J-S04013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
CAITLYN CHANTEL KUHN                    :
                                        :
                    Appellant           :   No. 960 MDA 2017

           Appeal from the Judgment of Sentence May 17, 2017
 In the Court of Common Pleas of Adams County Criminal Division at No(s):
                        CP-01-CR-0000714-2016


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 27, 2018

      Appellant, Caitlyn Chantel Kuhn, appeals from the judgment of

sentence imposed on May 17, 2017, following her nonjury conviction of

various drug offenses. We affirm.

      The trial court, sitting as the suppression judge, entered the following

findings of fact:

      1.   On May 27, 2016, [Appellant] resided at 344 South
           Washington Street, Apartment 1, Gettysburg, Adams
           County,   Pennsylvania, with [Appellant’s] boyfriend,
           Walter Brown.

      2.   This residence was an approved residence for Walter Brown,
           who was under the supervision of the Adams County
           Department of Probation Services on or about May 27,
           2016. Walter Brown was on supervision for possession with
           intent to deliver crack cocaine and DUI.

      3.   Walter Brown signed Adams County Department of
           Probation Services Standard Rules of Supervision for
           Probation, Intermediate Punishment and Parole in the
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          presence of Probation Officer Livelsberger on December 14,
          2015. Included was Rule 4 which stated “you must agree to
          permit any probation/parole officer, to search your person,
          enter into and search your residence, vehicle or any other
          property under your control without warrant at any time
          upon reasonable suspicion of violation and to ensure
          compliance with all conditions of your sentence.”

     4.   On or about May 27, 2016[, Appellant] allowed
          Walter Brown to live with her at the above address.
          [Appellant] knew that Walter Brown was on probation
          supervision.

     5.   Probation Officer Clayton McKim received information from a
          confidential informant (hereinafter CI) several days to a
          week prior to the search on May 27, 2016. The CI bought
          drugs from [Appellant] at her residence, 344 South
          Washington Street, Apartment 1.       The CI also advised
          Officer McKim that the CI was aware that on multiple
          occasions over a period of several months prior to May 27,
          2016, other individuals bought drugs at the apartment of
          [Appellant] and Walter Brown, including heroin, crack
          cocaine and pain killers.

     6.   Officer McKim received additional information from an
          unidentified   informant   concerning  drug   dealing  at
          [Appellant’s] and Walter Brown’s apartment within a month
          prior to the search on May 27, 2016.

     7.   Several days prior to May 27, 2016, Officer McKim provided
          the    above      information   to     Probation    Officer
          Matthew Livelsberger who was supervising Walter Brown.

     8.   Officer Matthew Livelsberger had been supervising
          Walter Brown since December 2015. Walter Brown was on
          supervision with the Department of Probation Services for
          possession with intent to deliver crack cocaine and DUI.

     9.   Between      December     2015   and     May    27,   2016,
          Officer Livelsberger had attempted visits with Walter Brown
          at 344 South Washington Street, Apartment 1, Gettysburg
          on numerous occasions at different times throughout the
          day and each time no one at the residence would answer
          the door.

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     10. On May 26, 2016, Officer Livelsberger obtained permission
         from his supervisor to conduct a warrantless search of the
         residence of Walter Brown at 344 South Washington Street,
         Apartment 1, Gettysburg, Pennsylvania to search for
         controlled substances.

     11. On May 27, 2016, at approximately 6:00 a.m. Probation
         Officers Livelsberger and McKim, two other probation
         officers and two Gettysburg Borough Police Officers arrived
         at [Appellant’s] and Walter Brown’s apartment and knocked
         on the front door, back door and windows for at least 10 to
         15 minutes and announced their presence, but no one
         responded.

     12. Probation Officer Livelsberger spoke on the telephone with a
         woman who identified herself as Walter’s girlfriend’s mother.
         This woman informed Officer Livelsberger that Walter and
         [Appellant] should be at the residence, but “If he wasn’t
         there, there was a possibility he was at SCCAP [a food bank]
         doing community service.”

     13. Officer Livelsberger ultimately determined that Walter Brown
         was not at SCCAP.

     14. Officer Livelsberger learned from an upstairs neighbor that
         the landlord could provide access to the apartment. The
         landlord unlocked an outside door which opened into the
         sunroom/laundry room of [Appellant’s] and Walter Brown’s
         apartment. Probation officers then proceeded to another
         interior door which they determined was locked. Officers
         knocked on that door, and Walter Brown answered the door
         almost immediately.

     15. Per probation’s procedures, Walter Brown was handcuffed
         and Officer Livelsberger explained they were there to
         conduct a probation search.

     16. Officer Livelsberger spoke with [Appellant]. [Appellant] and
         her daughter were escorted out of the apartment.
         [Appellant] remained outside the apartment during the
         initial probation search.




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     17. Officer Livelsberger, Officer McKim and the two Gettysburg
         Police Officers entered the apartment, drew their firearms
         and ensured no one else was present in the apartment.

     18. The two probation officers and Gettysburg Police officers
         conducted a search of the apartment. Officer Livelsberger
         searched the bathroom and observed an open closet which
         contained men’s body wash, women’s body wash, towels,
         soap and other items, including a clutch-style purse. The
         purse was open and at eye level.         Officer Livelsberger
         observed a pinkish colored pill. Officer Livelsberger opened
         the clutch purse and observed two clear plastic baggie
         corners containing suspected crack cocaine.

     19. At that point, Officer Livelsberger stopped the probation
         search and contacted Trooper James O’Shea with the
         Pennsylvania State Police, Vice-Narcotics Unit. Within 45
         minutes to an hour, Trooper O’Shea arrived at the
         apartment. At this point, because of the heat, Walter Brown
         and [Appellant] were brought back into the apartment.
         [Appellant] was not handcuffed at this point.

     20. Trooper O’Shea reviewed the alleged contraband discovered
         in the purse/clutch and determined that probable cause
         existed to obtain a search warrant for the residence.

     21. Trooper O’Shea spoke with [Appellant] and asked whether
         she would provide written consent for a search of the
         apartment. [Appellant] requested an opportunity to speak
         with an attorney and was provided this opportunity.

     22. Trooper O’Shea advised [Appellant] that she could provide
         written consent to search the apartment, which would
         expedite the process, or Trooper O’Shea would apply for a
         search warrant.

     23. Prior to granting consent, Trooper O’Shea observed
         [Appellant] clutching a large purse, and at that time
         removed the purse from [Appellant] and handcuffed
         [Appellant] for officer safety.

     24. Ultimately, [Appellant] agreed to provide written consent for
         a search of her residence. Trooper O’Shea read the entire


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          written consent form to [Appellant]        and    [Appellant]
          voluntarily signed the consent form.

      25. A search of [Appellant’s] purse revealed numerous pills and
          United States currency.

Findings of Fact and Conclusions of Law, 3/21/17, at 1–5.

      Appellant was charged with various drug offenses on May 27, 2016,

and on December 8, 2016, she filed a pretrial motion to suppress. The trial

court conducted a suppression hearing on February 13, 2017, and March 21,

2017, denying Appellant’s request for suppression.

      In denying Appellant’s motion, the suppression court entered the

following conclusions of law:

      1. Adams County Probation Officers McKim and Livelsberger had
         sufficient reasonable suspicion to conduct a warrantless
         probation search on the apartment of [Appellant] and
         Walter Brown on May 27, 2016 and followed proper
         procedures in accordance with 42 Pa. C.S.A. § 9912.

      2. The “knock and announce” rule, set forth in Pennsylvania Rule
         of Criminal Procedure 207 was not applicable in this case
         because law enforcement authorities were not executing a
         search warrant on the apartment of [Appellant] and Walter
         Brown. See Pennsylvania Rule of Criminal Procedure 207 and
         Commonwealth v. Richter, 791 A.2d 1181, 1186 (Pa.
         Super 2002).

      3. Adams County Probation Officers acted reasonably when they
         entered the apartment of [Appellant] and Walter Brown by
         knocking and announcing their purpose for approximately 15
         minutes, attempting to locate Walter Brown at another
         location, calling the emergency contact person to determine
         the whereabouts of Walter Brown, utilizing the landlord to
         peacefully enter the sunroom/laundry room of [Appellant’s]
         and Walter Brown’s apartment, and by knocking and
         announcing their presence at the locked interior door before



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         entering into the kitchen of the apartment of [Appellant] and
         Walter Brown.

      4. Trooper O’Shea of the Pennsylvania State Police had sufficient
         probable cause to obtain a search warrant for the apartment
         of [Appellant] and Walter Brown based on his observations of
         suspected crack cocaine located in the clutch purse.

      5. Trooper O’Shea legally and correctly advised [Appellant] that
         if [Appellant] did not provide written consent to search the
         apartment then Trooper O’Shea would apply for and obtain a
         search warrant for a search of the apartment.

      6. [Appellant] was in custody prior to [Appellant] providing
         consent to search the apartment.

      7. [Appellant’s] written consent was knowing and voluntary.
         See Commonwealth v. Dressner, 336 A.2d 414, 415–417
         (Pa. Super. 1975) for factors to consider when determining
         voluntariness of a consent to search.

Findings of Fact and Conclusions of Law, 3/21/17, at 5–7 (emphasis

supplied).

      Appellant proceeded to a waiver trial on March 21, 2017.      The trial

court summarized the remaining procedural history as follows:

            At the conclusion of the non-jury trial, this [c]ourt found
      Appellant guilty of count 2, possession with intent to deliver a
      controlled substance (Oxycodone and Alprazolam); count 3,
      simple possession (cocaine); count 4, simple possession
      (Oxycodone and Alprazolam), and count 5, possession of drug
      paraphernalia.20 This [c]ourt found Appellant not guilty of count
      1, possession with intent to deliver controlled substance
      (cocaine).21

             2035 [P.S.] §§§ 780-113(a)(30), 780-113(a)(16),
             780-113(a)(32), respectively.

             21   35 [P.S.] § 780-113(a)(30).




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            On May 15, 2017, this [c]ourt sentenced Appellant on
      count 2 to no less than three (3) months nor more than twenty
      three (23) months in partial confinement at the Adams County
      Adult Correctional Complex. This [c]ourt imposed a probationary
      sentence of twelve (12) months for counts 3 and … 5, but did
      not impose a sentence on count 4 as it merged with count 2.
      The sentence[s] for counts 3 and 5 were to run [concurrently to]
      each other but consecutive to the sentence imposed on count 2.
      Thereafter, on June 23, 2017, Appellant filed a Motion for Bail
      Pending Appeal. On July 18, 2017, this [c]ourt held a hearing on
      [Appellant’s] Motion for Bail Pending Appeal, which was granted
      with certain conditions imposed.

            On June 12, 2017, Appellant filed a Notice of Appeal. By
      Order of Court dated June 13, 2017, Appellant was directed to
      file a concise statement of matters complained of on appeal.
      Appellant filed a Motion for Extension of Time to file her concise
      statement wherein counsel requested fourteen days from the
      date defense counsel received the notes of testimony. This
      [c]ourt, by Order of Court dated July 10, 2017, granted
      Appellant’s request. Appellant timely filed her concise statement
      on July 31, 2017.

Trial Court Opinion, 8/7/17, at 3–4.

      Appellant presents the following questions for our consideration:

      1. Did the suppression court err in failing to find that the
         probation officers did not have reasonable suspicion or
         probable cause to search [Appellant’s] residence based on an
         uncorroborated confidential informant’s tip in violation of
         [Appellant’s] right to be free from unreasonable search and
         seizure under both, the Pennsylvania and United States’
         constitutions?

      2. Did the suppression court err in failing to find that the
         probation officers’ entry into [Appellant’s] residence was
         effectuated from a government agent’s unlawful entry into
         the residence in violation of [Appellant’s] right to privacy
         under, both, the Pennsylvania and United States’
         constitutions?

Appellant’s Brief at 2.


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      As a preliminary matter, we examine whether Appellant has properly

preserved her issues. “Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). See also

Commonwealth v. Williams, 980 A.2d 667, 671 (Pa. Super. 2009)

(argument waived where the appellant does not “even allege that he raised

the issue at the suppression hearing”); Commonwealth v. York, 465 A.2d

1028, 1032 (Pa. Super. 1983) (citation omitted) (“[A] new and different

theory of relief may not be successfully advanced for the first time on

appeal.”).

      In her motion to suppress, Appellant asserted that the search of her

residence was unlawful for the following reasons:

      a) Said search was conducted without a search warrant.

      b) Said search was conducted without voluntary consent.

      c) The search of [Appellant’s] residence and personal effects,
         including pocket books and purses, was not properly ancillary
         to any probation search of Walter Brown.

Motion for Suppression of Evidence, 12/8/16, at ¶ 4.

      On appeal, Appellant first contends that the suppression court erred in

denying her motion because the warrantless search of her residence was not

supported by reasonable suspicion or probable cause. Appellant’s Brief at 8.

The crux of Appellant’s argument is that “[t]he confidential informant’s tip

was unreliable, uncorroborated, and without a basis of knowledge at the

time officers’ [sic] entered [Appellant’s] residence.” Appellant’s Brief at 14.


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       Upon review of the certified record, we decline to address Appellant’s

issue, as presented. Appellant did not challenge the warrantless search of

her apartment before the suppression court on grounds that it was not

supported by reasonable suspicion or probable cause because the CI’s

information was unreliable.1        Rather, she first raised this argument in her

Pa.R.A.P. 1925(b) statement. Pa.R.A.P. 1925(b) Statement, 7/31/17, at ¶

1. Thus, Appellant’s first issue is waived. Pa.R.A.P. 302(a); Williams, 980

A.2d at 671; York, 465 A.2d at 1032.2

       Appellant next argues that the suppression court erred in denying her

motion to suppress because entry into her residence was illegally effectuated

through a government agent, i.e., her landlord. Appellant’s Brief at 14. The
____________________________________________


1  We note that defense counsel, Attorney Cook, argued to the suppression
court that, “this confidential informant . . . does not make a controlled buy.”
N.T. Suppression, 2/13/17, at 76. At that point, the suppression court
stated:

       THE COURT: Let me help you out, Mr. Cook. I believe that the
       Commonwealth has presented sufficient evidence to show that
       they had a reasonable suspicion to conduct a probation search.
       I find . . ., looking at the totality of the circumstances and that’s
       for probable cause, I think given the totality of the
       circumstances they determined there was reasonable suspicion
       so I have made that finding.

Id.   Appellant has not challenged this conclusion, which incorporated
Appellant’s argument that the CI did not make a controlled buy.

2  Even if not waived, Appellant’s first issue would not warrant relief. We
reach this conclusion based on the suppression court’s findings of fact, which
are supported by the record, and its conclusions of law, which are without
error.



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Commonwealth      asserts   that   this   issue   “was   not   properly   raised   in

[Appellant’s] Motion for Suppression of Evidence.” Commonwealth’s Brief at

11 (citing Pa.R.Crim.P. 581(D)).

      Although Appellant did not expressly raise this argument in her motion

to suppress, it was the basis for the trial court’s solicitation of memoranda

from the parties and reopening the suppression hearing without objection

from the Commonwealth. N.T. (Suppression), 2/13/17, at 71, 76, 78–80;

N.T. (Suppression), 3/21/17, at 3. Appellant summarized this issue in her

memorandum as follows:

      Here, the landlord was acting as a police agent when she
      provided them with the passkey. The testimony was clear that
      this was not a common area but rather was within the leasehold
      of [Appellant]. Since there was no testimony that the police
      officers announced their identity and purpose at the time the
      landlord admitted them into the residence, the manner in which
      the search was conducted was unreasonable and unlawful.
      Thus, all evidence seized by the government is fruit of the
      poisonous tree. The suppression motion should be granted.

Memorandum in Support of Motion for Suppression of Evidence, 2/23/17, at

5. The Commonwealth responded to Appellant’s issue, Commonwealth’s

Memorandum in Opposition to Defendant’s Motion for Suppression of

Evidence, 2/27/17, at 2–6, and it was litigated at the reopened suppression

hearing.   N.T. (Suppression), 3/21/17, at 4–12.         Thus, we conclude that

Appellant sufficiently preserved this issue.

      Regarding suppression rulings, our standard of review:




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     is limited to determining whether the factual findings are
     supported by the record and whether the legal conclusions
     drawn from those facts are correct.

           We 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.

           Moreover, it is within the lower court’s province to pass on
     the credibility of witnesses and determine the weight to be given
     to their testimony.

Commonwealth v. Williams, ___ A.3d ___, 2017 PA Super 382, at *11–

12 (Pa. Super. 2017) (internal citations omitted). Furthermore, the scope of

review of orders granting or denying motions to suppress is limited to the

evidence presented at the suppression hearing. In the Interest of L.J., 79

A.3d 1073, 1085 (Pa. 2013).

     On appeal, Appellant continues to argue that her “landlord, who did

not have authority to enter her residence, acted as a government agent

when she unlocked [Appellant’s] door at the request of probation officers.”

Appellant’s Brief at 16. In response, the Commonwealth argues:

           Here, the suppression court indicated following testimony
     that it believed Adams County Probation possessed reasonable
     suspicion and obtained proper authority to conduct the
     warrantless search at issue.     The question then becomes
     whether there was anything improper about the landlord
     providing access to the sunroom. It is well settled that a
     landlord cannot consent to a warrantless search of the property.
     See, e.g., Commonwealth v. Davis, 743 A.2d 946, 951 (Pa.
     Super. 1999).     However, the property owner here did not


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       consent to the warrantless search, but rather merely supplied a
       key enabling the officers access to the sunroom.

Commonwealth’s Brief at 13–14.

       The suppression court addressed this issue in its third conclusion of

law:

       3. Adams County Probation Officers acted reasonably when they
          entered the apartment of [Appellant] and Walter Brown by
          knocking and announcing their purpose for approximately 15
          minutes, attempting to locate Walter Brown at another
          location, calling the emergency contact person to determine
          the whereabouts of Walter Brown, utilizing the landlord to
          peacefully enter the sunroom/laundry room of [Appellant’s]
          and Walter Brown’s apartment[,] and by knocking and
          announcing their presence at the locked interior door before
          entering into the kitchen of the apartment of [Appellant] and
          Walter Brown.

Findings of Fact and Conclusions of Law, 3/21/17, at 6.

       Upon review, we find that the suppression court’s findings of fact, set

forth supra, are supported by the record, and its legal conclusion regarding

access to Appellant’s sunroom is without error.            As a probationer,

Walter Brown    had   “limited   Fourth   Amendment   rights   because    of   a

diminished expectation of privacy.” Commonwealth v. Parker, 152 A.3d

309, 316 (Pa. Super. 2016).        In fact, Walter Brown’s signature on the

probation regulations acts as acknowledgment that the probation officer “has

a right to conduct reasonable searches of the probationer’s residence listed

on the probation agreement without a warrant.”            Id. at 318 (quoting

Commonwealth v. E. Williams, 692 A.2d 1031, 1036 (Pa. 1997)).




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       Here, pursuant to 42 Pa.C.S. § 9912, Probation Officer Livelsberger

obtained permission to conduct a warrantless search of the approved

residence of Walter Brown, which was Appellant’s residence.         Once at the

residence, the probation officers knocked on the front door, back door, and

windows for at least ten to fifteen minutes and announced their presence,

but no one responded. A neighbor assisted Officer Livelsberger in contacting

the landlord, who unlocked an outside door which opened into the sunroom

of Appellant’s residence.         Probation officers then proceeded to another

interior door, which was locked.          The officers knocked on that door, and

Walter Brown answered the door almost immediately.             Thus, contrary to

Appellant’s argument, the landlord did not engage in any conduct as a

government agent to gain information for the police; she simply supplied

access to a back door.3 This measure was authorized by the Adams County

Probation Policy to avoid the use of more force than necessary to secure

entry into a probationer’s residence.              Commonwealth Exhibit 1 at ¶

6(c)(iv)(6) (“Probation officers should enter using only the amount of force



____________________________________________


3    Cf. Commonwealth v. Rathfon, 705 A.2d 448 (Pa. Super. 1997)
(affirming that defendant’s girlfriend acted as government agent when she
entered his residence without permission at request of federal authorities
and gathered information that served as basis for search warrants), and
Commonwealth v. Strafford, 749 A.2d 489 (Pa. Super. 2000) (affirming
that defendant’s friend acted as government agent when he entered
defendant’s residence at request of police and observed marijuana plants).



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necessary     to      secure   entry.   Keys     can   often   be   obtained   from

landlords. . . .”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




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