Com. v. Coleman, D. (memorandum)

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J-A13001-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DEON COLEMAN, Appellant No. 71 WDA 2015 Appeal from the Judgment of Sentence of November 13, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015970-2012 BEFORE: OLSON, STABILE AND MUSMANNO, JJ. MEMORANDUM BY OLSON, J.: FILED: June 30, 2016 Appellant, Deon Coleman, appeals the judgment of sentence entered on November 13, 2014 in the Criminal Division of the Court of Common Pleas of Allegheny County. We affirm. The trial court summarized the relevant facts as follows: The credible facts adduced at [Appellant’s] suppression hearing established the following events: Pittsburgh Police officers, including Officer Abel, were dispatched to the area of North Charles Street and Kenn Avenue in the City of Pittsburgh for a report of a robbery. At the scene, the victim reported that he was operating a jitney and had a passenger in his vehicle. The passenger exited the vehicle and advised the victim that a friend was coming to pay the fare. A short, young, thin black male then approached the victim’s vehicle and pointed a gun at the victim while demanding money. The victim gave the black male money and the black male fled down North Charles Street. The victim observed the black male enter a door on the far left end of row houses. The victim relayed these observations to Officer Abel. J-A13001-16 Officer Abel went to the residence where the black male was observed entering. He knocked on the door. Nobody immediately answered. A second floor window was then opened and [Appellant] looked out and asked who was knocking. Officer Abel identified himself as “Pittsburgh Police” and asked [Appellant] to come to the door. After a minute or two, Officer Abel knocked on the door again. [Appellant] answered the door. [Appellant] did not fit the description of the black male that was provided by the victim. Upon answering the door, [Appellant] was advised that a witness had seen a robbery suspect enter the residence. [Appellant] advised Officer Abel that nobody was in the residence. Officer Abel informed [Appellant] that he was still going to check inside the residence. Officer Abel asked [Appellant] to step out of the residence. [Appellant] advised Officer Abel that he did not have permission to enter the residence. Other officers detained [Appellant] and Officer Abel entered the residence. Officer Abel was able to clear the residence and he did not find anyone inside the residence. He did, however, find heroin and benzylpiperazine, commonly referred to as ecstasy, in the bedroom sitting in plain view on the dresser. This room was the same room [Appellant] occupied when he addressed Officer Abel from the second floor window. Officer Abel returned outside. He advised [Appellant] that he found cocaine in the residence. [Appellant] blurted out that the substance wasn’t cocaine: it was ecstasy. Officer Abel then explained that he knew the substance was ecstasy but he misidentified it because he wanted to get [Appellant] to admit that the substance was ecstasy. At that point, [Appellant’s] girlfriend showed up at the residence. After encouragement from [Appellant], she told Officer Abel that she would not consent to a search of the residence. Officer Abel and other officers then secured the scene and Officer Abel obtained a search warrant to search the residence. During the search, Officer Abel discovered 698 stamp bags of heroin (22.71 grams) from the upstairs bedroom closet. [Officer Abel also recovered] 11 blue pills (benzylpiperazine), one pink pill (benzylpiperazine), a clear-knotted bag of partially crushed pills (benzylpiperazine) and $2,135[.00] from the upstairs bedroom. After th[e trial c]ourt granted in part and denied in part [Appellant’s] suppression motions based on the evidence set -2- J-A13001-16 forth above, [Appellant] proceeded to a stipulated non-jury trial. Prior to the commencement of trial, the following exchange occurred on the record: [Assistant District Attorney]: This is going to go in by way of stipulation. I would move t[o] incorporate all of the previous testimony the [trial c]ourt has taken during the course of the suppression hearing and then would supplement that with additional facts. THE COURT: Is that the way we are proceeding, [defense counsel]? [Defense Counsel]: That’s the way I have offered to proceed and will stipulate. If there’s something [the assistant district attorney] says I won’t stipulate to, I will speak up, but I don’t anticipate that will occur. [Following the non-jury trial, the court found Appellant guilty of simple possession1 and possession with intent to distribute (benzylpiperazine),2 simple possession3 and possession with intent to distribute (heroin),4 and possession of drug paraphernalia.5 On November 13, 2014, the court sentenced Appellant to an aggregate term of 51 to 156 months’ incarceration. After the trial court denied post-sentence motions, Appellant filed a timely notice of appeal on January 12, 2015. Pursuant to order of court, and after extensions of time in which to obtain transcripts, Appellant filed a concise statement of errors complained of on appeal on June 26, 2015. The trial court issued its opinion on November 5, 2015.] Trial Court Opinion, 9/5/15, at 2-3. ____________________________________________ 1 35 P.S. § 780-113(a)(16). 2 35 P.S. § 780-113(a)(30). 3 35 P.S. § 780-113(a)(16). 4 35 P.S. § 780-113(a)(30). 5 35 P.S. § 780-113(a)(32). -3- J-A13001-16 Appellant raises the following questions for our review: Did the trial court err when it failed to order suppression in this case, as police did not have consent to search the property where [Appellant] was found, and there were no exigent circumstances to obviate the need for a search warrant? Is the sentence imposed in this case manifestly excessive in that sentencing was based, in part, upon facts not of record and the sentencing court’s previous cases, none of which had relevance to [Appellant’s] need for rehabilitation, the society’s need for protection, and the gravity of [Appellant’s] offense? Appellant’s Brief at 6. We carefully reviewed the certified record, the submissions of the parties, and the thorough opinion of able the trial court. Based upon our review, we concur in the trial court’s conclusion that the Commonwealth established exigent circumstances that obviated the need for a search warrant. We also agree with the trial court that it did not abuse its discretion in fixing the sentence imposed in this case. Because we find that the trial court adequately and accurately addressed the claims presented on appeal, we adopt the trial court’s opinion as our own and direct the parties to include a copy of the court’s opinion in all future filings related to our disposition of this appeal. Judgment of sentence affirmed. -4- J-A13001-16 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/30/2016 -5- Received 02/01/2016 Superior Court Western District Circulated 05/31/2016 02:04 PM F il!'rl 07/011?01 r; Superior Corn t V\/est1,rn l)1strir:t ' · . . 7i \f\11)1\ 20 1 f) i:(~\~ "' t?t" " {,\;i ,J l'iv t • r ""; .... . ..... -~J:· P ·1·'-·1 ,.,•• • l': ,. oo· r: . . ~·· t.'. : : ~ : . TN THE COURT OF.COMJ\10N PLEAS OF ALLEGHENY COUi'.'TY. PENNSYLVANIA CRIMINAL DIVTSION COMMON\.VEALTH OF PENNSYLVANIA ) ) ) ) ) ) ) ) vs. DEON COLEMAN, Defendant CC No. 201215970 OPINION Mariani, J. This is a direct appeal in which the defendant appeals the Judgment of Sentence of November 13, 2014 which became final on December 12, 2014 when this Court denied post-sentencing motions. After a stipulated non-jury trial, the defendant was found guilty of possession and possession with intent to deliver benzylpipcrazine. possession and possession with intent to deliver heroin and possession of drug paraphernalia. Relative to the conviction for possession with intent lo deliver heroin, this Court sentenced the defendant to a term of imprisonment of not ess than 33 months nor more l than l 20 months. benz.ylpipcrazine, Relative to the conviction for possession with intent to deliver this Court sentenced the defendant to a consecutive term of imprisonment of not less than 18 months nor more than 36 months. No additional penalties were imposed at the remaining counts. This timely appeal followed. APPENDIX A The credible events: Pittsburgh facts adduced Police officers. at the suppression including hearing vehicle. The passenger to pay the fare. the following Officer Abel, were dispatched lo the area of North Charles Street and Kenn A venue in the City of Pittsburgh At the scene, the victim reported established for a report of a robbery. that he was operating a jitney and had a passenger in his exited the vehicle and advised the victim that a friend was coming A short, young, thin black male then approached the victim's vehicle and pointed a gun at the victim while demanding money. The victim gave the black male money black and the black male fled down North Charles Street. male enter a door on the far left end of row houses. observations He knocked Abel went to the residence on the door. Nobody and the defendant identified relayed himself immediately looked as "Pittsburgh where the black male was observed answered. A second out and asked these on the door again. The def end ant did not fit the description entering. floor window who was knocking. Police" and asked the defendant After a minute or two, Office Abel knocked the door. The victim the to Officer Abel. Officer opened The victim observed to come Officer then Abel to the door. The defendant answered of the black male that was provided by the victim. Upon answering the door. the defendant robbery suspect enter the residence. The defendant in the residence. Officer Abel informed was advised had seen a advised Officer Abel that nobody the defendant 2 that a witness was that he was still going to check inside the residence. defendant advised Other officers Officer Officer detained Abel asked the defendant to step out of the residence. Abel that he did 1101 have permission the dcfcndant and Officer Abel was able to clear the residence and he did did, however. upstairs defendant sitting in plain view on the dresser. occupied when he addressed Officer Abel returned the residence. ecstasy. ecstacy. blurted search of the residence. Officer Abel obtained Officer Abel discovered closet. Officer a search floor window. that he found cocaine in wasn't cocaine: it was was ecstasy to admit that the substance girlfriend showed up at the residence, but he was After she told Officer Abel that she would not consent to a Abel and other officers then secured and warrant to search 698 stamp bags crushed the residence. of heroin 11 blue pills (benzylpiperazine), bag of partially to as ecstasy, in the that he knew the substance At that point, the defendant's clear-knotted the defendant out that the substance Abel then explained from the defendant, referred He This room was the same room the it because he wanted to get the defendant encouragement bedroom He advised Officer inside the residence. Officer Abel from the second outside. The defendant Officer misidentified find anyone find heroin and bcnzylpiperaz ine. commonly bedroom to enter the residence. Abel entered the residence. 110! The pills (22.71 one pink (bcnzylpipcrazine) the scene During grams) the search, from the upstairs pill (benzylpipernzine). and $2, 135 from upstairs bedroom. After this Court granted in part and denied in part the defendant's motions based on the evidence set forth above. 3 the defendant proceeded suppression to stipulated a a the non-jury trial. Prior to the commencement of trial. the following exchange occurcd on the record: MR. SACHS (the Assistant District Attorney): This is going lo go in by way of stipulation. I would move the incorporate all of the previous testimony the Court has taken during the course of the suppression hearing and then would supplement that with additional facts. THE COURT: Haber? Is that the way we are proceeding, Mr. MR. HABER (defense counsel): That's the way I have offered to proceed and will stipulate. If there's something Mr. Sachs says I won't stipulate lo, I wilt speak up hut I don't' anticipate that will occur. A non-jury trial then occurred set Forth above. first claims that the drugs and money seized from the residence have been suppressed without from unreasonable be let alone." a search warrant. The Fourth Amendment to the United Constitution States protect individuals searches and seizures, thereby ensuring the "right of each individual v. Blair, 394 Pa. Super. 207, 575 A.2d 593, 596 (Pa.Super, rule, a search warrant is required before police Commonwealth v. White, 669 A.2d 896, 900 (Pa. 1995). is presumptively unreasonable under the Fourth Amendment, established, should to In the Interest of D.M., 566 Pa. 445m 781 A.2d 1161, 1163. (Pa. 200 I); C9mmonwealth general as because Officer Abel did not have lawful cause to initially enter the and Article l, Section 8 of the Pennsylvania Constitution and sentenced This appeal followed. Defendant residence and the def end ant was convicted well-delineated exceptions. A warrantlcss Horton v. California, 4 may conduct 1990). As a any search. search or seizure subject to a few specifically 496 U.S. 128, 134, n.4. 110 S.CI. 231, unreasonable 110 L.Ed.2d 112 (1990). Warraruless searches are also presumptively under Article I. Section 8 of the Pennsylvania Constitution. Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007). This circumstances. Court believes the warrantless entry by exigent was justified As sci forth in ConJmonwcahh v. Walker, 836 A.2d 978, 981 (Pa. 2003) citing Commonwealth Court has identified justified that v. Roland, 637 269. 271 (Pa. 1994). the Pennsylvania a number of factors to consider in determining Supreme whether a search is by exigent circumstances: ( 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 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 ( l 0) whether there is a danger to pol ice or others. Additionally. it has been well established that exigent circumstances exist where there is a threat of physical harm. Commonwealth A.2d I 199 (Pa.Super. 1986). Sec Commonwealth (Pa.Super. 2009)(Exigent circumstances persons inside ... the dwelling"). v. Ehrsam, 355 Pa. Super. 40. S 12 v. Fickes, 969 A.2d 1251. 1255 exist where there is a "danger to police or other Justice Castille. in Commonwealth 262. 888 A.2d 694 (Pa. 2005), referred to "exigent 5 circumstances" v. Revere. 585 Pa. as a term of an that describes a situation in which "a more orderly process must yield to an urgent necessity for immediate action." Id. at 698 fn.5. Exigent circumstances to search a residence arc 111 "hot-pursuit" of a suspected Maryland Pe1)itentjj}~ Hayden. offender have been held to exist when officers who enters a residence. 387 U.S. 294. 87 S. Ct. 1642. ( 1967)(Exigent circumstances existed reports of an armed and where the suspect entered robbery for entry into a residence minutes before the police arrived); Commonwealth 2005)(Police lawfully entered a residence suspect); existed Comm_onwcalth for police occurred only where police received the home less than five v. Dommel, 885 A.2d 998 (Pa.Super, in hot pursuit where they were following a DUI home and arrest armed robbery suspects 15 minutes previously probable cause existed 18 L. Ed. 2d 782 v, Jeny. 470 A.2d 601 (Pa.Super. 1983)(Exigent to enter See War~k:D., circumstances where the crime This Court believes that and one block away). for Officer Abel to enter the residence. Officer Abel properly relied on a report of a robbery victim that the armed suspect [led the scene and entered a specific, identified residence. The report to Officer Abel occurred armed robbery and the victim was very specific and identified observed the armed actor enter. minutes after the the exact location where he There was a risk of physical harm to the residents and to the police officers in pursuit due to the fact that an armed individual entered the residence in an effort to flee from the police. immediate suspect. action was warranted Accordingly. Under these circumstances. lo the suppression enter the residence motion was denied. 6 this Court believes that to pursue an anned robbery Defendant the defendant's trial. testimony The defendant therefore, lower court are issues did not object waived of constitutional defendant's testimony however, that a sentence unfounded. advise not the Court the defendant al time on be raised for first on appeal. "): As set forth above, from the suppression if he had any objection is a challenge sentence hearing to additional excessive 1212 (Pa. Super. 1995). A sentencing of a sentence, the sentencing to the and that sentence court manifestly abused sentence. aspects of the to the discretionary was proper. in the determination unless time this claim is waived. v. Hoag. 665 A.2d This Court's appeal."); that "even He did not offer any such objections Accordingly, This claim partiality. 200 I) appeal denied, An abuse of discretion prejudice, ill-will. 7 or will not be its discretion." v. 568 Pa. 695, 796 A.2d 979 is not a mere error of judgment; manifest is. judge is given a v. Boyer, 856 A2d 149, 153 (Pa. Super. 2004), citing Commonwealth 784 A.2d 808, 811 (Pa.Super, bias, first 1242, 1244; (Pa.Super. 2006). is excessive Commonwealth on appeal the last claim is that this Court imposed a manifestly (2002); 42 Pa.CS.A. §9721. involves may of that "issues not raised in the for to the use of all testimony from the civil matter. Commonwealth Kenner, dimension stipulated great deal of discretion disturbed against 789 A.2d 252. 253 (Pa. Super. 200 )(explaining I that he would Defendant's raised the introduction of this evidence at trial and, 302(a) (stating be elicited by the Commonwealth. evidence sentence. cannot v. Cain, 906 A.2d counsel indicated A claim and proceeding to the admission See Pa.R.A.P. v. Lawson, Co111monwcalth that this Court erred in permitting from a prior civil eviction this issue is waived. Commonwealth and next complains unreasonableness. it See Con.1n.mn.~raltl1~._.FIQr_~ 92 I A.2d SI 7. 525 (Pa.Super. 2007), citing C9mn~_gm~al1h_y_, Busanet, 817 A.2d J060. l076(Pa. 2002). The imposition sound discretion ordinarily rather than concurrent court. Challenges question. ~ommonwealth 2006). Commonwealth appeal denied, sentences lies within the to the exercise of this discretion v. Pass, 914 A.2cl 442, 446- v. Lloyd, 878 A.2d 867. 873 (Pa. Super. 585 Pa. 687, 887 A.2d 1240 (2005) (citing Commonwealth 1212, 1214 (Pa. Super. court discretion being of the sentencing do not raise a substantial 47 (Pa.Super. A.2d of consecutive 1995). Title 42 Pa.CS.A. § 9721 affords to impose its sentence imposed at the same concurrently time or to sentences or consecutively already imposed. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (citing Commonwealth 1367, 1373 (1995)). "In imposing a sentence, given the facts of a particular case, a sentence with another imposed." sentence being Super. 2005), quoting Commonwealth see also Commonwealth resolving consecutively excessive raises substantial the aggregate to other sentences ~gmmonwealth v. to or concurrent v. Perry) 883 A.2d 599 (Pa. v. Wright, 832 A.2d 1104, 1107 (Pa.Supcr.2003); ). appeal denied As the Superior Court has stated in Commonwealth 2 A.Jc! 581, 587 (Pa.Super. the preliminary the sentencing may determine whether, should run consecutive Commonwealth v. I-loag. 665 v. Graham, 661 A.2d v. L.N., 787 A.2d 1064, 1071 (Pa.Super.2001 569 Pa. 680, 800 A.2d 931 (2002). v. Mastromarino. the trial judge 2005), 20 I 0). "[ t [hus, in our view, the key lO question inquiry is whether sentence to. what appears the decision upon its face to be, an level in light of the criminal conduct at issue in the case." 8 to sentence the "! s ]entencing Furthermore, permissible confinements surrounding his crime." Discretion ( 1992). a sentencing court has broad discretion in choosing which best suits a particular BQX.~.!:. supra, quoting is limited, CQ!runonwcallh v. Moore, 617 A.2d 8, 12 a sentence individualized Sect ion 9721 (b) provides: ''It to that particular of the public, the gravity of the offense, the victim and on the community, Bo)'.er, supra at 153, citing case and lhe court sh al I follow the general principle that the sentence imposed should call for confinement protection and the circumstances however, by 42 Pa.CS.A. §972 l(b), which provides that court must formulate that particular defendant. defendant the range of that is consistent with the as it relates to the impact on the life of and the rehabilitative needs of the defendant §9721 n». Furthermore, 42 Pa.CS.A. In imposing sentence, the trial court is required to consider the particular circumstances of the offense and the character of the defendant. The trial court should refer to the defendant's prior criminal record. age, personal characteristics, and potential for rehabilitation. However, where the sentencing judge had the benefit of a presentence investigative report, it will be presumed that he or she was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Boyer. supra at I 54, citing (Pa.Super. 2000) (citations Moreover, record." satisfy Commonwealth v. Burns, court must state its reasons Royer, supra at 154, citing 42 Pa.C.S.A. § 972l(h). indicating A.2d I 144, 1150-11 SI omitted). "the sentencing the requirement 765 that reasons that he or she has been for imposing sentence The sentencing be placed informed by the presentcnce 9 for the sentence report; judge on the can on the recordby thus properly considering and weighing ~9mmonwcal1..h all relevant v,_Lgill!., 451 factors. Pa.Super. 219, _Doye_r. supra, citing J3urns, supra, citing Additionally, 679 A.2d 237 (1996). "where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code". A.2d 162. 171 Commonwealth v. Moury, 992 (Pa. Super. 2010) see also Commonwealth v. Cruz-Centeno, 447 Pa. Super. 98. 668 A.2d 536 (Pa.Super. 1995). appeal denied, 544 Pa. 653, 676 A.2d 1195 { 1996) (stating combination of PS I and standard range sentence, absent more, cannot be considered excessive or unreasonable). The record in this case supports the sentence imposed by this Court. The sentencing record reflects that this Court considered the prcsentence report. the testimony presented al trial and at sentencing and all other relevant factors. The defendant did not object to the substance of the information contained in the presentcnce report. sentence imposed was within the standard range of the sentencing guidelines. the sentences were imposed consecutively, reflects that in imposing sentence, the Court considered The sentencing record the that the defendant previous convictions for dealing drugs and that he had served substantial had prison time for This Court was convinced that the defendant continues lo choose not to conform his conduct to the dictates of the laws prohibiting drug trafficking. further recognized the impact that the defendant's circulating Although they were done so to recognize that the defendant was involved in the trafficking of two separate drugs. those offenses. Each drugs into the community conduct had on society in general by and contributing IO The Court to the many unfortunate // ;',: consequences of drug use. sentence Based on these facts, this Court does not believe the imposed in this case was excessive. Accordingly, the judgment should be affirmed. By the Court: 11

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