J-S55010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 3868 EDA 2017
    THURMOND ALLEN

               Appeal from the Order Entered October 24, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0004768-2017


BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 07, 2018

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered on October 24, 2017, granting a motion for suppression filed by

Thurmond Allen. Upon careful review, we reverse and remand for additional

proceedings.

       The trial court recited the facts of this case as follows:1

       On January 22, 2017[,] at about 9:43 p.m.[,] Officer [Joshua]
       Alexander arrived at [an apartment building in Delaware County,
       Pennsylvania] to investigate a reported fight with a gun in the
       parking lot. On his arrival[,] he saw a white pick-up truck leaving
       the lot. He stopped the truck and made contact with the driver
       (Anthony Allen) and the [co-d]efendant (Sabrina Allen). He
       learned from one of [] these subjects that earlier in the evening
____________________________________________


1    The trial court adduced the facts from the affidavit of probable cause
supporting the search warrant at issue, as well as the testimony from the
preliminary hearing and suppression hearing.
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       Sabrina Allen had an argument with her boyfriend[,] Thurmond
       Allen[,] in Apartment 319 and that she called Anthony Allen.[2]
       Anthony went to the apartment and a physical altercation between
       him and Thurmond Allen took place. Officer Alexander observed
       fresh cuts on Anthony Allen’s hands. Officer Alexander asked
       [Sabrina Allen] for a description of Thurmond Allen and for the
       apartment number.

       When speaking with Anthony Allen[,] Officer Alexander detected
       the odor of marijuana emanating from the interior of the vehicle.
       Officer Alexander searched the truck [with Anthony’s consent] and
       found a duffle bag containing what he believed to be a
       vacuum-packed nine by [13] by two inch thick brick of marijuana.
       Officer Alexander asked Anthony Allen about the duffel bag and
       he stated that it was given to him by Thurmond Allen and that he
       did not know what was inside the bag. A gun was not found in
       the truck.

       Anthony Allen was arrested. He was transported to the Radnor
       Police Department and was found to be carrying [10] clear plastic
       baggies of suspected cocaine in an Altoids container, and an
       additional [37] “8 ball”[-]sized and [20] “dime bag” baggies of
       marijuana in the duffel bag.3

       During the interaction in the parking lot[,] an assisting officer went
       to Apartment 319 and attempted to make contact with Thurmond
       Allen. The door was ajar and the door frame was damaged
       consistent with forcible entry. Thurmond Allen did not respond to
       the officer’s repeated knocking but soon thereafter arrived and
       another officer met him. That officer requested consent to search
       the apartment for the gun allegedly used [during the prior,
       reported physical altercation], and Thurmond Allen refused.



____________________________________________


2  Despite sharing the same last name, the trial court notes that the parties
are not related. Trial Court Opinion, 1/24/2018, at 3 n.4. In order to avoid
confusion, we will use full or first names throughout this memorandum.
Moreover, we note that the Commonwealth is also challenging the trial court’s
grant of suppression in Sabrina Allen’s case at 3860 EDA 2017.

3 Laboratory tests later confirmed that the substances were, in fact, cocaine
and marijuana, respectively.

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      The neighbor[, Cynthia Neenan,] who called in the disturbance
      was contacted and she stated that she saw a violent fight outside
      her apartment and that she heard someone involved in the fight
      say that they had a gun.

      Officer Alexander concluded: “Due to the above information,
      including the sheer quantity of the narcotics, the damage to the
      apartment door, the statement of Cynthia Neenan regarding a
      possible firearm, along with the violent nature of narcotics deals
      and dealers,” he [] request[ed] a search warrant. The items to
      be searched for included[,] inter alia, marijuana, cocaine, drug
      paraphernalia, firearms, ammunition, proof of residency and
      records.

Trial Court Opinion, 1/24/2018, at 8-9 (most quotations omitted).

      A search warrant was issued for Apartment 319 and executed by Officer

Jonathon Jagodinski on January 23, 2017. N.T., 7/27/2017, at 28-30. Officer

Jagodinski testified that the apartment was “in transition” with male and

female clothing found throughout. Id. at 33-34. There were several zipped

suitcases in the living room area. Id. at 33. One of the suitcases contained

a modified, “sawed off” shotgun and a black ski mask. Id. at 30, 33. Police

also recovered mail addressed to both Thurmond Allen and Sabrina Allen at

the subject residence, as proof of residency. Id. at 29-30, 36-37. Officer

Jagodinski seized a grinder with marijuana residue and a roach with burnt

marijuana from the common area and recovered a glass bong containing

marijuana from a bedroom. Id. at 29, 34.

      Police arrested Thurmond Allen and the Commonwealth filed a criminal

complaint against him on January 23, 2017. Following a preliminary hearing,

on July 27, 2017, a magisterial district judge held Thurmond Allen for trial on

the charges of persons not to possess a firearm, prohibited offensive weapon,


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possession of a controlled substance, possession of drug paraphernalia, and

three counts of conspiracy.4 On September 18, 2018, Thurmond Allen filed

an omnibus pretrial motion seeking suppression of the evidence recovered

from Apartment 319. The trial court held a suppression hearing on October

4, 2017.     On October 24, 2017, the trial court entered an order granting

Thurmond Allen’s suppression motion.

       In a subsequent opinion setting forth the grounds for ordering

suppression, the trial court held that the affidavit of probable cause failed to

justify the search of Apartment 319. Specifically, the trial court found that

the veracity of Anthony Allen was suspect and that Officer Alexander could not

rely on his statements because: (1) police arrested Anthony Allen with a large

quantity of marijuana; (2) Anthony Allen attempted to shift blame by claiming

he did not know what was inside the duffel bag; and, (3) Anthony Allen told

Officer Alexander that Thurmond Allen gave him the marijuana despite the

physical confrontation between the two moments before. Trial Court Opinion,

1/24/2018, at 6. The trial court opined that it was erroneous for Officer

Alexander to conclude that, “drugs and firearms could be found together in

the apartment based on Anthony Allen’s representation that he innocently

received [the] duffel bag from Thurmond Allen [and] that ‘narcotics deals and

dealers’ are violent by nature[.]” Id. at 5. Thus, the trial court determined

____________________________________________


418 Pa.C.S.A. § 6105, 18 Pa.C.S.A. § 908, 35 P.S. § 780-113(a)(16), 35 P.S.
§ 780-113(a)(32), and 18 Pa.C.S.A. § 903, respectively.



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that the Commonwealth failed to prove that there was probable cause to issue

the search warrant and that the evidence obtained therefrom required

suppression. This timely appeal resulted.5

       On appeal, the Commonwealth presents the following issue for our

review:

       Whether the trial court erred as a matter of law in granting
       [Allen’s] motion to suppress the evidence recovered following the
       execution of a search warrant at [Thurmond Allen’s] apartment?

Commonwealth’s Brief at 1.

       The Commonwealth argues that the trial court erred by granting

Thurmond Allen’s motion for suppression. Commonwealth’s Brief at 11-18.

Initially, the Commonwealth notes:

       In the instant case, the trial court concluded that the affidavit [in
       support of the issuance of a search warrant,] did not contain
       probable cause because the veracity of the information provided
       by Anthony Allen was suspect. The [trial] court noted that
       Anthony Allen was arrested while in possession of marijuana,
       attempted to distance himself from the contraband by claiming
       ignorance of the bag’s contents, and shifted blame to the man
____________________________________________


5   Because the 30th day of the appeal period fell during the Thanksgiving
holiday when the courts were closed, the Commonwealth filed a timely notice
of appeal on November 27, 2017. See Pa.R.A.P. 903 (notice of appeal shall
be filed within 30 days after the entry of the order from which the appeal is
taken); see also 1 P.S. § 1908 (whenever the last day of the appeal period
falls on a legal holiday, such time shall be omitted from the computation of
time). Moreover, pursuant to Pa.R.A.P. 311(d), the Commonwealth certified
in its notice of appeal that the orders under review “terminate[d] or
substantially handicap[ped] the prosecution.” On December 5, 2017, the trial
court ordered the Commonwealth to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth
complied timely. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on January 24, 2018.

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     who he had recently fought. The [trial] court held that Anthony
     Allen’s condition and the damage to the door [of Apartment 319]
     suggested that an altercation took place there[,] but these facts
     indicate only that a fight took place and did not provide a
     substantial basis to conclude that illegal firearms and controlled
     substances would be found in the apartment.

     The [trial] court’s analysis is not complete because the [trial] court
     did not examine the totality of the circumstances. The information
     from Anthony Allen was only a small part of the information
     related by police in the affidavit. The [trial] court disregarded the
     rest of the information in the affidavit.

Id. at 14-15. More specifically, the Commonwealth posits that an identified

informant, a confirmed neighbor, told police that she heard a physical

altercation outside of her apartment door, heard someone say they had a gun,

and witnessed a white pickup truck leaving the scene.           Id. at 15.    Police

corroborated this information when they found the door to the subject

apartment forcefully damaged and ajar and Anthony Allen “showed obvious

signs that he had been in a fight.” Id. at 15-16. Police stopped Anthony Allen

in a vehicle matching the neighbor’s description. Id. at 16. Anthony Allen

and Sabrina Allen admitted that they had just left Apartment 319 after

Anthony Allen and Thurman Allen physically fought.        Id.    Additionally, the

Commonwealth argues that when police smelled marijuana emanating from

truck, there was probable cause to search the vehicle. Id. When the police

did not recover a firearm during that search, the Commonwealth maintains it

was reasonable to suspect a gun remained inside the apartment. Id. at 17.

Thus, the Commonwealth posits that,

     [w]hether [Thurmond Allen gave Anthony Allen] the marijuana,
     or, as is more likely[, Anthony Allen] forcibly took the marijuana,

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      the fact remains that police had probable cause to believe as
      follows:

            [Anthony Allen] just left Apartment 319; there was a
            fight with a gun in Apartment 319; there was no gun
            in the truck; the man in the fight was in possession of
            a large amount of marijuana; the duffle bag of
            marijuana was easily transported; and [Anthony
            Allen] claimed he received the marijuana from a
            resident of that apartment.

Id. at 17-18.

      Our standard of review in addressing a challenge to the suppression

court's granting of a suppression motion is well settled:


      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.

      Our standard of review is restricted to establishing whether the
      record supports the suppression court's factual findings; however,
      we maintain de novo review over the suppression court's legal
      conclusions.

      With regard to search warrants, we have explained the following.

            It is well-established that for a search warrant to be
            constitutionally valid, the issuing authority must
            decide that probable cause exists at the time of its
            issuance, and make this determination on facts
            described within the four corners of the supporting
            affidavit, and closely related in time to the date of
            issuance of the warrant. It is equally well established
            that a reviewing court [must] pay great deference to
            an issuing authority's determination of probable cause
            for the issuance of a search warrant. Moreover, our


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            Supreme Court has recognized that affidavits
            supporting search warrants normally are prepared by
            nonlawyers in the midst and haste of a criminal
            investigation, and, accordingly, said affidavits, should
            be interpreted in a common sense and realistic fashion
            rather than in a hypertechnical manner.

                           *           *            *

      In short, probable cause exists when, based upon a totality of the
      circumstances set forth in the affidavit of probable cause, there is
      a fair probability that evidence of a crime will be found in a
      particular place.

Commonwealth v. Korn, 139 A.3d 249, 252–254 (Pa. Super. 2016) (internal

citations and quotations omitted). Further,

      [i]n reviewing an issuing authority’s decision to issue a warrant, a
      suppression court must affirm unless the issuing authority had no
      substantial basis for its decision. On appeal, [the appellate court]
      affirms the decision of the suppression court unless it commits an
      error of law or makes a factual finding without record support.

Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa. 2013), citing

Commonwealth v. Johnson, 42 A.3d 10017, 1031 (Pa. 2012) and

Commonwealth v. Briggs, 12 A.3d 291, 320 (Pa. 2011).

      Here, upon careful review of the uncontradicted facts and applicable law,

we conclude the trial court erred by finding a lack of probable cause to support

the search warrant at issue. More specifically, the trial court erred by focusing

almost exclusively on Anthony Allen’s veracity in granting suppression, instead

of examining the totality of circumstances as set forth in the affidavit of

probable cause as required. Officer Alexander did not blindly accept Anthony

Allen’s statements to establish probable cause as the trial court suggests. By

their own admission, Anthony Allen and Sabrina Allen were leaving Apartment

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319 immediately after a physical altercation. Sabrina Allen verified that she

lived there with Thurmond Allen. A neighbor, who police directly interviewed,

stated that she witnessed the fray and heard someone threaten to shoot

someone else.    Police corroborated the physical fight when they observed

Anthony Allen’s injuries and saw damage to the door of the apartment that he

recently departed. When the police did not recover a firearm from one of the

confirmed participants of the fight, Anthony Allen, it was reasonable for them

to assume a gun was still in the apartment. Moreover, when police legally

recovered a large quantity of marijuana from Anthony Allen, who claimed it

originated from the apartment at issue, it was reasonable for them to believe

there was a fair probability of additional evidence of narcotics sales and/or

illicit use inside the apartment. Such inference was reasonable regardless of

the reason Anthony Allen gave for his receipt of the narcotics. In sum, when

the police applied for the search warrant at issue, they knew that there was a

physical altercation with the threat of a firearm and a large quantity of

narcotics, all centered on a specific, corroborated apartment.     Thus, there

were separate and mutually confirmatory grounds for police to believe that a

firearm and evidence of narcotics use or sale would be found in Apartment

319. Thus, under a totality of the circumstances as clearly set forth in the

affidavit of probable cause, there was a fair probability that police would find

evidence of a firearm and narcotics in Apartment 319. As such, we conclude




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that the trial court erred in suppressing the evidence found therein.

Accordingly, we reverse the order granting suppression.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/18




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