J-S80042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

JAMES JOHN LARNERD, JR.

                            Appellant               No. 547 MDA 2016


           Appeal from the Judgment of Sentence February 25, 2015
               in the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000943-2014


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                       FILED JANUARY 10, 2017

       Appellant, James John Larnerd, Jr., appeals from the February 25,

2015 judgment of sentence of two and one-half to twenty years of

incarceration. We reverse.

       Appellant was arrested and charged with possession with intent to

deliver (PWID) crack cocaine, PWID marijuana, two counts of criminal

attempt to possess drugs with intent to deliver, possession of crack cocaine,

possession of marijuana, possession of drug paraphernalia, and persons not

to possess a firearm.1




____________________________________________


1
 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 901(a), 35 P.S. § 780-113(a)(16),
35 P.S. § 780-113(a)(32), and 18 Pa.C.S. § 6105(a)(1), respectively.
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       On October 22, 2014, Appellant argued a suppression motion, alleging

that he had been illegally arrested and that the search and seizure of his

person and residence was thus illegal.

       At the suppression hearing, Detective Ryan Mong testified that on

March 19, 2014, during the course of a drug task force investigation, he had

a confidential informant (CI) arrange a drug transaction at a laundromat

located at 5th and Guilford Streets in Lebanon City with a man nicknamed

“Homer.”      See Notes of Testimony (N. T.), 10/22/14, at 4-6.2      Police

observed Appellant enter and exit his home and walk towards the designated

meeting place. Id. at 7-8. The CI, who was with the police and not inside

the laundromat, identified Appellant as “Homer.”     Id. at 7-8.    Prior to

Appellant’s reaching the laundromat, police arrested him. Id. Appellant was

searched incident to arrest and police recovered marijuana, crack cocaine,

and two cell phones, including the phone used to arrange the transaction.

Id.

       Detective Mong went to Appellant’s residence and knocked on the

door; another individual gave consent for him to enter the residence. Id. at

20. At the time consent was given, Appellant was no longer present. Id. at


____________________________________________


2
  Police were aware Appellant used the nickname “Homer” and had prior
convictions for drug offenses. N. T. at 6. Other officers assisting in the
detail were aware that “Homer” was Appellant’s alias. Id. However, this
establishes only that Appellant was a known drug dealer.       See, e.g.,
Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985).



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19-20. Police secured Appellant’s residence and waited approximately one

and one-half hours while obtaining a search warrant. N. T. at 7-8.

      Appellant argued that no crime had been committed at the time he

was arrested, that the police lacked probable cause, and that the arrest was

illegal. Id. at 17. Appellant also argued he had not given consent to search

the property but presented no testimony to this effect.       Id.    Following

testimony and argument, the trial court denied Appellant’s suppression

motion.

      On January 6, 2015, the case proceeded to a jury trial. Appellant was

found guilty of two counts of PWID, one count of criminal attempt – PWID,

two counts of possession of a controlled substance, and one count of

possession of drug paraphernalia.      Appellant was acquitted of criminal

attempt to deliver crack cocaine and persons not to possess firearms. On

February 25, 2015, Appellant was sentenced to an aggregate term of two

and one-half to twenty years of incarceration.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement.    On May 22, 2015, the trial court issued a responsive opinion.

However, on October 13, 2015, this Court dismissed Appellant’s appeal for

failure to file a brief.   See Commonwealth v. Larnerd, 602 MDA 2015,

Order, 10/13/15, at 1.

      On February 4, 2016, Appellant pro se filed a petition for relief under

the Post Conviction Relief Act (PCRA); as a result, the trial court reinstated

Appellant’s direct appeal rights nunc pro tunc.     Appellant timely filed an

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appeal and court-ordered Pa.R.A.P. 1925(b) statement. The trial court did

not issue a responsive opinion but adopted its May 22, 2015 opinion.

      On appeal, Appellant raises two issues:

      1. Whether [Appellant] was denied his constitutionally-
      guaranteed right to due process when the trial court abused its
      discretion by allowing evidence that was derived by an illegal
      search and seizure to be used at the trial?

      2. Whether [Appellant] was denied his constitutionally-
      guaranteed right to due process when the sentencing court
      imposed a sentence upon him that was in excess of the
      maximum penalty prescribed by law?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      First, Appellant claims that the trial court erred in denying his motion

to suppress.    He argues that no probable cause existed to show that

Appellant had been part of any criminal activity. Appellant also argues that

he did not give consent to police to search his residence and that any

consent given was illegally obtained. Appellant’s Brief at 18-24.

      With regard to a motion to suppress,

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. ... [W]e must
      consider only the evidence of the prosecution and so much of the
      evidence of the defense as remains uncontradicted when read in
      the context of the record as a whole. Those properly supported
      facts are binding upon us and we may reverse only if the legal
      conclusions drawn therefrom are in error.

Commonwealth v. Dixon, 997 A.2d 368, 372 (Pa. Super. 2010) (internal

citations and quotations omitted).



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     Appellant was subjected to a warrantless arrest, which must be

supported by probable cause.    See Commonwealth v. Collins, 950 A.2d

1041, 1046 (Pa. Super. 2008). Probable cause may be made out when the

facts and circumstances “which are within the knowledge of the officer at the

time of the arrest, and of which he has reasonably trustworthy information,

are sufficient to warrant a man of reasonable caution in the belief that the

suspect has committed or is committing a crime.”        Commonwealth v.

Thompson, 985 A.2d 928, 931 (Pa. 2009).          We apply a totality of the

circumstances test in determining whether probable cause exists.         Id.

Further, if probable cause exists, police may search a person without a

warrant. See Commonwealth v. Trenge, 451 A.2d 701, 704 (Pa. Super.

1982).

     Information received from confidential informants may form the basis

of a probable cause determination. Commonwealth v. Luv, 735 A.2d 87,

90 (Pa. 1999). The determination depends upon the informant’s reliability

and the basis of knowledge viewed in a common sense, non-technical

manner. Id. In the context of a search warrant, the affidavit must at the

very least contain an averment stating the “customary” phrase that the

informant has provided information which “ ‘has in the past resulted in’

arrests or convictions.” Commonwealth v. Dukeman, 917 A.2d 338, 342

(Pa. Super. 2007). Such a tip may constitute probable cause where police

independently corroborate the tip, the informant has provided accurate

information of criminal activity in the past, or where the informant himself

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participated in the criminal activity. Id. Another indication of reliability is

whether   the   informant’s    statement    was   against    interest.    See

Commonwealth v. Gindlesperger, 706 A.2d 1216, 1225 (Pa. Super.

1997).

      In the instant case, the information provided by the confidential

informant was not of sufficient reliability to form the sole basis for the

arrest. The basis for the arrest was an interaction arranged by a confidential

informant whose identity was not disclosed.       Detective Mong stated the

confidential informant had made “other arrangements with individuals to

purchase controlled substances” that same day, but did not state how many

individuals, what controlled substances were recovered, or whether any of

those arrangements had resulted in convictions. The confidential informant

set up the arrangement to deliver drugs with “Homer,” and other unnamed

officers confirmed that Appellant’s nickname was “Homer.”

      Both Detective Mong and the suppression court relied heavily upon the

fact that Appellant had a previous conviction for PWID, but this is not

relevant to the instant matter. The Pennsylvania Supreme Court has held

that mere presence upon the scene, coupled with knowledge of a prior

conviction, is insufficient to establish probable cause.    Commonwealth v.

Goslee, 234 A.2d 849, 851 (Pa. 1967). In the instant case, although the CI

had set up a transaction with “Homer,” Appellant’s actions as described in

the suppression hearing were merely entering his home and walking down




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the street. We conclude that, based on the above, the information provided

by the CI was insufficient.

      Further,   police   arrested   Appellant   prior   to   his   committing   the

necessary substantial step toward the delivery of narcotics.             Under the

Crimes Code, “[a] person commits an attempt when with intent to commit a

specific crime, he does any act which constitutes a substantial step towards

the commission of the crime.” 18 Pa.C.S.A. § 901(a). The substantial step

factor puts emphasis on “what the defendant has done” and not on “the acts

remaining to be done before the actual commission of the crime.

Commonwealth v. Zingarelli, 839 A.2d 1064, 1069 (Pa. Super. 2003).

      Again, in the instant case, Appellant had not made a substantial step

towards the commission of the crime at the moment police arrested him. He

was walking down the street, and his direction was speculative. He had not

yet reached the assigned meeting place, and based upon the officer’s

testimony, the CI was not even at the meeting place. As the police moved

too quickly to arrest Appellant, there was insufficient probable cause to

believe that Appellant was committing a crime. See Thompson, 985 A.2d

at 931.

      Thus, we conclude that the arrest of Appellant was unlawful. Since the

arrest was unlawful, any evidence seized as a result must be suppressed.

See Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997)

(noting that the fruit of the poisonous tree doctrine excludes evidence

obtained from or acquired as a consequence of unlawful official acts).

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Therefore, we reverse the decision of the suppression court denying

Appellant’s motion, vacate Appellant’s sentence, and remand for further

proceedings.

      As the evidence should have been suppressed, we need not reach the

merits of Appellant’s remaining issues.

      Judgment    of   sentence   vacated;   case   remanded;   jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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