J-S87011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KELVIN EVERETT PROUGH,

                            Appellant                 No. 1155 MDA 2016


             Appeal from the Judgment of Sentence May 16, 2016
               in the Court of Common Pleas of Clinton County
              Criminal Division at No.: CP-18-CR-0000138-2015


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED DECEMBER 28, 2016

        Appellant, Kelvin Everett Prough, appeals from the judgment of

sentence imposed after his bench conviction of two counts of manufacture of

a controlled substance.1 We affirm.

        We take the following facts from our review of the certified record. On

February 26, 2015, Lois Kyle contacted Sergeant Martin Salinas of the Lamar

Township Police Department to report “suspicious activity” at the residence

she rented to Appellant.         (Trial Court Opinion, 10/21/15, at unnumbered

page 2). Prior to contacting Sergeant Salinas, Kyle and her granddaughter

had entered Appellant’s apartment to check the thermostat.        While inside,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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they took cell phone photographs of plants they discovered growing in a hot

house inside of the rental unit, and provided the photographs to Sergeant

Salinas.

        Sergeant Salinas forwarded the photographs to Narcotics Agent

Andrew David Sproat of the Office of Attorney General, Bureau of Narcotics

Investigation and Drug Control, who immediately identified a psilocybin

mushroom grow. Agent Sproat obtained a search warrant for the premises,

and Appellant was arrested on two counts each of manufacture of a

controlled    substance,     possession        with   intent   to   deliver   a   controlled

substance, and possession of drug paraphernalia.2

        On June 30, 2015, Appellant filed a motion to suppress the evidence

seized pursuant to the search warrant.                 On October 21, 2015, after a

hearing and the parties’ submission of briefs, the court denied the motion.

On April 14, 2016, the court held a bench trial, entered a guilty verdict on

two counts of manufacture of a controlled substance and ordered a

presentence investigation report.

        On May 16, 2016,3 the court sentenced Appellant to an aggregate

term of four years of probation, restitution, fines, and costs.               On May 20,

____________________________________________


2
    35 P.S. §§ 780-113(a)(30) and (32).
3
 The trial court docket lists a guilty plea entered by Appellant on the same
day as sentencing. (See Criminal Docket, No. CP-18-CR-0000138-2015, at
7). This appears to be an error, because there is nothing in the certified
(Footnote Continued Next Page)


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2016, Appellant filed a post-sentence motion challenging the restitution

award and the suppression ruling. On June 14, 2016, after a hearing on the

restitution issue, the court amended the sentencing order by vacating the

restitution portion of Appellant’s sentence and adjusting the fee amount.

Appellant timely appealed.4

      Appellant raises one issue for our review:    “Whether the trial court

committed an abuse of discretion/error of law in denying [his] suppression

motion and subsequent post-sentence motion when the search warrant at

issue was obtained as a result of a clearly deficient affidavit of probable

cause?” (Appellant’s Brief, at 5) (unnecessary capitalization omitted).

      Our standard of review of the court’s ruling on a motion to suppress

evidence is well-settled.

            Our standard of review in addressing a challenge to the
      denial of a suppression motion is 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, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
                       _______________________
(Footnote Continued)

record to suggest Appellant entered a guilty plea. In fact, Appellant himself
states that there was a bench trial. (See Appellant’s Brief, at 6).
4
  Appellant filed a timely concise statement of errors complained of on
appeal on July 21, 2016, and the court filed an opinion on July 22, 2016, in
which it relied on its October 21, 2015 opinion. See Pa.R.A.P. 1925.



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      Where, as here, 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 law of the courts below are subject to our plenary
      review.

Commonwealth v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013), appeal

denied, 83 A.3d 415 (Pa. 2013) (citation omitted).

      Appellant argues that the affidavit in this matter failed to show

probable cause. (See Appellant’s Brief, at 8-11). Specifically, he maintains

that the affidavit “fail[ed] to establish that Agent Sproat would have had the

ability to distinguish psilocybin mushrooms from other varieties by looking at

a photograph and because there are no specific and objective facts set forth

in the affidavit as to how the agent would have so concluded[.]” (Id. at 11).

We disagree.

            As we have often indicated, the legal principles applicable
      when reviewing the sufficiency of an affidavit to determine
      whether it establishes the probable cause necessary for the
      issuance of a warrant are well established. Before an issuing
      authority may issue a constitutionally valid search warrant, he or
      she must be furnished with information sufficient to persuade a
      reasonable person that probable cause exists to conduct a
      search. The information offered to demonstrate probable cause
      must be viewed in a common sense, nontechnical, ungrudging
      and positive manner. It must also be remembered that probable
      cause is based on a finding of the probability, not a prima facie
      showing of criminal activity, and that deference is to be accorded
      a magistrate’s finding of probable cause.

Commonwealth v. Harrell, 65 A.3d 420, 436 (Pa. Super. 2013), appeal

denied, 101 A.3d 785 (Pa. 2014) (citation omitted).


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       In this case, the trial court found that:

             A fair reading of the [a]ffidavit presented to the issuing
       authority in the instant case permitted the issuing authority to
       find that probable cause existed for the issuance of the search
       warrant. The [a]ffidavit clearly states that the [a]ffiant, Agent
       Sproat, had the background and training to identify [p]silocybin
       mushrooms and that, upon review of the photograph forwarded
       by    Sergeant    Salinas,   Agent    Sproat    recognized    the
       substance/grow in the photograph as a “live [p]silocybin
       mushroom grow.”

(Trial Ct. Op., at unnumbered page 7). We agree.

       In the affidavit, Agent Sproat stated that he has worked in law

enforcement generally since 2001, and narcotics specifically since 2008.

(See Appellant’s Motion to Suppress, 7/30/15, at Exhibit A, Application for

Search Warrant and Authorization with attached Affidavit of Probable Cause,

at 4).5 He has investigated hundreds of drug cases; encountered multiple

types of illegal drugs, including psilocybin mushrooms; and has worked

undercover to purchase drugs on a regular basis. (See id. at 4-5). Agent

Sproat is qualified as an expert in drug investigations, and has received

specialized police training in multiple areas, including drug identification and

recognition, and evidence collection.            (See id. at 5).   The affidavit of

probable cause stated that, while walking through Appellant’s apartment,

Ms. Kyle observed a hot house and mushrooms lying on top of a Tupperware

container, which she photographed and sent to law enforcement. (See id.
____________________________________________


5
  For ease of disposition, we have re-numbered all of the pages of Exhibit A
consecutively.



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at 9-10).   Based on his training and experience, Agent Sproat recognized

that the photograph sent by Sergeant Salinas depicted a live psilocybin

mushroom grow.      (See id. at 9).   Agent Sproat concluded, based on his

training and experience, that Appellant was “growing and trafficking

[p]silocybin mushrooms, a schedule I controlled substance within Clinton

County Pennsylvania[,]” and requested the issuance of a search warrant to

obtain specific items “commonly found in possession of or in the vehicles,

residences or grow houses of those involved in illegal drug dealing and drug

activities.” (Id. at 14-15; see also id. at 2-3 (items to be searched for and

seized)).

      Based on the above information, as well as our independent review of

the extensive information contained in the affidavit as a whole, we conclude

that the trial court properly denied Appellant’s motion to suppress where the

issuing authority had sufficient probable cause to issue a search warrant.

See Potts, supra at 1280; Harrell, supra at 436.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2016




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