J-S78008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

BRENDAN BRIAN COSTELLO

                         Appellee                   No. 1206 MDA 2014


                 Appeal from the Order Entered July 1, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0008589-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED JANUARY 09, 2015

      Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the York County Court of Common Pleas, which granted Appellee,

Brendan Brian Costello’s, motion to suppress. We reverse and remand for

further proceedings.

      The relevant facts and procedural history of this case are as follows.

On October 18, 2013, the police obtained information from a confidential

informant (“CI”) regarding marijuana at 336 West Cottage Place, York City

(“the residence”). In anticipation of a search warrant, the police secured the

residence.   When the police obtained a search warrant, they searched the

residence and found marijuana, mushrooms, drug packing material, and

scales. The police arrested Appellee and charged him with possession with

intent to deliver (“PWID”).
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      Mark Mastrangelo, who lived at the residence, testified that he spoke

to Appellee two days later, on October 20, 2013, and Appellee told Mr.

Mastrangelo that Appellee was expecting a package in the mail.       Appellee

told Mr. Mastrangelo the package would arrive at either the residence or

another home nearby, and that Mr. Mastrangelo should not touch the

package because it contained marijuana.         On October 21, 2013, Mr.

Mastrangelo noticed a package on the front porch of the residence and called

Appellee to inform him of its arrival. Appellee again told Mr. Mastrangelo not

to touch the package. After obtaining information from the CI that Appellee

was receiving a large amount of marijuana through the mail, Officer Lentz

and another police officer went to the residence on October 22, 2013, to see

if a package had arrived. Upon noticing a package on the porch, the officers

approached the residence. The package was addressed to a James Moffet at

the residence address, and was from a Jessica Harris in Eureka, California.

The officers determined Mr. Moffett did not live at the residence, seized the

package, and brought it to the police station.      The officers opened the

package, discovered marijuana, and immediately obtained a search warrant.

      The York County District Attorney amended the original criminal

complaint to charge Appellee with an additional count of PWID. On January

16, 2014, Appellee filed a motion to suppress the drugs found at the

residence and in the package. The court held a suppression hearing on May

2, 2014. On July 1, 2014, the court denied the motion as to the search of


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the residence but suppressed the drugs found in the package.          The

Commonwealth timely filed a notice of appeal on July 16, 2014. That same

day, the court ordered the Commonwealth to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the

Commonwealth timely complied on August 1, 2014.

     The Commonwealth raises the following issue for our review:

          WHETHER THE [SUPPRESSION] COURT ERRED IN
          GRANTING [APPELLEE’S] SUPPRESSION REQUEST WHERE
          [APPELLEE] LACKED A REASONABLE EXPECTATION OF
          PRIVACY IN THE PACKAGE SUPPRESSED BY THE
          [SUPPRESSION] COURT?

(Commonwealth’s Brief at 4).

     The following principles guide our analysis of the Commonwealth’s

issues:

          When the Commonwealth appeals from a suppression
          order, we follow a clearly defined standard of review and
          consider only the evidence from the defendant’s witnesses
          together with the evidence of the prosecution that, when
          read in the context of the entire record, remains
          uncontradicted. The suppression court’s findings of fact
          bind an appellate court if the record supports those
          findings.   The suppression court’s conclusions of law,
          however, are not binding on an appellate court, whose
          duty is to determine if the suppression court properly
          applied the law to the facts.

Commonwealth v. Clinton, 905 A.2d 1026, 1029-30 (Pa.Super. 2006)

(quoting Commonwealth v. Boulware, 876 A.2d 440, 442 (Pa.Super.

2005)).

     The Commonwealth argues Appellee lacked a reasonable expectation


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of privacy in the package. Specifically, the Commonwealth avers Appellee

was   neither   the   sender   nor   the   addressee   of   the   package.   The

Commonwealth asserts the label on the package indicated the sender was

Jessica Harris, and the package was addressed to James Moffet, an

individual who did not live at the residence. The Commonwealth also claims

Appellee presented no evidence to prove he intended to continue living at

the residence or that he was the legal owner or tenant of the residence. The

Commonwealth alleges that, after Appellee’s arrest on October 18, 2013,

Appellee went to stay with his girlfriend and no longer possessed a key or

stored possessions at the residence.         The Commonwealth also alleges

Appellee “abandoned” the package when he did not retrieve it.                The

Commonwealth asserts the package was delivered to the residence on

October 21, 2013, and Mr. Mastrangelo informed Appellee on that date that

the package had arrived.       The Commonwealth contends Appellee did not

indicate to Mr. Mastrangelo that Appellee would pick up the package. The

Commonwealth maintains Appellee left the package on the porch until the

police seized the package on October 22, 2013.               The Commonwealth

concludes this Court should reverse the suppression court’s order granting

Appellee’s motion and remand for further proceedings. We agree.

      “[A] defendant charged with a possessory offense has standing to

challenge a search.”      Commonwealth v. Perea, 791 A.2d 427, 429

(Pa.Super. 2002), appeal denied, 568 Pa. 736, 798 A.2d 1288 (2002). To


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prevail, however, in a challenge to the search and seizure, a defendant

accused of a possessory crime must also establish, as a threshold matter, a

legally     cognizable   expectation   of   privacy   in   the   area   searched.

Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.Super. 1998),

appeal denied, 556 Pa. 675, 727 A.2d 130 (1998) (quoting Commonwealth

v. Carlton, 549 Pa. 174, 180, 701 A.2d 143, 145-46 (1997)).

            An expectation of privacy will be found to exist when the
            individual exhibits an actual or subjective expectation of
            privacy and that expectation is one that society is
            prepared to recognize as reasonable.          In determining
            whether a person’s expectation of privacy is legitimate or
            reasonable, the totality of the circumstances must be
            considered and the determination will ultimately rest upon
            a balancing of the societal interests involved.          The
            constitutional legitimacy of an expectation of privacy is not
            dependent on the subjective intent of the individual
            asserting the right but on whether the expectation is
            reasonable in light of all of the surrounding circumstances.

Commonwealth v. Viall, 890 A.2d 419, 422 (Pa.Super. 2005) (internal

citations    and   quotation   marks    omitted)   (emphasis     added).    “The

determination [of] whether [a] defendant has met this burden is made upon

evaluation of the evidence presented by the Commonwealth and the

defendant.”        Commonwealth v. Powell, 994 A.2d 1096, 1103-04

(Pa.Super. 2010) (quoting Commonwealth v. Burton, 973 A.2d 428, 435

(Pa.Super. 2009) (en banc)). Nevertheless, our Supreme Court has held the

Commonwealth need not establish the lawfulness of a warrantless search

and seizure when a defendant initially fails to raise a legitimate expectation

of privacy. See Commonwealth v. Millner, 585 Pa. 237, 258, 888 A.2d

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680, 692 (2005). Under those circumstances, there would be no basis on

which a trial court could properly grant a defendant’s motion to suppress.

See id.

      Instantly, Appellee had automatic standing to challenge the search of

the package because he was charged with PWID, a possessory offense. See

Perea, supra. Nevertheless, as a threshold matter, Appellee failed to raise

in his motion to suppress or at the suppression hearing any legally

cognizable expectation of privacy in the package. See Strickland, supra.

Therefore, the Commonwealth was not required to establish the lawfulness

of the warrantless search of the package, and the suppression court had no

basis on which to grant Appellee’s suppression motion. See Millner, supra.

      Moreover, even if Appellee had raised an expectation of privacy, he did

not show an actual or subjective expectation of privacy in the package and

that his expectation was one society is prepared to recognize as reasonable.

See Viall, supra.       Therefore, considering all uncontradicted evidence

presented by Appellee and the Commonwealth, the suppression court erred

in   granting   Appellee’s   motion   to   suppress.   See   Clinton,   supra.

Accordingly, we reverse the court’s order granting Appellee’s suppression

motion regarding the package, and we remand for further proceedings.

      Order reversed; case remand for further proceedings.      Jurisdiction is

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2015




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