J-S49020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

STEVEN ARTHUR SNYDER

                            Appellant                    No. 3069 EDA 2013


         Appeal from the Judgment of Sentence September 19, 2013
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0001691-2012


BEFORE: OLSON, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 13, 2015

       Steven Arthur Snyder appeals from the judgment of sentence imposed

on September 19, 2013, in the Court of Common Pleas of Monroe County. A

jury found Snyder guilty of possession with intent to deliver (PWID),

possession of a controlled substance, possession of drug paraphernalia, and

conspiracy.1      The trial court sentenced him to an aggregate sentence of 22

months to five years’ imprisonment.            Thereafter, the trial court granted

Snyder’s motion for reconsideration of sentence and made him eligible for

the State Motivational Boot Camp program. Snyder presents two questions:

(1) “Did the parole officers have the requisite reasonable suspicion to justify

a warrantless search of the accused’s purported residence and then use the
____________________________________________


1
  35 P.S. § 780-113(a)(30), (a)(16), (a)(32), and 18 Pa.C.S. § 907,
respectively.
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evidence seized as the basis to obtain a search warrant?” and (2) “Whether

the evidence was sufficient to prove all of the elements of possession with

intent to deliver beyond a reasonable doubt where the primary evidence of

such offense was the conclusion of the police detective that the items found

were for ‘redistribution of marijuana’?”. Snyder’s Brief at 5.

       With regard to Snyder’s first issue, the suppression court has

summarized the evidence as follows:

       At the time of the search in November 2011, [Snyder] was on
       probation following a driving under the influence conviction. On
       August 17, 2011 he signed the rules and regulations for
       supervision by the Monroe County Probation Department, which
       included a notification that [Snyder] inform the probation
       department of any changes in residence within 72 hours of the
       change.

       The Monroe County Probation Department received information
       that [Snyder] was not living at the address [Snyder] initially
       provided, but was instead residing at 1127 Mt. Tom Road and
       was in possession of a firearm – both violations of the terms of
       his probation.[2]    On November 30, 2011, Probation Officer
       Bernard Sikora, and two other probation officers, went to
       [Snyder’s] residence. Outside the residence were two vehicles
       and one trailer, all registered to [Snyder]. When the probation
       officers arrived, a woman, looking out a window, asked what
       they were doing. The officers asked her where [Snyder] lived,
       and the woman pointed to the corner apartment. [Snyder] later
       identified the woman as his grandmother.

       When Officer Sikora knocked on the door, [Snyder] opened the
       door to the residence. [Snyder] stated that he did not live
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2
  When Snyder was placed on probation, he had provided an address other
than the Mt. Tom Road address, and indicated that he was living with his
mother. See N.T., 3/4/2013, at 15–16.



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       there, however he turned around and the probation officers were
       able to enter the residence.

       The kitchen area and living room are an open floor plan. Officer
       Sikora requested that [Snyder] show him his room. Off of the
       kitchen, [Snyder] brought Officer Sikora to a bedroom that
       appeared to be a child’s room.

       When asked again where his bedroom was, [Snyder] then
       indicated an area “around back of the kitchen.” When Officer
       Sikora left the kitchen there was a small hallway, and off that
       hallway was a small office and then a bedroom. When Officer
       Sikora entered the hallway, he testified he could smell
       marijuana. Officer Sikora then observed marijuana on top of the
       desk in the office area. [Snyder] was secured in handcuffs and
       the marijuana was also secured. Detective Burns, of the Monroe
       County District Attorney’s Office was called and asked to obtain
       a search warrant for the residence. No further search was
       conducted at that time by the probation officers. The probation
       officers did also note that [Snyder’s] wallet was in the residence
       and there was a carbon copy of a traffic ticket in [Snyder’s]
       name, hanging on the refrigerator.

       A search warrant was subsequently obtained for “The residence
       of Steven A. Snyder located at 1129 Mt. Tom Road, Smithfield
       Township, Monroe County[,] Pennsylvania and all of Steven A.
       Snyder’s vehicle located on said property.” The warrant includes
       a description of the residence.

Suppression Court Opinion, 4/24/2013, at 2–3.

       The suppression court, by order entered April 24, 2013, denied

Snyder’s motion to suppress. Snyder proceeded to trial and was convicted

and sentenced as stated above.           Following the denial of his post sentence

motion, Snyder filed this appeal.3


____________________________________________


3
  Snyder timely complied with the order of the trial court to file a statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).



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     Our standard of review of a trial court’s denial of a pre-trial motion to

suppress evidence is well established:

     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
     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) (citations

omitted).

     Snyder argues the probation officers “did not have the requisite

reasonable suspicion to justify a warrantless search of the premises where

[Snyder] was merely present[.]” Snyder’s Brief at 10. Specifically, Snyder

argues: “Here the probation officers were not investigating any criminal

activity of [Snyder] and he was not engaged in any incriminating conduct at

the time he answered the door.      They were merely trying to determine

whether [Snyder] changed his residence.”      Id. at 14.   Moreover, Snyder

argues a probation officer must have prior approval for a property search.

See id.

     Snyder further claims there were no exigent circumstances, since from

the officers’ position at the doorway no contraband was in plain view. He

also asserts that even though he signed a consent to search as a condition



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of his probation, the probation officer was still required to have reasonable

suspicion.   Id. at 15, citing Commonwealth v. Wilson, 692 A.2d 1031,

1037 (Pa. 1997). Snyder maintains the probation officers were not lawfully

in the premises when they observed and seized the items found in the

apartment. See id. at 15.

      At the time of the search, Officer Sikora was a supervisor with the

Monroe County Office of Probation and Parole.           N.T., 3/4/2013, at 4.

Therefore, Officer Sikora derived his authority from 42 Pa.C.S. § 9122,

“Supervisory relationship to offenders,” which provides, in relevant part:

             (b) Searches and seizures authorized.

             (1)     Officers and, where they are responsible for
                     the supervision of county offenders, State
                     parole agents, may search the person and
                     property of offenders in accordance with the
                     provisions of this section.

                                ****

             (iii)     Nothing in this section shall be construed   to
                       permit searches or seizures in violation     of
                       the Constitution of the United States        or
                       section 8 of Article I of the Constitution   of
                       Pennsylvania.

             (c) Effect of violation. --No violation of this section
             shall constitute an independent ground for
             suppression of evidence in any probation or parole
             proceeding or criminal proceeding.

             (d) Grounds for personal search of offender.

             (1)     A personal search of an offender may be
                     conducted by an agent:


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              (i)         if there is a reasonable suspicion to
                          believe that the offender possesses
                          contraband or other evidence of
                          violations   of  the   conditions  of
                          supervision;

              (ii)        when an offender is transported or
                          taken into custody; or

              (iii)       upon an offender entering or leaving
                          the    securing      enclosure   of  a
                          correctional     institution,  jail or
                          detention facility.

          (2)         A property search may be conducted by an
                      officer if there is reasonable suspicion to
                      believe that the real or other property in the
                      possession of or under the control of the
                      offender contains contraband or other evidence
                      of violations of the conditions of supervision.

          (3)         Prior approval of a supervisor shall be obtained
                      for a property search absent exigent
                      circumstances. No prior approval shall be
                      required for a personal search.

                                           ****

          (6)         The existence of reasonable suspicion to
                      search shall be determined in accordance with
                      constitutional search and seizure provisions as
                      applied by judicial decision. In accordance with
                      such case law, the following factors, where
                      applicable, may be taken into account:

              (i)         The observations of agents.

              (ii)        Information provided by others.

              (iii)       The activities of the offender.

              (iv)        Information provided by the offender.




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                  (v)        The experience of agents with the
                             offender.

                  (vi)       The experience of agents in similar
                             circumstances.

                  (vii)      The prior criminal and supervisory
                             history of the offender.

                  (viii)     The need to verify compliance with the
                             conditions of supervision.

42 Pa.C.S. § 9122(b)(1)(iii), (d)(1)-(3), (6).

       The statute provides that a probation officer may not conduct a search

that   would       violate       a    probationer’s     constitutional   rights.   Id.   at   §

9122(b)(1)(iii). Rather, the officer must have reasonable suspicion that a

probationer possesses contraband or other evidence of a violation of the

terms of his probation before he conducts a warrantless property search. Id.

at § 9912(d)(2). Further, while the statute proscribes a “property search”4 in

the absence of either exigent circumstances or prior approval from a

supervisor, it also states that “[n]o violation of this section shall

constitute an independent ground for suppression of evidence in any

probation     or        parole       proceeding    or    criminal   proceeding.”     Id.      at

9122(c),(d)(3) (emphasis supplied). Accordingly, under the clear terms of

the    statute,    evidence          recovered    during    a   warrantless    search    of   a

____________________________________________


4
  A “property search” is defined as “[a] warrantless search of real property,
vehicle or personal property which is in the possession or under the control
of an offender.” 42 Pa.C.S. § 9911.




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probationer’s person or property is subject to suppression only if the search

was conducted in violation of the probationer’s constitutional rights.

      Here, the suppression court determined that Officer Sikora possessed

reasonable suspicion to search the residence for evidence that Snyder was

living at an unapproved residence, explaining:

           [T]here are a number of [] factors that indicate that the
      probation officers reasonably concluded that, as the
      Pennsylvania State Police said, [Snyder] was residing at the Mt.
      Tom residence[, an unapproved residence].

            In addition to the information from the police [that Snyder
      was not living at the address he initially provided, and was in
      possession of a firearm], three vehicles on the property were
      registered to [Snyder]. Last, when probation officers arrived at
      the Mt. Tom [Road] residence on the day of the search, a
      woman that [Snyder] later identified as his grandmother,
      pointed to the residence in response to the question of “where
      Steven Snyder lived.”

            We conclude from these facts that the probation officers
      had a reasonable suspicion that [Snyder] had committed a
      probation violation in failing to inform the Probation Department
      of any address change, as required by the rules and regulations
      of his probation. It is well settled that warrantless probation
      searches are constitutional based on a probationer’s lessened
      expectation of privacy. Acting upon reliable information from
      Pennsylvania State Police regarding the violation, receiving
      confirmance [sic] of [Snyder’s] residence from [Snyder’s]
      grandmother and the presence of a number of vehicles
      registered to [Snyder] at the property, probation officers
      conducted a lawful warrantless walk-through of the apartment.

             The warrantless search of the residence initiated by
      probation officers was directly related to the suspected probation
      violation.    The probationer provides limited consent to
      warrantless searches by signing the probation agreement.
      Commonwealth v. Williams, 692 A.2d 1031 (Pa. 1997).
      However, a search is only reasonable where the probation


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       officers have a reasonable suspicion that the probationer has
       committed a violation of the rules and regulations of probation
       and the search is reasonably related to the probation officer’s
       duty to assure compliance with the rules and regulations of
       probation.” Commonwealth v. Hughes, 836 A.2d 893 (Pa.
       2003).

             The probation officers in the instant case acted upon
       information from the Pennsylvania State Police that not only was
       [Snyder] residing at an address other than the address provided
       to the probation department, but also that [Snyder] was in
       possession of prohibited firearms. No firearms were located.
       However, the test for reasonable suspicion is not considered
       from the knowledge gained after a search, but rather considers
       the information known to officers at the time of the initiated
       search. At the time of the search, the officers had reliable
       information that required a home visit to determine whether
       there were firearms in the residence and determine whether
       [Snyder] was residing at the Mt. Tom [Road] address.

Suppression Court Opinion, 4/24/2013, at 4–6.

       We agree with the above sound analysis.      Applying the factors set

forth in Subsection 9122(d)(6) to the facts of this case, we find the record

supports the suppression court’s determination that Officer Sikora had

reasonable suspicion that warranted the search of the residence. Therefore,

we reject Snyder’s claim to the contrary.

       Further, Snyder argues the search warrant authorized the search of

the wrong apartment, and, as such, was invalid.5          However, Snyder’s

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5
   The suppression court noted Snyder had not raised the issue in his
suppression motion, but rather had raised the issue in his brief in support of
the motion. Despite Snyder’s failure to include the argument in the motion
to suppress, the court addressed the issue, and this Court will also do so,
since the issue was considered by the court in denying the motion. See
Suppression Court Opinion, 4/24/2013, at 6.



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argument ignores the fact that, although the warrant was issued for 1129

Mt. Tom Road, as opposed to 1127 Mt. Tom Road, the warrant included a

detailed description of the residence to be searched, and “[a]ll descriptions

of the searched residence at 1127 Mt. Tom Road corroborate [the warrant’s]

description of the residence.” 6 Suppression Court Opinion, 4/24/2013, at 7.

As such, no relief is due on this claim. See Commonwealth v. Belenky,

777 A.2d 483, 487 (Pa. Super. 2001) (incorrect address did not invalidate

warrant where description in the affidavit matched appellant’s apartment in

every other respect and did not affect ability to identify the premises to be

searched).

       Accordingly, we conclude Snyder’s challenges to the denial of his

suppression motion present no basis upon which to disturb the decision of

the suppression court.

       The final argument raised by Snyder is as follows:

       The evidence was insufficient to prove all of the elements of
       possession with intent to deliver beyond a reasonable doubt
       where the primary evidence of such offense was the conclusion
       of the police detective that the items found were for
       redistribution.



____________________________________________


6
 “The application state[d], ‘the residence is an apartment on the left side of
a two story beige or yellowish house. The apartment has a screened in
porch with a white door leading to the apartment.’ [Application for Search
Warrant, 11/30/11].” Suppression Court Opinion, 4/24/2013, at 7.




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Snyder’s Brief at 16.         As such, Snyder is contending the Commonwealth

failed to prove the element of intent to deliver the marijuana found at his

residence.

       Snyder’s Rule 1925(b) statement, however, only includes a sufficiency

challenge with regard to the element of actual physical or constructive

possession, and a challenge to the court’s evidentiary ruling in qualifying the

Commonwealth’s witness to testify as an expert.7 We further note that the

trial court’s opinion did not address the issue of sufficiency of the evidence

with regard to the element of intent to deliver.     See Trial Court Opinion,

12/18/2013.      Therefore, we conclude that Snyder’s final issue has been

waived.8

       Accordingly, we affirm.

       Judgment of sentence affirmed.


____________________________________________


7
  See Snyder’s Pa.R.A.P. 1925(b) Statement, 11/25/2013 (“[T]here was no
evidence that [Snyder] was in actual physical or constructive possession of
any of the controlled substances and contraband and/or currency found in
the apartment occupied by his girlfriend and not [Snyder]. The court also
erred in allowing a detective from the Monroe County Drug Task Force to
testify as an expert.”).
8
   In any event, this argument is meritless.        See Commonwealth v.
Watley, 81 A.3d 108, 114 (Pa. Super. 2013) (noting standard of review of
sufficiency claim requires that appellate court view the evidence admitted at
trial, and all reasonable inferences drawn therefrom, in a light most
favorable to the Commonwealth as verdict winner; recognizing expert
testimony, while not necessary, “can be beneficial”), appeal denied, 95 A.3d
277 (Pa. 2014).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2015




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