J-A06034-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                   Appellee                 :
                                            :
                      v.                    :
                                            :
TERRY LEE MCINTYRE,                         :
                                            :
                   Appellant                :     853 WDA 2017

            Appeal from the Judgment of Sentence May 3, 2017
              in the Court of Common Pleas of Clarion County
            Criminal Division at No(s): CP-16-CR-0000199-2016

BEFORE:     BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED APRIL 11, 2018

      Terry Lee McIntyre (Appellant) appeals from the May 3, 2017 judgment

of sentence of 19 to 38 years of incarceration following his jury convictions for

47 drug charges including, inter alia, manufacture of methamphetamine.

Specifically, Appellant challenges 1) the denial of his pre-trial suppression

motion and 2) the trial court’s failure to merge the manufacture of

methamphetamine        with    a   child   present    with    manufacture     of

methamphetamine. We affirm.

            On March 1, 2016, Pennsylvania Board of Probation and
      Parole (PBPP) agents Wetzel and Oliver visited 20 Best Road in
      Rimersburg, Pennsylvania to conduct a home plan investigation of
      the property for a future parolee. Prior to visiting the property,
      the Agents contacted the Clarion County Probation Office for
      background information on the property. At the time, Clarion
      County Probation Officer Blum had an arrest warrant for Natasha
      Anthony, who had absconded from probation. He had obtained
      information from a reliable source indicating that Anthony was


*Retired Senior Judge assigned to the Superior Court.
J-A06034-18


     residing at 20 Best Road with Justin McIntyre. Probation Officers
     Blum and Kerle agreed to accompany Agents Wetzel and Oliver to
     the property to serve as back-up and to arrest Anthony if she was
     found at the property. Officers Blum and Kerle parked on the road
     outside of 20 Best Road to observe the property, while Agents
     Wetzel and Oliver would enter the property first and phone
     Officers Blum and Kerle if they saw Anthony.

           The property consists of several trailers, including a green
     and white trailer, a camper, a shed, a garage, and several parked
     vehicles. The agents knocked on the door of what appeared to be
     the main trailer, but no one answered. As they proceeded back
     to their vehicle, they heard the sound of children yelling, but could
     not identify where the sound originated. Justin McIntyre emerged
     from the area near the green and white trailer and approached
     the agents. McIntyre immediately acted belligerent toward the
     agents, yelling at them to leave the property. Agent Wetzel, who
     had supervised McIntyre in the past, asked him whether his
     current parole agent knew he was at the property. McIntyre said
     he had permission to be on the property, but after calling his
     parole agent, Agent Wetzel learned that McIntyre did not have
     permission to be there.1 McIntyre’s parole agent requested that
     Agents Wetzel and Oliver take McIntyre into custody for violating
     his parole.
           ______
           1 Later, while discussing the home plan with Mary George,

           the owner of the 20 Best Road property, Agent Wetzel
           learned that Justin McIntyre had been staying at the
           property for several days. McIntyre had also stayed in the
           green and white trailer overnight in the past.

            … Agent Oliver observed McIntyre becoming belligerent,
     repeatedly dropping his phone, and appearing somewhat off-
     balance. McIntyre repeatedly put his hand into his pocket, and
     Agent Oliver asked him to keep his hands in view. When McIntyre
     refused, Agent Oliver patted him down and found three knives in
     one pocket and a vial containing white powder residue in another
     pocket. While the timeline of events is unclear, Agents Wetzel and
     Oliver also testified that McIntyre stated that he would test
     positive for methamphetamine at that time. Based on the items
     they had found on his person, as well as the request of his current
     parole agent, Agents Wetzel and Oliver handcuffed McIntyre to
     take him into custody.


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J-A06034-18



            At some point during the interaction with Justin McIntyre,
     Agent Wetzel telephoned Officers Blum and Kerle and requested
     that they enter the property to serve as back-up. Upon entering
     the property, Officer Blum observed [Appellant] reclined in the
     driver’s seat of a van, with [a] woman reclined in the passenger’s
     seat. Both appeared to be unconscious, but not in any type of
     distress. [Appellant] remained unconscious during the various
     officers’ interactions with McIntyre and while Officers Blum and
     Kerle later retrieved Anthony from the green and white trailer.2
            ______
            2 [Appellant] testified that he woke up and heard the

            probation officers loudly kicking the door to the trailer and
            breaking the lock to forcibly enter the trailer. He further
            testified that a uniformed police officer prevented him from
            approaching Officers Kerle and Blum, even after he told the
            officer that they would need a search warrant to enter the
            trailer. The [trial] court does not find this testimony
            credible, in light of the testimony of four law enforcement
            officers that [Appellant] was unconscious during the entire
            interaction with McIntyre. Further, the officers testified that
            no uniformed state police troopers arrived on the scene until
            after Officers Blum and Kerle had retrieved Anthony from
            the trailer and called the local state police barracks for a
            search warrant.

            When the PBPP agents handcuffed him, McIntyre said
     something to the effect of, “If I’m going to jail, she’s going with
     me.” McIntyre then addressed Officers Blum and Kerle and said,
     “the person you’re looking for is in that trailer,” indicating the
     green and white trailer. Officer Blum pointed at the green and
     white trailer and said “that one?” McIntyre confirmed and further
     stated that “Natasha” was in the first bedroom of the trailer. The
     officers approached the trailer, knocked on the door, and
     announced their presence. When there was no response, the
     officers entered the trailer. While there was a padlock on a hook
     on the door, the hinge was not properly aligned with the door, and
     the lock did not actually function to secure the door. The officers
     were able to push the door open without touching the lock.

           Officer Kerle testified that upon entering the trailer, he saw
     three mason jars containing white powder residue and a “bladder”
     from a cold compress on the floor. While approaching the room


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J-A06034-18


      where Anthony was located, he observed a gallon jug with
      “sludge” on the bottom sitting on the trailer floor. Officer Kerle
      recognized   these    items   as   elements      of  a    one-pot
      methamphetamine lab. The officers then found Anthony in the
      room where McIntyre had indicated she would be located and
      placed her under arrest.

             Officers Blum and Kerle reported their observations in the
      trailer by phone to Pennsylvania State Trooper Jared Thomas, who
      applied for a search warrant for the entire 20 Best Road property.
      The search warrant included all trailers, vehicles, residences, and
      other structures on the property. Law enforcement officers
      remained on the property for several hours while waiting for the
      warrant. Once the search warrant was obtained, officers searched
      the entire property, including [Appellant’s] van. [Appellant] was
      passed out in the van at the time. Through the search of the
      property, state police uncovered many other items common to the
      one-pot methamphetamine lab and took statements from others
      on the property implicating [Appellant] in the manufacture of
      methamphetamine.

Opinion and Order, 3/14/2017, at 1-5 (unnecessary capitalization omitted).

Appellant was arrested and charged with 48 counts of drug-related crimes

pertaining to the manufacture of methamphetamine.

      Appellant filed a motion to suppress on August 15, 2016, challenging

the constitutionality of the search at 20 Best Road. Following a suppression

hearing, the trial court denied the motion by order and opinion on October 25,

2016, finding that Appellant did not have a reasonable expectation of privacy

in the property.   Pending trial, new counsel was appointed to represent

Appellant.   Thereafter, Appellant filed an amended motion to suppress on

February 21, 2017, arguing that Appellant had a reasonable expectation of

privacy in the green and white trailer. The trial court again held a suppression



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J-A06034-18


hearing, and denied Appellant’s motion to suppress by order and opinion on

March 14, 2017, finding that although Appellant had a reasonable expectation

of privacy in the trailer, Justin McIntyre consented to the search of the trailer.

      Appellant was convicted following a jury trial and sentenced as indicated

above.1 Appellant timely filed a notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.          Appellant presents the following

questions for our consideration.

      I.    Did the trial court err in denying [Appellant’s] amended
            suppression motion and denying suppression of all further
            evidence collected as fruit of the poisonous tree?

      II.   Did the trial court err in failing to merge [Appellant’s]
            manufacture of methamphetamine charge with the
            manufacture of methamphetamine with a child present
            charge?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      We consider Appellant’s suppression claim mindful of the following.

      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


1 Relevant to this appeal, Appellant was sentenced at count one, manufacture
of methamphetamine, to 60 to 120 months of incarceration. At counts three
and four, manufacture of methamphetamine with a child present, Appellant
was sentenced to 30 to 60 months of incarceration at each count, to run
concurrently with each other, and consecutively to the period of incarceration
imposed for manufacture of methamphetamine.

                                      -5-
J-A06034-18


     supported by the record, we are bound by these findings and may
     reverse only if the court’s legal conclusions are erroneous. Where
     ... the appeal of the determination of the suppression court turns
     on allegations of legal error, 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 court[] below are
     subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

     Appellant argues that the trial court erred in finding that Justin McIntyre

consented, or even had authority to consent, to a search of the trailer.

Appellant’s Brief at 11-17. We do not reach this argument because we affirm

the trial court’s order denying the motion to suppress on another basis.2

     This Court’s decision in Commonwealth v. Muniz, 5 A.3d 345 (Pa.

Super. 2010), is instructive here. In that case, the defendant challenged the

trial court’s denial of his motion to suppress based on the argument that

“because the police’s initial entry into [Muniz’s] apartment … was predicated

solely upon an arrest warrant for Timothy Baldwin, and not upon an arrest

warrant for him or a search warrant for the premises, the search was illegal.”

Id. at 349. Muniz relied on Steagald v. United States, 451 U.S. 204 (1981),

and Commonwealth v. Martin, 620 A.2d 1194 (Pa. Super. 1993) (per

curiam), in support of his argument. The trial court and the Commonwealth


2 This Court may affirm the trial court’s decision on any valid basis.
Commonwealth v. Janda, 14 A.3d 147, 161 n.8 (Pa. Super. 2011).



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J-A06034-18


argued that the underlying facts were more appropriately considered under

the holdings of Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982), and

Commonwealth v. Conception, 657 A.2d 1298 (Pa. Super. 1995).                 This

Court held that the appropriate analysis “harmonized application of all four

cases[.]” Muniz, 5 A.3d at 350.

            Specifically, in Steagald the United States Supreme Court
     addressed the narrow issue of “whether an arrest warrant—as
     opposed to a search warrant—is adequate to protect the Fourth
     Amendment interests of persons not named in the warrant, when
     their homes are searched without their consent and in the absence
     of exigent circumstances.” Steagald, 451 U.S. at 212[]. In that
     matter, the authorities arrived at a location armed with an arrest
     warrant to arrest a fugitive. Prior to entry into the residence, they
     were confronted by the defendant/owner of the residence. The
     authorities explained that they were looking for a fugitive that
     they believed to be in the residence. The defendant/owner stated
     that she did not know the fugitive and denied the authorities entry
     into the residence. Nevertheless, the authorities entered and
     searched the residence, with the mistaken understanding that the
     arrest warrant provided them authority to search the
     residence. As a result of that search, the authorities found
     cocaine, but not the fugitive. The defendant/owner was arrested.

            On appeal, the United States Supreme Court explained the
     difference in the interests protected by arrest warrants and search
     warrants, and held that the arrest warrant naming a person who
     was not the owner of the residence was inadequate to justify the
     search of the defendant/owner’s residence. Absent consent or
     exigent circumstances, the Supreme Court explained that a search
     warrant was required in such a case.

           Over ten years later, in [] Martin,[] this Court issued a per
     curiam opinion, reversing a denial of a suppression motion and
     vacating a judgment of sentence, finding the situation in that
     matter indistinguishable from Steagald. Of importance to both
     the Steagald and Martin decisions was the fact that the rights of
     the third party owner/possessor (and not the subject of the arrest



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J-A06034-18


     warrant) were being considered. In both cases, the evidence
     against the third party owner/possessor was suppressed.

           In the Stanley matter, the Pennsylvania Supreme Court
     considered a similar situation, but that holding focused on the
     rights of the subject of the arrest warrant—not the rights of the
     third party owner/possessor. In Stanley, police received a tip
     that a fugitive was hiding in a woman’s apartment. The police
     proceeded to the apartment, entered the residence and
     apprehended the fugitive. The fugitive challenged the entry into
     the woman’s apartment, but the Court held that based upon the
     information provided in the tip, the police had “reason to believe”
     that the fugitive was within the residence. Stanley relied on the
     United States Supreme Court’s holding in Payton v. New
     York, 445 U.S. 573[] (1980), that police armed with an arrest
     warrant and “reason to believe” that the subject of that warrant
     was within the suspect’s own home could enter the home and
     arrest the suspect without a search warrant. The Stanley Court
     held that an arrestee has even less of a privacy interest in the
     home of another, so he could be arrested there.

           Resolution of the combination of situations occurred in []
     Conception,[] where we considered the Fourth Amendment
     rights of a third party when her residence was entered under the
     mistaken belief that it was also the residence of someone subject
     to an arrest warrant—a factual scenario nearly identical to this
     matter. In Conception the police showed up at the defendant’s
     apartment with an arrest warrant for Robert Vargas and Martin
     Rivera, and a reasonable belief that they lived at the subject
     apartment. Instead of Vargas or Rivera, the defendant opened
     the door, stated that she did not know either man and refused the
     police entry into the premises. Nevertheless, the police forcibly
     entered the apartment and searched the premises for Vargas and
     Rivera. As a result of that search, the police found marijuana in
     plain view. The defendant was consequently placed under arrest.

            On appeal, the defendant in Conception relied on
     Steagald for the position that, notwithstanding the arrest warrant
     for Vargas and Rivera, the police were required to have a valid
     search warrant to search her premises.              However, in
     the Conception decision we distinguished Steagald, explaining
     that in Steagald the police understood the premises to belong to
     a third party. In Conception, however, the police believed the


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J-A06034-18


      apartment to be the residence of one of the subjects of the arrest
      warrant (i.e. Vargas). Therefore, although the individual asserting
      the Fourth Amendment rights in Conception was the third-party
      (as in Steagald), the person being searched for was believed to
      reside at the premises. Under this analysis, we held
      that Stanley was more applicable. Thus, because the authorities
      had a reason to believe that a subject of the arrest warrant lived
      within the premises, they did not need a search warrant to enter
      the premises to search for the suspects.

Id. at 350-51 (some citations and footnote omitted). Following the above

analysis, this Court held that the officers’ entry into Muniz’s apartment was

not illegal.

      Here, the officers had an arrest warrant for Natasha Anthony. A reliable

source informed the officers that she was currently residing at 20 Best Road

with Justin McIntyre. Two parole agents accompanied the officers to 20 Best

Road and encountered a belligerent McIntyre. At the request of his parole

agent, McIntyre was taken into custody. Once handcuffed, McIntyre informed

the parole agents that Anthony was in the first bedroom of the green and

white trailer. The officers knocked on the door of the trailer to execute the

arrest warrant and announced their presence. Receiving no response, the

officers entered the unlocked trailer to apprehend Anthony. En route to the

first bedroom where she was located, Officer Kerle observed several items

that were immediately apparent as elements of a one-pot methamphetamine

lab. After observing these items, the officers contacted the local state police

barracks to apply for a search warrant to search the entirety of 20 Best Road.




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J-A06034-18


      Applying Muniz to Appellant’s case, we find that the entry into the green

and white trailer was not illegal. The officers had a valid arrest warrant for

Anthony, and entered the green and white trailer based on reliable information

that she was residing within. Based upon this reasonable belief and the arrest

warrant for Anthony, the officers had a legal basis to enter the trailer to

execute Anthony’s arrest warrant, and the entry did not violate Appellant’s

Fourth Amendment rights.         Consequently, Officer Kerle observed the

methamphetamine lab items from a lawful vantage point as they were in plain

view while he was executing the arrest warrant, and the items could be used

as the basis for the subsequent search warrant. Accordingly, we find that the

trial court did not err in denying the motion to suppress, albeit for a different

reason. See Commonwealth v. Anderson, 40 A.3d 1245, (Pa. Super. 2012)

(stating that plain view doctrine applies where police observe an item in plain

view from a lawful vantage point, and the incriminating nature of the item is

immediately apparent) (citations omitted).

      We next consider Appellant’s claim that his two convictions of

manufacture of methamphetamine with a child present should have merged

with his single conviction for manufacture of methamphetamine. “Whether

Appellant’s convictions merge for sentencing is a question implicating the

legality of Appellant’s sentence. Consequently, our standard of review is de

novo and the scope of our review is plenary.” Commonwealth v. Baldwin,

985 A.2d 830, 833 (Pa. 2009).


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J-A06034-18


     We begin by examining the merger doctrine.

           § 9765. Merger of sentences

           No crimes shall merge for sentencing purposes unless
           the crimes arise from a single criminal act and all of
           the statutory elements of one offense are included in
           the statutory elements of the other offense. Where
           crimes merge for sentencing purposes, the court
           may sentence the defendant only on the higher
           graded offense.

           42 Pa.C.S. § 9765.

           The statute’s mandate is clear. It prohibits merger unless
     two distinct facts are present: 1) the crimes arise from a single
     criminal act; and 2) all of the statutory elements of one of the
     offenses are included in the statutory elements of the other.

Baldwin, 985 A.2d at 833.

                 When considering whether there is a single
           criminal act or multiple criminal acts, the question is
           not “whether there was a ‘break in the chain’ of
           criminal activity.” The issue is whether “the actor
           commits multiple criminal acts beyond that which is
           necessary to establish the bare elements of the
           additional crime, then the actor will be guilty of
           multiple crimes which do not merge for sentencing
           purposes.”

     Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.[ ]Super.
     2012).

            In determining whether two or more convictions arose from
     a single criminal act for purposes of sentencing, we must examine
     the charging documents filed by the Commonwealth.
     Commonwealth v. Jenkins, 96 A.3d 1055, 1060 (Pa.[ ]Super.
     2014) (holding, consistent with our Supreme Court’s
     jurisprudence, “We must determine whether [defendant’s] actions
     ... constituted a single criminal act, with reference to elements of
     the crime as charged by the Commonwealth.”) (internal quotation
     marks and citation omitted).


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J-A06034-18



Commonwealth v. Martinez, 153 A.3d 1025, 1030–31 (Pa. Super. 2016).

      Appellant argues that “the Amended Information only offers a vague

summary of the offense describing ‘numerous occasions.’ There is no basis

the jury (or the trial court) could find that the allegations, as described in the

Criminal Information, justify the acts as separate and distinct from one

another.” Appellant’s Brief at 20. However, Appellant’s argument ignores the

evidence presented at trial.

      Here, the Commonwealth’s witnesses testified to seeing
      [Appellant] make methamphetamine on several occasions over
      several months, not just on the one occasion when the two
      children were present. Natasha Anthony testified that during the
      time she lived at the McIntyre property “Big Terry[,” Appellant],
      would give her methamphetamine. She knew how to make it.
      She learned from [Appellant]. She watched him make it. She
      saw [Appellant] and two others making methamphetamine every
      day, usually at night.     Natasha Anthony testified she saw
      [Appellant] and others making it and keeping the materials and
      ingredients in the green and white trailer located on the McIntyre
      property. She also stated she had seen [Appellant] manufacturing
      methamphetamine in front of Tonya Barger’s two kids in the little
      brown and white camper. Because the fumes were burning her
      nose, she put a blanket over the little boy’s head to try to protect
      him.      Anthony testified she saw [Appellant] making
      methamphetamine in the gray handicap van, in the brown
      camper[,] and in the green and white trailer. On a couple of
      occasions Tonya Barger was there with the kids.

            Next, Melanie Brink testified that on nine occasions she
      purchased pills used for making meth and gave them to
      [Appellant] and she helped him and saw him crushing the pills.
      She saw Tonya Barger’s children around one time when
      [Appellant] was making meth. She crushed pills to make meth in
      her car and she was in the trailer when others were making it.
      [Appellant] was with her in her car. There was a whole lot of
      shaking going on. She saw processes of making the meth take


                                      - 12 -
J-A06034-18


     place in her car, in the gray handicapped van, the green and white
     trailer, and in the brown camper and [Appellant] was present in
     all of those places helping with the making of meth.

            Tonya Barger testified that [Appellant] is the grandfather of
     her two children. She was living with Derick Fowler for a couple
     months in a camper at the McIntyre property. Her kids are two
     and four years of age. She bought Sudafed to make meth at
     [Appellant’s] request and with money he gave her five times and
     all five times she gave the pills to [Appellant]. He made meth
     with it. She saw meth being made two to three times per week,
     maybe more, and [Appellant] was involved each time. Her
     children were around and [Appellant] was present. In addition to
     this testimony, law enforcement officials testified that they found
     meth making materials in various locations on the McIntyre
     property.

            Since the testimony clearly establishes that [Appellant]
     participated in making methamphetamine on multiple occasions
     and at multiple locations, the jury could have reasonably believed
     that [Appellant] committed this offense many times when it found
     him guilty. If so, the three offenses would not constitute a “single
     criminal act,” regardless of whether one offense is a lesser
     included offense of the other.

Trial Court Opinion, 7/12/2017, at 2-4 (unnumbered) (citations omitted).

     We agree with the trial court.     The charging document states that

Appellant manufactured methamphetamine “on numerous occasions between

the dates of March 16, 2015 [,]and March 16, 2016[,]” Amended Criminal

Information, 2/21/2017, at count 1; and manufactured methamphetamine

with a child present “on numerous occasions[,]” id., at counts 3 and 4. Based

upon the language of the amended criminal information and the evidence

presented at trial, we find that ample evidence existed to support the

conclusion    that   Appellant   committed   multiple,   distinct,   crimes   of



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J-A06034-18


manufacturing methamphetamine, with and without            children present.

Accordingly, we discern no error in the sentences imposed by the trial court.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 4/11/2018




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