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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JOHN L. ROBERTS,                        :         No. 1104 EDA 2016
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, March 14, 2016
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0009992-2013


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED August 8, 2017

      John L. Roberts appeals from the judgment of sentence of March 14,

2016, following revocation of his parole. After careful review, we vacate the

judgment of sentence and remand for further proceedings.

      The trial court has aptly summarized the history of this matter as

follows:

                  [Appellant]   previously    plead   guilty   to
            Possession with the Intent to Deliver (35 Pa.C.S.[A.]
            § 780-113(A)(30)) and Conspiracy (18 Pa.C.S.A.
            § 903(c)).    He was sentenced to a period of
            incarceration of nine (9) to twenty-three (23)
            months followed by three (3) years[’] probation. On
            March 14, 2016, the Commonwealth argued a
            “Daisey Kates” motion for a parole violation of
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            [appellant].[1]   Previously in the underlying case
            which precipitated the “Daisey Kates” motion,
            another court granted a motion to suppress with
            regard to narcotics found on [appellant]. However
            this court declined to extend that motion to the
            parole revocation hearing and found [appellant] in
            direct violation of his parole. He was sentenced to
            serve the balance of his back-time.

                   [Appellant] filed a timely notice of appeal on
            April 7, 2016. On July 1, 2016, this court entered an
            order pursuant to Pa.R.A.P. § 1925(b) giving
            [appellant] twenty-one (21) days to file and serve
            his response. [Appellant] timely filed his response
            on July 22, 2016.

Trial court opinion, 10/31/16 at 1 (emphasis deleted).

                   The findings of fact contained infra relate to
            the events that constituted the violation of
            [appellant’s] parole and not the back case for which
            he was already on parole. On November 19, 2014,
            at    around     7:30    p.m.,   Philadelphia  Police
            Officer [Jeffrey] Strubinger along with his partner,
            Officer [Jason] Tomon, were on patrol in the area of
            5200 Ogontz Ave., Philadelphia. Notes of Testimony,
            March 14, 2016, p. 8-9. They stopped a vehicle
            where [appellant] was the front seat passenger. Id.
            Officers observed that the car had tinted windows.
            Id., at 10.      When the officers approached the
            vehicle, they ordered the driver to roll down the
            windows. Id. Officer Tomon then opened the driver
            side door and observed narcotics in a soda bottle.
            Id. [Appellant] was then detained and searched. Id.
            at 12. In his right shoe officers found 35 packets of
            crack cocaine. Id.

Id. at 2 (emphasis in original).


1
   Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973) (no prohibition
preventing lower court from conducting probation/parole revocation
proceedings before conclusion of trial based on charges leading to revocation
claim).


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      Appellant has raised the following issue for this court’s review:

                    Did not the revocation court err by proceeding
              with a hearing pursuant to Commonwealth v.
              Daisey Kates and deny [appellant]’s motion to
              exclude    evidence     obtained   in    violation   of
              [appellant]’s privacy rights under Article I, Section 8
              of the Pennsylvania Constitution, and fail to apply
              the suppression remedy to this evidence that was
              previously granted at the criminal trial level; and
              should not this Court exclude the previously
              suppressed evidence pursuant to our Supreme
              Court’s holding in Commonwealth v. Arter, [151]
              A.3d [149] (Pa. December 28, 2016) and reverse the
              parole revocation finding?

Appellant’s brief at 3.

      Following a suppression hearing held on December 4, 2015, appellant’s

motion to suppress physical evidence with regard to the new charges was

granted.   The trial court determined that there was no probable cause to

arrest appellant, the front-seat passenger of the vehicle.              (Notes of

testimony, 12/7/15 at 3.) The Commonwealth did not appeal that decision.

      Subsequently, appellant appeared for a parole revocation hearing at

which appellant argued that the narcotics found on his person had been

suppressed by a court of coordinate jurisdiction and should not be

considered.    (Notes of testimony, 3/14/16 at 5-6.)       Following the law in

effect at that time, the trial court denied the motion on the basis that the

exclusionary rule is not applicable to revocation proceedings.               See

Commonwealth v. Lehman, 851 A.2d 941 (Pa.Super. 2004) (declining to

apply the exclusionary rule to parole and probation revocation proceedings



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under Article I, Section 8 of the Pennsylvania Constitution); see also

Pa. Bd. of Probation & Parole v. Scott, 524 U.S. 357 (1998) (the federal

exclusionary rule    does not apply in parole        revocation proceedings).

Appellant noted that at the time of his parole revocation hearing, Arter was

pending on appeal before the Pennsylvania Supreme Court.               (Notes of

testimony, 3/14/16 at 5-6.) In denying appellant’s suppression motion and

finding appellant in violation of his parole, the trial court acknowledged the

pending decision in Arter but concluded that it was bound by existing

precedent:

             THE COURT: Yes, I understand. And I understand
             that there are Constitutional issues pending before
             the Supreme Court, and I appreciate that, that the
             state of the law now is, a violation of parole hearing,
             it’s a different standard, different evidence comes in,
             including evidence that has been suppressed,
             because there are different considerations and
             different standards.

                   So based on the state of the law that it is now,
             the Court will conclude that [appellant] violated his
             parole, and the Court will grant the Dais[e]y Kates
             motion and find [appellant] in violation of his parole.

Notes of testimony, 3/14/16 at 17-18.

      Subsequently, on December 28, 2016, the Pennsylvania Supreme

Court handed down Arter, in which it decided that under Article I, Section 8,

the exclusionary rule applies to parole revocation proceedings. In Arter, at

the criminal proceedings on the new drug charges, the trial court granted

the defendant’s motion to suppress, concluding the search of the defendant,



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a parolee, was not supported by reasonable suspicion as required under

42 Pa.C.S.A. § 9912(d)(1)(i). Arter, 151 A.3d at 152. As in this case, the

Commonwealth did not dispute that the evidence was properly suppressed in

the criminal proceedings.    Id.   At his parole revocation hearing, the trial

judge denied the defendant’s suppression motion, revoked his parole, and

resentenced the defendant to serve the balance of his sentence, relying on

this court’s decision in Lehman. Id.

      This court affirmed, and our supreme court reversed, concluding that

            application of the exclusionary rule to revocation
            proceedings is in accord with this Court’s consistent
            and repeated emphasis that the primary purpose of
            the exclusionary rule under Article I, Section 8, is
            protecting the individual privacy rights of our
            citizens, as opposed to deterring police misconduct.
            This purpose is equally applicable to criminal
            proceedings and revocation proceedings.

Id. at 167 (citation omitted).

            As it is undisputed that there was no reasonable
            suspicion for the parole officer’s warrantless search
            of Appellant, we hold that, pursuant to Article I,
            Section 8 of the Pennsylvania Constitution, the
            evidence seized as a result of the search was
            inadmissible at Appellant’s parole         revocation
            proceedings, and, thus, Appellant’s motion to
            suppress filed with respect to those proceedings
            should have been granted.

Id.

      The Commonwealth agrees that Arter controls the case sub judice

and does not oppose vacating the order revoking appellant’s parole and

remanding for further proceedings. (Commonwealth’s brief at 6.) The trial


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court is correct that based on the prevailing case law at the time of

appellant’s parole revocation proceeding, his suppression motion was

properly denied. (Trial court opinion, 10/31/16 at 3.) However, appellant is

entitled to the benefit of the Pennsylvania Supreme Court’s recent decision

in Arter. See Blackwell v. Commonwealth State Ethics Comm’n, 589

A.2d 1094, 1099 (Pa. 1991) (“[W]e adhere to the principle that, a party

whose case is pending on direct appeal is entitled to the benefit of changes

in the law which occur before the judgment becomes final.” (quotation

marks and citations omitted)).    Therefore, it is necessary to vacate the

judgment of sentence in this case and remand for a new parole revocation

hearing without consideration of the suppressed evidence.

     Judgment of sentence vacated.       Remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 8/8/2017




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