J-A23008-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellant              :
                                         :
            v.                           :
                                         :
JONATHAN H. DELACRUZ,                    :
                                         :
                  Appellee               : No. 1242 WDA 2013

                Appeal from the Order entered July 29, 2013,
                  Court of Common Pleas, Cambria County,
            Criminal Division at No(s): CP-11-CR-0000538-2012,
           CP-11-CR-0000540-2012 and CP-11-CR-0000541-2012

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED SEPTEMBER 18, 2014

      The Commonwealth of Pennsylvania appeals from the July 29, 2013

order entered by the Cambria County Court of Common Pleas granting, in

part, the motion to suppress filed by Jonathan H. Delacruz (“Delacruz”).

After careful review, we affirm.

      The facts underlying this appeal, summarized by the suppression

court, are as follows:

            Detective Kevin Price (Price) testified that he is a
            detective with the Cambria County District Attorney’s
            Office and the field supervisor of the Cambria County
            Drug Task Force (Task Force). Price testified, in
            conformity with the affidavit of probable cause
            (Affidavit)  attached     to   the    search  warrant
            applications, that during an investigation into the
            sale of crack cocaine in the Johnstown area the Task
            Force became aware that Delacruz and Kevin
            Coggins (Coggins) may be involved in the drug
            trade. The Task Force initiated surveillance of the
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          pair along with their known or suspected residences
          at 171 State Street and 1937 Minno Drive[FN] both in
          Johnstown. The Task Force eventually became aware
          that Samantha Zack (Zack) was living with Delacruz
          on State Street but listed her address as Rear 150
          Bucknell Avenue with her probation officer.

          During the surveillance[,] the Task Force learned
          that Delacruz owned a black Mazda registered to him
          at a Haynes Street address that was frequently
          driven by Coggins and was renting a white Ford
          Taurus that he would drive. The Task Force utilized
          two confidential informants (CI) to make a total of
          five controlled drug buys from Delacruz and Coggins.

          Buy 1: On February 6, 2012[,] a CI called Delacruz’s
          phone and spoke with Coggins who arranged to meet
          the CI on Virginia Avenue for the purpose of selling
          him crack cocaine. Coggins arrived in the black
          Mazda, the transaction took place and Coggins left.
          The Task Force did not know where Coggins came
          from or returned to. The substance obtained from
          Coggins tested positive as cocaine.

          Buy 2: On February 10, 2012[,] a CI called Delacruz
          who arranged to meet the CI on Virginia Avenue for
          the purpose of selling him crack cocaine. Delacruz
          arrived in the white Ford, the transaction took place
          and Delacruz left. The Task Force did not know
          where Delacruz came from or returned to but did
          observe him later at the State Street address. The
          substance obtained from Delacruz tested positive as
          cocaine.

          Buy 3: On February 15, 2012[,] a CI called
          Delacruz’s phone who arranged to meet the CI for
          the purpose of selling him crack cocaine. Coggins
          arrived in the black Mazda, the transaction took
          place and Coggins left. The Task Force did not know
          where Coggins came from but followed him to
          3[]Red’s Bar following the transaction. During the
          transaction[,] surveillance was being conducted on
          the State Street address and Zack was observed



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          there. The substance obtained from Coggins tested
          positive as cocaine.

          Buy 4: On February 16, 2012[,] a CI called
          Delacruz’s phone who arranged to meet the CI on
          Virginia Avenue for the purpose of selling him crack
          cocaine. Coggins arrived in the black Mazda, the
          transaction took place and Coggins left. The Task
          Force did not know where Coggins came from but
          followed him to the Bucknell address following the
          transaction. During the transaction[,] surveillance
          was being conducted on the State Street address
          and both Delacruz and Zack were observed there.
          The substance obtained from Coggins tested positive
          as cocaine.

          Buy 5: On February 25, 2012[,] a CI called
          Delacruz’s phone who informed the CI he was out of
          town and told him to call Coggins. The CI then called
          Coggins who arranged to meet the CI for the
          purpose of selling him crack cocaine. Coggins was
          observed leaving the State Street address in the
          black Mazda and driving to the Minno Drive location.
          Coggins exited the vehicle there, was not observed
          entering the building, reentered his vehicle and
          drove to Virginia Avenue where the transaction was
          to occur. The transaction took place, Coggins left and
          was observed driving to the Bucknell address and
          entering the residence there. He then left Bucknell
          and returned to State Street. The substance
          obtained from Coggins tested positive as cocaine.

          Based upon these transactions and surveillance[,]
          Price filed three applications for search warrants, one
          each for the Bucknell, State Street, and Minno Drive
          addresses. Attached to each application was an
          identical Affidavit of Probable Cause. A review of the
          Affidavit reveals: that neither Delacruz’s white Ford
          nor Zack’s vehicle was ever seen at the Bucknell
          address; that Delacruz, Zack, and Coggins are listed
          as the ‘[o]wner, occupier, or possessor’ of each of
          the properties; and that Coggins was observed on
          one occasion driving to the Minno Drive address to



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            pick up mail but was not seen entering the
            residence. Further, the Affidavit includes no
            information that any member of the Task Force or
            any CI was told by Delacruz or Coggins that drugs
            were stored at any of the locations or that they
            personally observed drugs at those places.

            Delacruz moved to suppress the evidence obtained
            from all three warrants as to him[,] arguing that no
            connection or nexus [exists] between his street
            activities and those locations. Following a hearing on
            the motion held July 3, 2013[,] the Court directed
            the parties to file briefs. After review of the briefs,
            hearing testimony, and law[,] the Court entered its
            July 29, 2013, Order denying the motion as to the
            State Street and Minno Drive properties and granting
            it as to the Bucknell address.
            _____________________
            [FN]
                  Delacruz listed the Minno Drive address as his
            residence but was known to be living at the State
            Street address.

Suppression Court Opinion, 10/28/13, at 2-4 (footnote included in the

original; other footnote omitted).

      The Commonwealth filed a timely notice of appeal, certifying therein

that the suppression court’s order terminated or substantially handicapped

the prosecution pursuant to Pa.R.A.P. 311(d).      It thereafter complied with

the trial court’s order for a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).      It raises one issue for our review:

“Did the suppression court err in suppressing evidence found via a search

warrant   served   at   150   Bucknell   Avenue,    Rear,   Johnstown,   PA?”

Commonwealth’s Brief at 5.




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      We review a decision concerning a motion to suppress to discern

whether the suppression court’s findings of fact are supported by the record

and   whether   the   legal    conclusions   drawn   therefrom   are   correct.

Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa. Super. 2014)

(citation omitted).   We are not bound by the suppression court’s legal

conclusions, but must apply the law to the supported facts found by the

suppression court.    Id.     The suppression court’s conclusions of law are

subject to our plenary review. Id.

      The Commonwealth breaks its issue into two sub-arguments: (1) the

suppression court erred by finding that Delacruz had a privacy interest in the

Bucknell address that permitted him challenge the search of that location

(Commonwealth’s Brief at 10-16), and (2) the suppression court erred by

finding that the warrant request contained insufficient probable cause to

connect Delacruz to the Bucknell address (id. at 16-26). We begin with the

first sub-argument, which we find waived for the following reasons.

      As the Commonwealth concedes, because Delacruz is charged with a

possessory offense, he has automatic standing to challenge the search.

Commonwealth’s Brief at 10 (citing Commonwealth v. Caban, 60 A.3d

120, 126 (Pa. Super. 2012), appeal denied, 79 A.3d 1097 (Pa. 2013)). “To

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

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

legally cognizable expectation of privacy in the area searched.”       Caban,



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60 A.3d at 126 (citation omitted). This is where the Commonwealth claims

Delacruz failed.    See Commonwealth’s Brief at 11-15. The record reflects

that in his motion to suppress and at the suppression hearing itself, Delacruz

claimed he had a privacy interest in the Bucknell address by virtue of the

Commonwealth identifying Delacruz as an “owner, occupant or possessor” of

the residence on the face sheet of the warrant request associated with that

property.   Motion to Suppress Physical Evidence, 4/26/13, at 2 n.1; N.T.,

7/3/13, at 47.1 The Commonwealth did not object in either instance, nor did

it present any argument in opposition to Delacruz’s claimed privacy interest

at that time.      Rather, the Commonwealth challenged Delacruz’s privacy

interest in the Bucknell property for the first time in its brief in opposition to

Delacruz’s motion to suppress, filed three weeks after the suppression

hearing.    See Brief in Opposition to Defendant’s Motion to Suppress,

7/26/13, at 10-11.

      “[T]o preserve a claim of error for appellate review, a party must

make a specific objection to the alleged error before the trial court in a

timely fashion and at the appropriate stage of the proceedings; failure to

raise such objection results in waiver of the underlying issue on appeal.”

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014).                 As the



1
   In both instances, Delacruz erroneously refers to this as supporting his
“standing” to challenge the search. As he is conferred automatic standing
because he was charged with a possessory offense, we understand him to be
raising this in support of a privacy interest argument.


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Commonwealth failed to raise a timely objection to or argument against

Delacruz’s claimed privacy interest, the issue is not preserved for our review

on appeal.

     We now turn to the Commonwealth’s second sub-argument relating to

the finding that its request for a warrant lacked sufficient probable cause to

issue the warrant.   The issuance of a constitutionally valid search warrant

requires that police provide the issuing authority with sufficient information

to persuade a reasonable person that there is probable cause to conduct a

search, based upon information that is viewed in a common sense manner.

Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009). The issuing

authority must determine whether, given the totality of the circumstances

presented, there is a fair probability that evidence of a crime or contraband

will be found in a particular location. Id. The task of the reviewing court is

to ensure that the issuing authority had a substantial basis to conclude that

probable cause existed. Id.

      The suppression court found that the totality of the circumstances did

not give rise to a finding of probable cause that evidence of a crime or

contraband relating to Delacruz would be found at the Bucknell address

based upon its conclusion that “the Affidavit is devoid of any evidence or

suggestion that connects Delacruz’s street activities to that location.”

Suppression Court Opinion, 10/28/13, at 8. In so finding, the suppression

court relied upon this Court’s en banc decision in Commonwealth v. Kline,



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335 A.2d 361 (Pa. Super. 1975) (en banc), wherein we held:          “Probable

cause to believe that a man has committed a crime on the street does not

necessarily give rise to probable cause to search his home.” Id. at 364.

     In Kline, police obtained a search warrant to search the defendant’s

home based upon allegations that his roommate sold two teenaged girls

L.S.D. The affidavit was devoid of any indication that the L.S.D. came from

the apartment in question.     Id.    The only statement in support of that

finding was the girls’ statements that when they asked him for L.S.D., the

roommate went to his apartment and returned with the drugs. Id. at 362.

“There [was] no indication of where the transaction took place, how long it

took, how long [the roommate] was gone, or what led the girls to conclude

that he had gone to his apartment.”      Id. at 364.   We therefore affirmed

suppression of the evidence discovered pursuant to the search warrant.

     The Commonwealth asserts that the suppression court’s reliance on

Kline is misplaced, as the question before the Court in that case turned on

the credibility of the informants.2   Commonwealth’s Brief at 21-22.       The



2
    In a footnote, the Commonwealth also baldly states that Kline’s
“precedential authority is in question” because it was decided in 1975 and
thus under the former Aguilar-Spinelli standard for determining whether
there is probable cause to issue a search warrant, as opposed to the present
totality of the circumstances test enunciated in Illinois v. Gates, 462 U.S.
213 (1983), adopted in Pennsylvania Commonwealth v. Gray, 503 A.2d
921 (Pa. 1986). Commonwealth’s Brief at 21-22 n.13. This argument is
woefully underdeveloped. We note, however, that in 2012, our Supreme
Court, utilizing the totality of the circumstances test set forth in Gates and
Gray, relied in part on the holding announced in Kline to affirm the


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Commonwealth states that this Court’s holding in Commonwealth v.

Davis, 595 A.2d 1216 (Pa. Super. 1991), is more factually similar.3           In

Davis, this Court reversed the trial court’s finding, in relevant part, that “the

affidavit did not contain sufficient facts to believe that drugs would be found

in defendant’s residence.”     Id. at 1219, 1221.      We concluded that the

following information provided adequate probable cause to support a search

of the defendant’s home: (1) the defendant was seen leaving and returning

to the residence; (2) an informant observed the defendant conducting drug

sales in the street and entering the residence after each sale; and (3) the

defendant told the informant that he recently received a shipment of drugs,

which logically meant that he would need somewhere to store the drugs.

Id. at 1221.

      We disagree that Davis is controlling or that it is factually similar to

the case at bar. Here, the sum total of information relating to 150 Bucknell

Avenue, Rear, contained in the affidavit of probable cause, is as follows:


suppression court’s grant of suppression, concluding “[t]here is nothing in
this affidavit which would establish any nexus between Appellant’s house
and the sale or storage of drugs.” Commonwealth v. Wallace, 42 A.3d
1040, 1049-50 (Pa. 2012). We thus disagree that there is any uncertainty
regarding the precedential value of Kline.
3
   The Commonwealth also points to United States v. Hodge, 246 F.3d 301
(3d Cir. 2001), in support of its argument. Commonwealth’s Brief at 23-24.
Although in some cases they may be persuasive, the decisions of federal
courts inferior to the United States Supreme Court are not binding on this
Court. Commonwealth v. Huggins, 68 A.3d 962, 968 (Pa. Super. 2013),
appeal denied, 80 A.3d 775 (Pa. 2013). As we conclude there is existing
precedent that guides our decision, we need not discuss the Hodge case.


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        •   it is Zack’s registered address, although she was not observed
            by police to be living there;

        •   following the February 16, 2012 buy, Coggins went to a Sheetz,
            purchased food that he ate in his car, and then went to the
            Bucknell address and went inside the apartment there;

        •   during the week of February 20, 2012 (date not specified), the
            Task Force observed Coggins drive from the State Street address
            to the Minno Drive address to retrieve mail, and then drive to
            the Bucknell address; no drug sale occurred during this
            surveillance; and

        •   within the 24 hours preceding the warrant request, the Task
            Force observed Coggins leave from the State Street address
            immediately after setting up a buy over the phone; drive to the
            Minno Drive address; exit his vehicle there; return to his vehicle
            and drive from Minno Drive to the location to sell the CI drugs;
            and then drive from the buy to the Bucknell Avenue address.

Defendant’s Exhibit C, Affidavit of Probable Cause, at ¶¶ 13, 18, 22, 28.

Unlike in Davis, neither Delacruz nor his alleged coconspirators were ever

observed leaving from the Bucknell Avenue address, let alone prior to selling

drugs to the CIs.   Evidence present in Davis regarding the receipt of a

shipment of drugs is also absent here. Moreover, even if we were able to

deduce that Delacruz was “out of town re-upping” when Coggins made the

sales instead of Delacruz (see id. at ¶ 7), there is nothing to suggest that

there was a probability that the drugs would be stored in the Bucknell

Avenue residence. See Housman, 986 A.2d at 843. To the contrary, the

record suggests that the drugs in question were more likely to be found at

either the Minno Drive or State Street addresses.     Police did not observe

Delacruz or Coggins leaving from the Bucknell Avenue address prior to



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effectuating any of the drug sales, but they were observed at both the State

Street and Minno Drive addresses.

      In Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985), an

informant arranged over the phone to purchase drugs from the defendant.

The defendant, driving a blue van, met the informant on a country road.

After the transaction, the police followed the defendant to a property located

at the corner of Douglas Drive and Glendale Road, which another source

informed police was the defendant’s residence.        Id. at 1154.    Based on

Kline, we concluded that this information was not enough to give rise to a

finding of probable cause to search his home. Rather, we found that “the

lack of a substantial nexus between the street crime and the premises to be

searched renders the warrant facially invalid.” Id.

      The Commonwealth points to the fact that Delacruz was charged as

Coggins’ conspirator, and pursuant to “the concept[s] of conspirator and

accomplice liability,” the search warrant provided sufficient probable cause

to permit the search of the Bucknell Avenue address as to Delacruz.

Commonwealth’s Brief at 25-26. Our review of the record, however, leads

us to conclude that, pursuant to the Kline and Way decisions, the affidavit

of probable cause failed to establish probable cause to search the Bucknell

Avenue address as to anyone in this case. The only “evidence” connecting

the drug sales to the Bucknell Avenue address was that Coggins went there

twice after selling drugs to the CIs. This is insufficient to establish probable



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cause to search 150 Bucknell Avenue, Rear by any theory – coconspirator or

otherwise.4

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2014




4
   We recognize that in its written opinion pursuant to Pa.R.A.P. 1925(a), the
trial court stated that it believed the warrant in question “supports [] the
conclusion that Coggins was storing contraband at the Bucknell address[.]”
Suppression Court Opinion, 10/24/13, at 9-10. This does not affect our
decision, as we are not bound by the suppression court’s legal conclusions.
Thompson, 93 A.3d at 484.


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