J-S08012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NORMAN J. BARONY, JR.

                            Appellant                 No. 475 WDA 2016


         Appeal from the Judgment of Sentence dated March 15, 2016
                 In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0000649-2012
                                         CP-07-CR-0000650-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                               FILED MAY 23, 2017

        Appellant, Norman J. Barony, Jr., appeals from the March 15, 2016,

aggregate judgment of sentence of one to ten years’ incarceration, imposed

following a bench trial that resulted in Appellant’s conviction of two counts

each of conspiracy – manufacture, delivery, or possession of a controlled

substance with an intent to manufacture or deliver; intentional possession of

a controlled substance by a person not regulated; use/possession of drug

paraphernalia; and manufacture, delivery, or possession of a controlled

substance with intent to manufacture or deliver.1 We affirm.

        In its opinion and order entered August 13, 2013 and its opinion and

order entered August 28, 2014, the trial court fully and correctly sets forth

____________________________________________
1
    18 Pa.C.S. § 903 and 35 P.S. § 780-113(a)(16), (32), (30), respectively.
J-S08012-17


the relevant facts of this case. See Trial Ct. Op., 8/13/13, at 1-3; Trial Ct.

Op., 8/28/14, at 2-6. Thus, we have no reason to restate them at length

here.

        This case involves telephone conversations from July 27 to August 4,

2011, between Appellant and a now-deceased confidential informant that

were recorded by Pennsylvania State Police with the informant’s consent.

Trial Ct. Op., 8/28/14, at 3 (citing N.T., 5/30/13, at 12). The conversations

were about a marijuana growing operation.2

        The case also involves a “trash pull” by the Pennsylvania State Police

from a road near Appellant’s residence.          The “trash pull” was conducted on

August 4, 2011, subsequent to the recorded phone calls, by Pennsylvania

State    Trooper    Charles     Schaefer,      who   has   been   employed   by   the

Pennsylvania State Police since 1995 and “has been primarily investigating

drug offenses since January of 1998.” It was done on Pine Street, a road

near Appellant’s residence that is marked as a “private drive.” Trial Ct. Op.,

8/13/13, at 1-2, 8, 11 (citing N.T., 5/30/13, at 14); Trial Ct. Op., 8/28/14,

at 2, 4 (citing N.T., 5/30/13, at 14). “Burgmeier’s Hauling had access to this

street, and Trooper Schaefer rode with the hauling company to collect the

trash that had been discarded or abandoned” there Trial Ct. Op., 8/13/13,

at 8; see also id. at 2 (citing N.T., 5/30/13, at 14); Trial Ct. Op., 8/28/14,

____________________________________________
2
  According to Appellant’s Brief, at 8, the confidential informant died on
October 10, 2012.


                                           -2-
J-S08012-17


at 4. The trash had been put “out from the house along the roadway” on a

date after the previous times Trooper Schaefer had driven by that house.

N.T., 5/30/13, at 14. As a result of the trash pull, Trooper Schaefer found

“indicia indicating the residence was [Appellant]’s,” a marijuana stem, and

an   empty    box   of   Herbal   Clean   —   a     substance   used   to   clean

tetrahydrocannabinol (“THC”) out of a person’s system prior to a drug test.

Trial Ct. Op., 8/13/13, 2-3, 11 (citing N.T., 5/30/13, at 14-16, 21); Trial Ct.

Op., 8/28/14, at 4 (citing N.T., 5/30/13, at 15).

      Following the trash pull, on August 5, 2011, Trooper Schaefer obtained

a warrant to search Appellant’s house. Trial Ct. Op., 8/13/13, at 3; Trial Ct.

Op., 8/28/14, at 5-6 (citing Commonwealth’s Ex. 1).        During the resulting

search, troopers found nine marijuana plants, growing paraphernalia, and

marijuana seeds in Appellant’s bedroom. Criminal charges were filed against

Appellant based on this evidence. Id. at 6.

      On September 12, 2012, Appellant filed an omnibus pretrial motion,

which included a motion to suppress the trash pull and a motion to suppress

the evidence obtained during execution of the search warrant for insufficient

probable cause and for staleness of the information upon which the warrant

was based.    On August 13, 2013, the trial court denied the motions to

suppress the trash pull and the evidence from the search.

      Between September 2013 and November 2014, the trial court granted

at least nine motions for continuance.     Appellant was scheduled to plead


                                     -3-
J-S08012-17


guilty on January 12, 2015, but, during his colloquy, he changed his mind

and asked to go to trial. Appellant was convicted on November 20, 2015,

and sentenced on March 15, 2016.

      On April 4, 2016, Appellant filed a notice of appeal to this Court.

Appellant raises three questions for our review:

      I.   Whether the trial court erred by denying Appellant’s
      motion to suppress with regard to the legality of the trash pull[.]

      II.   Whether the trial court erred by denying Appellant’s
      motion to suppress based on insufficient probable cause for
      issuance of a search warrant due to the unreliability of the
      confidential informant and the violation of Appellant’s Sixth
      Amendment right to confront witnesses against him[.]

      III. Whether the trial court erred by denying Appellant’s
      motion to suppress despite the use of stale information as the
      basis for the search warrant[.]

Appellant’s Brief at 5.

      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.
      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.




                                     -4-
J-S08012-17


      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining
      a ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman, 150 A.3d 32, 34–35 (Pa. Super. 2016)

(citations omitted).

      Appellant’s first issue is that the trial court erred by denying his motion

to suppress with regard to the legality of the trash pull. Appellant’s Brief at

11. Appellant contends that he had “an actual or subjective expectation of

privacy with respect to the bag searched and seized by Trooper Schaefer”

and that his “actual and subjective expectation of privacy in the materials

located on his property and in the curtilage is one which society is prepared

to accept as reasonable.” Id. at 13, 15. He adds that “[t]he bag seized by

Trooper Schaefer was neither voluntarily relinquished into the hands of third

parties” nor “located in an area sufficiently exposed to the public to defeat

Appellant’s claim to protection under the Fourth Amendment and Article I,

Section 8” of the Constitution of Pennsylvania. Id. at 16, 18.

      Appellant’s third issue is that “the trial court erred by denying [his]

motion to suppress despite the use of stale information as the basis for the

search warrant” – specifically, the information Trooper Schaefer obtained

from the confidential informant.     Appellant’s Brief at 26, 28.      Appellant

contends that “all evidence seized during the execution of the search

warrant and all fruit of the poisonous tree discovered thereafter should have

been suppressed from trial.” Id. at 31.


                                      -5-
J-S08012-17


       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Elizabeth A.

Doyle, we conclude that Appellant’s first and third issues merit no relief. The

trial court opinion of August 13, 2013, comprehensively discusses and

properly disposes of Appellant’s first issue, relating to his motion to suppress

the trash pull.3 The trial court opinion of August 28, 2014, comprehensively

discusses and properly resolves Appellant’s third issue, relating to his motion

to suppress evidence seized pursuant to the search warrant “despite the use

of stale information,” noting in particular that the search warrant was based
                                                        4
on information from the trash pull that was not stale

____________________________________________
3
  See Trial Ct. Op., 8/13/13, at 3-8 (holding: (1) the law is clear that
putting trash out for collection is an act of abandonment that terminates
Fourth Amendment protections, citing Commonwealth v. Perdue, 564
A.2d 489 (Pa. Super. 1989), appeal denied, 574 A.2d 68 (Pa. 1990); (2)
Appellant’s argument that he did not contract with Burgmeier’s Hauling for
garbage removal “does not alter the pertinent inquiry . . . as to whether the
trash was discarded or abandoned so as to terminate [Fourth] Amendment
protections”; (3) the trash was “away from the house along Pine Street,”
“was at the end of a cement driveway on [Appellant’s] property,” and was
set out in bags “as close to the road as possible without blocking traffic”; (4)
the location of the trash placement does not qualify as curtilage and hence
does not have a heightened expectation of privacy (citing N.T., 5/30/13, at
14); (5) other Pine Street property owners had also placed their trash
alongside the street for collection; and (6) Pine Street, notwithstanding the
“private drive” sign and “the fact that the street was not a through street”
was not a private road because the sign did not preclude public access, it
had no gatekeepers, other residents lived on the street, and the garbage
hauling company had access to the street (citing Id. at 37, 59)).
4
 See Trial Ct. Op., 8/28/14, at 8-9 (holding: (1) the trash pull occurred on
August 4, 2011; (2) the affidavit of probable cause for the search warrant
was dated August 5, 2011, the search warrant was issued that same day,
(Footnote Continued Next Page)

                                           -6-
J-S08012-17


      Appellant’s remaining claim is that there was “insufficient probable

cause for issuance of a search warrant due to the unreliability of the

confidential informant and the violation of Appellant’s Sixth Amendment

right to confront witnesses against him.” Appellant’s Brief at 20. Appellant

states that the confidential informant “was unreliable because he passed

away in the midst of the case and was not able to have his actions and

motive verified.”       Id. at 20-21.       Appellant concedes, however, that the

confidential informant died after his suppression hearing. Id. at 8.

      “The requisite probable cause must exist at the time the warrant is

issued and be based on facts closely related in time to the date of issuance.”

Commonwealth v. Jones, 484 A.2d 1383, 1387 (Pa. 1984). Contrary to

Appellant’s claim, he could have called the confidential informant to testify at

the suppression hearing because the informant was still alive at that time.

Although Appellant had that opportunity, he chose not to exercise it.        See

Commonwealth v. Bonasorte, 486 A.2d 1361, 1374 (Pa. Super. 1984)

(en banc) (defendant may obtain production of a confidential informant at a

suppression hearing if he shows that production is material to his defense,

reasonable, and in interest of justice); Commonwealth v. Johnson, 33

A.3d 122, 127 (Pa. Super. 2011) (same), appeal denied, 47 A.3d 845 (Pa.

2012); Commonwealth v. Baker, 946 A.2d 691, 693 (Pa. Super. 2008).
                       _______________________
(Footnote Continued)
and the affidavit referenced the evidence from the trash pull that occurred
the prior day; and (3) “[t]here is nothing about the facts to indicate that the
criminal activity was attenuated by the passage of time”).


                                            -7-
J-S08012-17


Even without the recorded calls between Appellant and the confidential

informant, the evidence from the legal trash pull of the marijuana stem, the

empty Herbal Clean container, and indicia of Appellant’s residency were

sufficient to establish probable cause to support the search warrant at the

time it was issued. See Jones, 484 A.2d at 1387; see also Trial Ct. Op.,

8/13/13, 2-3, 11 (citing N.T., 5/30/13, at 14-16, 21); Trial Ct. Op., 8/28/14,

at 4 (citing N.T., 5/30/13, at 15). Therefore, Appellant’s claim that the trial

court erred in denying his motion to suppress the evidence obtained by

police during the execution of the search warrant is meritless.       See id.;

compare Appellant’s Brief at 20-21.

      For the reasons stated above, we affirm the judgment of sentence.

The parties are instructed to attach a copy of the trial court’s opinion of

August 13, 2013, and its opinion of August 28, 2014, to all future filings that

reference this Court’s decision.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




                                     -8-
                                                                            _.,_.                           _
                                                                         ........Circulated 04/27/2017 04:17 PM




    IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA


  COMMONWEAL TH OF PENNSYLVANIA,

                       v.                                 2012 CR 652
                                                          2012 CR650
  MARIANNE BARONY,

         and
  NORMAN BARONY,
  Defendants.



 ELIZABETH A. DOYLE                          PRESIDING JUDGE
 DEREK ELENSKY, ESQ.                         COUNSEL FOR COMMONWEALTH
 ROBERT DONALDSON, ESQ.                      COUNSEL FOR DEFENDANTS



                             OPINION AND ORDER
        AND NOW, this [ !.   r-   day of August, 2013, this matter having come

 before the court on an Omnibus Pretrial Motion, it is ripe to decide.



                                      FACTS

       The facts as found from the transcript are as follows:

Trooper Charles Schaefer of the Pennsylvania State Police (PSP) has been

employed with the PSP since 1995 and has been primarily investigating drug

offenses since January of 1998. Sometime before August 4, 2011, he began an

investigation on a Mark Heverfy about a marijuana growing operation. Through

that investigation and cooperation of Mr. Heverly, Trooper Schaefer received
 information that Norman Barony ("Defendant"),      was working with Mr. Heverly in

 this grow· operation.

        Trooper Schaefer investigated    the matter further to confirm the information

. he was receiving from his informant.   This investigation   included background   on

 the Defendant that included the Defendant's     residence. Transcript,   pg. 11.

 Trooper Schaefer consensualized Mr. Heverly and phone conversations were

 recorded between Mr. Heverly and the Defendant about the grow operation.

Trooper Schaefer drove around the residence of the Defendant on more than

one instance to determine when trash would be put out for pickup. This

investigation was conducted prior to August 4, 2011. Transcript, pg. 12.

        On August 4, 2011, Trooper Schaefer conducted a trash pull at 127 Pine

Street, Tyrone, the Defendant's residence. The Trooper rode on a Burgmeier's

Hauling Truck to perform the trash pull. The trash was put out along the road on

Pine Street, away from the house. The trash was not out by the road the

previous times Trooper Schaefer drove by the Defendant's house. Transcript, pg.

14. The trash was pulled by the Trooper and a Burgmeier employee and was

placed separately from the other trash being collected by the hauling company.

       Trooper Schaefer inspected the trash that was seized from the

Defendant's residence at 127 Pine Street. The trash Included a long marijuana

stem, Herbal Clean, and indicia indicating that 127 Pine Street was the

Defendant's resfdence. Transcript, pg. 15.




                                          2
                                                                                __   ..   _


Trooper Schaefer testified that the marijuana stem was both long and cut,

indicating the probable existence of marijuana plants. Transcript, pg. 20. The

Herbal Clean is a substance that can be used to clear out THC from a person's

system. Transcript, pg. 21.

       As a result of the trash pull and the other investigation performed by

Trooper Schaefer, a search warrant was prepared and approved on August 5,

2011. The search warrant was executed on August 6, 2011. As a result of the

executed search warrant and Investigation by Trooper Schaefer, charges were

filed against both the Defendant and his wife, Mrs. Marianne Barony.

       On September 12, 2012, an Omnibus Pre-Trial Motion was filed on behalf

of both Defendants, Mr. and Mrs. Barony. A hearing was held May 30, 2013 in

which testimony was taken as to the Motion to Suppress the trash pull.



                                    DISCUSSION

                              Legalityof the Trash Pull

       "No one has a standing to complain of a search and seizure of property

that he has voluntarily abandoned. The determination of whether or not there

has been an abandonment of property is an ultimate fact, dependent upon the

purported set   of abandon111e11t and the manifested lntenfof the person alleged to

have abandoned the property. The test for abandonment is whether the

complaining party could retain a reasonable expectation of privacy in the property

allegedly abandoned. Placing trash for collection is an act of abandonment which

terminates any Fourth Amendment protection." Commonwealth v. Perdue, 564



                                          3
A.2d 489 (Pa. Super. 1989), citing Commonwealth v. Shoatz, 366 A.2d 1216,

1220 (Pa.1976), citing Commonwealth v. Sero, 387 A.2d 63, 69 (Pa.1978 ), citing

Commonwealth v. Minton, 432 A.2d 212 (Pa.Super.1981).

       "It is axiomatic that a defendant has no standing to contest the search and

seizure of items which he has voluntarily abandoned. A criminal defendant has

no privacy expectation in property that he has voluntarily abandoned or

relinquished. That is, before a defendant can challenge the seizure of phys_ipal

evidence, he must demonstrate that he had both a possessory interest in the

evidence and a legally cognizable expectation of privacy in the area from which

the evidence was seized .... Abandonment is primarily a question of intent, and

intent may be inferred from words spoken, acts done, and other objective facts.

All relevant circumstances at the time of the alleged abandonment should be

considered. The issue is not abandonment in the strict property-right sense, but

whether the person prejudiced by the search had voluntarily discarded, left

behind, or otherwise relinquished his interest in the property in question so that

he could no longer retain a reasonable expectation of privacy with regard to it at

the time of the search. In other words, abandonment can be established where

an individual's surrender of possession of the property constitutes such a

relinquishment of interest in the property that a reasonable expectation of privacy

may no longer be asserted." Commonwealth v. Byrd, 987 A.2d 786 (Pa. Super.

2009). citing Commonwealth v. Tillman, 621 A.2d 148 (Pa. Super 1993); citlng

Commonwealth v. Pizarro, 723 A.2d 675 (Pa. Super. 1998); citing




                                         4
    Commonwealth v. Clark, 746 A.2d 1128 (Pa. Super. 2000); ciUng Commonwealth

    v. Shoatz, 366 A.2d 1 ~16 (Pa.1976).

           In California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d

    30 (1988), the United States Supreme Court upheld the warrantless search and

    seizure of garbage left for collection outside the defendant's home. Specifically,

    the Court concluded that the defendant failed to demonstrate a subjectively

    reasonable expectation of privacy in his discarded trash. Similarly, the

    Pennsylvania Courts have long held that a person has no reasonable expectation

    of privacy in items voluntarily abandoned as garbage in a public space. See, e.g.,

    Commonwealth v. Perdue, 3~7 Pa. Super. 473, 564 A.2d 489, 493 (Pa. 1989),

    appeal denied, 574 A.2d 68 (Pa. 1990). However, as this line of reasoning

    speaks to garbage left for collection in an area accessible to the public, the

    location of the garbage seized is of paramount importance. See Greenwood,

    supra at40-41, Commonwealth v. James, 12A.3d 388 (Pa. Super. 2010).1

          Where a Defendant challenges the affidavit of probable cause alleging

ambiguities or omissions, specifically as to the legality of a trash pull, such

challenges must be resolved with evidence beyond the affidavit's four corners.

Testimony that allowed the suppression court to rule on abandonment, including

the specific location where the trash was located, was necessary in the Court's

determination of whether the facts would be included or stricken as to the search

warrant. Commonwealth v. James. 2013 WL 2360949 (Pa. 2013).



1
 This case was overturned by Commonwealth v. James, 2013 WL 2360949 (Pa. 2013) to allow for
testimony outside of the four corners of the affidavit of probable cause and not for the law as to trash
pulls/abandoned property.



                                                     5
        On August 4, 2011, Trooper     Schaefer     conducted   a trash pull at 127 Pine

Street, Tyrone.   As his testimony   set forth,   previous to August 4, 2011, Trooper

Schaefer drove by this residence to see when the trash would be discarded.

Transcript, pg. 12. The times he drove by the residence previous to this trash

pun, there was no trash along the roadway. Transcript, pg. 12. On August 4,

2011, Trooper Schaefer testified that the trash was "away from the house along

Pine Street." Transcript, pg. 12. There were several trash bags set out on the

properties on Pine Street the day of the trash pull. Transcript, pg. 37-38. The

trash was not in a wooden storage container. Trooper Schaefer testified that

based on his training and experience, if the trash had been in the wooden

storage container, he would not have considered it abandoned. Transcript, pg.

13, 14, 60. The trash was set out in bags alongside Pine Street when collected.

Transcript,   pg. 12. The trash was placed as close to the road as possible

without blocking traffic. Trooper Schaefer was clear that the trash was at the end

of a cement driveway on the Barony's property. Transcript, pgs. 43-44.

       The law is clear that trash put out for collection is an act of abandonment

which tenninates 4th Amendment protections. The test is to look to at the

surrounding facts to determine if the trash bags were discarded. The facts and

testimony in this case set forth that this trash was abandoned and discarded.

There was no trash out on previous occasions when Trooper Schaefer went by

the property. The trash was not in a wooden storage area. Transcript, pg. 42.

The trash was set alongside the street.at the time when other property owners

along that street had set their trash alongside the street for pick-up. There was




                                            6
 no testimony that the trash was alongside the street for any other purpose than

 trash pick-up. As set forth in California v. Greenwood,   trash set out is readily

 accessible   to animals, children, scavengers, snoops, and other members of the

 public. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L Ed. 2d 30

 (1988).

        The Defendants argue that they did not contract with Burgmeier's Hauling

for their garbage and that Trooper Schaefer was violating the law by collecting

the trash bags. The Court rejects this argument finding that it does not alter the

pertinent inquiry. As set forth above, the inquiry is as to whether the trash was

discarded or abandoned so as to terminate 4th Amendment protections. Here,

the trash was put alongside the street away from the house. It had been moved

from wherever it was previously located, and was not in any wooden storage

container. We find that the trash was put alongside the street voluntarily and was

abandoned property, in which there was no longer an expectation of privacy.

The Defendants argue that the trash was located within curtilage of their home

and cite Commonwealth v. Lemanski, 529 A.2d 1085 (Pa. Super.1987) in their

brief. This case is distinguished from Lemanski, in which officers parted

shrubbery and peered with binoculars into someone's home. The trash was also

not along curtilage of the home. Trooper Schaefer again testified that the trash

was "away fromthe house along Pine Street." Transcript, pg. 12.

       An area away from the house along the street does not fall under the

definition of curtilage set out in the case law. The Defendants' argument that this

trash pull was a violation of their rights because of a private drive sign also fails.




                                           7
 This was a named street, Pine Street. There was no gate keeping individuals out

 of the area. Transcript, pg. 59. Trespassing signs were not posted. Transcript,

 pg. 59. This street did not just lead to the residence of Defendants, but several

 other houses as well. Transcript, pg. 37, 59. Burgmeier's Hauling had access to

 this street and Trooper Schaefer rode with the hauling company to collect the

 trash that had been discarded or abandoned.

         The Defendants have established that there is a sign on Pine Street that

 says "private drive". This does not preclude traffic on the street. The street

 contained multiple houses and the private drive sign did not prevent public

access of and on to the street. Transcript, pg. 37. The fact that a sign on the

street said "Private Drive" and the fact that the street was not a through street

does not create a heightened expectation of privacy in garbage.




                II Probable Cause for the Search Warrant

         Where a motion to suppress has been filed, the burden is on the

Commonwealth to establish by a preponderance of the evidence that the

challenged evidence is admissible. Commonwealth v. Smith, 784 A.2d 182, 186

(Pa. Super. 2001 )(citing Commonwealth v. James, 506 Pa. 526, 486 A.2d 376

(Pa 1985)) This Commonw~alth has established the following standar-d for

determining whether a search warrant affidavit contains sufficient probable

cause:




                                          8
 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. (citations omitted) The

information offered to demonstrate probable cause must be viewed in a common

sense, nontechnical, ungrudging and positive manner. (citations omitted) 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. (citations omitted) Hearsay

information is sufficient to form the basis of a warrant so long as the magistrate

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 magistrate had a "substantial basis for ... concluding

that probable cause existed." Commonwealth v. Rivera, 816 A.2d 282,291 (Pa.

Super. 2003); Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23,25 (Pa. 1992)

(quoting Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (Pa. 1985)), (citing

Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317,2332, 76 L. Ed. 2d 527,547

(1983))); See also Commonwealth v. Torres, 564 Pa. 86,96, 764 A.2d 532,537

(Pa. 2001) (quoting Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921,

925 (Pa.1986)(quoting Illinois v. Gates, 462 U.S. 213,238-39, 103 S. Ct.

2317,2332); See also Commonwealth v. Jones, 506 Pa. 262,269, 484 A.2d

1383, 1387 (Pa.1984).




                                          9
I··

I             "The requisite probable cause must exist at the time the warrant is issued

       and be based on facts closely related in time to the date of issuance". Jones,

       506 Pa. at 269, 484 A.2d at 1387; Commonwealth v. Tolbert, 492 Pa. 576, 424

       A.2rJ 1342 (Pa.1981); Commonwealth v. Jackson. 461 Pa. 632, 337 A.2d 582,

       cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376 (1975); Commonwealth

       v. Eazer, 455 Pa. 320, 312 A.2d· 398 (Pa.1973); Commonwealth v. Mccants, 450

       Pa. 245, 299 A.2d 283 (Pa.1973): Commonwealth v. Simmons, 450 Pa. 624, 301

       A.2d 819 (Pa.1973). Further, "[i]f the [Magisterial District Judge] is presented

      with evidence of criminal activity at some prior time, it must also be established

      that the criminal activity continued up to the time of the request for the warrant in

      order to support a finding of probable cause." Jones, 506 Pa. at 269, 484 A.2d at

      1387; Tolbert, 492 Pa. 576, 424 A.2d 1342; Jackson, 461 Pa. 632, 337 A.2d 582;

      Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (Pa.1971 ).

      It is the duty of a court reviewing an issuing authority's probable cause

      determination to ensure that the magistrate had a substantial basis for

      concluding that probable cause existed. Gray, 509 Pa. at 484, 503 A2d at 925.

      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.

      Torres, 564 Pa. at 96-97, 764 A.2d at 537-38 (citing Commonwealth v. Jones,

      542 Pa. 418, 668 A.2d 114, 117 (Pa.1995) (opinion announcing the Judgment of

      the Court)); See also Jones, 506 Pa. at 296, 484 A.2d at 1387.




                                               10
         In this case, Trooper Schaefer, an experienced   officer in drug

 investigations   who has been qualified previously as an expert, received

information that the Baronys were cultivating marijuana plants. He "pulled" their

trash and the contents of the trash collected contained a marijuana     stem, Herbal

Clean, and indicia indicating the residence was Norman Barony's. Transcript,      pg.

15, 16. The marijuana stem was long and cut which would indicate the

probability of marijuana plants. Transcript, pg. 20. Trooper Schaefer was able to

use part of the marijuana stem for a NIK test, the test being positive for

marijuana. Transcript, pgs. 28-33. Trooper Shaffer testified that the Herbal Clean

can be used to try to clean out THC, the actlve ingredient in marijuana, from a

person's system. Transcript, pg. 20 - 21. All this information was contained in

the search warrant. Based on the above, the Court finds there was probable

cause for issuance of the search warrant.




                                          11
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIA,

                     v.                                   2012 CR 652
                                                          2012 CR 650
MARIANNE BARONY,

       and

NORMAN BARONY,
Defendants.



ELIZABETH A. DOYLE                         PRESIDING JUDGE

DEREK ELENSKY, ESQ.                        COUNSEL FOR COMMONWEAL TH

ROBERT DONALDSON, ESQ.                     COUNSEL FOR DEFENDANTS



                                      ORDER

Based on the forgoing, the Court must issue the following order:

       AND NOW, this ~           day of August, 2013, the defendant's Omnibus

Pre· Trial Motion is denied and dismissed. The case(s} is/are listed for trial list

review on August 261h, 2013.

                                                   By the Court,




                                          12
                                                                                     Circulated 04/27/2017 04:17 PM




   IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIAt

                    v.                                  2012 CR 650
                                                        2012 CR 649
NORMAN BARONY,



COMMONWEALTH OF PENNSYLVANIA,

                    v.                                  2012 CR 652

MARIANNE BARONY,
Defendants.
                                                                                                                 ·.,'
                                                                                                                 4




                                                                                 .   :   :       .
ELIZABETH A. DOYLE                       PRESIDING JUDGE                                         ·.   ,

PETER WEEK, ESQ.                         ASST. DISTRICT ATTORN£Y,
                                                               ··.. . ,: ~.._:               •




DEREK ELENSKY, ESQ.                      ASST. DISTRICT AITORN('(.-·, :-:
                                                                                                                        >,.. -u
                                                                                                                        :·.; =~
PHI LI p MASORTI I ESQ.                  COUNSEL FOR DEFENDANT                                            .:.o


THOMAS DICKEY, ESQ.                      COUNSEL FOR DEFENDANT


                          OPINION AND ORDER             (fo.su, J- ..2..t?   J       2.t7IL/) cA-D

                                 OPINION

      In these two related and joined cases, the Commonwealth has

charged Norman and Marianne Barony with Possession to Deliver a

Controlled Substance, 35 Pa. C.S. 780-113 (a)(30), Criminal Conspiracy to

Possess a Controlled Substance, 18 Pa. C.S.A. 903 (a) (1). and related

offenses. Defendants have filed Omnibus Pretrial Motions, which the

Court partially denied on August 13, 2013, and November 14, 2013. The


                                     1
    August Opinion and Order upheld the constitutionality of a "trash pull" by

    the state police that led to a search warrant in the case. The November

    141 2013 Order dismissed any remaining issue In the Omnibus Pretrial

    Motion. Thereafter the Defendants filed a Motion to Vacate Order,

    asserting that the Commonwealth has not established a sufficient record

to support the dis missal of the outstanding issues. In that Motion, the

Defendants repeated the averments in the original Omnibus Pretrial

Motion and any supplemental Omnibus Pretrial Motion1 and specifically

repeat a challenge to the reliability and credibility of the Confidential

Jnformant, who has now passed away. Also outstanding is Defendant's

Objection to New, Aggravated Crime with Mandatory Minimum Terms,

and a Motion to Declare 42 Pa. C.S.A. 9712 (Sentences for Offenses

Committed With Firearms) and 18 Pa. C.S.A. 7508 (Drug Trafficking

Sentencing and Penalties) Unconstitutional. A Habeas Corpus petition was

filed by new counsel for Marianne Barony. The Court will document

disposition for each of these motions or petitions.

                                          Fscts

         The facts as found from the transcripts of May 30, 2013 and

Februapt-2-8,-2-0l-4-ar.e-as-follows,~·------------------

         Trooper Charles Schaefer of the Pennsylvania State Police (PSP) has

been employed with the PSP since 1995 and has been primarily

investigating drug offenses since January of 1998. The Court has

I
 Although at the time of filing of the Motlon to Vacate Order, It was made only as to
Norman Barony, the Court has extended Its analysis to Marianne Barony as well.


                                            2
 accepted him as an expert witness in the field of drug investigation    and

 identification.   Sometime before August 4, 2011, he began an

 investigation on a Mark Heverly about a marijuana growing operation.

Through that investigation and cooperation of Mr. Heverly, Trooper

 Schaefer received information that Norman Barony ("Defendant"), was

working with Mr. Heverly in this grow operation.

        Trooper Schaefer Investigated the matter further to confirm the

Information he was receiving from his informant. This investigation

included background on the Defendant that Included the Defendant's

residence. Trooper Schaefer consensualized Mr. Heverly by having him

meet with First Assistant District Attorney Jackie Bernard. Attorney

Bernard met with Mr. Heverly on July 27, 2011. She had a direct

conversation with him alone to make a determination about whether he

understood what was being asked of him in terms of acting as a

confidential Informant and having hJs voice recorded and to make sure he

was not being forced or coerced in any way to do so. After speaking with

Mr. Heverly Attorney Bernard was convinced that he was not under the

influence of any substance, was aware of what he was doing, and was

.acting-vo.f.u.mar-i!y.In performing the consensualization as she did,

Attorney Bernard complied with the provisions of the Wire Tap Act.

       Subsequently, telephone conversations were recorded between Mr.

Heverly and the Defendant about the grow operation. Trooper Schaefer

drove around the residence of the Defendant on more than one instance



                                      3
to determine when trash would be put out for pickup. This investigation

was conducted prior to August 4, 2011.    5/30/ 13 Transcript,   pg. 12.

      On August 4, 2011, Trooper Schaefer conducted a trash pull at 127

Pine Street, Tyrone, the Defendant's residence. The Trooper rode on a

Burgmeier's Hauling Truck to perform the trash pull. The trash was put

out along the road on Pine Street, away from the house. The trash was

not out by the road the previous times Trooper Schaefer drove by the

Defendant's house. 5/30/13 Transcript, pg. 14. The trash was pulled by

the Trooper and a Burgmeier employee and was placed separately from

the other trash being collected by the hauling company.

      Trooper Schaefer inspected the trash that was seized from the

Defendant's residence at 127 Pine Street. The trash included a long

marijuana stem, Herbal Clean, and indicia indicating that 127 Pine Street

was the Defendant's residence. S/30( 13 Transcript, pg. 15.

Trooper Schaefer testified that any marijuana you get, whether It Is street

marijuana or marijuana that you grow, has stems in It. However, in the

street or Mexican marijuana the stems are ground up and small. They

usually do not have uniform cuts. The marijuana stem Trooper Schaefer



indicating that came from a plant, thus demonstrating the probable

existence of marijuana plants. 5/30/13 Transcript, pg. 20. Trooper

Schaefer took a pistil from the stem and performed a NIK test on it. The

test changed colors, indicating a positive result for marijuana. The



                                     4
                                                           \)




Herbal Clean Is a substance that can be used to clear out THC from a

person's system If they have to take a drug test. 5/30/13 Transcript, pg.

21. Taken together, the presence of the Herbal Clean and the long

marijuana stem led Trooper Schaefer to believe that the Defendants were

engaged in illegally growing marijuana plants.

      After the trash pull, Trooper Schaefer prepared a search warrant.

In the Affidavit of Probable Cause Trooper Schaefer listed his training and

experience in drug enforcement over the past 16 years in a 17-line

paragraph, including that he had attended a Marijuana Eradication course

that focused on marijuana growing techniques. He referred to the trash

pull and stated, "This officer recovered a marijuana stem. an empty box

of Herbal Clean and lndlcia of occupancy for Norman Baroney (sic) and

Marianne Baroney (sic). This officer was able to field test part of the

marijuana stem using the NIK identification system and same tested

positive for marijuana. This officer also notes that the end of the stem

was longer than stems found in processed marijuana and was clearly cut

at one end. This is of importance as marijuana that is purchased on the

street is generally ground and pressed. This tends to create shorter stems



likely from "home grown" marijuana. This officer also knows through

training and experience that the Herbal Clean Is often used by marijuana

users to clear their systems of THC (Tetra-hydrocannabinol) for urine

tests. This officer knows through training and experience that marijuana



                                      5
growers/users     often maintain a stash of marijuana for their personal use.

This officer also knows that this stash is kept in a location under their

dominion     and control such as their person, residence or securable

outbuildings,    etc." Search Warrant, Com. Ex 1, 5/30/13   hearing. The

premises to be searched was the Barony residence.

         The search warrant was approved by the court on August 5, 2011.

The search warrant was executed on August 6, 2011. As a resu It of the

executed search warrant, nine marijuana plants, growing paraphernalia

and marijuana seeds were found In the Barony's bedroom. The instant

charges were then filed against both the Defendant and his wife, Mrs.

Marianne Barony.

                                   Discussion

         In the Motion to Suppress, which is divided into multiple parts,

Defendants first challenge an illegal aerial search. There was none. They

withdrew this challenge. The Court will address their next challenges in

order.

Motion to Suppress-Illegal Trash Pull

         This was decided separately by the Court in its Order of August 13,

2013. The troopers did not act improperly in conducting the trash pull

The Defendants had abandoned the trash.




                                       6
Motion to Suppress-    False Information    In Affidayit of Probable Cause

      The Defendants allege that false information was included In the

affidavit of probable cause because, they assert, the stem that Trooper

Schaefer found in their trash was not marihuana as defined in 35 P.S.

780-102. They further state that Herbal Clean is not contraband and

should not have been considered by the Court in Its determination of

whether probable cause existed for the search warrant.

      It is hornbook law that 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.
      Here, the issuing authority was presented with more than mere

assertions from the police that they had been told by someone that the

Defendants were growing marijuana. The search warrant application

revealed that the troopers did a trash pull and that "Thls officer recovered

a marijuana stem, an empty box of Herbal Clean and indicia of occupancy

for Norman Baroney (sic) and Marianne Baroney (sic). This officer was able

to field test part of the marijuana stem using the NIK identification

system and same tested positive for marijuana. This officer also notes

that the end of the stem was longer than stems found In processed

marijuana and was clearly cut at one end. This is of importance as

marijuana that is purchased on the street is generally ground and

pressed.   This tends to   create shorter stems   and   uneven edges   at the end



                                        7
                      ')




of the stems. The stem in this case is more likely from "home grown"

marijuana. This officer also knows through training and experience that

the Herbal Clean Is often used by marijuana users to clear their systems

of THC (Tetra-hydrocannabinol) for urine tests. This officer knows

through training and experience that marijuana growers/users often

maintain a stash of marijuana for their personal use. This officer also

knows that this stash is kept in a location under their dominion and

control such as their person, residence or securable outbuildings, etc."

      The Issuing authority was thus presented with the fact that the

troopers had recovered tangible evidence from the Defendants' trash that

they were growing marijuana. A reasonable person would conclude that

there was probable cause to search the Barony's residence for marijuana

plants. Merely because a stem from a marijuana plant is not, standing

alone, defined as marihuana under Title 35 does not mean that it is not

indicia that marijuana is being grown. Further, Just because Herbal Clean

is not contraband does not mean that it Is not indicia of marijuana use.

The Trooper did not state that Herbal Clean was contraband, just that it

was used by marijuana users to cleanse their system of THC. To argue



asserted here borders on frivolity.

Motion to Suppress-Staleness

      The Defendants argue that the evidence of criminal activity was

stale such that probable cause did not exist at the time the warrant was



                                      8
                      )




issued. The trash pull was August 4, 2011. The search warrant was

issued August 5, 2011. There Is nothing about the facts to indicate that

the criminal activity was attenuated by the passage of time.

Motion to Suppress-Insufficient Probable Cause

      The Defendants argue that there was insufficient probable cause

for the issuance of the August 5, 2011 search warrant. The Court

disagrees based on Its analysis above.

Motion to Suppress- Fruits   of the Poisonous Tree
      The Defendants argue that all evidence seized and any statement

given by them should be suppressed because the trash pull was illegal

and the search warrant was based on insufficient probable cause. The

Court disagrees based on its analysis above and in its August 13, 2013

Opinion and Order.

Discovery

      The Defendants made various motions for discovery in their

Omnibus .Pretrial Motion.
                   .
                          These have been resolved through exchange of

discovery.

Habeas Corpus-Marianne Barony



who filed the original Omnibus Pretrial Motion. After getting separate

counsel, Marianne Barony filed a Habeas Corpus. However, she had

waived the preliminary hearing with counsel. As such, she is not entitled




                                     9
to later challenge the sufficiency of the evidence, as set out in Pa Rule of

Crim. Proc. 541 (A) and (C).

Defendant's Objection to New, Aggravated Crime with Mandatory

Minimum Terms and Motion to Declare 42 Pa. C.S.A. 9712 (Sentences for

Offenses Committed With Firearms) and 18 Pa. C.S.A. 7508 (Drug
Trafficking Sentencing and Penalties} Unconstitutional.

      The Court notes that this Court en bane has held that the

mandatory minimum sentencing laws that involve fact finding by the

Court rather than the jury and a lesser burden of proof than beyond a

reasonable doubt have been rendered unconstitutional by the decision in

Alleyne v un;ted States,   133 5. Ct 2151, 186 L.Ed. 2d 314 (2013).

Furthermore, our Superior Court has held recently in Commonwealth v

Newman, 2014 Pa Super 178, that Alleyne does indicate that the

sentencing practice under Section 9712.1 ts unconstitutional.    Therefore,

to the extent that the above Motions challenge matters the courts have

found to be unconstitutional, they are granted.

                                  Conclusion

      Based on the foregoing, the following Order is appropriate this 28th



      The Defendants' Motions to Suppress found in their Omnibus

Pretrial Motion are denied and dismissed. Marianne Barony's Petition for

Writ of Habeas Corpus is denied and dismissed. To the extent that the

above Motions challenge sentencing schemes the courts have found to be



                                      10
unconstitutional, they are granted. The Court knows of no outstanding

discovery matters. The cases are placed back on the trial list.



                                      BY THE COURT:




                                     11
