J-A19017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RALPH JUSTIN CARTER

                            Appellant               No. 503 WDA 2014


           Appeal from the Judgment of Sentence January 30, 2014
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008812-2012


BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 14, 2015

        Ralph Carter (“Appellant”) appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following his jury

trial conviction for persons not to possess firearms,1 possession of a

controlled substance with intent to deliver (“PWID”),2 possession of a

controlled substance,3 and possession of drug paraphernalia.4 We find the

trial court did not err when it denied Appellant’s amended motion to

suppress and did not err when it permitted Parole Agent Darin Reid to testify
____________________________________________


1
    18 Pa.C.S. § 6105(a)(1).
2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(16).
4
    35 P.S. § 780-113(a)(32).
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to hearsay statements.         We, however, find the trial court erred when it

applied an unconstitutional mandatory minimum sentence and erred when it

sentenced Appellant to a maximum of 16 years for the PWID conviction, as

the statutory maximum for such a conviction was 15 years. Accordingly, we

affirm Appellant’s conviction, but reverse the judgment of sentence and

remand for re-sentencing.

       Agent Reid was Appellant’s parole agent. N.T., 1/15/2013, at 4. On

June 15, 2012, Appellant tested positive for marijuana and cocaine. N.T.,

1/15/2013, at 21, 25; N.T., 8/22/2013, at 7. Appellant was to have a drug

evaluation. N.T., 8/22/2013, at 7. He completed the initial evaluation, but

failed to appear for the June 27, 2012 follow-up evaluation. Id. at 7.

       On July 2, 2012, a confidential informant advised Agent Reid that

Appellant “was selling drugs, using drugs and in possession of a firearm.”

N.T., 1/15/2013, at 5. The confidential informant was Jennifer Scott, who

had a child with Appellant.5 N.T., 4/22/2013, at 5. She told Agent Reid she

was concerned because her son stayed with Appellant, and Appellant was

using marijuana and cocaine, was selling drugs, and she believed he had a

gun in his residence. Id. at 5-6.



____________________________________________


5
   Ms. Scott contacted Appellant’s counsel on the morning of the first
suppression hearing and identified herself. Appellant then filed a motion to
disclose the confidential information, which he withdrew.        Agent Reid
referred to Ms. Scott at the second hearing.



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       Ms. Scott informed Agent Reid that Appellant had recent driving

without a license tickets, which Agent Reid confirmed. N.T., 1/15/2013, at

37; N.T., 4/22/2013, at 6.           She also mentioned the drug use involved

marijuana and cocaine for which Appellant had tested positive on June 15,

2013, a mere two-and-a-half weeks prior to receipt of the information from

Ms. Scott. N.T., 4/22/2013, at 5-6. Further, Ms. Scott showed Agent Reid a

video from a Facebook page where, during a cell phone call, Appellant

slurred his speech and appeared intoxicated. N.T., 1/15/2013, at 6; N.T.,

4/22/2013, at 7. During this telephone conversation, Appellant mentioned

shooting raccoons. Id., at 6-7. As conditions of Appellant’s parole, he was

not permitted to drink alcohol or use a firearm. Id., at 7.

       On July 2, 2012, Agent Reid discussed the information supplied by Ms.

Scott and Appellant’s missed drug evaluation with his supervisor. N.T.,

4/22/2013, at 8.       They decided to detain Appellant and conduct a home

inspection search of Appellant’s residence. Id. at 8-9.

       On July 3, 2012, Appellant arrived at the probation office with his

girlfriend. N.T., 1/15/2013, at 8. The parole agents detained Appellant and

conducted a home inspection search of his residence.6 Id. at 8-9. After the
____________________________________________


6
  At the suppression hearing the Commonwealth argued that the home
inspection search was valid because the parole agents had reasonable
suspicion and because Appellant’s girlfriend consented to the search. At the
suppression hearing, the girlfriend testified she did not consent to the
search, as the agents had informed her Appellant had already consented.
She also testified that she was in the process of moving from the residence
(Footnote Continued Next Page)


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agents discovered heroin in one of Appellant’s bedrooms, the home

inspection search ceased and the agents notified the police.    Id. at 9-10.

The McKeesport Police Department applied for and obtained a search

warrant for Appellant’s residence. Id. at 10. The police conducted a search,

which yielded drugs, drug paraphernalia, and a gun.     N.T., 1/15/2013, at

35; Police Criminal Complaint at 2.

      Appellant was arrested on July 3, 2012.         On January 9, 2013,

Appellant filed a motion to suppress, which he amended on April 9, 2013.

On January 15, 2013 and April 22, 2013, the trial court held suppression

hearings. On August 13, 2013, the trial court denied the amended motion. 7

      On October 23, 2013, following a jury trial, a jury convicted Appellant

of the aforementioned charges.

      After the verdict was recorded, the Commonwealth notified Appellant it

would seek the mandatory minimum sentences for the PWID conviction

pursuant to 42 Pa.C.S. § 9712.1 and 18 Pa.C.S. § 7508.          N.T., 10/21-

23/2013, at 211-212.

                       _______________________
(Footnote Continued)

and testified she informed the agents that she had not stayed at Appellant’s
residence the night before. N.T., 4/22/2013, at 22-24. The suppression
court credited girlfriend’s testimony and found she did not have authority to
consent to the search. N.T., 4/22/2013, at 29. The Commonwealth is not
advancing this argument on appeal. Appellee’s Brief at 7 n.1.
7
  The trial court also granted a motion to withdraw motion to disclose
identity of confidential informant and granted Appellant’s motion to sever
charges.



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      On January 30, 2014, the trial court sentenced Appellant to 5 to 10

years’ imprisonment for the persons not to possess firearms conviction and a

concurrent term of 8-16 years’ imprisonment for the PWID conviction. The

8-16 years reflected imposition of both mandatory minimums on the PWID

conviction.    The court imposed no further penalties for the remaining

convictions.

      On February 25, 2014, Appellant filed post-sentence motions, which

the trial court denied on February 28, 2014. On March 28, 2014, Appellant

filed a timely notice of appeal. Both Appellant and the trial court complied

with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following claims on appeal:

         I. Whether Judge Machen erred in failing to grant
         [Appellant’s] Amended Motion to Suppress when the
         parole agents did not obtain a valid consent to enter and
         search [Appellant’s] residence, nor did they have
         reasonable suspicion of criminal activity to support the
         warrantless entry and search of [Appellant’s] residence,
         such that all evidence recovered during the “home
         inspection” search of [Appellant’s] residence should have
         been suppressed?

         II. Whether Judge Machen erred in failing to grant
         [Appellant’s] Amended Motion to Suppress when all
         evidence recovered during the “home inspection” search of
         [Appellant’s] residence should have been suppressed, and
         without such evidence, the information contained in the
         search warrant application failed to establish probable
         cause?

         III. Whether Judge Rangos abused her discretion in
         permitting Agent Reid to testify at trial, over [Appellant’s]
         objection, to the out-of-court statements made by Scott
         when such evidence was inadmissible hearsay being
         offered for the truth of the matter asserted, as opposed to

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         being offered merely to explain the course of conduct of
         the parole agents?

         IV. Whether the sentence imposed at Count 2 --
         Possession of a Controlled Substance With Intent to
         Deliver is illegal when, pursuant to Alleyne v. United
         States, --- U.S. ---, 133 S.Ct. 2151 (2013), both 42
         Pa.C.S.A. § 9712.1 (Sentences for Certain Drug Offenses
         Committed With Firearms) and 42 Pa.C.S.A. § 7508 (Drug
         Trafficking Offenses and Penalties) are unconstitutional on
         their face, and as applied in [Appellant’s] case?

         V. Whether the sentence imposed at Count 2 -- Possession
         of a Controlled Substance With Intent to Deliver is illegal
         when Judge Rangos sentenced [Appellant], in the
         aggregate, to not less than eight years, not greater than
         16 years[’] incarceration, but under the circumstances of
         the case, the statutory maximum sentence is 15 years?

Appellant’s Brief at 7-8.

      Appellant’s first two claims challenge the reasonable suspicion to

conduct a home inspection and the probable cause to obtain the warrant to

search the residence. However, Appellant bases his lack of probable cause

argument on his claim the parole agents lacked reasonable suspicion.

Appellant’s Brief at 42-46 (police lacked probable cause because parole

agents lacked reasonable suspicion to search home).

      When reviewing a denial of a suppression motion, we limit our review

to determining whether the record supports the factual findings and whether

the legal conclusions drawn from those facts are correct. Commonwealth

v. Brown, 64 A.3d 1101, 1104 (Pa.Super.2013). In addition, because the

Commonwealth prevailed in the suppression court, we consider only the

Commonwealth’s evidence and so much of the defense evidence “as remains

uncontradicted when read in the context of the record as a whole.”     Id.

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(quoting Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super.2010)).

We may only consider evidence presented at the suppression hearing. In re

L.J., 79 A.3d 1073, 1085-87 (Pa.2013). We “may reverse only if the legal

conclusions drawn therefrom are in error.”       Brown, 64 A.3d at 1104

(quoting Cauley, 10 A.3d at 325).

     Pursuant to Pennsylvania law, if an individual is on probation or parole,

then “[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.” 61 Pa.C.S. §

6153(d)(2).

     Whether reasonable suspicion to search property exists:

        [S]hall 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.


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61 Pa.C.S. § 6153(d)(6).

      This Court has provided the following rationale for requiring only

reasonable suspicion prior to the search of a parolee’s home:

         Because “the very assumption of the institution” of parole
         is that the parolee is “more likely than the ordinary citizen
         to violate the law,” the agents need not have probable
         cause to search a parolee or his property; instead,
         reasonable suspicion is sufficient to authorize a search.
         Essentially, parolees agree to “endure warrantless
         searches” based only on reasonable suspicion in exchange
         for their early release from prison.

Commonwealth v. Hunter, 963 A.2d 545, 551 (Pa.2008) (quoting

Commonwealth v. Curry, 900 A.2d 390, 394 (Pa.Super.2006)). A search

of a parolee “is only reasonable . . . where the totality of the circumstances

demonstrate that ‘(1) the parole officer had reasonable suspicion to believe

that the parolee committed a parole violation; and (2) the search was

reasonably related to the duty of the parole officer.’” Id. (quoting

Commonwealth v. Hughes, 836 A.2d 893, 899 (Pa.2003) (plurality)).

      Our Supreme Court has discussed the use of a tip from a known

informant:

         An anonymous tip, corroborated by independent police
         investigation, may exhibit sufficient indicia of reliability to
         supply reasonable suspicion for an investigatory stop.
         However, we have recognized a known informant is far
         less likely to produce false information.            A known
         informant’s tip may carry sufficient “indicia of reliability” to
         justify an investigative detention despite the fact that it
         may prove insufficient to support an arrest or search
         warrant.




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J-A19017-15



Commonwealth v. Brown, 996 A.2d 473, 477 (Pa.2010) (internal citations

omitted).      “[I]f an informer is known to the police, or identifies him or

herself to the police, then there is an indicia of reliability attached to the tip,

because the informant has placed himself or herself at risk for prosecution

for   giving    false   information     to     the   police   if   the   tip   is   untrue.”

Commonwealth v. Hayward, 756 A.2d 23, 34 (Pa.Super.2000).

       Here, the parole agents had reasonable suspicion to conduct the home

inspection. The agents had information from a known source that Appellant,

who was on parole, had drugs and a gun at his residence. The informant

identified herself to parole agent Reid, which makes it less likely that she

would provide false information.8 See Hayward, 756 A.2d at 34. Further,

the informant mentioned Appellant’s use of marijuana and cocaine, which a

prior drug screen confirmed for the agents.              The informant also provided

information that Appellant had two recent traffic violations, which parole

agent Reid confirmed. Additionally, the informant showed parole agent Reid

a video in which Appellant appeared intoxicated and discussed shooting

raccoons. As conditions of his parole, Appellant was precluded from using

drugs or a gun.
____________________________________________


8
  Appellant alleges Ms. Scott was on probation at the time she approached
Agent Reid. N.T., 4/22/2014, at 11-12. There is, however, no evidence
regarding, and agent Reid was unaware of, Ms. Scott’s probationary status.
N.T., 4/22/2014, at 12; Pa.R.A.P. 1921, Note (“An appellate court may
consider only the facts which have been duly certified in the record on
appeal.”).



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J-A19017-15



      Further, because the parole agents discovered heroin during the home

inspection search, the police had probable cause to obtain and execute a

search warrant, as there was a fair probability the police would find

additional   evidence    of    a   crime   at   Appellant’s   residence.   See

Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa.2013) (“probable cause

‘exists where, based upon a totality of the circumstances set forth in the

affidavit of probable cause, including the reliability and veracity of hearsay

statements included therein, “there is a fair probability that ... evidence of a

crime will be found in a particular place.’” quoting Commonwealth v.

Johnson, 42 A.3d 1017, 1031 (Pa.2012)).

      Appellant next contends the trial court abused its discretion when it

permitted parole agent Reid to testify to Ms. Scott’s out-of-court statements

that Appellant had drugs and a gun at his residence. Appellant’s Brief at 22.

We disagree.

      The admissibility of evidence is a matter solely within the discretion of

the trial court, and we will reverse an evidentiary ruling only if an abuse of

discretion has occurred.      Commonwealth v. Nypaver, 69 A.3d 708, 716

(Pa.Super.2013) (quoting Commonwealth v. Hernandez, 39 A.3d 406

(Pa.Super.2012)).       “An abuse of discretion may not be found merely

because an appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.”




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Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa.2007) (quoting Grady v.

Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa.2003)).

      Prior to trial, Appellant made an oral motion in limine seeking to

preclude the Commonwealth from “elicit[ing] from the [parole] agents that

they received a tip that there were guns and drugs in [Appellant’s] house.”

N.T., 10/21/2013, at 19. Appellant noted the confidential informant was not

there to testify and, therefore, the statements were hearsay. Id. Further,

at trial, the following exchange occurred:

         PROSECUTOR: On July the 2nd, 2012, was [Appellant]
         under your supervision?

         AGENT REID: Yes.

         PROSECUTOR: On that day, did you receive some sort of a
         tip regarding things that might be at his residence?

         [DEFENSE COUNSEL]: Your Honor, I’m going to object on
         the basis of hearsay.

         THE COURT: Overruled. The information is not being
         offered for the truth of the matter but for the limited
         purpose of why the agent then did what he did next.

         [PROSECUTOR]: Did you receive some sort of a tip?

         AGENT REID: Yes.

         PROSECUTOR: And what were you told might be found in
         his house?

         AGENT REID: A firearm and heroin.

         PROSECUTOR: On July the 3rd, 2012, did [Appellant] have
         a scheduled visit with you?

         AGENT REID: Yes.

         PROSECUTOR: Did he show up?

         AGENT REID: Yes.

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J-A19017-15


          PROSECUTOR: When he came to your office, was he
          detained?

          AGENT REID: Yes.

          PROSECUTOR: Once he was detained, did you go to his
          residence?

          AGENT REID: Yes.

N.T., 10/21-23/2013, at 28-29.

       In its 1925(a) opinion, the trial court claimed Agent Reid stated that

the confidential informant advised him of the driving tickets and the failed

drug tests.     Opinion, 7/23/2014, at 4.9         Appellant, however, challenges

Agent Reid’s testimony that he received a tip that he would find drugs and a

gun at Appellant’s residence, as he did prior to trial and at trial.        N.T.,

10/21-23/2013, at 18-19, 28-29.10

       Appellant relies on Commonwealth v. Palsa, in which the jury

convicted the defendant of “criminal attempt as a result of his efforts to gain

possession of fifteen pounds of marijuana with the intent to deliver the

____________________________________________


9
  It does not appear Agent Reid testified to Ms. Scott’s claims regarding the
tickets and failed drug tests. The court found the statements “were not
admitted for the truth of the matter asserted but rather to explain a course
of conduct (i.e. that the CI was reliable because he had previously supplied
accurate information to the police).” Opinion, 7/23/2014, at 4.

10
   Appellant’s 1925(b) statement claims the trial court “erred in permitting
Agent Reid to testify, over Mr. Carter’s objection, to the out-of-court-
statements made by the Confidential Informant.” 1925(b) Statement at ¶
18. The out-of-court statements objected to were that there were drugs and
a firearm at the residence. N.T., 10/21-23/2013, at 18-19, 28-29.



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J-A19017-15



substance to others.”   555 A.2d 808, 809 (Pa.1989).      In Palsa, a police

officer’s trial testimony relayed information he received from an informant.

Id. The informant had been arrested and, after agreeing to work with the

police, provided information implicating the defendant. Id. The informant

then became a fugitive and did not testify at trial. Id. At trial, the police

officer testified to the informant’s statement that “at the time of his auto

accident, [the informant] had been on his way to deliver marijuana to a man

known as ‘Ed’ residing at 116 East Irvin Street in State College,

Pennsylvania” and that “just one day prior to the accident, [the informant]

had sold the same man a pound of marijuana for a sum of $500.00, and,

further, that the man had given him an extra $500.00 as a down payment

on an order of fifteen additional pounds.” Id. at 809.

     Our Supreme Court found:

        The challenged statements in the present case were of a
        most highly incriminating sort. They contained specific
        assertions of criminal conduct by a named accused, and,
        indeed, were likely understood by the jury as providing
        proof as to necessary elements of the crime for which
        appellant was being tried.

Palsa, 555 A.2d at 811. The Court distinguished Commonwealth v. Cruz,

414 A.2d 1032, 1035 (Pa.1980), where the Pennsylvania Supreme Court

found the police officer’s testimony that he “responded to a call of a

disturbance, man with a gun,” were admissible to explain the police officer’s

course of conduct. Id. Further, the Court in Palsa noted that “in weighing

the prejudice to the defense versus the prosecution’s need for the


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challenged statements, the ambit of the trial court’s discretion is to be

preserved.” Palsa, 555 A.2d at 811.

      The trial court acted within its discretion when it permitted Agent Reid

to testify that he received a tip that Appellant had drugs and a gun at his

residence because the statement explained why the parole agents conducted

a search.     Further, even if the court erred in admitting the statement, the

error was harmless.      Appellant was convicted of persons not to possess

firearms, PWID, possession of a controlled substance, and possession of

drug paraphernalia.     The proof that established these charges was the

contraband discovered during the subsequent search, not Ms. Scott’s

statements that Appellant had drugs and a gun at his residence.

      Appellant’s final two issues challenge his sentence for the PWID

conviction.

      The trial court imposed two mandatory minimum sentences for

Appellant’s PWID conviction – the mandatory minimum sentence for drug

offenses committed with a firearm (5 years) and the mandatory minimum

sentence for drug trafficking offenses where the controlled substance

mixture contains heroin and is at least 1 gram but less than 5 grams and the

defendant is convicted of another drug offense (3 years).

      The Commonwealth concedes these sentences were unconstitutional

pursuant to Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.2014)

(finding application of 42 Pa.C.S. § 9712.1 unconstitutional and remanding

for resentencing) and Commonwealth v. Vargas, 108 A.3d 858, 877

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(Pa.Super.2014) (finding 18 Pa.C.S. § 7508 unconstitutional, vacating

sentence, and remanding for re-sentencing). It concedes a re-sentencing is

required. We agree.

      Further, the maximum sentence for a PWID conviction is fifteen years.

35 P.S. § 780-113(f)(1). Therefore, as the Commonwealth and trial court

concede, the 16-year sentence imposed is illegal and re-sentencing is

required.

      Convictions   affirmed.   Judgment   of   sentence   reversed.   Case

remanded for re-sentencing proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2015




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