Com. v. Way

• Decision Date: 17 May 1985
• Citation: 342 Pa.Super. 341,492 A.2d 1151
• Parties: COMMONWEALTH of Pennsylvania v. Raymond Earl WAY, Appellant (two cases).
• Court: Pennsylvania Superior Court

Page 1151

492 A.2d 1151

342 Pa.Super. 341

COMMONWEALTH of Pennsylvania v. Raymond Earl WAY, Appellant (two cases).

Superior Court of Pennsylvania.

Argued March 18, 1985.

Filed May 17, 1985.

Theodore Simon, Philadelphia, for appellant.

Charles Gutherie, Asst. Dist. Atty., Reading, for Com., appellee.

Before OLSZEWSKI, MONTGOMERY and LEDERER ^*, JJ.

OLSZEWSKI, Judge:

Appellant challenges the order entered December 30, 1983 and the judgment of sentence entered November 30, 1983. By this appeal, he seeks to withdraw pleas of guilty entered on counts of possession with intent to deliver marijuana, hashish and methamphetamine. Appellant argues that the pleas are the poisoned fruit of an illegal search. The matter comes before us couched as a question of assistance of counsel. Appellant asks us to decide that he was denied effective assistance by trial counsel's failure to move for suppression of physical evidence obtained in that allegedly illegal search. For the reasons below we agree. We therefore vacate the judgment of sentence and reverse the order denying appellant's motion to withdraw his guilty pleas.

The facts of this case are succinctly stated in the lower court's opinion:

On August 12, 1982, Pennsylvania State Trooper Richard Rabb purchased methamphetamine from Rebecca Missimer and David Rhoads near the Boyertown dam in Berks County, Pennsylvania. At 5:00 P.M. on August 25, 1982, in New Berlinville, Berks County, Pennsylvania, Rabb gave $170.00 in marked currency to Missimer and Rhoads for the purpose of having Missimer and Rhoads procure methamphetamine for Rabb, at that time agreeing to meet later in the day. This meeting was surveilled by a Sergeant Ziegler and a Trooper Makos. After the meeting ended, Ziegler and Makos followed Rebecca Missimer, who was driving a beige Volkswagen, to the intersection of Douglass Road and Pennsylvania Route 562 in Douglass Township, Berks County, Pennsylvania. There Missimer drove onto the roadside and parked. Shortly thereafter a blue van registered to defendant Raymond Way pulled beside the beige Volkswagen in which Missimer was sitting. Forty-five minutes later the two vehicles parted with Trooper Makos following the blue van a short distance to a residence at the corner of Douglass Road and Glendale Road in Douglass Township, Berks County, Pennsylvania.

Later at 8:05 P.M. on August 25, 1982, Rabb again met with Rhoads and Missimer for the purpose of receiving the methamphetamine for which he had earlier paid. Once delivery of the methamphetamine occurred, Ziegler and Makos, who had since resumed surveillance, arrested Rhoads and Missimer, while Rabb through field testing determined the delivered goods to be methamphetamine. Rhoads and Missimer were then taken to the Colebrookdale Township Municipal Building and given their Miranda rights. Afterwards Missimer related obtaining methamphetamine from defendant Way on a number of occasions in the past, further explaining that the methamphetamine which had just been received by Rabb was provided by defendant. Upon receiving this information, Makos determined by contacting Douglass Township Police that Raymond Way's residence was situated where Makos observed the blue van returning after the rendezvous with Missimer.

The issue was preserved for appeal by counsel representing appellant after entry of his guilty pleas. That counsel, citing trial counsel's ineffectiveness, filed a petition to withdraw appellant's pleas. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975) (trial counsel's ineffectiveness must be raised at earliest opportunity where defendant is not represented by same counsel).

To reach the question of effectiveness, we must first determine whether the physical evidence was seized in violation of appellant's rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Appellant contends that the search was conducted pursuant to an invalid warrant. Specifically, he alleges that there were "insufficient facts within the affidavit to believe that contraband was located on the premises to be searched."

The probable cause portion of the affidavit provided:

At approximately 1705 hrs., this affiant did observe Tpr. Raab drive away from the alley-way behind said residence. A short time later this affiant observed Rebecca Missimer drive away from the alley-way in a beige VW, Pa. Reg # EBB-671. At this time this affiant and Sgt. Ziegler followed the VW west on PA 562. At the intersection of PA 562 and Douglas Rd. the VW vehicle turned left onto Douglas Rd. and pulled off the roadway approximately 200 yards south of PA 562. Approximately 5 minutes later a blue van, PA Reg # CX-33612 arrived and pulled next to the VW. The blue van was operated by a white male with glasses. Both vehicles stayed at said location for approximately 45 minutes. At approximately 1750 hrs., the blue van drove south on Douglas Road and the VW drove West on PA 562. This affiant followed the blue van to the intersection of Douglas Rd. & Glendale Rd. where subject pulled into a driveway located on the north East corner of Douglas & Glendale Rd.

A registration check with the Bureau of Motor Vehicles indicates that the blue van with PA Reg # CY-33612 is registered to Raymond Way, RD # 2 Boyertown, PA PO Box 520.

At this time, this affiant and Sgt. Ziegler drove to the Boyertown Water Dam located on Powder Mill Hollow Rd., in Earl Twp. Berks County, and did arrest Rebecca Missimer and David Rhoads at approximately 1815 hrs. for delivering approx. 2 1/2 grams of methamphetamine Tpr. Richard Raab at said location. Said substance was field tested by Tpr. Raab and showed to be positive for methamphetamine.

Subjects Missimer and Rhoads were taken to the Colebrookdale Twp. Municipal Bldg. and charged with violation of the Penna Drug Laws, Act # 64, section 13(a), Clause 16 & 30. After given their constitutional rights by this affiant, Rebecca Missimer stated that she has obtained methamphetamine from Raymond Way a number of occasions in the past and she did meet with Raymond Way this date as the surveillance by this affiant and Sgt. Ziegler indicate, and she did purchase the above mentioned methamphetamine from subject Way for $130.00. Subject Missimer did state that she would contact Way via telephone (215-3670372) and would meet at a pre-arranged location for the drug transaction. This affiant contacted Sgt. Randy Doaty of the Douglas Twp. police department and he advised this affiant that subject Raymond Way does in fact live at the intersection of Douglas Dr. and Glendale Rd., in Douglas Twp., Berks County.

"It is well settled that for a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time of its issuance." Commonwealth v. Stamps, 493 Pa. 530 535, 427 A.2d 141, 143 (1980). The determination of probable cause must be based on facts described within the four corners of the supporting affidavit. See Commonwealth v. Simmons, 450 Pa. 624, 626, 301 A.2d 819,...