
      sentencing was based, in part, upon facts not of record and the
      sentencing court’s previous cases, none of which had relevance
      to [Appellant’s] need for rehabilitation, the society’s need for
      protection, and the gravity of [Appellant’s] offense?

Appellant’s Brief at 6.

      We carefully reviewed the certified record, the submissions of the

parties, and the thorough opinion of able the trial court.    Based upon our

review, we concur in the trial court’s conclusion that the Commonwealth

established exigent circumstances that obviated the need for a search

warrant.    We also agree with the trial court that it did not abuse its

discretion in fixing the sentence imposed in this case. Because we find that

the trial court adequately and accurately addressed the claims presented on

appeal, we adopt the trial court’s opinion as our own and direct the parties

to include a copy of the court’s opinion in all future filings related to our

disposition of this appeal.

      Judgment of sentence affirmed.




                                     -4-
J-A13001-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2016




                          -5-
                                                                                             Received 02/01/2016     Superior Court Western District
                                                                                                                     Circulated 05/31/2016 02:04 PM

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           TN THE COURT OF.COMJ\10N PLEAS OF ALLEGHENY COUi'.'TY. PENNSYLVANIA
                                                             CRIMINAL DIVTSION




COMMON\.VEALTH OF PENNSYLVANIA                                                           )
                                                                                         )
           vs.                                                                           )        CC No. 201215970
                                                                                         )
DEON COLEMAN,                                                                            )
                                                                                         )
                  Defendant                                                              )
                                                                                         )

                                                             OPINION

Mariani, J.

           This is a direct appeal in which the defendant appeals the Judgment of Sentence

of November 13, 2014 which became final on December 12, 2014 when this Court

denied post-sentencing motions. After a stipulated non-jury trial, the defendant was found

guilty of possession and possession with intent to deliver benzylpipcrazine. possession

and possession with intent to deliver heroin and possession of drug paraphernalia.

Relative     to the conviction for possession with intent lo deliver heroin, this Court

sentenced the defendant to a term of imprisonment of not less than 33 months nor more

than l 20 months.       Relative to the conviction for possession with intent to deliver

benz.ylpipcrazine,    this Court sentenced                                        the defendant to a consecutive                  term     of

imprisonment of not less than 18 months nor more than 36 months. No additional

penalties were imposed at the remaining counts. This timely appeal followed.



                                                             APPENDIX A
          The credible       facts adduced      at the suppression     hearing established    the following

events:      Pittsburgh    Police officers.     including Officer Abel, were dispatched        lo   the area of

North Charles Street and Kenn A venue in the City of Pittsburgh                   for a report of a robbery.

At the scene, the victim reported that he was operating                a jitney and had a passenger       in his

vehicle. The passenger         exited the vehicle and advised the victim that a friend was coming

to pay the fare.          A short, young, thin black male then approached              the victim's     vehicle

and pointed a gun at the victim while demanding money. The victim gave the black male

money     and the black male fled down North Charles                   Street.   The victim observed         the

black male enter a door on the far left end of row houses.                       The victim relayed       these

observations      to Officer Abel.



          Officer Abel went to the residence            where the black male was observed             entering.

He knocked        on the door.       Nobody     immediately   answered.      A second floor window         then

opened       and the defendant         looked    out and asked       who was knocking.        Officer      Abel

identified     himself    as "Pittsburgh      Police" and asked the defendant        to come to the door.

After a minute or two, Office Abel knocked on the door again.                     The defendant       answered

the door. The def end ant did not fit the description           of the black male that was provided by

the victim.




          Upon answering            the door. the defendant    was advised that a witness           had seen a

robbery suspect enter the residence. The defendant               advised Officer Abel that nobody was

in the residence.         Officer    Abel informed     the defendant    that he was still going to check




                                                        2
inside the residence.          Officer Abel asked the defendant                   to step out of the residence.          The

defendant       advised    Officer   Abel that he did           1101    have permission          to enter the residence.

Other officers      detained     the dcfcndant and Officer                Abel entered the residence.                 Officer

Abel was able to clear the residence and he did                        110!   find anyone inside the residence.           He

did, however.       find heroin and bcnzylpiperaz               ine. commonly             referred   to as ecstasy,    in the

upstairs bedroom          sitting in plain view on the dresser.                 This room was the same room the

defendant     occupied      when he addressed         Officer Abel from the second floor window.



           Officer Abel returned outside.             He advised the defendant                 that he found cocaine in

the residence.         The defendant        blurted      out that the substance                wasn't     cocaine:    it was

ecstasy.     Officer      Abel then explained            that he knew the substance                  was ecstasy      but he

misidentified      it because he wanted to get the defendant                       to admit that the substance           was

ecstacy.        At that point, the defendant's             girlfriend         showed up at the residence,              After

encouragement          from the defendant,       she told Officer Abel that she would not consent                        to a

search     of the residence.         Officer    Abel and other officers then secured                       the scene and

Officer     Abel obtained        a search      warrant     to search           the residence.        During    the search,

Officer     Abel discovered          698 stamp        bags of heroin             (22.71     grams)      from the upstairs

bedroom      closet.      11 blue pills (benzylpiperazine),                   one pink pill (benzylpipernzine).              a

clear-knotted       bag of partially        crushed       pills (bcnzylpipcrazine)               and $2, 135 from the

upstairs bedroom.



           After this Court granted in part and denied                        in part the defendant's         suppression

motions     based on the evidence           set forth above. the defendant                   proceeded     to a stipulated




                                                            3
non-jury     trial.    Prior to the commencement              of trial. the following       exchange    occurcd on

the record:

                      MR. SACHS (the Assistant District Attorney): This is
                      going lo go in by way of stipulation.     I would move the
                      incorporate all of the previous testimony the Court has
                      taken during the course of the suppression hearing and then
                      would supplement that with additional facts.

                      THE COURT:            Is that the way we are proceeding,                 Mr.
                      Haber?

                      MR. HABER (defense         counsel): That's the way I have
                      offered to proceed and will stipulate. If there's something
                      Mr. Sachs says I won't stipulate lo, I wilt speak up hut I
                      don't' anticipate that will occur.


           A non-jury trial then occurred            and the def end ant was convicted          and sentenced        as

set Forth above.        This appeal followed.



           Defendant      first claims that the drugs and money seized from the residence                       should

have been suppressed           because Officer Abel did not have lawful cause to initially enter the

residence      without      a search    warrant.      The Fourth         Amendment       to the United          States

Constitution        and Article l, Section 8 of the Pennsylvania             Constitution      protect individuals

from unreasonable          searches and seizures, thereby ensuring the "right of each individual                     to

be let alone."        In the Interest of D.M., 566 Pa. 445m 781 A.2d 1161, 1163. (Pa. 200 I);

C9mmonwealth            v. Blair, 394 Pa. Super. 207, 575 A.2d 593, 596 (Pa.Super,                     1990).     As a

general     rule,     a search    warrant     is required       before    police   may conduct         any search.

Commonwealth            v. White, 669 A.2d 896, 900 (Pa. 1995). A warrantlcss                   search or seizure

is presumptively         unreasonable under the Fourth Amendment,                  subject to a few specifically

established,        well-delineated    exceptions.      Horton v. California,         496 U.S. 128, 134, n.4.



                                                          4
 110 S.CI.      231,     110    L.Ed.2d 112         (1990).      Warraruless     searches are also presumptively

unreasonable           under Article I. Section 8 of the Pennsylvania                  Constitution. Commonwealth

v. McCree, 924 A.2d 621, 627 (Pa. 2007).




            This       Court     believes    that     the      warrantless     entry    was justified   by exigent

circumstances.            As sci forth in ConJmonwcahh v. Walker, 836 A.2d 978, 981 (Pa. 2003)

citing Commonwealth                v. Roland, 637 269. 271 (Pa. 1994). the Pennsylvania                    Supreme

Court has identified            a number of factors to consider in determining                  whether a search is

justified    by exigent circumstances:

                               ( 1) the gravity of the offense; (2) whetherthere is a
                       reasonable belief that the suspect is armed; (3) whether
                       there is a clear showing of probable cause; (4) whether
                       there is a strong showing that the suspect is within the
                       premises to be searched; (5) whether there is a likelihood
                       that the suspect will escape; (6) whether the entry was
                       peaceable; (7) the time of the entry, i.e., day or night; (8)
                       whether the officer was in hot pursuit of a fleeing felon; (9)
                       whether there is a likelihood       that evidence may be
                       destroyed; and ( l 0) whether there is a danger to pol ice or
                       others.



            Additionally.        it has been well established          that exigent circumstances exist where

there is a threat of physical harm. Commonwealth                             v. Ehrsam, 355 Pa. Super. 40. S 12

A.2d    I 199 (Pa.Super.            1986).    Sec Commonwealth                 v. Fickes, 969 A.2d      1251.   1255

(Pa.Super. 2009)(Exigent circumstances                        exist where there is a "danger to police or other

persons inside ... the dwelling").              Justice Castille. in Commonwealth               v. Revere. 585 Pa.

262. 888 A.2d 694 (Pa. 2005), referred to "exigent                           circumstances"   as a term of an that




                                                                5
describes a situation         in which "a more orderly process must yield to an urgent necessity

for immediate action." Id. at 698 fn.5.

            Exigent circumstances to search a residence               have been held to exist when officers

arc   111   "hot-pursuit"      of a suspected         offender     who enters      a residence.   See War~k:D.,

Maryland Pe1)itentjj}~               Hayden.        387 U.S. 294. 87 S. Ct. 1642.           18 L. Ed. 2d 782

( 1967)(Exigent circumstances             existed     for entry into a residence        where police received

reports of an armed            robbery    and where          the suspect entered     the home less than five

minutes before the police arrived); Commonwealth                      v. Dommel, 885 A.2d 998 (Pa.Super,

2005)(Police lawfully entered a residence                in hot pursuit where they were following a DUI

suspect);    Comm_onwcalth          v, Jeny. 470 A.2d 601 (Pa.Super. 1983)(Exigent                circumstances

existed     for police      to enter home and arrest armed robbery suspects                   where the crime

occurred only       15 minutes previously            and one block away).            This Court believes that

probable cause existed           for Officer Abel to enter the residence.               Officer Abel properly

relied on a report of a robbery victim that the armed suspect [led the scene and entered a

specific,    identified      residence.    The report to Officer Abel occurred               minutes   after the

armed robbery and the victim was very specific and identified                      the exact location where he

observed the armed actor enter.             There was a risk of physical harm to the residents and to

the police officers in pursuit due to the fact that an armed individual entered the residence

in an effort to flee from the police.               Under these circumstances.        this Court believes that

immediate       action      was warranted      lo    enter    the residence   to pursue an anned        robbery

suspect.     Accordingly.      the suppression       motion was denied.




                                                             6
            Defendant         next complains         that this Court erred in permitting                 the introduction        of

the defendant's          testimony       from a prior civil eviction proceeding                 against the defendant              al

trial.       The defendant           did not object         to the admission          of this evidence            at trial and,

therefore,     this issue is waived.             See Pa.R.A.P.          302(a) (stating that "issues not raised in the

lower       court      are     waived      and     cannot       be raised        for the     first     time     on    appeal.");

Commonwealth             v. Lawson,          789 A.2d 252. 253 (Pa. Super. 200 I )(explaining                         that "even

issues      of constitutional           dimension         may    not be raised         for first time           on appeal. "):

Co111monwcalth               v. Cain, 906 A.2d 1242, 1244; (Pa.Super. 2006).                           As set forth above,

defendant's         counsel     stipulated       to the use of all testimony           from the suppression             hearing

and indicated          that he would             advise   the Court        if he had any objection               to additional

evidence      elicited by the Commonwealth.                       He did not offer any such objections                    to the

testimony      from the civil matter.              Accordingly,         this claim is waived.




            Defendant's         last claim is that this Court imposed a manifestly                      excessive     sentence.

A claim that a sentence                 is excessive      is a challenge         to the discretionary          aspects of the

sentence.       Commonwealth               v. Hoag. 665 A.2d 1212 (Pa. Super.                        1995).    This claim is.

however,      unfounded.          This Court's          sentence was proper.           A sentencing           judge is given a

great deal of discretion            in the determination             of a sentence,    and that sentence             will not be

disturbed      on appeal          unless      the sentencing            court   manifestly     abused         its discretion."

Commonwealth             v. Boyer, 856 A2d 149, 153 (Pa. Super. 2004), citing Commonwealth                                       v.

Kenner,      784 A.2d 808, 811 (Pa.Super,                   200 I) appeal denied, 568 Pa. 695, 796 A.2d 979

(2002); 42 Pa.CS.A. §9721.                     An abuse of discretion            is not a mere error of judgment;                  it

involves       bias,     partiality.       prejudice,       ill-will.      or   manifest     unreasonableness.               See




                                                                 7
Con.1n.mn.~raltl1~._.FIQr_~        92 I A.2d SI 7. 525 (Pa.Super.          2007), citing C9mn~_gm~al1h_y_,

Busanet, 817 A.2d J060. l076(Pa. 2002).




        The imposition          of consecutive       rather than concurrent        sentences lies within the

sound discretion      of the sentencing         court.      Challenges    to the exercise     of this discretion

ordinarily do not raise a substantial           question. ~ommonwealth           v. Pass, 914 A.2cl 442, 446-

47 (Pa.Super.      2006). Commonwealth              v. Lloyd, 878 A.2d 867. 873 (Pa. Super. 2005),

appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (citing Commonwealth                             v. I-loag. 665

A.2d 1212, 1214 (Pa. Super.             1995).     Title 42 Pa.CS.A. § 9721 affords              the sentencing

court discretion     to impose its sentence concurrently               or consecutively      to other sentences

being imposed        at the same time or to sentences                already    imposed.     ~gmmonwealth         v.

Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (citing Commonwealth                            v. Graham, 661 A.2d

1367, 1373 (1995)).           "In imposing       a sentence,      the trial judge may determine        whether,

given the facts of a particular         case, a sentence should run consecutive                to or concurrent

with another       sentence     being imposed."          Commonwealth          v. Perry) 883 A.2d 599 (Pa.

Super. 2005), quoting Commonwealth                  v. Wright, 832 A.2d 1104, 1107 (Pa.Supcr.2003);

see also Commonwealth             v. L.N., 787 A.2d 1064, 1071 (Pa.Super.2001                  ). appeal denied

569 Pa. 680, 800 A.2d 931 (2002).                 As the Superior Court has stated in Commonwealth

v. Mastromarino.        2 A.Jc! 581, 587 (Pa.Super.               20 I 0). "[ t [hus, in our view, the key lO

resolving   the preliminary       substantial     question inquiry is whether the decision to sentence

consecutively      raises the aggregate          sentence       to. what appears    upon its face to be, an

excessive   level in light of the criminal conduct at issue in the case."




                                                            8
           Furthermore,       the "! s ]entencing    court has broad discretion         in choosing     the range of

permissible      confinements        which best suits a particular defendant             and the circumstances

surrounding          his crime."   BQX.~.!:. supra, quoting CQ!runonwcallh            v. Moore, 617 A.2d 8, 12

( 1992).        Discretion     is limited, however,      by 42 Pa.CS.A. §972 l(b), which provides that

a sentencing          court must formulate        a sentence   individualized       to that particular      case and

that particular defendant.           Sect ion 9721 (b) provides:       ''It   lhe court sh al I follow the general

principle that the sentence imposed should call for confinement                       that is consistent     with the

protection     of the public, the gravity of the offense, as it relates to the impact on the life of

the victim and on the community, and the rehabilitative needs of the defendant

Bo)'.er, supra at 153, citing 42 Pa.CS.A.              §9721   n».   Furthermore,

                       In imposing sentence,        the trial court is required to consider
                       the particular     circumstances     of the offense      and the
                       character of the defendant.      The trial court should refer to
                       the defendant's       prior criminal    record. age, personal
                       characteristics,  and potential for rehabilitation.    However,
                       where the sentencing judge had the benefit of a presentence
                       investigative report, it will be presumed that he or she was
                       aware of the relevant information regarding the defendant's
                       character and weighed those considerations           along with
                       mitigating statutory factors.


Boyer.       supra     at I 54, citing     Commonwealth         v. Burns,         765 A.2d     I 144,      1150-11 SI

(Pa.Super. 2000) (citations           omitted).




           Moreover,        "the sentencing       court must state its reasons         for the sentence       on the

record."      Royer, supra at 154, citing 42 Pa.C.S.A.               § 972l(h).      The sentencing        judge can

satisfy    the requirement         that reasons     for imposing     sentence      be placed on the record         by

indicating      that he or she has been informed               by the presentcnce         report;     thus properly




                                                          9
considering     and weighing     all relevant   factors.     _Doye_r. supra, citing   J3urns, supra,   citing

~9mmonwcal1..h        v,_Lgill!., 451   Pa.Super.   219,     679 A.2d 237 (1996).             Additionally,

"where a sentence is within the standard range of the guidelines, Pennsylvania law views

the sentence as appropriate under the Sentencing Code".                 Commonwealth v. Moury, 992

A.2d 162.     171    (Pa. Super. 2010) see also Commonwealth                 v. Cruz-Centeno, 447 Pa.

Super. 98. 668 A.2d 536 (Pa.Super. 1995). appeal denied, 544 Pa. 653, 676 A.2d 1195

{ 1996) (stating combination of PS I and standard range sentence, absent more, cannot be

considered excessive or unreasonable).




         The record in this case supports the sentence imposed by this Court. The

sentencing record reflects that this Court considered the prcsentence report. the testimony

presented al trial and at sentencing and all other relevant factors. The defendant did not

object to the substance of the information contained in the presentcnce report.                        Each

sentence imposed was within the standard range of the sentencing guidelines.                      Although

the sentences       were imposed consecutively,            they were done so to recognize that the

defendant was involved in the trafficking of two separate drugs.                  The sentencing record

reflects that in imposing sentence, the Court considered                   the that the defendant        had

previous convictions for dealing drugs and that he had served substantial                  prison time for

those offenses.      This Court was convinced that the defendant continues lo choose not to

conform his conduct to the dictates of the laws prohibiting drug trafficking.                   The Court

further recognized the impact that the defendant's              conduct had on society in general by

circulating   drugs     into the community          and contributing        to the many unfortunate




                                                    IO
//
;',:




       consequences of drug use.            Based on these facts, this Court does not believe the

       sentence imposed in this case was excessive.



              Accordingly,   the judgment    should be affirmed.




                                                       By the Court:




                                                     11
