J-S22027-18


                                  2018 PA Super 237

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellee

                        v.

    AUBREY KEMP

                             Appellant                   No. 1129 EDA 2017


         Appeal from the Judgment of Sentence Entered March 2, 2017
              In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0002340-2015


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

OPINION BY STABILE, J.:                                FILED AUGUST 29, 2018

        Appellant, Aubrey Kemp, appeals from the March 2, 2017 judgment of

sentence imposing 11½ to 23 months of incarceration for possession with

intent to deliver (“PWID”) marijuana.              We vacate and remand for

resentencing.

        In this appeal, Appellant challenges the trial court’s denial of his pretrial

motion to suppress evidence. He also challenges the trial court’s computation

of the applicable sentencing guidelines. The Commonwealth concedes that

resentencing is necessary. Regarding the suppression issues, the trial court

made the following findings of fact:

        1. [Sergeant] Kenneth Rutherford, Jr. of the Lansdowne Borough
           Police Department has been a police officer for 16 years, eight
           years of which he was an investigator and seven years in which
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*   Retired Senior Judge assigned to the Superior Court.
J-S22027-18


        he worked in the Delaware County Criminal Investigation
        Division, who has, in these capacities also worked as an
        undercover police officer.

     2. [Sergeant] Rutherford is on the teaching staff of the
        Pennsylvania Attorney General’s office Top Gun Undercover
        Drug Enforcement training school.

     3. As set forth in the Affidavit of Probable Cause for the Search
        Warrant, [Sergeant] Rutherford has extensive training in illegal
        narcotics and has conducted hundreds of investigations
        involving the sale of illegal narcotics.      While acting in
        undercover capacity, he has purchased various types of illegal
        drugs in excess of 200 times.

     4. In March of 2015, [Sergeant] Rutherford, the affiant in this
        case, spoke with a reliable confidential informant (hereinafter
        “CI”) and the basis of the reliability is set forth in the Affidavit
        of Probable Cause for the search warrant.

     5. The CI told [Sergeant] Rutherford that he had purchased
        marijuana from [Appellant] numerous times over the past
        couple of years.      The CI provided the [sic] [Sergeant]
        Rutherford with [Appellant’s] cell phone number, and the CI
        used the number to arrange sales of marijuana. The CI
        described in detail the type of vehicles that [Appellant] usually
        operated while conducting the sales of marijuana, one being a
        Jeep Cherokee and the other being a white Cadillac DTS.

     6. The CI also said he knew [Appellant] to be a Septa bus driver.

     7. The CI said he had purchased marijuana numerous times in the
        past six months from [Appellant] and, as stated above, he had
        purchased marijuana over the past several years from
        [Appellant].

     8. [Sergeant] Rutherford investigated the cell phone number
        given to him by the CI and said cell phone number was
        registered to [Appellant].

     9. [Sergeant] Rutherford, through prior contact, knew [Appellant]
        and knew his residence to be 908 Bell Avenue, Yeadon, PA.
        [Sergeant] Rutherford also knew [Appellant] was a Septa bus
        driver. [Sergeant] Rutherford also knew through prior contact,



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        that [Appellant] had been involved in a motor vehicle accident
        while driving a Septa bus.

     10. A J-Net search for [Appellant] disclosed [Appellant’s]
        operator’s license number and address, 908 Bell Avenue,
        Yeadon, PA.

     11. During the third week of March 2015, [Sergeant] Rutherford
        met with the CI in order to set up a controlled purchase of
        marijuana from [Appellant]. The usual preliminary steps
        associated with a controlled buy were effectuated, i.e. a search
        of the CI to see if he had any controlled substance in his
        possession or any money.

     12. The CI called [Appellant] by dialing the above-referenced
        cell phone number to place an order for marijuana, and
        [Appellant] directed him to a certain location where the
        transaction would take place.

     13. The residence of [Appellant], 908 Bell Avenue, was under
        surveillance contemporaneous with this telephone call.
        [Appellant] was seen leaving 908 Bell Avenue and then entered
        a while Cadillac DTS. [Appellant] made no stops after leaving
        908 Bell Avenue to the point where he met the CI to make the
        sale of marijuana.

     14. The CI never left the sight of [Sergeant] Rutherford from
        the time he was patted down and checked for controlled
        substances and money.

     15. The exchange between the CI and [Appellant] was observed
        by [Sergeant] Rutherford.

     16. After the exchange, [Appellant] left the area of the
        exchange. The CI returned to [Sergeant] Rutherford’s location.

     17. The CI was checked for the money that had previously been
        provided to him and that money was not on his person. The
        CI then gave the marijuana that he just purchased from
        [Appellant] to [Sergeant] Rutherford. The CI told [Sergeant]
        Rutherford that he (the CI) had just purchased marijuana from
        [Appellant].

     18. Within 48 hours of the execution of the search warrant, the
        same scenario repeated itself. Again, the CI made the call,
        [Appellant] left 908 Bell Avenue, got into his white Cadillac

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        DTS, made no stops between his home and the location of the
        exchange of marijuana and money. Again, all the proper steps
        were taken to see that this CI had no drugs on him before the
        exchange and when he returned, he had the marijuana and
        none of the money that was given to him by [Sergeant]
        Rutherford. Again, the CI said that he had just purchased
        drugs from [Appellant]. At no place in the Affidavit of Probable
        Cause is there any indication that [Appellant] was followed
        from the scene of the exchanges back into his house.

     19. There was no purchase or exchange observed inside or in
        front of 908 Bell Avenue.

     20. There is nothing in the warrant’s affidavit of probable cause
        that says that the CI ever saw marijuana inside 908 Bell
        Avenue or if he ever bought or took possession of it while
        therein. The warrant’s affidavit of probable cause similarly
        does not recite that the CI saw marijuana or took possession
        of marijuana while in [Appellant’s] automobiles.

     21. Based on all of the above, [Sergeant] Rutherford obtained a
        search warrant on March 31, 2015 to search [Appellant’s] car
        and home.      Said search warrant was timely served and
        executed and the marijuana and associated contraband was
        found inside the house along with a firearm.

     22. [Sergeant] Rutherford executed the search warrant that
        same day, March 31, 2015, at approximately 6:05 p.m.

     23. [Sergeant]      Rutherford     arrived  to   the    residence
        approximately 30 minutes prior to the search and set up
        surveillance. During this time, he observed [Appellant] exiting
        908 Bell Avenue. [Appellant] came down the front steps and
        walked down the driveway.

     24. [Sergeant] Rutherford exited his vehicle and approached
        [Appellant]. They were standing at the sidewalk at the
        driveway.

     25. [Sergeant] Rutherford identified himself as a police officer
        and advised [Appellant] that he had a search warrant for the
        residence.

     26.   [Appellant] was carrying a black plastic bag.



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      27. When [Sergeant] Rutherford approached him, [Appellant]
         sat the bag down and began to back away. Based upon these
         observations, [Appellant] was immediately handcuffed.

      28. [Sergeant] Rutherford testified that he was aware that
         [Appellant] owned multiple firearms and had a permit to carry.
         He explained that in his experience, guns are often associated
         with drug dealing and are used by dealers to protect
         themselves.

      29. Accordingly, [Sergeant] Rutherford conducted a pat down
         for officer’s safety. A firearm, a Glock .40 caliber, was
         recovered on [Appellant’s] person.

      30. [Sergeant] Rutherford then explained that they were going
         to search the residence, and asked [Appellant] about the
         location of the dogs in the house. [Appellant] accompanied the
         officers as they entered the house.

      31. While they were approaching the house, [Appellant] began
         to pull away. The officers then conducted a second search of
         his person and recovered marijuana in both his right sock and
         his left sock.

      32. [Appellant] remained on the couch in the living room for the
         remaining duration of the search of the residence.

      33. The court found the testimony of [Sergeant] Rutherford to
         be credible.

Trial Court Opinion, 6/22/17, at 2-5 (record citations omitted).

      Appellant first argues that the affidavit of probable cause was not

sufficient to support the issuance of a warrant for the search of his home. The

affidavit set forth the facts recited above—i.e., that Appellant participated in

two controlled buys for which he proceeded directly from his home to the point

of sale. As the trial court noted, the affidavit did not reflect that Appellant

participated in drug transactions in or near his home. Nor did the affidavit

reflect that the CI ever saw drugs or drug paraphernalia inside Appellant’s

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home. For these reasons, Appellant argues the affidavit did not establish a

fair probability that contraband would be discovered in his home.             We

disagree.

             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. 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. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted).

      “The Fourth Amendment, by its text, has a strong preference for

searches conducted pursuant to warrants.” Commonwealth v. Leed, ___

A.3d ___, 2018 WL 2452659, at *5 (Pa. June 1, 2018).              A neutral and

detached magistrate must determine whether probable cause supports

issuance of a warrant.     Id.   “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.”          Id.

“[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not



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take the form of de novo review[, and] a magistrate’s probable cause

determination should receive deference from the reviewing courts.” Id.

     Appellant relies on Commonwealth v. Kline, 335 A.2d 361, 364 (Pa.

Super. 1975) in which this Court explained that “[p]robable cause to believe

that a man has committed a crime on the street does not necessarily give rise

to probable cause to search his home.” In Kline, several witnesses testified

to purchasing drugs from the defendant, but no evidence linked the

defendant’s drug dealing activity to his apartment. Id.

     Appellant also relies on Commonwealth v. Way, 492 A.2d 1151 (Pa.

Super. 1985), in which police followed the defendant from an arranged

transaction to a location that turned out to be the defendant’s home.      No

evidenced established the defendant’s whereabouts prior to the transaction.

We held the warrant to be invalid because of the lack of an evidentiary nexus

between the criminal activity and the defendant’s home. Id. at 1154-55.

     Instantly, police twice observed Appellant leaving his home and

proceeding directly to the site of a controlled buy. Thus, unlike Kline and

Way, the affidavit does establish a nexus between Appellant’s home and the

crime under investigation. In a very similar case, our Supreme Court wrote:

           Here, the trial court and Superior Court discounted the
     common sense import of the fact that after the controlled buy was
     arranged, the police observed Appellee leave his residence in his
     vehicle, as precisely described by the CI, drive to a location,
     conduct the transaction, and immediately return to his residence.
     This fact certainly connected the illegal transaction to Appellee’s
     residence, in a common sense, non-technical way, and permitted
     the issuing authority to conclude that drugs would likely be found

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J-S22027-18


      in the residence. Although the circumstances of the observed
      transaction also potentially pointed to Appellee's vehicle as a
      storage location for the drugs, the law does not require that the
      information in a warrant affidavit establish with absolute certainty
      that the object of the search will be found at the stated location,
      nor does it demand that the affidavit information preclude all
      possibility that the sought after article is not secreted in another
      location.

Commonwealth v. Clark, 28 A.3d 1284, 1291 (Pa. 2011). We find Clark

directly on point and controlling in this case. We therefore reject Appellant’s

first argument.

      Next, Appellant challenges the detention and frisks that police

conducted when they arrived at Appellant’s home to execute the search

warrant. As noted above, Appellant was walking down his front steps when

Sergeant Rutherford arrived to execute the warrant. Police, when executing

a valid search warrant, “have the authority to detain persons who are on the

premises, or who have recently exited and are outside the premises.”

Commonwealth v. Martinez, 649 A.2d 143, 147 (Pa. Super. 1994). Thus,

the detention was clearly justified.

      Regarding the frisks, the record establishes that Appellant had been

observed on two occasions leaving his home to conduct drug transactions.

Appellant appeared uneasy and backed away from Sergeant Rutherford when

the latter approached and announced the warrant, and Appellant dropped a

bag he was carrying. Sergeant Rutherford was aware of Appellant’s firearms

license and his ownership of multiple firearms. The law provides:




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J-S22027-18


              It is well-established that a police officer may conduct a brief
       investigatory stop of an individual if the officer observes unusual
       conduct which leads him to reasonably conclude that criminal
       activity may be afoot. Moreover, if the officer has a reasonable
       suspicion, based on specific and articulable facts, that the
       detained individual may be armed and dangerous, the officer may
       then conduct a frisk of the individual's outer garments for
       weapons. Since the sole justification for a Terry[1] search is the
       protection of the officer or others nearby, such a protective search
       must be strictly limited to that which is necessary for the discovery
       of weapons which might be used to harm the officer or others
       nearby. Thus, the purpose of this limited search is not to discover
       evidence, but to allow the officer to pursue his investigation
       without fear of violence.

Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa. Super. 2013).

       Given the facts of record and the applicable law, we believe police were

clearly justified in frisking Appellant for weapons. The second, more invasive

frisk occurred after Appellant attempted to pull away from the police officers.

Appellant argues this frisk was invalid under Commonwealth v. DeWitt, 608

A.2d 1030 (Pa. 1992). There, officers noticed a vehicle with its interior lights

on parked partially in a parking lot and partially on the berm of a road. Id.

at 1031. Police pulled alongside the vehicle to investigate, whereupon the

interior lights were turned off and the occupants engaged in furtive

movements. Id. at 1032. The vehicle then began to pull away. Id. Our

Supreme Court held that the vehicle’s flight and the occupants’ furtive

movements did not, in and of themselves, justify an investigative vehicle stop.

Id. at 1034.


____________________________________________


1   Terry v. Ohio, 392 U.S. 1 (1968).

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       Appellant argues that, similar to DeWitt, police did not observe any

criminal activity on Appellant’s part prior to the detention and frisks.

Appellant’s brief at 25. Appellant’s reliance on DeWitt is misplaced for several

reasons.    First, DeWitt did not analyze the validity of a frisk.      Second,

Appellant ignores the fact that police were at his home to execute a search

warrant based on their prior observations of his criminal conduct. DeWitt is

inapposite, and Appellant has failed to develop a meritorious argument against

the validity of the second frisk.

       Finally, Appellant argues the trial court applied the incorrect sentencing

guideline range and imposed an aggravated range sentence despite the

court’s stated intent to impose a mitigated range sentence. The trial court, in

reliance on a 12 to 30 month guideline range, sentenced Appellant to 11½ to

23 months of incarceration, as noted above.         The parties agree that the

appropriate guideline range, given Appellant’s zero prior record score, was

restorative sanctions to nine months (plus or minus three months). The error

occurred because the 12 to 30 month guideline range included a school zone

enhancement.       The Commonwealth concedes that it failed to establish the

proximity of the crime to a school zone. While the duration of Appellant’s

sentence remains within the trial court’s discretion,2 we will vacate the

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2 A challenge to the calculation of the applicable sentencing guidelines relates
to the discretionary aspects of a sentence. Commonwealth v. O’Bidos, 849
A.2d 243, 253 (Pa. Super. 2004), appeal denied, 860 A.2d 123 (Pa. 2004).



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judgment of sentence and remand for resentencing based upon consideration

of the appropriate guideline range.

       Judgment of sentence vacated.               Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/18




____________________________________________


Appellant properly preserved this argument in post-sentence motions and in
his Pa.R.A.P. 1925(b) and 2119(f) statements.

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