J-S38029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

MICHAEL HOLLY

                          Appellant                No. 2022 MDA 2014

           Appeal from the Judgment of Sentence October 17, 2014
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0000108-2014

BEFORE: WECHT, MUSMANNO, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                    FILED DECEMBER 10, 2015

        Appellant, Michael Holly, appeals from the judgment of sentence

entered October 17, 2014 for his convictions of two counts of unlawful

possession of a controlled substance.1 Upon review, we affirm.

        Appellant was charged with, inter alia, possession of cocaine and

possession of heroin. On September 3, 2014, Appellant moved to suppress

“all drugs and drug paraphernalia and statements of [Appellant]” that were

obtained as a result of using the key fob taken from Appellant’s person

during “illegal searches” by State Parole Officer (PO) Michael Welsh.

Appellant’s Motion to Suppress Evidence, 9/3/14, at 23. The trial court held

a suppression hearing on September 17, 2014, at which the Commonwealth

presented the testimony of Officer Anthony Fiore and PO Welsh.



1
    35 P.S. § 780-113(a)(16).

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        Based on the testimony given at the suppression hearing, the trial

court denied Appellant’s motion to suppress.       The case proceeded to trial

following which a jury convicted Appellant of two counts of unlawful

possession based on the cocaine and heroin found in the Hyundai that PO

Welsh accessed after taking a key fob from Appellant’s person that allowed

entry into the vehicle.2 The trial court sentenced Appellant to an aggregate

term of incarceration of twenty-eight to fifty-six months in a state

correctional institution along with costs totaling $100.     Trial Court Opinion

(TCO), 5/15/15, at 1. Appellant timely filed a post-sentence motion, which

the trial court denied on October 30, 2014.

        On November 28, 2014, Appellant timely filed a notice of appeal and,

subsequently, complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

statement. In his Rule 1925(b) statement, Appellant alleged, inter alia, that

the trial court erred in denying his motion to suppress because neither

Officer Fiore’s Terry3 stop nor PO Welsh’s personal and property search of

Appellant were based on reasonable suspicion.         Appellant’s Rule 1925(b)

Statement, 2/18/15, at 1.

        In its Pa.R.A.P. 1925(a) opinion, the trial court found that both Officer

Fiore’s Terry stop and PO Welsh’s search of Appellant’s person and property

were based on reasonable suspicion. TCO, 5/15/15, at 7-13. The trial court


2
  The jury acquitted Appellant of possession with intent to deliver cocaine
and of possession with intent to deliver heroin. 35 P.S. § 780-113(a)(30).
3
    Terry v. Ohio, 392 U.S. 1 (1968).

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held that PO Welsh “properly exercised his authority as a parole officer” in

searching Appellant’s person, because “Appellant was running from the area

of a reported mob of people some of whom may have been armed” and

because “[o]nce PO Welsh discovered Appellant was under state supervision

the actions of Appellant and [the circumstances] surrounding the encounter

provided enough reasonable suspicion to pat him down pursuant to 61

Pa.[]C.S.A. §[]6153(d).” Id. at 12-13.

         On appeal, Appellant raises three issues for our review:

    I.     Whether the trial court erred in denying Appellant’s
           suppression motion where police officers conducted a
           suspicionless investigative detention and Terry frisk of
           Appellant and parole officers conducted a suspicionless
           personal and property search of Appellant in violation of
           Article I, Section 8 of the Pennsylvania Constitution and the
           Fourth Amendment to the United States Constitution?

   II.     Whether the trial court erred in denying Appellant’s Post-
           Sentence Motion for Modification of sentence where
           Appellant’s sentence is excessive and unreasonable in light of
           Appellant’s rehabilitative needs as the punitive measures
           inherent in the sentencing scheme could have been
           accomplished by the imposition of a lesser sentence?

   III.    Whether the trial court erred in denying Appellant’s Post-
           Sentence Motion for Arrest of Judgment where Appellant’s
           convictions were against the weight of the evidence so as to
           shock one’s sense of justice as Appellant was never shown to
           have possessed the controlled substances in question?

Appellant’s Brief at 8.

         Where a trial court denies a motion to suppress,

         An appellate court’s standard of review in addressing a challenge
         to a trial court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by the
         record and whether the legal conclusions drawn from those facts
         are correct. [Because] the prosecution prevailed in the
         suppression court, 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

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      as a whole. Where the record supports the factual findings of
      the trial court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Smith, 85 A.3d 530, 534 (Pa. Super. 2014).                 Our

Supreme Court has clarified that the scope of appellate review is limited to

the evidence produced at the suppression hearing—not the entire record. In

the Interest of L.J., 79 A.3d 1079 (Pa. 2013).

      Article I, § 8 of the Pennsylvania Constitution and the Fourth
      Amendment to the United States Constitution both protect the
      people from unreasonable searches and seizures. Jurisprudence
      arising under both charters has led to the development of three
      categories of interactions between citizens and police. The first,
      a “mere encounter,” does not require any level of suspicion or
      carry any official compulsion to stop or respond. The second, an
      “investigative detention,” permits the temporary detention of an
      individual if supported by reasonable suspicion. The third is an
      arrest or custodial detention, which must be supported by
      probable cause.

Commonwealth       v.   Lyles,   97   A.3d   298,   302   (Pa.   2014)   (citing

Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003)).

      Mindful of our standard of review, and after a careful reading of the

record and analysis of the applicable law, we agree with the well-reasoned

conclusions of the trial court and adopt its May 15, 2015 Rule 1925(a)

opinion as the decision of this Court.     We direct that a copy of the trial

court’s May 15, 2015 Rule 1925(a) opinion be attached to any future filings

in this case.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/2015




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