J-S44026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RICHARD DAVIS,

                            Appellant               No. 2264 EDA 2016


             Appeal from the Judgment of Sentence June 21, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006550-2015


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 11, 2017

       Appellant, Richard Davis, appeals from the judgment of sentence of

thirteen to twenty-six months of imprisonment entered in the Court of

Common Pleas of Delaware County on June 21, 2016, following Appellant’s

conviction by a jury of possession of marijuana and possession of marijuana

with intent to deliver (PWID”),1 the two charged offenses. We affirm.

       The salient facts of this case are as follows:   On July 13, 2015, at

approximately 3:50 p.m., Jeffrey Theobald, then a parole agent with the




____________________________________________


1
    35 P.S. §§ 780-113(a)(16) and (30), respectively.
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Pennsylvania Board of Probation and Parole,2 entered Taylor Terrace, a

street in the City of Chester, Delaware County, and encountered Appellant,

whom he recognized as one of the parolees he supervised. Agent Theobald

had supervised Appellant for a year and knew that Appellant was on parole

for PWID and a firearm violation.              Agent Theobald watched as Appellant

covered something in the trunk of his vehicle, which was stopped in the

middle of the road. N.T., 2/23/16, at 5–8.

       When Appellant entered his car and drove away, Agent Theobald

followed him about one-half block, whereupon Appellant turned right, and

Agent Theobald proceeded on to the house of the parolee he was scheduled

to visit.   Agent Theobald parked his car, waited to see if Appellant would

circle around, and when he did not, the agent exited his vehicle.          At that

point, Agent Theobald again observed Appellant, who was now walking

through a vacant lot holding a white plastic bag. Agent Theobald proceeded

to the house of his parolee while he watched Appellant walk through the

empty lot. N.T., 2/23/16, at 8–10.

       Agent Theobald observed Appellant carry the white bag, walk to an

overgrown bush, and then reappear without the bag.                 Agent Theobald

decided to approach Appellant and called out to him.               Agent Theobald

____________________________________________


2
  Agent Theobald currently is a criminal investigator with the Pennsylvania
Department of Corrections Office of Special Investigations and Intelligence.
N.T., 6/14/16, at 63.



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approached Appellant, asked him what he was doing, and Appellant

responded he was going to visit his cousin.             Agent Theobald patted him

down, asked Appellant about the bag, and placed Appellant in handcuffs.

The agent went to the bush and retrieved the white bag, which contained a

large “freezer style” Ziploc bag containing suspected, and ultimately

confirmed, marijuana. Agent Theobald contacted City of Chester police, who

arrived within ten to fifteen minutes.           While waiting for police, Appellant

asked Agent Theobald if he could “get rid of that for me.” N.T., 2/23/16, at

13–16, 18.

       Appellant was arrested on July 13, 2015, and charged as indicated.

On December 21, 2015, Appellant filed a motion to suppress his statements

to Agent Theobald and the marijuana. Suppression Motion, 12/21/15. On

February 23, 2016, the court held a suppression hearing, at which Agent

Theobald was the sole witness.           On April 6, 2016, the suppression court

granted the motion in part, suppressing statements made to Agent

Theobald,3 and denied the motion to suppress the physical evidence the

agent seized from the abandoned white bag.               Order, 4/6/16, at 1.   The

suppression court issued detailed findings of fact and conclusions of law. Id.

at 1–7.


____________________________________________


3
  The Commonwealth has not appealed suppression of the statements made
to Agent Theobald; thus, that issue is not before us.



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      A jury trial commenced on May 10, 2016. The jury indicated that it

was deadlocked on May 12, 2016, and the trial court declared a mistrial.

Appellant was retried on June 14, 2016, and on June 15, 2016, the jury

found Appellant guilty of both charges. The trial court sentenced Appellant

on June 21, 2016, to thirteen to twenty-six months of imprisonment for

PWID; the court held that the possession-of-marijuana conviction merged

for purposes of sentencing. Appellant filed a timely notice of appeal. Trial

counsel withdrew his representation, and present counsel entered his

appearance on Appellant’s behalf. Both Appellant, by present counsel, and

the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

             Whether there was no reasonable suspicion for the parole
      officer’s warrantless search of Appellant therefore Article I,
      Section 8 of the Pennsylvania Constitution requires exclusion of
      the tainted evidence. Commonwealth v. Arter, 63 MAP 2015,
      2016 WL 7449357 (Pa. Dec. 28, 2016)[.]

            Whether the Trial Court’s suppression of [Appellant’s]
      statements based on Miranda calls for the controlled substances
      to be suppressed because the same seizure giving rise to the
      custodial finding began when [Appellant’s] P.O., whom he
      recognized, started after him.

Appellant’s Brief at 5. We address the issues in tandem.

      Appellant assails the suppression court’s refusal to suppress the

marijuana found in the white bag that Appellant secreted in the bush. In his

first claim, Appellant contends the record lacks evidence of reasonable

suspicion supporting Agent Theobald’s stop and search of Appellant.


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Referring to the statute detailing the supervisory authority of probation and

parole officers, Appellant inarticulately suggests the statute can be ignored

because the pat-down search was for weapons, not suspicion of a violation.

Appellant’s Brief at 10–12. In his second claim, Appellant maintains that the

court’s suppression of statements pursuant to Miranda v. Arizona, 384

U.S. 436 (1966), required suppression of the physical evidence as well

“because the same seizure giving rise to the custodial” interrogation tainted

the seizure of the abandoned bag of marijuana. Appellant’s Brief at 16–18.

        The Commonwealth responds that Agent Theobald maintained his

supervisory relationship with Appellant, authorized by statute, 4 and had

reasonable suspicion to believe that Appellant possessed contraband or

other    evidence    of   violations    of     the   conditions   of   his   supervision.

Commonwealth’s Brief at 14.            It further maintains that Appellant freely

abandoned the white bag and “could not have retained ‘a reasonable

expectation of privacy’ when he left the bag in the bush.” Id. at 22.
____________________________________________


4
    The Commonwealth has inexplicably referenced a nonexistent citation in
its brief; its reproduction of the content of the statute, however, reflects the
correct and relevant law at 61 Pa.C.S. § 6153. Commonwealth’s Brief at 14.
We note that Appellant’s reference to 42 Pa.C.S. § 9912 also is incorrect
because that statute details the supervisory authority of county probation
officers. Here, Agent Theobald testified that he was an agent for the
Pennsylvania Board of Probation and Parole at that time, and Appellant was
on parole for possession with intent to deliver a controlled substance and a
firearms violation. N.T., 2/23/16, at 8. Therefore, Agent Theobald derived
his supervisory authority from Section 6153. Nevertheless, the statutes
contain substantially similar provisions with regard to the issues raised
herein.



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     When this Court addresses a challenge to the denial of a suppression

motion:

     we are limited to determining whether the suppression court’s
     factual findings are supported by the record and whether the
     legal conclusions drawn from those facts are correct. Because
     the Commonwealth prevailed before the suppression court, we
     may consider only the evidence of the Commonwealth 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
     suppression court’s factual findings are supported by the record,
     the appellate court is bound by those findings and may reverse
     only if the court’s legal conclusions are erroneous. Where ... the
     appeal of the determination of the suppression court turns on
     allegations of legal error, the suppression court’s legal
     conclusions are not binding on an appellate court, whose duty it
     is to determine if the suppression court properly applied the law
     to the facts. Thus, the conclusions of the courts below are
     subject to plenary review. Commonwealth v. Jones, 121 A.3d
     524, 526–27 (Pa. Super. 2015) (citation omitted).            When
     reviewing the suppression court’s rulings, we consider only the
     suppression record. In re L.J., 622 Pa. 126, 79 A.3d 1073,
     1085 (2013) (“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”).

Commonwealth v. Parker, 161 A.3d 357, 361–362 (Pa. Super. 2017)

(footnote omitted).

     “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012).

     In Fourth Amendment jurisprudence, there are three categories
     of interactions between citizens and the police:




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             The first category is a “mere encounter” (or request
             for information) which need not be supported by any
             level of suspicions, but carries no official compulsion
             to stop or respond. The second, an “investigative
             detention,” must be supported by a reasonable
             suspicion; it subjects a suspect to a stop and a
             period of detention, but does not involve such
             coercive conditions as to constitute the functional
             equivalent of an arrest.        Finally, an arrest or
             “custodial detention” must be supported by probable
             cause.

     Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super.
     2012) (citation omitted).

     Reasonable suspicion is a less stringent standard than probable
     cause necessary to effectuate a warrantless arrest, and depends
     on the information possessed by police and its degree of
     reliability in the totality of the circumstances. In order to justify
     the seizure, a police officer must be able to point to specific and
     articulable facts leading him to suspect criminal activity is afoot.
     In assessing the totality of the circumstances, courts must also
     afford due weight to the specific, reasonable inferences drawn
     from the facts in light of the officer’s experience and
     acknowledge that innocent facts, when considered collectively,
     may permit the investigative detention.

Commonwealth v. Parker, 161 A.3d 357, 362 (Pa. Super. 2017) (citing

Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013) (citation

omitted)).

     The suppression court determined that because Appellant freely

abandoned the marijuana in the overgrown bush before any contact with

Agent Theobald, “[t]he objective facts show that [Appellant] could not have

retained ‘a reasonable expectation of privacy’ when he left the bag in the




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bush.” Suppression Court Opinion, 4/6/16, at 6 (citing Commonwealth v.

Shoatz, 366 A.2d 1216 (Pa. 1976)). We agree.5

       Proper disposition of this case necessarily involves the authority of

parole officers, in pertinent part, as follows:

       (a) General rule.--Agents are in a supervisory relationship with
       their offenders. The purpose of this supervision is to assist the
       offenders in their rehabilitation and reassimilation into the
       community and to protect the public. . . .

       (b) Searches and seizures authorized.--

          (1) Agents may search the person and property of
          offenders in accordance with the provisions of this section.

          (2) Nothing in this section shall be construed to permit
          searches or seizures in violation of the Constitution of the
          United States or section 8 of Article I of the Constitution of
          Pennsylvania.

       (c) Effect of violation.--No violation of this section shall
       constitute an independent ground for suppression of evidence in
       any probation and parole or criminal proceeding.

       (d) Grounds for personal search.--

          (1) A personal search of an offender may be conducted by
          an agent:

              (i) if there is a reasonable suspicion to believe that
              the offender possesses contraband or other evidence
              of violations of the conditions of supervision;

              (ii) when an offender is transported or taken into
              custody; or

____________________________________________


5
  We note as well that Appellant concedes that the marijuana properly was
suppressed if “abandonment controls.” Appellant’s Brief at 16.



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           (iii) upon an offender entering or leaving the
           securing enclosure of a correctional institution, jail or
           detention facility.

        (2) A property search may be conducted by an agent if
        there is reasonable suspicion to believe that the real or
        other property in the possession of or under the control
        of the offender contains contraband or other evidence
        of violations of the conditions of supervision.

        (3) Prior approval of a supervisor shall be obtained for a
        property search absent exigent circumstances. No prior
        approval shall be required for a personal search.

                                    * * *

        (6) The existence of reasonable suspicion to search shall
        be determined in accordance with constitutional search
        and seizure provisions as applied by judicial decision. In
        accordance with such case law, the following factors,
        where applicable, may be taken into account:

           (i)     The observations of agents.

           (ii)    Information provided by others.

           (iii)   The activities of the offender.

           iv)     Information provided by the offender.

           (v)     The experience of agents with the offender.

           (vi)  The   experience       of    agents   in     similar
           circumstances.

           (vii) The prior criminal and supervisory history of
           the offender.

           (viii) The need to verify         compliance     with   the
           conditions of supervision.

61 Pa.C.S. § 6153.




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       In the instant case, Agent Theobald, while in the course of his duties,

was going to visit a parolee, not Appellant.    While en route, he observed

Appellant, who he recognized as another parolee he supervised, stopped in

the middle of the road, appearing to search for something in the trunk of his

car.   Appellant drove off without intervention by Agent Theobald, who

continued to his intended destination. As the agent exited his vehicle and

approached his destination, he saw Appellant again, now walking through an

empty lot, carrying a bag.    As Agent Theobald watched, Appellant walked

behind an overgrown bush and left the bag in the bush. Agent Theobald’s

view of Appellant was a mere chance encounter that initially arose on a

public street.   The agent did not need any level of suspicion to observe

Appellant’s behavior in public.   By the time Agent Theobald called out to

Appellant, approached him, patted him down, and handcuffed him, Appellant

had previously discarded the bag.

       As the trial court noted, abandoned property that is not coerced by

illegal police action, “may be obtained by police and used for evidentiary

purposes.” Suppression Opinion, 4/6/16, at 6; see also Commonwealth

v. Ibrahim, 127 A.3d 819, 825 (Pa. Super. 2015) (“As a general rule, when

a person abandons property, the police may recover that property and use it

as evidence against a defendant. However, the abandonment cannot be the

result of illegal police conduct”), appeal denied, 138 A.3d 3 (Pa. 2016).

Indeed, in Commonwealth v. Tillman, 621 A.2d 148 (Pa. Super. 1993),


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police officers on routine patrol observed the defendant drop a container

later found to contain fifteen vials of cocaine.   This Court determined that

evidence abandoned before police officers “showed any interest” in the

defendant was improperly suppressed as fruit of the poisonous tree. Id. at

150.

       When analyzing the principles of abandonment of property, this Court

has reasoned as follows:

       In Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216
       (1976), our Supreme Court delineated the test employed to
       determine whether an abandonment has occurred:

            Abandonment is primarily a question of intent, and
            intent may be inferred from words spoken, acts
            done, and other objective facts.          All relevant
            circumstances existing at the time of the alleged
            abandonment should be considered. The issue is not
            abandonment in the strict property-right sense, but
            whether the person prejudiced by the search had
            voluntarily discarded, left behind, or otherwise
            relinquished his interest in the property in question
            so that he could no longer retain a reasonable
            expectation of privacy with regard to it at the time of
            the search.

       Id., 469 Pa. at 553, 366 A.2d at 1220 (emphasis added).

       Commonwealth v. Johnson, 431 Pa. Super. 291, 294-96, 636
       A.2d 656, 658 (1994) (quotation marks and some internal
       citations omitted). In other words, “[a]bandonment can be
       established where an individual’s surrender of possession of the
       property constitutes such a relinquishment of interest in the
       property that a reasonable expectation of privacy may no longer
       be asserted.” Johnson, 636 A.2d at 658-659.

Commonwealth v. Clark, 746 A.2d 1128, 1134 (Pa. Super. 2000).             We

agree with the suppression court that Appellant could not have retained a

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reasonable expectation of privacy in the white bag once he secreted and

abandoned the marijuana in the bush. Suppression Court Opinion, 4/6/16,

at 6 (citing Shoatz, 366 A.2d at 1219).

       Additionally, there is no merit to Appellant’s suggestion that Agent

Theobald’s     observation   of   Appellant’s   actions   sparked   a   “forced

abandonment” by Appellant. Appellant’s Brief at 17. While it may be true

that Appellant indeed recognized that Agent Theobald was aware of

Appellant’s presence, and Appellant “dropped the bag to avoid the parole

violation of actual possession of a controlled substance,” Appellant’s Brief at

18, that scenario does not describe a forced abandonment under the law.

Commonwealth v. Pizarro, 723 A.2d 675, 680 (Pa. Super. 1998) (“mere

approach by a law enforcement official does not amount to police coercion

requiring suppression of evidence abandoned by defendant”).         Indeed, we

have stated that fear of detection and “sensitivity to the risk of police

detection does not establish that [an] abandonment was forced.”         Id. at

680.

       In Commonwealth v. Taylor, 33 A.3d 1263 (Pa. Super. 2011),

undercover police officers were patrolling an area in an unmarked car and

observed the appellant and another man sitting on a wall.       The appellant

was holding a potato chip bag.      As the officers approached, the appellant

crumpled the bag and put it down to his side, and then tossed the bag to the

ground.      At that point, the officers exited their vehicle and identified


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themselves as police officers. In addressing the appellant’s issue on appeal

that he had been forced to abandon the physical evidence and was illegally

detained, this Court stated: “While appellant may have felt uncomfortable

being watched by three people in a car that he knew to be a police vehicle,

we cannot find such amounted to police coercion. . . . Appellant discarded

the potato chip bag at his own volition.” Id. at 1286.

        Similarly, in the instant case, we conclude that the record is devoid of

any evidence that Agent Theobald’s conduct forced Appellant to abandon the

marijuana. Moreover, the abandonment, which occurred substantially before

the agent approached and detained Appellant, was not fruit of the poisonous

tree.    Agent Theobald’s subsequent detention, pat down, and custodial

detention without Miranda warnings had no impact on Appellant’s prior

voluntary abandonment of the marijuana.             Despite the trial court’s

suppression of Appellant’s statements because they resulted from a custodial

interrogation    absent   Miranda    warnings,   the   marijuana   was   seized

independently of that custodial conduct in that it had been abandoned prior

to Agent Theobald’s approach of Appellant.       As stated by the suppression

court:

        Here, the physical evidence of the white plastic bag did not come
        to light by exploitation of illegality of statements obtained from
        [Appellant]. Agent Theobald did not retrieve the bag from the
        bush because of any statements made by [Appellant]. On the
        contrary, the Agent observed the bag prior to any statements
        made by [Appellant]. Therefore, the suppression of [Appellant’s]
        statements is a complete and sufficient remedy for the Miranda
        violation.

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Suppression Court Opinion, 4/6/16, at 7. Appellant’s abandonment was not

caused by any unlawful or coercive action by Agent Theobald.   Thus, we

conclude Appellant’s issues lack merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017




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