Com. v. Grier, M. (memorandum)
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J-A23039-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. MAURICE GRIER, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2771 EDA 2012 Appeal from the Judgment of Sentence entered on December 15, 2011 in the Court of Common Pleas of Bucks County, Criminal Division, No. CP-09-CR-00003292-2011 BEFORE: BENDER, P.J., DONOHUE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 04, 2013 Maurice Grier ( Grier ) appeals from the judgment of sentence imposed after he was convicted of possession of a controlled substance with intent to deliver ( PWID ), possession of a controlled substance, and possession of drug paraphernalia.1 We affirm. The pertinent facts and procedural history of this case were thoroughly set forth by the trial court in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 2/7/13, at 1-7. Grier raises the following issues on appeal: 1. Did the trial court err in permitting the verdict even though it was not supported by sufficient evidence? 2. Did the trial court err in permitting the verdict even though it was against the weight of the evidence? 1 35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32). J-A23039-13 3. Did the trial court err in denying the [M]otion to suppress? Brief for Appellant at 4. In his first two issues on appeal, Grier challenges the sufficiency and weight of the evidence in support of the verdict. Grier asserts that the evidence was so unreliable and contradictory that it was incapable of supporting the verdict. Grier argues that the evidence did not establish that he possessed the mens rea for the crime of PWID. He contends that the evidence did not support the finding that the voice that stated he could deliver in thirty minutes was Grier s voice. Our standards of review of these claims are as follows: When evaluating a sufficiency [of the evidence] claim, our standard is whether, viewing all the evidence and reasonable inferences in the light most favorable to the Commonwealth, the factfinder reasonably could have determined that each element of the crime was established beyond a reasonable doubt. This Court considers all the evidence admitted, without regard to any claim that some of the evidence was wrongly allowed. We do not weigh the evidence or make credibility determinations. Moreover, any doubts concerning a defendant s guilt [are] to be resolved by the factfinder unless the evidence [is] so weak and inconclusive that no probability of fact could be drawn from that evidence. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010). The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses. As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury s verdict and grant a new trial only where the verdict is so contrary to the -2- J-A23039-13 evidence as to shock one s sense of justice. Our appellate courts have repeatedly emphasized that [o]ne of the least assailable reasons for granting or denying a new trial is the lower court s conviction that the verdict was or was not against the weight of the evidence. Furthermore, where the trial court has ruled on the weight claim below, an appellate court s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007) (citations omitted). After reviewing the record, we conclude that there is no merit to Grier s contentions concerning the weight and sufficiency of the evidence. The trial court has accurately addressed these issues. See Trial Court Opinion, 2/7/13, at 7-11. We adopt the trial court s well-reasoned Opinion and affirm on that basis with regard to these issues. See id. With regard to Grier s claim that the evidence did not support the finding that it was his voice that stated he could deliver in thirty minutes, we note that Detective Kolman testified that he heard the same man also say, Yo, this is Reese, and I got [crack]. See N.T., 10/3/11, at 34. Since Grier s first name is Maurice (and Reese could be a nickname for Maurice), this evidence supports the inference that Grier made the statement that he could deliver in thirty minutes. See id. -3- J-A23039-13 Grier also contends that the trial court erred in denying his Motion to suppress. Grier asserts that no exigent circumstances existed to support the warrantless search of the motel room. Grier further argues that, at the time the door opened, the police had only a mere suspicion and not probable cause to suspect the commission of a crime. Grier contends that the police did not know that drugs were present until they entered the room. See Brief for Appellant at 14. Our standard of review of the denial of a Motion to suppress is as follows: 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. Since 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. Stevenson, 894 A.2d 759, 769 (Pa. Super. 2006) (citation omitted). Probable cause to obtain a search warrant exists, under the Pennsylvania and United States Constitutions, where the facts and circumstances within the affiant s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man -4- J-A23039-13 of reasonable caution in the belief that a search should be conducted. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court established the totality of the circumstances test for determining whether a request for a search warrant under the Fourth Amendment is supported by probable cause. In Commonwealth v. Gray, ¦ 503 A.2d 921 ([Pa.] 1986), th[e Pennsylvania Supreme] Court adopted the totality of the circumstances test for purposes of making and reviewing probable cause determinations under Article I, Section 8. In describing this test, [the Pennsylvania Supreme Court] stated: Pursuant to the totality of the circumstances test ¦, the task of an issuing authority is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.... Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (certain citations omitted). In addition, pursuant to the United States and Pennsylvania Constitutions, [a]bsent consent or exigent circumstances, private homes may not be entered to conduct a search or to effectuate an arrest without a warrant, even where probable cause exists ¦. [A] number of factors ¦ should be considered in determining whether exigent circumstances exist in a given situation to justify a warrantless entry and search of a private residence. These include: (1) the gravity of the offense; (2) whether there is a reasonable belief that the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong showing that the suspect is within the premises to be searched; (5) whether there is a likelihood that the suspect will escape; (6) whether the entry was -5- J-A23039-13 peaceable; (7) the time of the entry, i.e., day or night; (8) whether the officer was in hot pursuit of a fleeing felon; (9) whether there is a likelihood that evidence may be destroyed; and (10) whether there is a danger to police or others ¦. Commonwealth v. Walker, 836 A.2d 978, 980-81 (Pa. Super. 2003) (citations omitted). It is well established that police cannot rely upon exigent circumstances to justify a warrantless entry where the exigency derives from their own actions. Commonwealth v. Waddell, 61 A.3d 198, 214 (Pa. Super. 2012). In the instant case, at the suppression hearing, Detective Kolman testified that, on April 16, 2011, at 5:30 p.m., he and Officer Catrombon responded to the Lincoln Motel based on a report of a drug complaint. N.T., 9/30/11, at 7. Kolman stated that the Lincoln Motel is located in a high crime area and that he had responded to that location several times, including just a few days earlier. Id. at 7-8. At that time, Kolman recovered a bullet-proof vest and an AK-47 from the Motel. Id. at 8. On April 16, 2011, the report indicated that narcotics activity was occurring on the second floor, in Room 223 of the Motel. Id. at 9. Kolman stated that two other police officers arrived shortly after he and Catrombon responded. Id. Kolman testified that he and Catrombon initially walked up to the room and knocked on the door. Id. at 10. Kolman stated that he could hear people speaking inside loudly and clearly, and he immediately recognized what they were talking about. Id. Kolman heard an adult male engaging in -6- J-A23039-13 what Kolman believed was a phone conversation. Id. Kolman heard the adult male say, Hey, this is Reese, and that he had hard and sherms, you know, crack. Id. at 10-11. Kolman testified that he had previously made several hundred undercover buys as well as uniformed narcotics arrests. Id. at 11. He stated that he is familiar with the terminology used in drug dealing, and that the word hard is the street term for cocaine. Id. Kolman had heard the word sherm used in connection with PCP. Id. at 11-12. Kolman determined that there were at least two males and two females in the motel room. Id. at 12. Kolman heard one of the females engaging in a phone conversation, in which she said that she would not drive all the way down there for only that amount. Id. He also heard her say 40 grams. Id. Kolman decided to go downstairs to get the key to the room next door because he was afraid that if the door to Room 223 opened, there could be destruction of evidence if they retreated back in and locked the door. Id. at 14. After acquiring both room keys, as Kolman was proceeding back upstairs, he heard the police officers yelling Police, Police. Id. at 15. Kolman saw that the door to Room 223 was open and the officers were detaining four subjects inside the room. Id. Kolman stated that he and the officers had talked about obtaining a search warrant for Room 223 but, under the circumstances, they did not -7- J-A23039-13 have enough time. Id. at 16. Kolman testified that he was certain that the male voice he heard speaking was not coming from a television. Id. at 20. Kolman stated that, based on his training and experience, weapons are frequently involved with drug activity. Id. at 23. Kolman also was concerned that one of the suspects could jump out of the motel room window. Id. at 27. Officer Clee testified at the suppression hearing that he has been investigating narcotics crimes for ten years. Id. at 28. Clee stated that he was on patrol on the date in question and heard a call for drug activity at the Lincoln Motel. Id. at 29. Clee testified that he had responded many times previously to the Lincoln Motel on calls of drugs and prostitution. Id. at 30. Clee responded to the Lincoln Motel s second floor, where Kolman and another officer were present. Id. at 31. Clee testified that the officers decided they would detain the subjects when they exited the room, and apply for a search warrant for the room. Id. at 32. Clee heard a male and a female in the room speaking about drugs. Id. Clee testified that the motel room door was opened by Hennessy. Id. As she exited, the officers went into the room and secured it and the occupants. Id. at 32-33. Clee indicated that Kolman had heard that there was going to be a drug delivery in 30 minutes, and Clee had heard a conversation about another drug deal being set up. Id. Therefore, the officers assumed that the subjects were exiting the room in order to make a -8- J-A23039-13 drug sale. Id. Inside the room, Clee saw [v]arious drug paraphernalia ¦, the marijuana pipes and crack bags. Id. at 34. Officer Clee testified that, if the occupants of the room had detected the presence of the police, they could have flushed, eaten, thrown out the window [or] burnt the evidence. Id. at 42. Based on the above evidence, the trial court made findings of fact and conclusions of law, as set forth in its Opinion. 2/7/13, at 1-2; N.T., 10/3/11, at 3-11. See Trial Court Opinion, Upon review of the record, we conclude that the trial court s factual findings are supported by the record and the legal conclusions drawn therefrom are correct. 894 A.2d at 769. See Stevenson, Specifically, the record showed that the police officers were called to the Lincoln Motel, the site of prior crimes involving illegal drugs, prostitution, and weapons. While standing in the hallway outside of Room 223, the officers heard the occupants of the room make statements while talking on the telephone, which indicated that the occupants were involved at that time in the active sale of cocaine and PCP. The officers had experience and training in the investigation of narcotics crimes. Thus, the totality of the circumstances, including the statements the officers overheard from within the room, were sufficient to warrant a man of reasonable caution in the belief that a search should be conducted. Jones, 988 A.2d at 655. Accordingly, we discern no error in the trial court s conclusion that the police had probable cause to request a search warrant. -9- J-A23039-13 Further, Grier s claim that no exigent circumstances were present lacks merit. Here, the evidence established a clear showing of probable cause; the suspected offenses were serious; there was a strong showing that the suspect was within the premises to be searched; due to the large window in the room and the possibility of weapons, there was a likelihood that the suspect(s) would escape; the entry into the room was peaceable due to the fact that one of the occupants had opened the door; and there was a likelihood that drug evidence would be destroyed if the officers did not act quickly after the door was opened. See Walker, 836 A.2d at 980-81. Thus, we conclude that the trial court did not err in finding the presence of exigent circumstances justifying the police entry into the room. See id. at 981-84 (holding that exigent circumstances justifying warrantless entry into a motel room were present where a police officer had been informed of illegal drug activity at the motel, the officer observed the defendant outside of the motel room with a crack pipe, the defendant turned around and entered the room when he saw the officer, there was a strong likelihood that evidence would be destroyed, and the officer s entry was peaceful). Judgment of sentence affirmed. - 10 - J-A23039-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/4/2013 - 11 -
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