J-A27005-15

                              2015 PA Super 258


COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

MARK COLEMAN,

                         Appellant                 No. 1839 WDA 2014


             Appeal from the Judgment of Sentence June 3, 2014
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0004456-2013

BEFORE: BOWES, OLSON, AND STABILE, JJ.

OPINION BY BOWES, J.:                          FILED DECEMBER 14, 2015

      Mark Coleman appeals from the judgment of sentence of five to ten

years incarceration to be followed by five years probation after a jury found

him guilty of two counts of possession with intent to deliver (“PWID”), and

one count each of possession of a controlled substance and possession of

drug paraphernalia. After careful review, we reverse.

      On December 17, 2012, State Parole Agent Thomas Pekar received an

anonymous telephone call from a woman claiming that Appellant was one of

the largest drug sellers in the West View, Allegheny County area and had

received a driving under suspension citation.     One of the conditions of

Appellant’s parole was that he report any contact with police to his parole

officer.   Agent Pekar confirmed that Appellant had received a citation for
J-A27005-15



driving with a suspended license.    Appellant had not informed his parole

officer of that citation.

      Previously, Appellant had contacted a prior parole agent to change his

address.    Appellant provided that he was going to reside at 102 Center

Avenue, West View, Pennsylvania.      He completed Pennsylvania Board of

Probation and Parole Form 348 on November 19, 2012, acknowledging that

he would be living at the 102 Center Avenue address.       Appellant’s parole

officer, Agent Pekar, had attempted on approximately three occasions to

meet with Appellant at his address. On one occasion, Appellant agreed to

meet with Agent Pekar but never appeared at the address.

      In light of these facts, agents met with Appellant at the parole office

and searched him on December 18, 2012. That search revealed nothing and

Agent Timothy Wolfe told Appellant that he had information that he was

involved in drug activity and was going to search his apartment.       Agent

Pekar and Agent William McKay traveled to Appellant’s residence while

Appellant remained at the parole office.   The agents retrieved a key from

the rental office manager, whose office was located next door to Appellant’s

apartment.     After entering the apartment, the agents observed a digital

scale in plain view that had white powder on it. The apartment also had a

trash bag in the living room area and a Comcast cable bill addressed to

Appellant at the address.      The apartment was leased in Appellant’s




                                    -2-
J-A27005-15



grandmother’s name.       The trash bag contained a white substance that

appeared to be cocaine.

      The agents seized the suspected cocaine and scale and contacted a

City of Pittsburgh police officer.    That officer field tested the suspected

narcotic, which tested positive as cocaine. Since Appellant’s residence was

not within Pittsburgh city limits, the parole agents alerted Allegheny County

police. Allegheny County Detective Todd Naylor charged Appellant with the

aforementioned crimes.

      Appellant filed and litigated a motion to suppress, contending that the

warrantless search was unconstitutional. The court denied that motion and

the matter proceeded to trial. After his initial trial resulted in a hung jury, a

subsequent jury found Appellant guilty of PWID, possession of cocaine, and

possession of drug paraphernalia. The court sentenced Appellant to five to

ten years incarceration to be followed by five years probation. This timely

appeal ensued.     The trial court directed Appellant to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant complied, and the trial court authored its Rule 1925(a) decision.

The matter is now ready for this Court’s consideration. Appellant presents

two issues for our review.

      I.    Did the trial court err when it denied Mr. Coleman’s motion
            to suppress because the parole officers’ warrantless search
            of 102 Center Avenue was unreasonable and unsupported
            by the requisite reasonable suspicion to believe that
            criminal activity was afoot, thus violating Mr. Coleman’s

                                      -3-
J-A27005-15



             rights under the Fourth and Fourteenth Amendments of
             the United States Constitution and Article 1, § 8 of the
             Pennsylvania Constitution?

       II.   Was the evidence insufficient to prove, beyond a
             reasonable doubt, that Mr. Coleman committed any of the
             offenses at CC 2013-04456 because the Commonwealth
             failed to establish that Mr. Coleman possessed the cocaine
             and paraphernalia, and could not place Mr. Coleman inside
             the apartment?

Appellant’s brief at 6.

       Since a sufficiency claim warrants automatic discharge rather than

retrial, we address that issue at the outset.    In performing a sufficiency

review, we consider all of the evidence admitted, even improperly admitted

evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013)

(en banc).     We view the evidence in a light most favorable to the

Commonwealth as the verdict winner, drawing all reasonable inferences

from the evidence in favor of the Commonwealth. Id.

       The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim

will fail.   Id.   In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances[,]” a defendant is entitled to relief. Id. This Court



                                    -4-
J-A27005-15



does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id. Determining whether a person possessed a drug with an

intent     to   deliver   is   based   upon   the    totality   of   circumstances.

Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007). Necessarily, if a

person possesses narcotics with intent to deliver, he is guilty of possession.

         Appellant argues that the Commonwealth failed to prove that he

constructively possessed the cocaine inside 102 Center Avenue.                  He

maintains that there is no evidence that he actually was inside the address

nor did anyone observe him in possession of or selling the drug. Appellant

asserts that the evidence establishes at most that he resided at the address

at one time.

         The Commonwealth responds that the circumstantial evidence in this

matter proved beyond a reasonable doubt that Appellant constructively

possessed the cocaine and digital scale.            It notes that Appellant had

informed his parole agent that he lived at 102 Center Avenue and that a

Comcast bill dated December 3, 2012, was inside the apartment on top of

the garbage bag containing the drugs. In addition, there is no dispute that

over 100 grams of cocaine was located inside the apartment.

         Constructive possession is determined by examining the totality of the

circumstances. We look to whether the defendant had the ability to exercise

a conscious dominion over the item, the defendant’s power of control over

the item, and his intent to exercise such control.              Commonwealth v.

                                        -5-
J-A27005-15



Johnson, 26 A.3d 1078, 1086 (Pa.Super. 2011). Here, Appellant informed

his parole agent that he lived at the address. Further, a bill addressed to

him at the apartment from two weeks earlier was inside.                  Appellant’s

grandmother’s name was on the lease, but there was no indication that she

lived there.      Men’s clothing was located inside the apartment.                The

circumstantial evidence was more than sufficient to establish Appellant used

or lived inside the apartment and therefore constructively possessed the

drugs and scale. In addition, the Commonwealth elicited expert testimony

that based on the amount of drugs that Appellant possessed those drugs

with intent to deliver. Appellant’s sufficiency claim is devoid of merit.

       Having determined that the evidence in this matter was sufficient to

find Appellant guilty of the pertinent charges, we now consider his

suppression claim.        In evaluating a court order denying a suppression

motion, we consider the factual findings of the suppression court and

whether they are supported by record evidence. In re T.B., 11 A.3d 500,

505    (Pa.Super.     2010).        We    consider   only   the   evidence   of   the

Commonwealth’s witnesses and testimony of the defendant’s witnesses that

are not contradicted by the suppression record. Id.1 Where the evidence

____________________________________________


1
  As pointed out by Appellant, the Commonwealth relies on a since overruled
standard for reviewing suppression claims, asserting, incorrectly, that this
Court considers trial testimony in addition to suppression evidence in
evaluating a suppression ruling.     Commonwealth’s brief at 4-5 (citing
(Footnote Continued Next Page)


                                           -6-
J-A27005-15



supports the suppression court’s factual findings, we are bound by them and

will reverse only where the legal conclusions derived from those facts are in

error.      Id.   In this latter regard, we are not bound by the legal

determinations of the suppression court.

         Appellant acknowledges that, as a parolee, under both statutory

authority and case law, he has less constitutional search and seizure

protections than the regular citizen.            However, he correctly asserts that

parolees still have limited constitutional protections relative to warrantless

searches.     Parole officers may perform a search of a parolee’s residence

where the totality of the circumstances demonstrates reasonable suspicion

that evidence of contraband or a violation of parole will be discovered. 61

Pa.C.S. § 6153.

         Appellant maintains that the parole officers herein lacked reasonable

suspicion to search his apartment. He contends that the search was based

“on an unreliable, uncorroborated, anonymous tip received by Agent Pekar

on December 17, 2012.” Appellant’s brief at 24. Appellant submits that the

anonymous caller did not indicate that she saw Appellant in possession of

drugs or selling drugs and only stated that he was a large drug dealer in the
                       _______________________
(Footnote Continued)

Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super. 2011), and
Commonwealth v. Caban, 60 A.3d 120 (Pa.Super. 2012)); compare In
re L.J. 70 A.3d 1073 (Pa. 2013) (prospectively holding that an appellate
court reviews the suppression evidence and does not also consider trial
evidence in determining the correctness of a suppression court ruling).



                                            -7-
J-A27005-15



area.    In addition, Appellant argues that, although Agent Pekar confirmed

that the anonymous caller was correct that Appellant had been cited for

driving with a suspended license, this fact does not render the caller reliable.

In support, Appellant relies on Alabama v. White, 496 U.S. 325 (1990),

Commonwealth v. Goodwin, 750 A.2d 795 (Pa. 2000) (OAJC), and

Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000).

        In White, a police officer received an anonymous tip via a telephone

call informing him that Vanessa White would be leaving a specific apartment

at a specified time. The tipster also provided that White would be driving a

brown Plymouth station wagon with a broken right taillight. In addition, the

tipster told police that White would travel to a specific motel and was in

possession of an ounce of cocaine inside a brown attaché case.

        Armed with this highly specific information, police traveled to the

apartment complex. Once there, police observed a Plymouth station wagon

with a broken right taillight in the parking lot in front of the apartment

identified by the tipster. The police then witnessed White exit the apartment

and enter the vehicle.     She was not carrying anything.       Police followed

White, who was driving on the route that would have taken her to the

identified motel. Just prior to reaching the motel, police effectuated a traffic

stop. Police told White that they stopped her because they suspected her of

transporting cocaine in her car. White permitted police to search her car and

they found a locked brown attache case. Police asked for the combination to

                                     -8-
J-A27005-15



that case and White provided it. Inside police found marijuana. Thereafter,

while processing White, they found cocaine in her purse.

      The White Court set forth, “[a]lthough it is a close case, we conclude

that under the totality of the circumstances the anonymous tip, as

corroborated,   exhibited   sufficient    indicia   of   reliability    to    justify   the

investigatory stop of respondent's car.”        White, supra at 332. Appellant

maintains that in this matter there was no independent corroboration by his

parole officers of the tipster’s information.

      In   Goodwin,     supra,     Pennsylvania      State     Police        received   an

anonymous tip regarding Goodwin. The caller asserted that the girlfriend of

David Klink had sold drugs to Klink’s minor son. The trooper who took the

call had arrested that juvenile on drug charges.            Indeed, he had bought

drugs from the minor while undercover. The officer also knew that Goodwin

was David Klink’s girlfriend and that the pair resided together.               The tipster

also indicated that the woman sold drugs from her home and workplace.

According to the caller, the woman carried a quarter pound of marijuana in a

pink bag, drove a blue Mustang, and took an hour lunch break, usually

starting at 12:15 p.m. The caller provided the license plate number of the

car and described Goodwin as a red-haired woman, approximately twenty-

five years of age, and wearing a red coat and red stockings on that day.

      The tipster also told police of the name and address of Goodwin’s

employer, where Goodwin lived, the location of the parking garage where

                                         -9-
J-A27005-15



Goodwin would park, and the route she took to walk to the parking garage.

State police then watched the parking garage identified by the tipster. At

approximately 12:10 p.m., Goodwin exited her workplace carrying a pink

bag.    She matched the physical description provided by the caller and

walked to her car via the route described by the tipster. Goodwin entered

the vehicle and began to drive. Police pulled her over and informed her that

they believed she was transporting marijuana.     Goodwin signed a consent

form and permitted police to search her car.    After Goodwin removed her

pink bag from the car, an officer told her that they were going to search the

bag since it was inside the vehicle.   At that point, Goodwin acknowledged

that there were drugs in the bag. Police then asked to search her apartment

that she shared with David Klink.        Goodwin consented and additional

marijuana and drug paraphernalia were found in her bedroom.

       The Pennsylvania Supreme Court was divided over the lawfulness of

the initial stop.   Justice Nigro penned the lead opinion and was joined by

Justice Cappy. The lead opinion opined that police saw no unusual activity

while watching Goodwin and that White, supra, was not analogous because

the tip in Goodwin “did not predict behavior that showed a familiarity with

Goodwin's personal affairs.” Goodwin, supra at 355. Accordingly, Justices

Nigro and Cappy held that the stop violated the Fourth Amendment. Justice

Zappala, joined by Chief Justice Flaherty, however, concluded that under

White, the Fourth Amendment was not violated.             Nonetheless, they

                                    - 10 -
J-A27005-15



reasoned that the stop violated Goodwin’s right against illegal searches and

seizures codified by Article I, § 8 of the Pennsylvania Constitution. Justice

Castille, joined by Justice Newman, dissented, finding that White controlled

and that Article I, § 8 did not provide greater protections than did the Fourth

Amendment.

      Wimbush, supra, was decided on the same day as Goodwin, and

involved two consolidated cases: that of Anthony Wimbush and Lance White.

In Wimbush’s case, Pennsylvania State Police received an anonymous tip

regarding a black man named Tony. The tipster set forth that Tony would

be driving a white van on Piney Ridge Road and would have cocaine and

marijuana. The caller provided the license plate number of the van and

police learned that the van was registered to the defendant, Anthony

Wimbush. The police went to Piney Ridge Road in multiple cars. One officer

saw the van parked outside a trailer. After Wimbush began driving, police

stopped him. Upon approaching the vehicle, an officer observed two baggies

on the floor of the van.   One bag appeared to contain marijuana and the

other cocaine. Police immediately seized the drugs. Wimbush later signed a

consent to search his van and additional drugs were found.

      In White’s matter, New Kensington police received an anonymous 911

call about potential drug activity at a public housing complex.     The caller

claimed that a black man wearing a white shirt and white shorts and

carrying drugs was leaving the complex on a girl’s black bicycle. The officer

                                    - 11 -
J-A27005-15



who received the tip drove to the housing complex and saw the girl’s black

bicycle. She then saw White, who was dressed in a white shirt and white

shorts, exit the complex and ride away on the bike.       The officer stopped

White, and as she began to pat him down, he fled. Another officer was able

to stop White, who dropped sixteen bags of crack cocaine.

      Justice Nigro penned the majority opinion, finding the stop illegal. He

was joined by Justice Cappy and Justice Saylor, the latter of whom had not

taken part in the Goodwin case. Chief Justice Flaherty also joined in full,

but offered a concurring opinion on the question of whether the defendants

had preserved their Article I, § 8 challenge as contradistinguished from their

Fourth Amendment claim. Justice Zappala wrote a solo dissent and Justice

Castille authored a dissent joined by Justice Newman. Justice Castille opined

that White controlled, the defendants had not preserved a Pennsylvania

constitutional claim, and even if they had, the Pennsylvania Constitution

offered the same protections as the federal charter. Justice Zappala agreed

with Justice Castille that White was binding on the Fourth Amendment issue

and that the defendants had waived their Pennsylvania constitutional

argument, but did not agree that the two constitutions provided the same

protections. The majority distinguished White and concluded that the tips

were not sufficiently reliable to create reasonable suspicion for the vehicular

stops.




                                    - 12 -
J-A27005-15



      Appellant proffers that the aforementioned cases support his claim

that the parole officers in this matter did not sufficiently corroborate the

anonymous tip and that their search of his apartment was unlawful.            The

Commonwealth counters that, because Appellant failed to inform his parole

officer of his citation for driving with a suspended license and did not appear

at his residence to meet with parole agent on another occasion, his parole

officer was permitted to conduct a compliance check of his residence.          It

continues that, based on the totality of the circumstances, the parole agents

had reasonable suspicion to search his address.                The Commonwealth

highlights that the agents confirmed that Appellant had been cited for

driving   with   a   suspended   license.      Additionally,   the   Commonwealth

maintains that Appellant’s repeated failure to meet with his parole agent to

confirm his address aroused suspicion.         Thus, it contends that the agents

had lawful authority to enter Appellant’s apartment.

      The Commonwealth adds that, once the agents were inside the

apartment, they observed a digital scale with white powder in plain view and

a box of sandwich baggies in the living room. This information, according to

the Commonwealth, was sufficient to permit them to look inside the garbage

bag in the living room to determine if Appellant had contraband or evidence

of other violations of his parole.

      The Fourth Amendment, which applies to the States via the Fourteenth

Amendment, provides that

                                      - 13 -
J-A27005-15



      The right of the people to be secure in their persons, houses,
      papers, and effect, against unreasonable searches and seizures,
      shall not be violated, and no Warrants shall issue, but upon
      probable cause, supported by Oath or affirmation, and
      particularly describing the place to be searched, and the persons
      or things to be seized.

U.S.Const. Am. IV. Similarly, Article I, § 8 of the Pennsylvania Constitution

sets forth,

      The people shall be secure in their persons, houses, papers and
      possessions from unreasonable searches and seizures, and no
      warrant to search any place or to seize any person or things
      shall issue without describing them as nearly as may be, nor
      without probable cause, supported by oath or affirmation
      subscribed to by the affiant.

Pa.Const. Art. I, § 8.

      A parolee has limited Fourth Amendment rights because of a

diminished expectation of privacy. Commonwealth v. Williams, 692 A.2d

1031, 1035 (Pa. 1997). A “parolee's signing of a parole agreement giving

his parole officer permission to conduct a warrantless search does not mean

either that the parole officer can conduct a search at any time and for any

reason or that the parolee relinquishes his Fourth Amendment right to be

free from unreasonable searches.” Id. at 1036.

      As mentioned, state parole agents are statutorily permitted to perform

a search of a parolee’s residence based on reasonable suspicion that “the

real property 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.”   61 Pa.C.S. § 6153(d)(2).      Here, the initial

                                   - 14 -
J-A27005-15



question is whether, under the totality of the circumstances, Appellant’s

parole agents had reasonable suspicion to enter his apartment without a

search warrant.

        The suppression court relied on Commonwealth v. Smith, 85 A.3d

530 (Pa.Super. 2014).2 Therein, Smith was released on parole from a drug

related sentence.      Smith acknowledged and signed a form that authorized

parole agents to search his person and property without a warrant if they

had reasonable suspicion of criminal activity.      In addition, because Smith

was residing with his girlfriend, she also signed an agreement that

consented to searches based on reasonable suspicion and without a warrant

as well as unannounced home visits. Smith’s residence was scheduled for a

routine home visit on December 21, 2011.             Smith’s parole agent also

received an anonymous telephone call asserting that Smith was selling

marijuana near where Smith lived.

        Parole agents traveled to Smith and his girlfriend’s home on December

21, 2011.      Both Smith and his girlfriend were present and allowed the

agents into the residence. Upon entering, the agents immediately detected

a strong odor of marijuana coming from the basement. The odor became

stronger after opening the basement door.          A large amount of marijuana


____________________________________________


2
    The Commonwealth does not rely on or discuss Smith in its brief.



                                          - 15 -
J-A27005-15



was discovered under the basement steps, along with money, a scale, and

unused baggies.

      This Court ruled that the parole agents conducted an unannounced

home visit and were permitted into the residence, which did not amount to a

search. Smith, supra at 537 (“We conclude that the state parole agent's

actions in walking through Appellant's residence did not constitute a

search.”).   It held that the agents were not required to have reasonable

suspicion to enter the premises. Rather, the agents were lawfully present in

the home when they detected the odor of marijuana, which then provided

reasonable suspicion for a search.     Id. (“During this lawful visit, Agent

Peterson smelled marijuana emanating from Appellant's basement, and at

that juncture, he developed the requisite reasonable suspicion to conduct a

search for the marijuana.”).

      Although an anonymous telephone call was recited in the facts of the

Smith case, the Court was not faced with a determination as to whether

parole agents had reasonable suspicion to conduct a warrantless entry and

search based on that anonymous call.         Here, parole agents did not gain

entry via permission from Appellant or another resident.        Rather, they

entered the apartment without consent.          The agents herein were not

conducting a scheduled or routine home visit, as they knew Appellant was

not home, and they intended to search the home for drug contraband. See

Smith, supra (Fitzgerald, J., concurring) (“to the extent that the trial court

                                    - 16 -
J-A27005-15



found that the agents were investigating information of ‘some kind of drug

sales,’ I would conclude that the agents conducted a search without

reasonable suspicion”).       While parole agents have statutory authority to

enter a parolee’s premises without a warrant to search for contraband, they

must have reasonable suspicion of criminal activity.     Parole agents cannot

escape the statutory requirements for a warrantless entry based on merely

renaming it a compliance check; otherwise, agents could freely enter a

parolee’s residence without a warrant at any time even without reasonable

suspicion of criminal activity.

      Unlike Smith, Appellant was not present and did not allow the agents

to enter. Therefore, the lawful grounds for the presence of the agents inside

the residence therein is distinct from the present case. Simply stated, this is

not a case where the agents lawfully entered with the consent of the

resident.    Thus, whereas the agents in Smith did not need reasonable

suspicion to enter the residence in the first instance, that is the important

inquiry here.      As Smith did not address whether parole agents had

reasonable suspicion to enter a parolee’s premises based on an anonymous

tip, it is not controlling.

      Furthermore, we find that the anonymous tip in this matter falls short

of the information provided and confirmed in the Wimbush case and its

companion case.        Indeed, the United States Supreme Court in White,

supra, called that case close and, in that matter, the information relied on

                                      - 17 -
J-A27005-15



by law enforcement was of greater quality and quantity and was confirmed

in most of its aspects. Here, Appellant’s parole agent received a bare bones

assertion that Appellant was selling drugs and that he had been cited for

driving with a suspended license.       Admittedly, Appellant’s parole agent

confirmed that a citation for the driving violation had been issued, but this is

far less corroboration than occurred in Wimbush and in the plurality

Goodwin case.       In addition, that fact did not need to be further

corroborated by searching Appellant’s residence.

      We acknowledge that parole agents are not police officers and do not

have the same ability to conduct surveillance or confirm information received

by a tipster. Nonetheless, the search and seizure statute relative to parole

agents expressly states that “[t]he existence of reasonable suspicion to

search shall be determined in accordance with constitutional search and

seizure provisions as applied by judicial decision.” 61 Pa.C.S. § 6153(b)(6).

In this respect, in order for an anonymous tip to give rise to reasonable

suspicion of criminal activity, it must be of sufficient quality that it may be

found reliable.

      The anonymous tip in this matter cannot be considered reliable based

on our Supreme Court’s holding in Wimbush and the plurality decision in

Goodwin.      In both cases, police were given significantly more detailed

information that they were able to corroborate, but our High Court still

declined to find the anonymous tip reliable enough to arise to reasonable

                                     - 18 -
J-A27005-15



suspicion for a warrantless seizure and search.      Moreover, the fact that

Appellant and his parole agent had not personally met for a compliance

check of his residence does not, in combination with the unreliable tip, rise

to the level of reasonable suspicion to search that home. Parole agents did

not have specific and articulable facts that Appellant was engaged in criminal

activity. See In re J.E., 907 A.2d 1114 (Pa.Super. 2006) (probation officer

lacked reasonable suspicion to conduct warrantless pat-down absent specific

and articulable facts suggesting a tip was reliable); compare Williams,

supra (parole officer corroborated tip from a confidential informant with

local police regarding the parolee’s dealing of drugs).      Accordingly, the

warrantless entry into Appellant’s apartment violated his Fourth Amendment

and Article I, § 8 rights.

      Judgment of sentence reversed.         Case remanded.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




                                    - 19 -
