J-S65011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN AMIR HARRIS

                            Appellant                No. 2915 EDA 2013


            Appeal from the Judgment of Sentence October 2, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004630-2012


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED JANUARY 23, 2015

        Appellant, Shawn Amir Harris appeals from the judgment of sentence

entered by the Honorable Kevin F. Kelly, Court of Common Pleas of

Delaware County. After careful review, we affirm the trial court’s denial of

Harris’s motion to suppress evidence, but vacate the judgment of sentence

and remand for re-sentencing.

        As we write primarily for the parties, who are familiar with the

circumstances of this matter, we will set forth only so much of the factual

and procedural history as is necessary to address the issue on appeal.

Harris, who at relevant times was on parole pursuant to a prior drug

trafficking conviction, was seen in a high crime area of the City of Chester by
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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his parole officer, Scott Peterson. Peterson, his partner, and his supervisor

spoke with Harris, and informed Harris that they were going to perform a

compliance check of Harris’s residence pursuant to the terms of his parole

agreement. See N.T., Suppression Hearing, 1/30/13, at 30-35, 59-60.

      The   agents   drove   Harris   to   his   residence,   unrestrained,   and

accompanied Harris into his home. See id., at 60-61. While inside, Agent

Peterson observed, in plain sight, plastic baggies that he recognized through

his training as paraphenalia in furtherance of drug trafficking.     See id., at

62-63. At this point, he handcuffed Harris and searched the room, locating

packaged cocaine, unpackaged cocaine, a scale, and empty baggies.             See

id., at 63-64.

      Harris subsequently filed a motion to suppress the evidence found in

Agent Peterson’s search.     The trial court denied the motion, and Harris

proceeded to a stipulated bench trial before Judge Kelly. At the conclusion

of testimony, the trial court convicted Harris of possession of eighty-four and

one half ounces of cocaine with intent to deliver.              The trial court

subsequently applied the mandatory minimum sentence found in 18

Pa.C.S.A. § 7508 and sentenced Harris to a term of incarceration of 5 to 15

years. This timely appeal followed.

      On appeal, Harris raises only a single issue for our review.        Harris

contends that the trial court erred in denying his motion to suppress the




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evidence found pursuant to Agent Peterson’s search of his residence.      Our

standard of review is well-settled.

      [W]e are 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 the
      evidence of the witnesses offered by the prosecution, as verdict
      winner, and only so much of the defense evidence that remains
      uncontradicted when read in the context of the record as a
      whole.

Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)

(citation omitted). “Moreover, if the evidence supports the factual findings

of the suppression court, this Court will reverse only if there is an error in

the legal conclusions drawn from those findings.” Commonwealth v.

Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010) (citation omitted).

      We conclude that Commonwealth v. Smith, 85 A.3d 530 (Pa. Super.

2014), which also involved Agent Peterson, is directly on point and controls

this issue.    In Smith, Agent Peterson performed a compliance check on a

parolee.      During this check, Agent Peterson noticed the smell of unburnt

marijuana emanating from the basement. The Smith panel held that, upon

smelling the marijuana, Agent Peterson developed “the requisite reasonable

suspicion to conduct a search for the marijuana.” Id., at 537. The panel

found that the ‘plain view’ doctrine rendered the search permissible, as

Agent Peterson was lawfully inside the parolee’s home, and the incriminating

nature of the smell emanating from the basement was immediately

apparent. See id.


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      Here, once again, Agent Peterson was lawfully inside Harris’s residence

pursuant to a parole compliance check.        While inside, Agent Peterson

observed the plastic baggies that his training and experience informed him

were used in the narcotics trade. At this point, Agent Peterson developed

the requisite reasonable suspicion to conduct a search for narcotics that may

be in the residence. We therefore conclude that Harris’s sole issue on appeal

merits no relief.

      We note, however, that this Court has recently held that 18 Pa.C.S.A.

§ 7508 is facially invalid pursuant to the Supreme Court of the United

States’s decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013). See Commonwealth v. Fennell, ___ A.3d

___, 2014 WL 6505791 (Pa. Super. Nov. 21, 2014). Furthermore, this issue

cannot be waived, and we may raise it sua sponte. See Commonwealth v.

Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) (holding that

violations of Alleyne could not be waived).       We therefore vacate the

judgment of sentence in its entirety and remand for re-sentencing.       See

Commonwealth v. Goldhammer, 517 A.2d 1280, 1283-1284 (Pa. 1986).

      Conviction affirmed. Judgment of sentence vacated, and remanded for

re-sentencing. Jurisdiction relinquished.

      Judge Platt joins in the memorandum.

      Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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