J-A03030-16


                                   2016 PA Super 58


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TARIK JAHAD DAVIS

                            Appellant                   No. 3432 EDA 2014


           Appeal from the Judgment of Sentence November 7, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001490-2014


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

OPINION BY MUNDY, J.:                                 FILED MARCH 04, 2016

        Appellant, Tarik Jahad Davis, appeals from the November 7, 2014

aggregate judgment of sentence of four years less a day to eight years less

two days, imposed after a jury convicted him of two counts of possession

with intent to deliver (heroin and marijuana) and one count of possession of

drug paraphernalia.1 After careful review, we affirm.

        The trial court recited the pertinent background of this case as follows.

                    [Appellant] was unanimously found guilty by a
              jury on September 9, 2014, of [two counts of
              possession with intent to deliver and one count of
              possession of drug paraphernalia]. At the time of
              trial, the jury made a specific unanimous
____________________________________________


1
    35 P.S. §§ 780-113(a)(30) and (32), respectively.
J-A03030-16


           determination that the aggregate weight of the
           heroin possessed by [Appellant] with the intent to
           deliver exceeded five (5) grams. Further, the jury
           unanimously found that at the time of the
           commission of the underlying offenses, [Appellant]
           was in possession of a Maverick Model 88 twelve-
           gauge shotgun that was in close proximity to the
           heroin.
                                    …

                 The verdict was returned on September 9,
           2014, and [Appellant] was found guilty on all
           charges.        The    verdict  slip   included    two
           interrogatories which required that the jury
           determine the weight of the heroin possessed, if the
           jury found [Appellant] guilty of Possession of Heroin
           with Intent to Deliver. The verdict slip indicates the
           jury found the weight of the heroin to be between
           five (5) and less than ten (10) grams. Further, the
           jury verdict slip included an interrogatory requiring
           the jury to deliberate as to whether or not
           [Appellant] possessed or controlled a firearm, the 12
           gauge shot gun. The jury rendered a verdict in the
           affirmative.

Trial Court Opinion, 5/6/15, at 1, 4. Further, the trial court summarized the

subsequent procedural history as follows.

                 On November 7, 2014, [the trial court]
           sentenced [Appellant] to an aggregate sentence of
           48 months less a day (27 months for Possession of
           Heroin with Intent to Deliver, 15 months less one
           day for Possession of Marijuana with Intent to
           Deliver, and 6 months for Possession of Drug
           Paraphernalia) to 96 months less two days, which
           was within the sentencing guidelines in the
           aggravated range, with each sentence running
           consecutive to the others.

                                     …

               No post-trial motion was filed by [Appellant].
           However, a timely Notice of Appeal was filed. [The

                                    -2-
J-A03030-16


               trial court] required [Appellant] to submit a Concise
               Statement of Matters Complained of on Appeal
               pursuant to Pennsylvania Rule of Appellate Procedure
               1925.

Id. at 2, 4.

      On appeal, Appellant presents two issues for our review as follows.

         1. Whether the trial court erred when it denied
         [Appellant’s] motion to suppress after police secured and
         searched [Appellant’s] residence without consent, without
         a warrant and without a valid exception to the requirement
         for a warrant.

         2. Whether the trial court erred with its use of a special
         verdict slip with questions on the weight of the drugs and
         presence of a firearm?

Appellant’s Brief at 4.

      In his first issue, Appellant contends that police searched his residence

“without a warrant, without consent and without an exception to justify a

warrantless search.”      Id. at 6.   Appellant specifically maintains the police

“conducted an illegal entry into [Appellant’s] residence while waiting for [a]

search warrant to be considered.” Id. at 6-8.

      Our standard of review from an order denying a suppression motion is

as follows.

               [W]e may consider only the Commonwealth’s
               evidence 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 record
               supports the factual findings of the trial court, we are
               bound by those facts and may reverse only if the
               legal conclusions drawn therefrom are in error.




                                        -3-
J-A03030-16


Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citation

omitted).

       Here, our independent review of the record reveals that Appellant did

not call any witnesses at the suppression hearing,2 while the Commonwealth

presented uncontradicted testimony from three law enforcement officers.

Bethlehem Police Detective Patrick Maczko testified to being a seven-year

member of the Northampton County Drug Task Force and conducting an

ongoing investigation of drug dealing by Appellant. N.T., 9/8/14, at 21-22.

On February 24, 2014, Detective Maczko worked with a confidential

informant, who went to Appellant’s residence at 2263 Rodgers Street,

Apartment 14, to purchase heroin. Id. at 22-27. This was one of Detective

Maczko’s five controlled purchases from Appellant using a confidential

informant. Id. at 32. The fifth controlled purchase occurred on March 3,

2014, after which Detective Maczko “went into headquarters to try to obtain

a search warrant.” Id. at 32-33. While Detective Maczko was pursuing the

search warrant, Appellant exited his residence and was taken into police

custody. Id. at 34.


____________________________________________


2
  Appellant’s counsel stated that he “discussed this matter with [Appellant]
and [his girlfriend] and it’s my client’s direction at this time that we do not
offer any testimony including specifically the testimony of [Appellant’s
girlfriend] here today. Is that correct, [Appellant]?” N.T., 9/8/14, at 89.
Appellant replied, “Correct.” Id.




                                           -4-
J-A03030-16


       Detective Maczko attempted to procure the warrant at 3:20 p.m., but

it took him almost two hours.3 He explained the delay as follows.

              I was attempting to procure the search warrant at
              approximately 3:20.     Between 3:20 and 3:30, I
              called Judge Narlesky’s office. I was advised by the
              staff that Judge Narlesky had left for the day, he had
              gone to the racquetball club. They said I could get a
              search warrant from any of the other magistrates.

                     At that point, I called Judge Manwaring’s
              office, he was gone for the day. After that, I called
              Judge Matos-Gonzalez’s office. She said she would
              sign the search warrant, so I sent it right over. I
              advised her that I had guys watching the house and
              that we were in a rush to try to get the search
              warrant.

                     I sent her the search warrant, she called me
              back and said she didn’t know why she was signing a
              search warrant for Judge Narlesky’s office since he
              was supposed to be in court at that time it being
              prior to 4 o’clock. I said that it was not my issue, I
              could not find the Judge, I needed a search warrant,
              I had men sitting on the house, we had [Appellant]
              in custody for prior deliveries, and we were trying to
              get the search warrant so we could execute it as
              quickly as possible. She refused to sign it at that
              point saying it was Judge Narlesky’s problem to find
              someone to cover his office.

                    She called over to Judge Narlesky’s office and
              made [his staff] aware of that[.] A short time later,
              approximately 4 o’clock, I got a call from Judge
              Narlesky from his cell phone indicating that he was
              at the racquetball club, [and] that he would not be
              back at his office. It would take him approximately
____________________________________________


3
 The warrant was time-stamped by the magistrate at 17:05 and Detective
Maczko received the fax at 17:19. Id. at 41, 53.




                                           -5-
J-A03030-16


              30 minutes to get back to the office, and, in that
              case, I might as well just wait until 4:30 and get the
              search warrant signed by the on-call judge.

                     At that point I indicated – throughout this
              whole time I’m calling Detectives Hammer, Schaedel
              and Benton, via radio, indicating to them what the
              situation was, the runaround I was getting for the
              search warrant. They, at one point, said they were
              going to try to knock on the door and make contact
              with [Appellant’s girlfriend] that we knew to be in
              the residence from prior surveillance. We saw her
              and the child go into the residence prior to the last
              buy.

              … Judge Yetter, the on-call judge, signed the search
              warrant at 17:05 or 5:05 hours PM.

Id. at 35-37. Detective Maczko testified that as soon as the signed warrant

was faxed to him, he “immediately got in [his] car and drove as fast as [he]

could to [Appellant’s] house.” Id. at 40.

      While Detective Maczko was attempting to procure the warrant, other

officers went to Appellant’s residence. Id. at 52. Detective Maczko testified

as follows.

              We had constant communication back and forth. We
              were having discussion as a vice unit, per se, on
              what the best route was to go because of the
              problem I was having with the judges. At that point,
              someone suggested, I don’t know which detective,
              suggested knock on the door and try to make
              contact with [Appellant’s girlfriend] and ask for
              consent. That’s what actually occurred.

Id. at 52-53.

      Next, Bethlehem Police Officer Erik Kaintz testified to being assigned to

the Bethlehem Housing Authority on March 3, 2014, and assisting with the


                                      -6-
J-A03030-16


investigation of Appellant. Id. at 56. Officer Kaintz stopped Appellant after

he left his residence and placed him under arrest. Id. at 58.

      Finally, Bethlehem Police Detective Jason Hammer testified to working

with special operations and the Northampton County Drug Task Force on

March 3, 2014. Detective Hammer testified as follows.

            [Appellant] had already left the residence and was
            stopped and was in custody. At that point, Detective
            Maczko was working on getting the search warrant
            for the residence. At that point we went to the
            residence to see if we could make contact with any
            occupants to obtain consent to search.

Id. at 62. Detective Hammer explained that he and his partner knocked on

the door and Appellant’s girlfriend “answered the door and we identified

ourselves and we asked if we could step inside and she permitted us to

come inside.” Id. at 66-67, 72 (emphasis added). Detective Hammer and

his partner entered the residence and advised Appellant’s girlfriend that

Appellant was in custody and police “were obtaining a search warrant for the

residence for drugs.” Id. at 67. The officers asked Appellant’s girlfriend for

permission to search the residence and she declined.            Id. at 68, 73.

Detective Hammer testified “at that point there was no further searching of

the residence.” Id. at 74. However, Detective Hammer’s partner remained

with Appellant’s girlfriend while Detective Hammer “went upstairs and

checked the remainder of the rooms to make sure nobody else was in there,

checked beside the doors, the bed, opened up the closet doors.”            Id.

Detective Hammer said “the sweep” lasted “maybe 20 seconds, 30 seconds”

                                    -7-
J-A03030-16


to “make sure nobody else was inside the residence.”           Id.   Detective

Hammer testified that during the sweep, he was not looking for narcotics or

any evidence, and did not observe, search for or seize anything of

evidentiary value. Id. at 68-70. He said the purpose of the sweep was “for

officer safety, to make sure they’re not going to injure us or hurt us.” Id. at

81.   When he was finished, Detective Hammer returned downstairs and

stayed with his partner and Appellant’s girlfriend until Detective Maczko

radioed that he had secured the search warrant. Id. at 69-70.

      Based on the foregoing testimony, the trial court denied Appellant’s

suppression motion and summarized its reasoning as follows.

                   Here, [Appellant] was validly arrested, the
            police were invited into the home, the police
            conducted a protective sweep only to rule out the
            presence of other persons, no illegal activity was
            observed inside the home, and then they awaited the
            approval of the search warrant, which was based on
            information gathered lawfully, prior to their entry
            into the home.

Trial Court Opinion, 5/6/15, at 22.

      Our review of the facts of record and legal authority comports with the

trial court’s determination. Appellant cites Commonwealth v. Melendez,

676 A.2d 226 (Pa. 1995) to support his contention that “police conducted an

illegal entry into [Appellant’s] residence while waiting for [the] search

warrant to be considered.” Appellant’s Brief at 7. Like the trial court, we

find Melendez distinguishable. Unlike Appellant in this case, Ms. Melendez

was stopped improperly by police because she “was not engaged in any


                                      -8-
J-A03030-16


activity at the time she was stopped which would cause a person of

reasonable caution to believe that she was then engaged in criminal

conduct.”    Melendez, supra at 228.     Moreover, when the police returned

with Ms. Melendez to her home, “she certainly did not freely and voluntarily

consent to the police entry into her house.”        Id. at 230 (emphasis in

original).

      Instantly, Appellant does not challenge his stop by police, nor did he

present any evidence at the suppression hearing to contradict Detective

Hammer’s testimony that his girlfriend permitted police to enter the

residence, although she subsequently denied police permission to search the

residence. As it is undisputed that Appellant’s girlfriend was a co-occupant

of the residence, she was permitted under the Fourth Amendment to consent

to the warrantless entry, since Appellant was not present to object to the

entry. See Fernandez v. California, 134 S. Ct. 1126, 1133-1135 (2014)

(concluding that a girlfriend who occupied an apartment with Fernandez may

validly give consent to search their apartment when the defendant was not

present to object to the same). As a result, Appellant’s Fourth Amendment

rights were not violated by the police’s warrantless entry.

      In addition, Appellant disregards that no contraband was recovered as

a result of the police action in securing – not searching – Appellant’s

residence.   Detective Hammer testified that there was no search prior to

receipt of the warrant. N.T., 9/8/14, at 68-70 (stating he did not “observe”


                                     -9-
J-A03030-16


“seize” “collect” or “convey to Detective Maczko” anything of evidentiary

value during the sweep). Accordingly, we discern no error by the trial court

in denying Appellant’s suppression motion.

      In his next issue, Appellant asserts that the trial court acted

improperly by providing the jury with a verdict slip that included questions

regarding the weight of the drugs and the presence of a firearm recovered

from Appellant’s residence.    Appellant cites our Supreme Court’s recent

decision in Commonwealth v. Hopkins, 117 A.3d 247, 260 (Pa. 2015)

(rejecting the Commonwealth’s assertion that special verdicts—“or, as

expressed at oral argument, the finding of a general verdict with special

interrogatories”—may cure the constitutional deficiencies of a statute).

Appellant adds that the special verdict slip in this case “was not done for

[Appellant’s] benefit. It was done so that his sentence could be increased.”

Appellant’s Brief at 10. Appellant further maintains that the verdict slip was

“contrary to law and an abuse of discretion” and Appellant “was prejudiced

by the presence of the special verdicts.” Id. Significantly, Appellant does

not explain how he was prejudiced.

      The Commonwealth concedes “it was improper for the trial court to

include questions on the verdict slip related to possible mandatory minimum

sentences.” Commonwealth’s Brief at 14. The Commonwealth notes “at the

time the verdict slip was used, mandatory minimum sentences based on the

weight of a drug had not yet explicitly been declared unconstitutional,” and


                                    - 10 -
J-A03030-16


“at the time of Appellant’s trial [prior to the Hopkins decision] the trial court

and the parties were still trying to rectify the various appellate decisions and

the constitutional mandate of Alleyne.”4            Id. at 13, 14 n.8.        The

Commonwealth explains the “uncertainty led to the positioning of this

matter, in which the trial court included questions on the verdict slip asking

the jury to determine the weight of the heroin and whether Appellant

possessed a firearm.” Id. at 13. Nonetheless, the Commonwealth counters

that the trial court’s special verdict slip in this case was “harmless” because

although it asked the jury two questions relating to the drug weight and

firearm mandatory minimums, the trial court did not impose any mandatory

minimums when sentencing Appellant. Id. at 11-15.

        At the conclusion of trial, the trial court expressed its awareness of the

implications with sentencing Appellant to mandatory minimums, stating as

follows.

              If   the     mandatories    are     described   [sic]
              unconstitutional and I choose to sentence [Appellant]
              based on the mandatories, then my sentence is
              exposed for being found to be unconstitutional.

N.T., 9/9/14, at 187.

        Two months later, at sentencing, the trial court further discussed the

issue with the parties as follows.


____________________________________________


4
    Alleyne v. United States, 133 S. Ct. 2151 (2013).



                                          - 11 -
J-A03030-16


                 [Appellant] pled not guilty and the jury
           returned a verdict of guilty on all of the charges. I
           believe they also, on the verdict form, found that
           [Appellant] possessed a gun, but we’re not applying
           the mandatory for that or the enhancement, as [the
           Commonwealth] has opted not to pursue that even
           though there was proof beyond a reasonable doubt
           finding by the jury with regard to the weapon
           because there is a question as to whether or not the
           statute applies to the enhancement and the
           mandatory will be found to be unconstitutional once
           the Supreme Court weighs in on that, is that correct?

           [COMMONWEALTH:]       Your Honor, that is correct as
           far as the enhancement.

N.T., 11/7/14, at 3-4.

     The trial court subsequently sentenced Appellant without applying the

mandatory minimums.       As the Commonwealth observes, “[t]here is no

evidence that the questions on the verdict slip affected the jury’s

deliberation as to guilt or innocence on the underlying charges in any

way[.]” Commonwealth’s Brief at 4. Upon review, we agree. Accordingly,

we find no merit to Appellant’s second issue regarding the verdict slip, and

affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016


                                   - 12 -
