J-A20011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    TIMOTHY MARTIN DUKE                        :
                                               :
                      Appellant                :      No. 2093 MDA 2016

           Appeal from the Judgment of Sentence November 22, 2016
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007563-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 24, 2017

        Appellant, Timothy Martin Duke, appeals from the judgment of

sentence entered in the York County Court of Common Pleas, following his

stipulated bench trial conviction for manufacturing with intent to deliver.1

We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.       We add that Appellant timely filed a notice of appeal on

December 21, 2016. On December 22, 2016, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and after the court granted an extension, Appellant
____________________________________________


1   35 P.S. § 780-113(a)(30).
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timely complied on January 27, 2017.

      Appellant raises the following issue for our review:

            WHETHER THE SEARCHES AND SEIZURES CONDUCTED BY
            THE TROOPERS ON [APPELLANT’S] PROPERTY WITHOUT
            VALID SEARCH WARRANTS VIOLATED [APPELLANT’S]
            RIGHTS UNDER THE FOURTH AMENDMENT [OF THE
            UNITED STATES CONSTITUTION] AND ARTICLE I,
            SECTION 8 OF THE PENNSYLVANIA CONSTITUTION[?]

(Appellant’s Brief at 4).

      Appellant argues the troopers did not have a well-founded, reasonable

belief that Appellant’s son, the subject of the arrest warrant, resided at

Appellant’s property and was present when the troopers entered onto

Appellant’s property.       Appellant asserts the information available to the

troopers was plainly insufficient to allow them to come onto Appellant’s

property to inquire about Appellant’s son. Specifically, Appellant claims the

troopers’    information was based solely on a statement from some

unidentified person at Appellant’s last known address, who said Appellant’s

son might be found staying with Appellant.         Appellant characterizes this

information from an unknown source as uncorroborated and speculative. In

short, Appellant maintains the troopers lacked firsthand information, a

reliable informant, or an adequate factual basis to believe Appellant’s son

resided with Appellant.      Appellant contends the troopers required a search

warrant to enter what he calls “the protected curtilage” of Appellant’s

property without his consent or exigent circumstances. Appellant maintains

that absent his consent or exigent circumstances, the troopers were

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“trespassing” on his property; and the plain view doctrine cannot justify their

seizure of the marijuana plants in Appellant’s garage.

      Appellant continues the troopers cannot create an exigency so they

can claim an exception to the warrant requirement, which they did by

remaining on Appellant’s property after he had made clear he did not

consent to the troopers’ presence.      Finally, Appellant avers the court’s

reliance on the right of the troopers to engage in a protective sweep or a

search incident to his arrest is misplaced, where both their entry on his

property and his arrest were illegal because there was no danger or need for

a protective sweep under these circumstances. Appellant concludes (1) the

evidence obtained as a result of these events should have been suppressed,

(2) his conviction should be reversed, and (3) his judgment of sentence

should be vacated. We cannot agree.

      We review the denial of a suppression motion as follows:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

            [W]e may 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. Where the record
            supports the findings of the suppression court, we
            are bound by those facts and may reverse only if the
            court erred in reaching its legal conclusions based
            upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

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banc) (internal citations and quotation marks omitted).     “It is within the

suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given their testimony.” Commonwealth v.

Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v.

Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Harry M.

Ness, we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed February 23, 2017, at 6-16) (finding: troopers

had sufficient reasonable belief that subject of arrest warrant, Appellant’s

son, could be located at Appellant’s residence; during encounter with

troopers on Appellant’s driveway, he became nervous and backed away

toward open garage; from driveway, officers could see several weapons

inside open garage, including gun; to ensure Appellant did not go for

weapon, troopers followed Appellant toward garage; as troopers approached

open garage, they smelled marijuana; obvious weapons in open garage

presented significant threat of danger to troopers and constituted exigency

to permit protective sweep for troopers’ safety; search of garage was limited

and made for troopers’ safety; troopers’ cursory visual inspection inside

garage revealed marijuana plants in plain view; troopers arrested Appellant

and collected marijuana plants from garage; troopers obtained valid search


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warrant for Appellant’s residence and seized additional evidence; all

evidence was lawfully obtained). Accordingly, we affirm on the basis of the

trial court opinion.

      Order affirmed.

      Judge Panella concurs in the result.

      President Judge Emeritus Ford Elliott notes her dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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