J-S54011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JESSE MILLER

                            Appellant                   No. 491 MDA 2014


           Appeal from the Judgment of Sentence February 14, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0002645-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                          FILED SEPTEMBER 26, 2014

        Jesse Miller appeals from the judgment of sentence imposed by the



two counts of persons not to possess firearms,1 three counts of possession

of a controlled substance,2            and two   counts of   possession of drug

paraphernalia.3 Upon our review, we affirm.

        The facts of this matter are as follows:

        On May 20, 2013, adult Probation Officer, (APO) Carlo DeAngelo
        received information from a known source indicating [Miller] was
        in possession of a firearm and that he was selling cocaine.
        [Miller] had multiple theft charges in Berks County, a retail theft
____________________________________________


1
    18 Pa.C.S. § 6105(a)(1).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).
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      out of Franklin County, and a prior burglary from 2008 at the
                                           known source explained to
      DeAngelo that [Miller] kept a firearm in a locked safe that he
      moved between his apartment and his vehicle. The known
      source also told DeAngelo that [Miller] was selling cocaine
      between Reading and Franklin County. Due to the specifics of
      the allegations, a pre-


      On May 21, 2013, APO DeAngelo and APO Michael Futrick went
      to 211 West Douglass Street, Apartment 2D, Reading
      Pennsylvania, to conduct the pre-
      apartment and vehicle. Officer Fleming of the Reading Police
      Department was contacted prior to the execution of the search
      due to the possibility that a firearm may be present. Once at
      211 West Douglass Street, [Miller] co
      entry of the apartment, whereupon he was immediately
      handcuffed for safety reasons. DeAngelo asked [Miller] if there
      were any drugs or firearms in the apartment, and [Miller] stated
      that there was not. While handcuffed, [Miller] was searched.

      car keys, and another key ring in his right front pocket. The
      officers then searched the apartment. During the search of the
      apartment, Futrick found a locked safe, which the officers then

      safe was opened, two revolvers with ammunition were removed
      from inside of the safe.

      Following the search of the home, officers then searched
                                          the search, officers found
      several containers of baggies, a digital scale, a sunglass case
      that contained a white chunky substance, a small amount of
      powdery substance and two pills. All items discovered in the
      search of the residence and vehicles were then turned over to
      Officer [Thomas] Fleming [of the Reading Police department].
      Both of the recovered firearms were found to be functional by
      Officer Fleming. The white powdery substance seized . . . tested
      positive for cocaine.

Trial Court Opinion, 4/28/14, at 2-3.




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      On May 21, 2013, Officer Fleming filed a criminal complaint against

Miller based on the aforementioned search. Following a preliminary hearing,

Miller was formally arraigned on July 3, 2013.

      Prior to trial, Miller filed an omnibus pretrial motion on September 27,

2013, which included a motion to suppress evidence obtained during the

search of his residence and vehicle.   Following a hearing on November 4,



      A stipulated bench trial followed on February 14, 2014, after which the

court convicted Miller of the above-referenced offenses.          Sentencing

occurred on the same day and Miller received an aggregate sentence of



timely appeal followed.

      On appeal, Miller argues that APO DeAngelo did not have reasonable

suspicion to search his residence and vehicle and, as such, the court erred in

denying his suppression motion. Our standard of review for the denial of a

suppression motion is as follows:

      [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. We are bound by facts supported by the record and may
      reverse only if the legal conclusions reached by the court below
      were erroneous.

Commonwealth v. McAliley, 919 A.2d 272, 275-76 (Pa. Super. 2007)

(citation omitted).

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findings of fact are based on evidence in the record.       Accordingly, we

proceed to examine the legal conclusions drawn from the facts.

     The Fourth Amendment of the United States Constitution protects



                                                                  supported

by probable cause. U.S. Const. Amend. IV. A probationer, however, has a

diminished expectation of privacy under the Fourth Amendment of the

United States Constitution and also under Article 1, Section 8 of the

Pennsylvania Constitution.       See Commonwealth v. Williams, 692 A.2d

1031, 1039 (Pa. Super. 1997). Warrantless searches of supervised persons

and their property may occur if:

     (2) A property search may be conducted by an agent 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.

     ...

     (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.

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          (iv) Information provided by the offender.

          (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.

61 Pa.C.S. § 6153(d)(2), (3), (6) (emphasis added).

                                                     of real property, vehicle or

personal property which is in the possession or under the control of the




experience and specialized training to make inferences from and deductions

                                                            See Commonwealth

v. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008).             Reasonable suspicion

may arise from information provided by third parties, including tips from

citizens. See Commonwealth v. Barber, 889 A.2d 587, 593 (Pa. Super.

2005).

        Instantly, the suppression court concluded that the search in this

matter was reasonable because APO DeAngelo possessed the requisite

reasonable suspicion to conduct a search of Miller and his property. The trial

court    reasoned   that   although   evidence   relating   to   all eight   factors

enumerated in section 6153(d)(6) was not presented, a need existed to

                                                        probation in light of the

information provided by the known informant.           Miller contends this was

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insufficient to establish reasonable suspicion because APO DeAngelo relied

on a tip from an unverified informant. We disagree.



is an indicia of reliability attached to the tip, because the informant has

placed himself or herself at risk for prosecution for giving false information

to the police if the tip               Commonwealth v. Altadonna, 817 A.2d

1145, 1152 (Pa. Super. 2003) (citation omitted); see also Commonwealth

v. Hayward, 756 A.2d 23, 34 (Pa. Super. 2000).              Here, APO DeAngelo

testified that the informant in question had identified him or herself to him.

N.T. Suppression Hearing, 11/4/13, at 4.             Miller further argues that

DeAngelo should have investigated the allegations in order to corroborate

the anonymous tip.         However, it is not necessary for probation officers to

observe personally an appellant engaging in illegal activity or suspicious

conduct in order to form reasonable suspicion.         See Commonwealth v.

Wright, 672 A.2d 826, 830 (Pa. Super. 1996) (officers may rely upon

information from third parties to form reasonable suspicion).

      Based upon the totality of the circumstances, the suppression court

correctly determined that APO DeAngelo possessed reasonable suspicion to



                                                    ons, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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