J-S21017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      :       IN THE SUPERIOR COURT OF
                                                      :            PENNSYLVANIA
                                                      :
                v.                                    :
                                                      :
                                                      :
    LAURA COLE                                        :
                                                      :
                       Appellant                      :       No. 997 WDA 2017

              Appeal from the Judgment of Sentence June 5, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0000726-2017

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                             FILED MAY 01, 2018

       Laura Cole (Appellant) appeals from the judgment of sentence imposed

after the trial court convicted her of possession of a controlled substance and

possession with the intent to deliver a controlled substance (PWID).1 For the

reasons that follow, we affirm Appellant’s convictions, vacate her sentence for

possession of a controlled substance, but do not remand for resentencing

because our disposition does not disrupt the trial court’s sentencing scheme.

       Following     an   investigation        into       a    shooting   allegedly   involving

Christopher Cunningham (Cunningham), Appellant’s paramour, the West

Mifflin Police Department obtained a warrant to search Appellant’s residence.

In short, the facts set forth in the affidavit of probable cause giving rise to the

belief that evidence of Cunningham’s crimes would be found in Appellant’s

____________________________________________


1   35 P.S. § 780-113(a)(16), (30).
J-S21017-18


apartment were as follows: (1) witnesses observed the perpetrators of the

shooting drive to and from the scene in a gold sedan; (2) video surveillance

showed a light-colored sedan fleeing the scene of the shooting at a high rate

of speed; (3) police discovered that the same car observed at the scene of the

shooting and on the surveillance video was registered to Cunningham; (4) the

police also learned that Cunningham was romantically involved with Appellant,

who is the mother of his child; and (5) the police observed Cunningham’s

vehicle at Appellant’s apartment numerous times (day and night) in the days

following the shooting.

      The trial court summarized the remaining relevant factual and

procedural history of this case as follows:

         On or about October 21, 2016, police, pursuant to a search
      warrant, entered and searched the residence of [Appellant]
      located at 703 D Drive in West Mifflin, Pennsylvania. As a result
      of said entry and search, the police found cocaine, marijuana, two
      digital scales, a marijuana grinder, [and] an elephant shaped pipe
      for smoking marijuana. [Appellant] was charged with [PWID],
      Possession of a Controlled Substance and Endangering the
      Welfare of Children (EWOC).

         On or about April 18, 2017, [Appellant] filed a Motion to
      Suppress alleging probable cause did not exist for the issuance of
      the search warrant in this matter. A Suppression Hearing was
      held on or about June 5, 2017, and denied by this Court. The
      matter then proceeded to a stipulated non-jury trial at the
      conclusion of which [Appellant] was found guilty of the PWID and
      Possession charges and not guilty on the EWOC charge.
      [Appellant] was sentenced to 12 months’ probation on the PWID
      charge, and a concurrent period of 12 months’ probation on the
      Possession charge. No Post-Trial Motions were filed.

         On July 5, 2017, [Appellant] filed a Notice of Appeal. On July
      10, 2017[,] this [c]ourt ordered [Appellant] to file a Concise

                                     -2-
J-S21017-18


      Statement of Matters Complained of on Appeal, and on July 31,
      2017, [Appellant] filed [the] same.

Trial Court Opinion, 8/7/17, at 1-2.

      On appeal, Appellant presents the following issues for review:

      I.    Whether the trial court erred in not granting [Appellant]’s
      motion to suppress when the information contained in the four
      corners of the search warrant affidavit failed to establish probable
      cause to search [her] residence, in violation of her rights under
      the Fourth and Fourteenth Amendments of the United States
      Constitution, and Article 1, § 8 of the Pennsylvania Constitution?

      II.   Whether [Appellant]’s double jeopardy rights were violated
      and her sentence for Possession is illegal when [she] was
      convicted of PWID and Possession with respect to a large amount
      of cocaine that was found inside her residence, the trial court
      imposed a sentence of 12 months’ probation for each offense, but
      Possession is a lesser-included offense of PWID such that the
      former merges with the latter for sentencing purposes?

Appellant’s Brief at 6.

      For her first issue, Appellant argues that the trial court erred in denying

her suppression motion. Appellant asserts that the four corners of the search

warrant affidavit did not establish probable cause to search her home.

Appellant contends that several facts asserted by the police in the affidavit

were unsupported assumptions and consequently, failed to establish probable

cause that evidence of Cunningham’s crimes would be found in Appellant’s

apartment.

      The standard of review for suppression claims is as follows:

      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

                                       -3-
J-S21017-18


     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. 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. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016)

(quotations and citation omitted).

     Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment of the United States Constitution “each require that search

warrants be supported by probable cause.” Commonwealth v. Jones, 988

A.2d 649, 655 (Pa. 2010).

         “The linch-pin that has been developed to determine whether
     it is appropriate to issue a search warrant is the test of probable
     cause.” Commonwealth v. Edmunds, [] 586 A.2d 887, 899
     ([Pa.] 1991) (quoting Commonwealth v. Miller, 513 Pa. 118, 518
     A.2d 1187, 1191 (1986)). “Probable cause exists where the facts
     and circumstances within the affiant’s knowledge and of which he
     has reasonably trustworthy information are sufficient in
     themselves to warrant a man of reasonable caution in the belief
     that a search should be conducted.”           Commonwealth v.
     Thomas, [] 292 A.2d 352, 357 ([Pa.] 1972).

        In Illinois v. Gates, 462 U.S. 213 [] (1983), the United States
     Supreme Court established the “totality of the circumstances” test
     for determining whether a request for a search warrant under the
     Fourth Amendment is supported by probable cause.                In
     Commonwealth v. Gray, [] 503 A.2d 921 ([Pa.] 1986), this
     Court adopted the totality of the circumstances test for purposes
     of making and reviewing probable cause determinations under
     Article I, Section 8. In describing this test, we stated:


                                     -4-
J-S21017-18


            Pursuant to the “totality of the circumstances” test set forth
            by the United States Supreme Court in Gates, the task of
            an issuing authority is simply to make a practical, common-
            sense decision whether, given all of the circumstances set
            forth in the affidavit before him, including the veracity and
            basis of knowledge of persons supplying hearsay
            information, there is a fair probability that contraband or
            evidence of a crime will be found in a particular place . . . .
            It is the duty of a court reviewing an issuing authority’s
            probable cause determination to ensure that the
            magist[erial district judge] had a substantial basis for
            concluding that probable cause existed. In so doing, the
            reviewing court must accord deference to the issuing
            authority’s probable cause determination, and must view
            the information offered to establish probable cause in a
            common-sense, non-technical manner.

                                     *         *   *

            [Further,] a reviewing court [is] not to conduct a de novo
            review of the issuing authority's probable cause
            determination, but [is] simply to determine whether or not
            there is substantial evidence in the record supporting the
            decision to issue the warrant.

Id. (quoting Commonwealth v. Torres, 764 A.2d 532, 537-38, 540 (Pa.

2001)).

      The affidavit of probable cause in the application for the search warrant

in this matter states, in pertinent part:

          During the course of this investigation, the affiant located and
      identified several victims and witnesses whose true identities have
      been ascertained and have been memorialized in reports
      maintained by the affiant. The true identities of these known
      unnamed eye witnesses are being withheld for the purpose of this
      affidavit, both to ensure their safety and to preserve the integrity
      of the ongoing investigation.

         On October 14, 2016 at 01:04 hours[,] West Mifflin Officers,
      Booth, Marone, and Scruggs were dispatched to 603 Glencairn
      Street West Mifflin for shots fired into the residence. There were

                                         -5-
J-S21017-18


     six victims in the house at the time, Victim #1 DOB 06/24/1949
     was down stairs, Victim #2 DOB 1 1/25/1971 was in the living
     room on the couch, Victim #3 DOB 01/05/1973 and Victim #4
     DOB 06/30/2016 were in bed in the one bedroom, and Victim #5
     DOB 05/16/2001 and Victim #6 DOB 06/07/1998 were in the
     second bedroom. Detective Basic responded to the residence to
     process and photograph the scene. Several victims and witnesses
     provided statement[s] of the occurrence. The actor(s) were not
     located at the time.

                              *     *     *

        On October 15, 2016, Witness #1 was interviewed by
     Detectives Basic and Priestley. Witness #1 heard several shots
     and when she/he looked outside he saw two to three people run
     to a car that was parked on Donna Avenue. The vehicle sped at
     a high rate towards the fire hall. The witness said he heard over
     12 rapid fired shots.

                              *     *     *

        Detective Priestley and I then pr[o]ce[e]ded to Witness #3’s
     residence.     During the conversation, Witness #3 provided
     information that Victim #6 (robbed) [Cunningham]. He stated
     that he is familiar with both the victim and Cunningham and a
     drug deal for molly was set up. He said that Vi[c]tim #6 met with
     Cunningham at his address and Cunningham gave the victim
     $1000.00 to purchase molly. The victim left with the money and
     did not return as promised with the drugs. Cunningham became
     angry and they went searching for Victim #6 to the location where
     he pick[ed] up (Molly) with the victim on other occasions. After
     several hours went pas[t] and they were unable to make contact
     with the victim[,] they returned to West Mifflin. On the way back
     Witness #3 said that Cunningham made a phone call and heard
     him tell someone that he was ripped off and said to meet with
     him. Cunningham told Witness #3 to get in the back seat and
     they picked up two black males on Greensprings Avenue. Witness
     #3 saw the one black male with a long rifle in his possession and
     believed the second black male had handguns in his pocket. He
     said both black males were wearing all black clothing. Witness #3
     stated Cunningham’s vehicle is a gold sedan. He said that
     Cunningham parked down the street on Donna Avenue. He and
     Cunningham stayed in the vehicle and the two black males walked
     up to the front door and knocked. Witness #3 said that a few

                                   -6-
J-S21017-18


     seconds later he heard and saw flashes from the guns and saw
     the black males shooting at the house. The black males returned
     to the vehicle and they drove off. He said they drove down Donna
     Avenue and Cunningham dropped him off at his girlfriend’s on
     Castle Drive. He did not want to discuss the matter any longer.

        I obtained surveillance video from Homeville Fire [C]ompany
     depicting at 0059 hours a light color sedan with a sun roof
     traveling south on Greensprings Avenue make a left onto Majka
     Street and at 0109 hours the same vehicle is seen coming down
     Donna Avenue and then making a right onto Greensprings at a
     high rate of speed, failing to stop at the stop sign.

        On October 15, 2016, Detectives Basic and Priestley located
     the vehicle outside Cunningham’s girlfriends at the 700 building
     in Mifflin Estates. The vehicle is registered to Cunningham.

        On October 17, 2016, Detective Priestley and I interviewed
     Victim #6. He admitted that he was involved in a drug deal with
     Witness #3 and Cunningham.

                              *     *     *

        Detective Priestley and I interviewed Witness #3 again at the
     station. He reiterated the drug deal between Cunningham and
     Victim #6. He was shown a photograph of the vehicle and
     confirmed this to be Cunningham’s vehicle.

                              *     *     *

        Detective Priestley obtained Cunningham’s phone number from
     Witness #3[’s] phone that was in his contact number for that day.
     Cunningham’s number is consistent with the phone number that
     West Mifflin Police have listed for him in our system.

        Witness #3 willingly gave a recorded statement of the shooting
     incident.

        During the course of this investigation a background check of
     [Cunningham] was performed using various databases and
     documents. It was learned that Cunningham’s paramour and the
     mother of his child, [Appellant], resides at 703 D Drive, West
     Mifflin, within the Mifflin Estates Housing Complex. Since this
     incident occurred, Cunningham’s vehicle was originally located in

                                   -7-
J-S21017-18


      the parking lot directly outside of [Appellant]’s apartment and has
      been observed parked there num[er]ous times since, at various
      times of the day and night. As such, it is believed Cunningham is
      residing within the apartment of [Appellant].

         Based on the above information, I, Detective Sgt Topolnak
      respectfully request a[] search warrant be issued for apartment
      703 Mifflin Estates, West Mifflin.

Affidavit of Probable Cause, 10/21/16, at 1-3.

      In arguing that the trial court erred in denying her suppression motion,

Appellant first asserts that the affidavit of probable cause fails to adequately

explain how the police determined that the gold sedan witnessed at the scene

of the shooting belonged to Cunningham. Specifically, Appellant emphasizes

that the affidavit does not include the vehicle’s make, model, license plate

number, or registration, and that the only information indicating that the gold

sedan belonged Cunningham was from an “unnamed source.”              Appellant’s

Brief at 22, 32. Appellant contends that the information in the affidavit linking

Cunningham to the gold sedan is tenuous at best and as a result,

constitutionally infirm.

      Initially, we note that Appellant accuses the police of obtaining

information relating to Cunningham’s vehicle from an unnamed source. The

police, however, obtained information regarding the vehicle, not from an

unnamed or anonymous source but from Witness #3, whose identity is known

to the police, but not included in the affidavit of probable cause for safety and

investigatory reasons.




                                      -8-
J-S21017-18


      The affidavit of probable cause indicates that Witness #3 told the police

that during the shooting, he was present with Cunningham in Cunningham’s

gold sedan, which was the vehicle that carried the perpetrators to and from

the shooting. Affidavit of Probable Cause, 10/21/16, at 2. After learning from

Witness #1 that the vehicle carrying the shooters fled the scene at a high rate

of speed in the direction of the local fire hall, the police obtained surveillance

footage from the fire hall showing a “light[-]color[ed] sedan” traveling “at a

high rate of speed, failing to stop at [a] stop sign” heading away from the

location of the shooting. Id. at 1-2. When the police showed Witness #3 a

photograph of this vehicle, he confirmed that it was Cunningham’s vehicle.

The affidavit further reflects that Detectives Basic and Priestly located this

same vehicle outside of Appellant’s residence. Id. at 2.

      It is reasonable to presume that at this point, the detectives ran the

vehicle’s information through their computer and discovered that it was

registered to Cunningham. See Jones, 988 A.2d at 655. Moreover, Appellant

cites no authority for the proposition that the police were required to set forth

in the affidavit of probable cause the precise investigatory technique or

database used to learn the ownership of Cunningham’s vehicle. Accordingly,

a common sense reading of the affidavit plainly sets forth a sufficient factual

basis for concluding that the vehicle in question was registered to

Cunningham.




                                      -9-
J-S21017-18


      Appellant next argues that although the affidavit of probable cause

stated that Appellant and Cunningham were paramours, the affidavit merely

explains that police discovered this information based on a “background

check” of Cunningham “using various databases and documents.” Appellant’s

Brief at 34. Appellant contends that it was constitutionally improper for the

affidavit to fail to set forth “the actual sources used by the police to make this

important determination” and the police never independently corroborated

this information by observing the two individuals together.       Id.   Appellant

asserts that the “information regarding Cunningham’s association with

[Appellant] was based on rank hearsay.” Id.

      This Court has explained:

      Hearsay information is sufficient to form the basis of a warrant so
      long as the magist[erial district judge] has been provided with
      sufficient information to make a “neutral” and “detached” decision
      about whether there is a fair probability that contraband or
      evidence of a crime will be found in a particular place. And the
      duty of the reviewing court is simply to ensure that the
      magist[erial district judge] had a “substantial basis for concluding
      that probable cause existed.”

Commonwealth v. Woosnam, 819 A.2d 1198, 1208 (Pa. Super. 2003).

      As with the registration of the gold sedan, Appellant cites no authority

mandating that the affidavit of probable cause in this case had to set forth the

exact database and documents through which the police discovered the

romantic connection between Cunningham and Appellant. Moreover, it was

reasonable for the magisterial district judge to presume that as the police

investigated Cunningham, his whereabouts, and his connection to the

                                     - 10 -
J-S21017-18


shooting that they not only conducted a background check, but through their

investigation, learned that Cunningham and Appellant were romantically

linked, particularly given that Appellant is the mother of his child. Affidavit of

Probable Cause, 10/21/16, at 1-3. Accordingly, we conclude that the affidavit

set forth a substantial basis supporting the conclusion that Appellant and

Cunningham were paramours. See Woosnam, 819 A.2d at 1208.

      Appellant further argues that the affidavit indicates that the police only

observed the gold sedan parked outside of Appellant’s residence on one

occasion and that there is no indication that police ever observed Cunningham

at Appellant’s apartment. Although the affidavit states that the gold sedan

was observed at Appellant’s apartment complex “at various times of the day

and night,” Appellant takes issue with the affidavit’s failure to provide the

source of this information.

      The affidavit of probable cause reveals that the day after the shooting,

Detective Basic and Priestly observed the gold sedan outside of Appellant’s

apartment. Affidavit of Probable Cause, 10/21/16, at 2. The affidavit further

states “[s]ince this incident occurred, Cunningham’s vehicle was originally

located in the parking lot directly outside of [Appellant]’s apartment and has

been observed parked there num[er]ous times since, at various times of the

day and night.” Once again, given a common sense, non-technical reading of

the affidavit, even though the affidavit does not set forth the source of this

information, it is reasonable to assume that through their continued


                                     - 11 -
J-S21017-18


investigation into the shooting in question, either Detectives Basic and

Priestly, or other police officers involved in the investigation, continued to

observe Cunningham’s car parked outside of Appellant’s apartment.         See

Jones, 988 A.2d at 655.

      Rather than have us review the totality of the circumstances, Appellant

seeks a piecemeal review of certain factual conclusions drawn by the police in

the affidavit of probable cause.   It is well-settled, however, that we must

consider the totality of the circumstances and that “[w]e do not review the

evidence piecemeal.” Commonwealth v. Nobalez, 805 A.2d 598, 600 (Pa.

Super. 2002). Thus, we conclude that the trial court did not err in determining

that, based on the totality of the circumstances, the four corners of the

affidavit established probable cause to believe that evidence of Cunningham’s

crimes would be found in Appellant’s home.        Accordingly, the trial court

properly denied Appellant’s suppression motion.

      In her second issue, Appellant argues that we should vacate her

sentence for possession of a controlled substance because it merged with her

conviction of PWID. “A claim that the trial court imposed an illegal sentence

by failing to merge sentences is a question of law. Accordingly, our standard

of review is plenary.” Commonwealth v. Williams, 958 A.2d 522, 527 (Pa.

Super. 2008) (quotations and citation omitted). “Challenges to the legality of

the sentence are not waivable.” Commonwealth v. Jacobs, 900 A.2d 368,

372 (Pa. Super. 2006).


                                    - 12 -
J-S21017-18


       It is well-settled:

       The proof necessary to convict a defendant of possession with
       intent to deliver includes proving all of the elements of possession.
       Thus, possession is a lesser included offense of possession with
       intent to deliver and the former merges with the latter for
       sentencing purposes.

Commonwealth v. Williams, 958 A.2d 522, 528 (Pa. Super. 2008).

Additionally, both the trial court and the Commonwealth agree that Appellant’s

convictions of possession of a controlled substance and PWID should have

merged for sentencing purposes.2               See Trial Court Opinion, 8/7/17, at 6;

Commonwealth’s Brief at 20. Accordingly, we vacate Appellant’s sentence for

possession of a controlled substance.               Because Appellant’s sentence for

possession of a controlled substance was identical to and ordered to run

concurrently with her sentence for PWID, we need not remand for

resentencing, as our correction of the illegal sentence does not disrupt the

court’s sentencing scheme. See Commonwealth v. Johnson, 100 A.3d 207,

216 n.8 (Pa. Super. 2014) (declining to remand for resentencing where

vacating a sentence did not affect the trial court’s overall sentencing scheme).

       Judgment of sentence affirmed in part and vacated in part. Jurisdiction

relinquished.




____________________________________________


2 The trial court noted that it would have vacated Appellant’s illegal sentence
had Appellant brought the error to its attention either at sentencing or in a
post-sentence motion. Trial Court Opinion, 8/7/17, at 6.

                                          - 13 -
J-S21017-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2018




                          - 14 -
