Com. v. Holly, M. (memorandum)

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J-S38029-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MICHAEL HOLLY Appellant No. 2022 MDA 2014 Appeal from the Judgment of Sentence October 17, 2014 In the Court of Common Pleas of Dauphin County Criminal Division at No: CP-22-CR-0000108-2014 BEFORE: WECHT, MUSMANNO, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED DECEMBER 10, 2015 Appellant, Michael Holly, appeals from the judgment of sentence entered October 17, 2014 for his convictions of two counts of unlawful possession of a controlled substance.1 Upon review, we affirm. Appellant was charged with, inter alia, possession of cocaine and possession of heroin. On September 3, 2014, Appellant moved to suppress “all drugs and drug paraphernalia and statements of [Appellant]” that were obtained as a result of using the key fob taken from Appellant’s person during “illegal searches” by State Parole Officer (PO) Michael Welsh. Appellant’s Motion to Suppress Evidence, 9/3/14, at 23. The trial court held a suppression hearing on September 17, 2014, at which the Commonwealth presented the testimony of Officer Anthony Fiore and PO Welsh. 1 35 P.S. § 780-113(a)(16). 1 J-S38029-15 Based on the testimony given at the suppression hearing, the trial court denied Appellant’s motion to suppress. The case proceeded to trial following which a jury convicted Appellant of two counts of unlawful possession based on the cocaine and heroin found in the Hyundai that PO Welsh accessed after taking a key fob from Appellant’s person that allowed entry into the vehicle.2 The trial court sentenced Appellant to an aggregate term of incarceration of twenty-eight to fifty-six months in a state correctional institution along with costs totaling $100. Trial Court Opinion (TCO), 5/15/15, at 1. Appellant timely filed a post-sentence motion, which the trial court denied on October 30, 2014. On November 28, 2014, Appellant timely filed a notice of appeal and, subsequently, complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement. In his Rule 1925(b) statement, Appellant alleged, inter alia, that the trial court erred in denying his motion to suppress because neither Officer Fiore’s Terry3 stop nor PO Welsh’s personal and property search of Appellant were based on reasonable suspicion. Appellant’s Rule 1925(b) Statement, 2/18/15, at 1. In its Pa.R.A.P. 1925(a) opinion, the trial court found that both Officer Fiore’s Terry stop and PO Welsh’s search of Appellant’s person and property were based on reasonable suspicion. TCO, 5/15/15, at 7-13. The trial court 2 The jury acquitted Appellant of possession with intent to deliver cocaine and of possession with intent to deliver heroin. 35 P.S. § 780-113(a)(30). 3 Terry v. Ohio, 392 U.S. 1 (1968). 2 J-S38029-15 held that PO Welsh “properly exercised his authority as a parole officer” in searching Appellant’s person, because “Appellant was running from the area of a reported mob of people some of whom may have been armed” and because “[o]nce PO Welsh discovered Appellant was under state supervision the actions of Appellant and [the circumstances] surrounding the encounter provided enough reasonable suspicion to pat him down pursuant to 61 Pa.[]C.S.A. §[]6153(d).” Id. at 12-13. On appeal, Appellant raises three issues for our review: I. Whether the trial court erred in denying Appellant’s suppression motion where police officers conducted a suspicionless investigative detention and Terry frisk of Appellant and parole officers conducted a suspicionless personal and property search of Appellant in violation of Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution? II. Whether the trial court erred in denying Appellant’s PostSentence Motion for Modification of sentence where Appellant’s sentence is excessive and unreasonable in light of Appellant’s rehabilitative needs as the punitive measures inherent in the sentencing scheme could have been accomplished by the imposition of a lesser sentence? III. Whether the trial court erred in denying Appellant’s PostSentence Motion for Arrest of Judgment where Appellant’s convictions were against the weight of the evidence so as to shock one’s sense of justice as Appellant was never shown to have possessed the controlled substances in question? Appellant’s Brief at 8. Where a trial court denies a motion to suppress, 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 3 J-S38029-15 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). Our Supreme Court has clarified that the scope of appellate review is limited to the evidence produced at the suppression hearing—not the entire record. In the Interest of L.J., 79 A.3d 1079 (Pa. 2013). Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution both protect the people from unreasonable searches and seizures. Jurisprudence arising under both charters has led to the development of three categories of interactions between citizens and police. The first, a “mere encounter,” does not require any level of suspicion or carry any official compulsion to stop or respond. The second, an “investigative detention,” permits the temporary detention of an individual if supported by reasonable suspicion. The third is an arrest or custodial detention, which must be supported by probable cause. Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citing Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003)). Mindful of our standard of review, and after a careful reading of the record and analysis of the applicable law, we agree with the well-reasoned conclusions of the trial court and adopt its May 15, 2015 Rule 1925(a) opinion as the decision of this Court. We direct that a copy of the trial court’s May 15, 2015 Rule 1925(a) opinion be attached to any future filings in this case. Judgment of sentence affirmed. 4 J-S38029-15 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/10/2015 5 Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM Circulated 11/25/2015 01:10 PM

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