J-S04008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEON EUGENE HORST                          :
                                               :
                       Appellant               :   No. 1460 MDA 2018

        Appeal from the Judgment of Sentence Entered August 1, 2018
     In the Court of Common Pleas of Lebanon County Criminal Division at
                       No(s): CP-38-CR-0002085-2017


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 13, 2019

       Appellant, Leon Eugene Horst, appeals from the judgment of sentence

entered following his conviction of possession of methamphetamine with

intent to deliver and possession of methamphetamine.1 We affirm.

       The trial court summarized the facts and procedural history as follows:

            On September 29, 2017, State Police Troopers proceeded to
       [Appellant’s] residence in order to serve an arrest warrant upon
       [Appellant]. [Appellant] was not present. However, police did
       encounter [Appellant’s] wife, Amanda Sue Horst [(“Wife”)].
       Trooper Shadi Johnson asked [Wife] if police could search the
       premises in order to locate [Appellant].        [Wife] gave her
       permission for such a search.

             Trooper Johnson described [Appellant’s] property as “pretty
       big.” It included several garages. [Wife] told Trooper Johnson
       that the garages were “[Appellant’s] space.” She indicated that
       she did not enter those garages. However, she possessed keys to
       the garages.
____________________________________________


1   35 P.S. §§ 780-113 (a)(30) and 780-113(a)(16), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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           The troopers obtained written consent from [Wife] to search
     the residence, garages and shed located at the Horsts’ jointly
     possessed property. Thereafter, Trooper Johnson remained with
     [Wife] while other troopers conducted the search.

            Corporal Scott Fidler was the ranking officer on scene when
     police attempted to execute the arrest warrant. Corporal Fidler
     testified that [Wife] provided keys to a two-car garage located on
     the Horst property. In the process of looking inside the garage
     for [Appellant], Corporal Fidler observed numerous items in plain
     view that he described as “paraphernalia” and items “consistent
     with drug packaging.” Based upon what he observed in plain view,
     Corporal Fidler made the decision to seek a search warrant.

            Following the issuance of a search warrant, police conducted
     a more extensive search of the garage. They located plastic
     baggies, 300 grams of methamphetamine, 17 guns, body armor,
     digital scales, $20,000 in cash, glass smoking pipes, gas masks,
     torches and other items consistent with the manufacturing of
     methamphetamine.         Based upon what the police located,
     additional charges were lodged against [Appellant].

           On January 2, 2018, [Appellant] filed a Motion for
     Suppression of Evidence. [Appellant] argued that police did not
     have valid consent to search the garage area and that the
     subsequently[]obtained search warrant was not supported by
     adequate probable cause. We conducted a hearing regarding
     [Appellant’s] Motion to Suppress on April 4, 2018. Following a
     hearing, we issued a Court Order to deny [Appellant’s] Motion to
     Suppress.

            [Appellant’s] case was called to [c]ourt during the June
     2018 term of Criminal Jury Trials. [Appellant] was convicted of all
     counts. On Docket 2084-2017, we imposed a sentence of five (5)
     to ten (10) years in a State Correctional Facility. We also declared
     [Appellant] to be RRRI eligible. On Docket 98-2018, we imposed
     a sentence of one (1) to two (2) years in a State Correctional
     Facility to be served concurrent to Docket 2084-2017. Finally, on
     Docket 2085-2017, we imposed a sentence of one (1) to two (2)
     years to be served consecutive to the sentence imposed on Docket




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       2084-2017.[2] Thus, the aggregate sentence we imposed upon
       [Appellant] on August 1, 2018 was six (6) to twelve (12) years in
       a State Correctional Facility.

Trial Court Opinion, 10/10/18, at 2-4 (internal citations to the notes of

testimony omitted). Appellant filed a timely notice of appeal.3 Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following single issue for our review:

          1. Whether the trial court erred in denying Appellant’s motion
             to suppress where testimony was given at the pretrial
             hearing that valid consent to search was not given?

Appellant’s Brief at 4.

       The standard of review an appellate court applies when considering an

order denying a suppression motion is well established. “On review from an

order suppressing evidence, we ‘consider only the evidence from the

defendant’s witnesses together with the evidence of the prosecution that,

when read in the context of the entire record, remains uncontradicted.’”


____________________________________________


2  The one-to-two-year term of imprisonment at Docket Number CP-38-CR-
0002085-2017 was imposed for Count I, delivery of methamphetamine. The
trial court deemed Count II, possession of methamphetamine, to merge with
Count I for purposes of sentencing, and it imposed no further penalty.

3  The Commonwealth, in its brief, asserts that from review of Appellant’s
dockets, it appears “some of the initial charging documents were filed
incorrectly. They appear to have been flipped.” This has no relevance to the
issues raised on appeal.” Commonwealth’s Brief at 2 n.1. We note that
Appellant has appealed, and this case involves, Appellant’s judgment of
sentence of one to two years of imprisonment related to Docket Number CP-
38-CR-0002085-2017 only, which the trial court ordered to be served
consecutively to the sentence imposed on Docket Number CP-38-CR-
0002084-2017.

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Commonwealth v. Johnson, 202 A.3d 125, 127 (Pa. Super. 2019). “This

Court is bound by the factual findings of the suppression court where the

record supports those findings and may only reverse when the legal

conclusions drawn from those facts are in error.”       Commonwealth v.

Haynes, 116 A.3d 640, 644 (Pa. Super. 2015). Because the Commonwealth

prevailed in the suppression court, we consider only the Commonwealth’s

evidence   and   the   evidence   presented   by   Appellant   that   remains

uncontradicted. Commonwealth v. Smith, 77 A.3d 562, 568 (Pa. 2013).

Additionally, we may consider only the evidence presented at the suppression

hearing. In re L.J., 79 A.3d 1073, 1085–1087 (Pa. 2013).

     Appellant asserts that police did not have valid consent to search.

Appellant’s Brief at 8.   Appellant maintains that Wife never gave verbal

permission to search the premises. Id. at 10. Appellant posits that Wife’s

consent was invalid “because it was a mere acquiescence to the overwhelming

police presence.” Id. at 12. Appellant cites Commonwealth v. Melendez,

676 A.2d 226 (Pa. 1996), and suggests that, similar to the appellant in that

case, Wife “had no choice but to acquiesce to the search.” Id. at 15–16. As

explained infra, Appellant is wrong on every point asserted.

     The determination of whether consent to search is voluntarily given

involves examination of a number of factors, for example: 1) the presence or

absence of police excesses; 2) whether police directed the citizen’s

movements; 3) police demeanor and manner of expression; 4) the location of


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the search; 5) the content of the questions and statements; and 6) whether

the citizen has been informed that he is not required to consent to the search.

Commonwealth v. Powell, 994 A.2d 1096, 1102 (Pa. Super. 2010) (quoting

Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (en

banc)).   Moreover, “one’s knowledge of his or her right to refuse consent

remains a factor in determining the validity of consent ...” and whether the

consent was the “result of duress or coercion.” Smith, 77 A.3d at 573.

      Our review of the record reflects that the instant search was not

conducted pursuant to any type of detention, and it was consensual.

Specifically, testimony at the suppression hearing indicated that Pennsylvania

State Police Trooper Shadi Johnson and Corporal Scott Fidler went to

Appellant’s residence with an arrest warrant for Appellant on the morning of

September 27, 2017. Wife answered the door and indicated Appellant was

not present and in fact, had not been there for one or two days. N.T., 4/4/18,

at 5, 21. Regarding Appellant’s claim that Wife never gave verbal permission,

Trooper Johnson testified that he asked Wife if police could search the

premises for Appellant, and Wife “said we could.” Id. at 6. Wife, herself,

testified that she allowed police to search for Appellant when they asked

permission. Id. at 35. Wife never testified that her will was overborne or that

she was intimidated. Both Trooper Johnson and Corporal Fidler testified that

they told Wife she did not have to give consent to search. Id. at 18, 24.




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      Trooper Johnson testified that when he asked Wife if police could search

for Appellant in the locked detached garage, Wife said yes. Id. at 6. Trooper

Johnson also testified that Wife signed a consent form to search, which she

read herself and which the trooper also explained. Id. at 6–7. Corporal Fidler

testified that when police asked Wife if they could search for Appellant in the

locked garage, Wife produced the keys.         Id. at 21–22.     Wife testified

consistently and stated, “They [police] asked if I had keys to the garage, and

I did. They asked if they could have it. I gave it to them.” Id. at 36. Corporal

Fidler explained that in the course of searching the garage for Appellant, the

trooper observed a vacuum sealer, items consistent with drug packaging, a

money counter, a gas mask, a pipe he knew “through [his] training and

experience is associated with crystal meth,” and other drug paraphernalia.

Id. at 22, 25, 26. For this reason, the corporal drew the conclusion that “[t]he

garage was associated with a larger scale trafficking investigation,” and he

then sought a search warrant for the location. Id. at 26. At the suppression

hearing, defense counsel agreed that a third state trooper, who was searching

for Appellant in the garage, “would have been in position to view those

contraband items in plain view.” Id. at 33.

      The trial court determined “as a finding of fact that [Wife] was not

coerced into providing consent and that her consent was in fact voluntary.”

Trial Court Opinion, 10/10/18, at 6. We are mindful that it is the sole province

of the suppression court to weigh the credibility of the witnesses, and it is


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entitled   to   believe   all,   part   or   none   of   the   evidence   presented.

Commonwealth v. Haslam, 138 A.3d 680 (Pa. Super. 2016) (citing

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)). Our

review of the record, as described above, reflects that Wife provided a

voluntary verbal consent to the search of the house and garage in the police

effort to locate Appellant following a non-coercive discussion with Trooper

Johnson; Wife voluntarily signed a police form giving consent; unlike in

Melendez, police herein informed Wife that she did not have to consent; and

Wife was not coerced into giving police the keys to the garage. The police

activity preceding Wife’s consent was legitimate, no verbal or physical force

was used, and there were no police excesses. Following our review of the

record, the trial court did not err in denying Appellant’s motion to suppress.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/13/2019




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