J-A04032-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                   v.                     :
                                          :
ZACHARY HOSSEIN AFSHAR,                   :
                                          :
                 Appellant                :     No. 812 WDA 2014

    Appeal from the Judgment of Sentence Entered December 20, 2013
             in the Court of Common Pleas of Indiana County,
           Criminal Division, at No(s): CP-32-CR-0001111-2012

BEFORE:    BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED APRIL 14, 2015

      Zachary Hossein Afshar (Appellant) appeals from the judgment of

sentence imposed on December 20, 2013 following his convictions for

various drug offenses. We affirm Appellant’s conviction, vacate Appellant’s

judgment of sentence, and remand with instructions.

     The trial court summarized the relevant facts of this case as follows.

           On January 11, 2012, State Probation Officer James
     Cutshall [was conducting a routine visit with a probationer when
     he] reported the odor of marijuana in the apartment building at
     919 Water Street, Indiana, Pennsylvania. Patrol Officer Cory
     Williams of the Indiana Borough Police Department was
     dispatched to investigate. [Officer] Williams noted a strong odor
     of marijuana coming from apartment 1, just inside the entrance
     of the building. [Appellant] answered the door at apartment 1
     when [Officer] Williams knocked. [Officer] Williams noted that
     the odor of marijuana was stronger when the door was opened.
     [Appellant] was instructed to sit in the living room while [Officer]
     Williams and other officers secured and cleared the area. A
     search warrant was then obtained. Pursuant to the search


*Retired Senior Judge assigned to the Superior Court.
J-A04032-15

     warrant, officers recovered illegal drugs and paraphernalia from
     [Appellant’s] apartment, including from a safe within his
     bedroom that had to be pried open. [Appellant] was then placed
     under arrest.

Trial Court Opinion, 5/17/2013, at 1-2.

     Appellant filed an omnibus pre-trial motion seeking to suppress the

narcotics and paraphernalia seized during the search.            A hearing on

Appellant’s motion was held on February 14, 2013. Following the hearing,

both parties submitted briefs to the trial court. On May 17, 2013, the trial

court issued an order denying Appellant’s motion to suppress.

     On June 7, 2013, Appellant filed a motion to reconsider the

suppression ruling. The trial court granted this request. On July 23, 2013,

the Commonwealth requested to reopen the suppression record.             This

request was also granted, and on July 29, 2013, the Commonwealth

supplemented the suppression record with the affidavit of probable cause

and warrant obtained prior to the search of Appellant’s home.1

     This matter proceeded to a non-jury trial.       On October 4, 2013,

Appellant was found guilty of possession of cocaine with the intent to

deliver, possession of marijuana, possession of methylenedioxypyrovalerone

(commonly known as “bath salts”), possession of cocaine, and possession of

drug paraphernalia.   On December 20, 2013, Appellant was sentenced at

count one, possession of cocaine with the intent to deliver, to a mandatory

1
  The record does not indicate that there was a new ruling on Appellant’s
suppression motion after reconsideration was granted.


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term of three to six years’ incarceration. He received no further penalty on

the other charges. Appellant was also ordered to pay a fine of $15,000 and

the costs of prosecution.

      On December 30, 2013, Appellant timely filed a post-sentence motion,

which was denied by the trial court on April 17, 2014.        This timely filed

appeal followed.     The trial court directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Rule of Appellate

Procedure 1925(b), and one was filed.

      Appellant raises the following issues on appeal.

      1. Did the trial court err in ruling that Pennsylvania law allows
      for the mere odor of marijuana to be the only basis for a search
      warrant of one’s home when Pennsylvania law requires odor plus
      another circumstance indicating criminal activity?

      2. Did the trial court abuse its discretion when it allowed the
      [Commonwealth] to reopen the suppression record after the
      suppression ruling was made and after new case law favorable to
      the [Appellant’s] position was brought to the court’s attention?

      [3.] Did the trial court err when it ordered costs of prosecution
      to be paid without honoring a pertinent statute and precedent
      requiring certain due process protections?

      [4.] Did the trial court err when it allowed the Department of
      Corrections to calculate a [Appellant’s] credit for time served?

      [5.] When drug weight was used to trigger a mandatory
      minimum without that fact being proven beyond a reasonable
      doubt is the sentence illegal under [Alleyne v. United States,
      133 S.Ct. 2151 (2013)]?

Appellant’s Brief at 7 (questions reordered for ease of disposition; trial court

answers omitted).



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      Appellant’s first two issues challenge the trial court’s denial of his

motion to suppress.

      When reviewing the denial of a motion to suppress, we must
      consider only the evidence of the prosecution and so much of the
      evidence for the defense as remains uncontradicted when read in
      the context of the record as a whole. We are bound by the
      suppression court’s findings if they are supported by the record.
      Factual findings wholly lacking in evidence, however, may be
      rejected. We may only reverse the suppression court if the legal
      conclusions drawn from the findings are in error.

Commonwealth v. Gatlos, 76 A.2d 44, 52 (Pa. Super. 2013) (internal

quotations and citations omitted).2

      Instantly, Appellant contends that Officer Williams needed something

more than the odor of marijuana, what he refers to throughout his brief as

“odor + plus,” to establish the probable cause necessary to obtain a search

warrant for his apartment. Appellant’s Brief at 20. We disagree.

            “Both the Fourth Amendment of the United States
      Constitution and Article 1 Section 8 of the Pennsylvania
      Constitution protect citizens from unreasonable searches and
      seizures.” Commonwealth v. Cook, [] 735 A.2d 673, 674
      ([Pa.] 1999). The Fourth Amendment to the United States
      Constitution provides that:



2
  We are mindful that our Supreme Court has held that, when reviewing a
challenge to the trial court’s suppression ruling, “it is inappropriate to
consider trial evidence as a matter of course, because it is simply not part of
the suppression record, absent a finding that such evidence was unavailable
during the suppression hearing.” In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).
The Court in L.J. determined that this rule applies prospectively. Id. at
1089. As the suppression hearing in the case at bar occurred prior to the
decision in L.J., it is inapplicable, and we adhere to the scope of review as
stated above.


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           The right of the people to be secure in their persons,
           houses, papers, and effects, against unreasonable
           searches and seizures, shall not be violated, and no
           warrants shall issue, but upon probable cause,
           supported by oath or affirmation, and particularly
           describing the place to be searched, and the persons
           or things to be seized.

     U.S. Const.Amend. IV. The Pennsylvania Constitution provides:

           The people shall be secure in their persons, houses,
           papers and possessions from unreasonable searches
           and seizures, and no warrant to search any place or
           to seize any person or things shall issue without
           describing them as nearly as may be, nor without
           probable cause, supported by oath or affirmation
           subscribed to by the affiant.

     Pa. Const. Art. I, § 8.

Commonwealth v. Ayala, 791 A.2d 1202, 1207 (Pa. Super. 2002).

           The standard for evaluating whether probable cause
           exists for the issuance of a search warrant is the
           totality of the circumstances test as set forth in
           Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
           L.Ed.2d    527    (1983)   and   adopted     by   the
           [Pennsylvania] Supreme Court in Commonwealth
           v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925
           (1985). A magistrate is to make a practical common-
           sense decision whether, given all the circumstances
           set forth in the affidavit before him, including the
           veracity and basis of knowledge of persons supplying
           hearsay information, there is a fair probability that
           contraband or evidence of a crime will be found in a
           particular place.

     In reviewing the validity of a search warrant, the reviewing court
     is limited to determining whether there is substantial evidence
     supporting the issuing authority’s decision to approve the
     warrant.




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J-A04032-15

Commonwealth v. Hawkins, 45 A.3d 1123, 1127 (Pa. Super. 2012) (some

citations and quotations omitted).

     Contrary to Appellant’s assertions, while more than the odor of

marijuana is necessary for a warrantless search, odor alone may form the

basis for the issuance of a search warrant. As this Court acknowledged in

Commonwealth v. Stoner, 344 A.2d 633 (Pa. Super. 1975), where an

officer is lawfully in a particular location, his detection of the odor of

marijuana   is   sufficient   to   establish   probable   cause.    See   also

Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984);

Commonwealth v. Trenge, 451 A.2d 701 (Pa. Super. 1982).

     As the trial court aptly noted,

            […] only that odors alone do not authorize a search
            without a warrant. If the presence of odors is
            testified to before a magistrate and he finds the
            affiant qualified to know the odor, and it is one
            sufficiently distinctive to identify a forbidden
            substance, this Court has never held such a basis
            insufficient to justify issuance of a search warrant.
            Indeed, it might very well be found to be evidence of
            the most persuasive character.

     [] Trenge, 451 A.2d at 706 (quoting Johnson v. United
     States, 333 U.S. at 13)). The reasoning behind permitting a
     warrant to be issued for odor alone when it would be
     inappropriate to conduct a warrantless search involves the
     following:

            The point of the Fourth Amendment is not that it
            denies law enforcement the support of the usual
            inferences which reasonable men draw from
            evidence. Its protection consists in requiring that
            those inferences be drawn by a neutral and detached



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J-A04032-15

            magistrate instead of being- judged by the officer
            engaged in the often competitive enterprise of
            ferreting out crime.

      Johnson v. United States, 333 U.S. at 13-14.

Trial Court Opinion, 5/17/2013, at 4.

      Instantly, there is no dispute that Officer Williams detected the odor of

marijuana in a public area of Appellant’s apartment building, and that the

odor grew stronger once Appellant opened the door to his apartment.

Officer Williams’ familiarity with the smell of burning marijuana, coupled with

the probation officer’s detection of the same in a location where both officers

were authorized to be, provided the issuing authority with a substantial basis

upon which he could issue a warrant.3 See Commonwealth v. Johnson,

68 A.3d 930, 936 (Pa. Super. 2013) quoting Commonwealth v. Waddell,

61 A.3d 198 (Pa. Super. 2012) (“[O]nce the odor of marijuana was detected

emanating from the residence, the threshold necessary to establish probable

cause to obtain a search warrant was met”). Accordingly, because the

warrant issued herein was supported by sufficient probable cause, we

conclude the trial court did not err in denying Appellant’s motion to

suppress.

3
  The affidavit of probable cause authored by Officer Williams only included
these facts. We agree with the trial court that the warrant is not tainted by
any observations made during the officer’s illegal warrantless entry into
Appellant’s apartment. See Trial Court Opinion, 5/17/2013, at 3 (“Indeed, in
seeking the warrant, the only basis was the odor of burnt marijuana. Thus
the search warrant was obtained from the magistrate without utilizing fruit
of the warrantless entry.”).


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J-A04032-15

      Next, Appellant takes issue with the trial court’s decision to permit the

Commonwealth to present the testimony of Officer Williams at the

suppression hearing as a substitute for the actual warrant and affidavit of

probable cause.     Appellant’s Brief at 23-39. Appellant contends that,

because the Commonwealth failed to enter the warrant and attached

affidavit into evidence at the time of the suppression hearing, the trial court

erred in denying suppression, particularly in light of our Supreme Court’s

recent decision in Commonwealth v. James, 69 A.3d 180 (Pa. 2013).

Appellant’s Brief at 31-33.

      In James, our Supreme Court outlined the parties’ respective burdens

during a suppression hearing. The Court concluded that, pursuant to Rule of

Criminal Procedure 203(D), a suppression court reviewing a defendant’s

“generic, global challenge” to the sufficiency of an affidavit of probable cause

is limited to consideration of information contained within the four-corners of

the affidavit. James, 69 A.3d at 187-90. By contrast, where a defendant

challenges specific omissions and ambiguities within the affidavit, extrinsic

evidence and witness testimony is permitted to resolve such deficiencies. Id.

Herein, Appellant argues that, because he presented a global challenge to

the sufficiency of the affidavit, the trial court erred in permitting Officer

Wilson’s testimony and the Commonwealth, which did not admit the affidavit

itself as evidence at the suppression hearing, failed to meet its burden of

proof. We disagree.



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J-A04032-15

      Contrary to Appellant’s assertion that any testimony is precluded

where a challenge to a warrant is “global,” in James, our Supreme Court

recognized the value of cross-examination as a safeguard to “test the

truthfulness of the recitals of the warrant.” Id. at 187-88.

            The burden is on the Commonwealth to establish the
            validity of the search warrant and the burden is not
            carried by merely introducing the search warrant and
            affidavit with no supporting testimony because then
            the only way for the defendant to challenge the
            veracity of the information is to call witnesses
            himself and this effectively shifts onto him the
            burden of disproving the veracity of the information,
            an almost impossible burden. If the procedure
            followed by the Commonwealth in this case were
            upheld then policemen could recite in an affidavit as
            probable cause for the issuance of a search warrant
            any and all statements which they felt were of help
            in obtaining the warrant, irrespective of the truth or
            veracity of those statements, their legality or
            illegality, or constitutionality or unconstitutionality,
            realizing that such statements would be insulated
            from defendant’s right of cross-examination since
            the Commonwealth did not have to call witnesses
            who would be subject to cross-examination to
            establish the facts necessary to support the issuance
            of the search warrant. Therefore, we must hold that
            the Commonwealth failed to carry its burden of proof
            at the suppression hearing. To rule otherwise would
            permit police in every case to exaggerate or to
            expand on the facts given to the issuing authority
            merely for the purpose of meeting the probable
            cause requirement, thus precluding an objective
            determination of whether probable cause for the
            warrant existed.

      [Commonwealth v.] (William) Ryan, [407 A.2d 1345, 1348
      (Pa. Super. 1979)] (citations omitted) (emphasis added).
      Significantly, the [Superior C]ourt rejected the Commonwealth’s
      assertion that Pa.R.Crim.P. 2003(b), the predecessor to Rule



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      203, only required submission of the affidavit to meet the
      burden of proof at the hearing:

            The rule stands for the proposition that only
            evidence as set forth in the affidavit can be
            considered in determining whether or not the issuing
            authority had probable cause to issue the warrant. It
            does not mean that only the affidavit, i.e. the
            physical document itself, can be admitted into
            evidence. As discussed above the mere introduction
            of the physical document is not sufficient to sustain
            the Commonwealth’s burden of proof because the
            document does not lend itself to cross-examination
            which is the defendant’s right. Commonwealth v.
            Hall, [302 A.2d 342 (Pa. 1973)]. While the court
            could not venture outside the four corners of the
            affidavit in deciding whether probable cause existed,
            it is still the Commonwealth’s burden to prove the
            validity of the statements contained in the affidavit
            and this can only be done by real, live witnesses who
            are subject to cross-examination by the defendant.
            Id. (emphasis added).

James, 69 A.3d at 188-89 (emphasis in original).

      Instantly, Officer Williams’ testimony was limited to the four-corners of

the affidavit and afforded Appellant the opportunity to cross-examine the

veracity of the statements contained within the affidavit.      Accordingly, we

find no error in the trial court permitting Officer Williams’ testimony.

      Moreover, as it is permissible for the suppression court to reopen the

record to receive omitted evidence, we find no error in the trial court’s

decision to reopen the record herein to allow the Commonwealth to admit a

search warrant and affidavit it failed to move into evidence at the

suppression hearing.    Appellant’s argument to the contrary is unavailing.




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J-A04032-15

The Commonwealth admitted that its failure to move the affidavit and

accompanying search warrant into evidence was inadvertent. The documents

were attached to Appellant’s pre-trial motion, were referenced at the

suppression hearing by defense counsel, and formed the basis of the

Commonwealth’s evidence presented during the hearing.          Based on the

foregoing, Appellant is not entitled to relief. See Commonwealth v.

Ferguson, 231 A.2d 327 (Pa. Super. 1974) (holding, inter alia, that where a

warrant was relied upon by the Commonwealth during the suppression

hearing and made available to the court and defense counsel, but

inadvertently excluded from the record, the interests of justice permit the

record to be reopened to admit the missing document).

     Appellant’s final three issues pose various challenges to the legality of

his sentence.   We address those claims mindful of the following. “Issues

relating to the legality of sentence are questions of law, and thus, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013) (citation

omitted).

     In his third issue, Appellant claims that his sentence is illegal because

the court ordered Appellant to pay court costs without requiring the

Commonwealth to provide an accounting of those costs. Appellant’s Brief at

45-50.




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        All necessary expenses incurred by the district attorney or his
        assistants or any office directed by him in the investigation of
        crime and the apprehension and prosecution of persons charged
        with or suspected of the commission of crime, upon approval
        thereof by the district attorney and the court, shall be paid by
        the county from the general funds of the county. In any case
        where a defendant is convicted and sentenced to pay the costs
        of prosecution and trial, the expenses of the district attorney in
        connection with such prosecution shall be considered a part of
        the costs of the case and be paid by the defendant.

16 Pa.C.S. § 1403.

        Specifically, Appellant takes issue with two entries on the itemized list

of court costs entitled “District Attorney Costs (Indiana)” which total

$233.55. Appellant’s Brief at 49. The certified record does not contain any

invoices    associated   with   these    entries;   however,   in   its   brief,   the

Commonwealth avers that the charges correspond to fees incurred following

transcript requests by Appellant’s first attorney. Commonwealth’s Brief at 17

n. 7.    Indeed, two entries, dated December 20, 2012 and February 20,

2013, entitled “Reimbursement District Attorney” appear in the certified

docket prior to trial in this matter. Nonetheless, we are constrained to agree

with Appellant that these notations, without more, are insufficient to carry

the Commonwealth’s burden. Accordingly, we remand for a new hearing on

the bill of costs attributable to the Commonwealth.4




4
  Because Appellant takes issue only with the costs payable to the
Commonwealth, we direct that the hearing should be limited to testimony
regarding those charges.


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      In his fourth issue, Appellant argues that the trial court “abrogated its

judicial function” by allowing the Department of Corrections (DOC) to

calculate Appellant’s credit time. Appellant’s Brief at 50. We disagree with

Appellant’s characterization of the error herein, but nonetheless remand for

a proper calculation of Appellant’s credit time in light of the following.

      Section 9760 of the Sentencing Code provides, in relevant part, as

follows.

      [T]he court shall give credit as follows:

      (1) Credit against the maximum term and any minimum term
      shall be given to the defendant for all time spent in custody as a
      result of the criminal charge for which a prison sentence is
      imposed or as a result of the conduct on which such a charge is
      based. Credit shall include credit for time spent in custody prior
      to trial, during trial, pending sentence, and pending the
      resolution of an appeal.

42 Pa.C.S. § 9760(1).

      It is undisputed that Appellant is entitled to credit for time served.

Specifically, he requests eight days of credit time, from January 11, 2012 to

January 18, 2012, accrued between when he was arrested for this incident

until his first preliminary hearing. Trial Court Opinion, 4/17/2014, at 6. At

sentencing, the trial court indicated it agreed with Appellant’s calculation of

applicable credit time. N.T., 12/20/2013, at 10-11.         To this end, in its

sentencing order, the trial court granted Appellant “[c]redit for time served

as allowed by law.” Sentencing Order, 12/20/2013.            However, the DC-

300(B) court commitment form submitted to the DOC after Appellant’s



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J-A04032-15

sentencing indicates that Appellant has no applicable credit time.        “[T]he

Department of Corrections, an executive agency, has no power to change

sentences, or to add or remove sentencing conditions, including credit for

time   served;     this   power   is   vested   with   the   sentencing   court.”

Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014)

(citation omitted).

            42 Pa.C.S. § 5505, provides for modification of
            orders as follows:

            Except as otherwise provided or prescribed by law, a
            court upon notice to the parties may modify or
            rescind any order within 30 days after its entry,
            notwithstanding the prior termination of any term of
            court, if no appeal from such order has been taken
            or allowed.

       However, “patent or obvious mistakes” in an order may be
       modified beyond the thirty-day modification period. An alleged
       error must qualify as a clear clerical error or a patent and
       obvious mistake in order to be amenable to correction.

Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014)

(citations omitted).

       Based on our review of the record, we conclude that the omission of

eight days of credit time from the DC-300(B) court commitment form

constituted a patent and obvious error that was amenable to correction by

the trial court.   Accordingly, we vacate Appellant’s sentencing order and

remand for modification of the applicable credit time.




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      Finally, the parties and the trial court agree that the mandatory

minimum sentence imposed pursuant to 18 Pa.C.S. § 7508(a)(3) is illegal

and must be vacated. Appellant’s Brief at 41-45; Commonwealth’s Brief at

16; Trial Court Opinion, 7/8/2014, at 3. We agree. See Commonwealth v.

Fennell, 105 A.3d 13 (Pa. Super. 2014) (holding that section 7508 was

facially unconstitutional in its entirety in light of the United States Supreme

Court’s holding in Alleyne). Accordingly, we vacate Appellant’s sentence and

remand for resentencing without consideration of the mandatory minimum

sentence provided in section 7508.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

with instructions. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 4/14/2015




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