Com. v. Wilson

• Decision Date: 15 December 2010
• Citation: 11 A.3d 519
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David A. WILSON, Appellant.
• Court: Pennsylvania Superior Court

11 A.3d 519 COMMONWEALTH of Pennsylvania, Appellee v. David A. WILSON, Appellant. Superior Court of Pennsylvania. Argued March 11, 2010. Filed Dec. 15, 2010.

Victor Rauch, Philadelphia, for appellant.

Suzan Wilcox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., and STEVENS, GANTMAN, PANELLA, DONOHUE, SHOGAN, ALLEN, LAZARUS and MUNDY, JJ.

OPINION IN SUPPORT OF AFFIRMANCE BY PANELLA, J.:

This is an appeal from an order of the Philadelphia Gun Court which authorized random, warrantless searches as a condition of probation and parole for Appellant, David A. Wilson. Wilson raises a number of challenges to this condition, imposed by the Honorable Susan I. Shulman, on August 18, 2008, in the Court of Common Pleas of Philadelphia County. After careful review, we affirm the condition as it applies to the probationary sentence, but are required to vacate with respect to the state parole aspect of the sentence.

We begin with a brief background of the Philadelphia Gun Court. On January 10, 2005, the Philadelphia Court of Common Pleas instituted the Gun Court. ¹ The Philadelphia Gun Court was "constituted in response to the increasing number of weapons offenses being committed in Philadelphia and the inherent danger to the community when weapons are possessed on the streets illegally." ² A case is transferred to the Philadelphia Gun Court when the most serious charge is a violation of the Uniform Firearms Act ("VUFA"). The Philadelphia Gun Court provides for a prompt disposition of firearm offenses and works to improve "the coordination of the efforts by numerous agencies and non-profit organizations in reducing the number of illegal guns on the streets of Philadelphia...." ³ Importantly, the "infrastructure" of the Philadelphia Gun Court allows for the "direct and immediate response to defendants who violate Court Orders and who are recidivists." ⁴

The four years preceding the formation of the Philadelphia Gun Court were years of intense violence in Philadelphia: from 2000 to 2004, the city experienced more than 300 murders per year. See Murders on rise in Philadelphia, USA Today, December 12, 2005, available at http:// usatoday. com/ news/ nation/ 2005- 12- 04- murders- philadelphia—x. htm. (last visited September 8, 2010). Philadelphia's murder rate in 2004, of 22.4 per 100,000 residents, was "the highest of the nation's 10 largest cities and rank[ed] third among the 25 largest, behind Baltimore and Detroit." Id. Eighty percent of the murders in Philadelphia were shooting deaths, ten percent higher than the national average. See id.

In 2008, Wilson appeared in the Philadelphia Gun Court charged with three counts of VUFA ⁵ and of possession of a controlled substance.⁶ Following a bench trial, Wilson was found guilty of the charges. At sentencing, the trial court imposed a condition of probation which authorized probation agents to conduct random, warrantless searches of Wilson's residence for weapons, a condition routinely imposed in the Philadelphia Gun Court. The trial court also entered an order imposing the same condition for Wilson's parole.

On appeal, Wilson first argues that such a probation condition constitutes an illegal sentence. Specifically, he claims that the condition of probation subjecting him torandom searches of his residence was imposed by the trial court without legal authority, as it runs afoul of 61 Pa.Stat. § 331.27b,⁷ which mandates that a probation officer may conduct a property search only upon " reasonable suspicion to believe that the real 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.Stat. § 331.27b(d)(2) (emphasis added). Wilson additionally claims that the parole condition also constitutes an illegal sentence as the trial court had no authority to impose parole conditions when the maximum term of imprisonment is more than two years, as is the case here. The Commonwealth, on the other hand, contends that Wilson's sentencing claims present a challenge to the discretionary aspect of sentencing, which, it argues, Wilson has waived by failing to raise them at sentencing or in post-sentence motions.⁸

Wilson then goes on to argue that § 331.27b controls and that "[w]ithout a legal basis" the probation condition imposed by the trial court is in violation of the Constitutions of the United States and the Commonwealth of Pennsylvania. Appellant's Brief, at 9.

After reviewing the arguments of the parties, we find that the two sentencing claims raise challenges to the legality of the sentence imposed. Furthermore, we hold that the trial court had the authority under the Sentencing Code to authorize random, warrantless searches of Wilson's residence for weapons as a condition of probation, as this condition was reasonably related to Wilson's rehabilitation and public safety; that § 331.27b, by its plain terms, applies only to searches made by probation officers acting on their own authority without judicial sanction; and that such a condition does not run afoul of the United States or Pennsylvania Constitutions. We further find, however, that the trial court did not have the authority to impose a condition on Wilson's parole. A full discussion follows.

The trial court succinctly set forth the facts of this case.

At [the bench] trial, the Commonwealth presented the testimony of Lieutenant Kevin Wong and Officer Jeffrey Mastalski. On September 1, 2007, at approximately 4:50 a.m., Officer Wong was on duty in full uniform and a marked patrol car in the vicinity of the 3900 block of Mellon Street, in the city and county of Philadelphia, Pennsylvania. There, he observed [Wilson] "standing by a light colored auto[mobile] pointing a handgun through the passenger window at the driver." Officer Wong exited his patrol car, called for backup, and approached [Wilson] with his gun drawn.

Officer Wong immediately ordered [Wilson] to put his weapon down. Although [Wilson] partially complied by placing the gun down by his side, no longer pointing it through the vehicle'swindow, he nonetheless refused to drop the weapon. Instead, [Wilson] initially walked toward the Officer with the gun in hand, and then proceeded onto the porch of a nearby residence, located at 3948 Mellon Street. After Officer Wong again ordered him to drop the weapon, [Wilson] finally complied, and placed himself on the ground in compliance with the Officer's orders.

Officer Mastalski arrived on the scene only moments later, and observed [Wilson] laying on the ground. After Officer Wong recovered [Wilson's] gun, he handed the weapon to Officer Mastalski.... [It was a loaded .38 caliber revolver.] Officer Mastalski then frisked [Wilson] and recovered seven packets of marijuana along with five packets of cocaine.

Among other exhibits submitted into evidence, the Commonwealth presented the Quarter Sessions file from a previous case, establishing that [Wilson] had a prior conviction for an offense enumerated under Section 105 of the Uniform Firearms Act.

Supplemental Trial Court Opinion, 3/4/08, at 2-3 (citations to record and footnotes omitted).

As a result of the above evidence and testimony, the trial court found Wilson guilty of violating sections 6105, 6108 and 6110.2 of the Uniform Firearms Act, as well as knowingly and intentionally possessing a controlled substance. The court then sentenced Wilson to a term of imprisonment of 2 1/2 to 5 years, to be followed by 3 years probation. As stated above, this timely appeal followed.

We must first determine whether Wilson's challenge of the condition imposed on his probation and parole is a challenge to the legality of the sentence or whether it is, instead, a challenge to the discretionary aspects of sentencing. A challenge to the legality of a sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction. See Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.Super.2007) ( en banc ). An illegal sentence may be reviewed sua sponte by this Court. See Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa.Super.2010). Conversely, when the discretionary aspects of a judgment of sentence are questioned, an appeal is not guaranteed as of right. See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.Super.2006) (explaining that to appeal the discretionary aspects of sentencing an appellant must have (1) preserved such claims and (2) provided a Rule 2119(f) statement in his brief, which raises a substantial question for our review).

Wilson does not claim that the condition imposed by the trial court constituted an abuse of discretion, but rather, that the trial court ordered a condition of his probation and parole for which it had no statutory authority. "Under Pennsylvania law, a challenge to the validity of a sentence is a challenge to its legality." Commonwealth v. Arest, 734 A.2d 910, 912 n. 2 (Pa.Super.1999). "If a court does not possess statutory authorization to impose a particular sentence, then the sentence is illegal and must be vacated." Id. (citation omitted). See also Robinson, 931 A.2d at 21 (an illegal sentencing claim is one which implicates "the fundamental legal authority of the court to impose the sentence it did."); Commonwealth v. Pinko, 811 A.2d 576, 577 (Pa.Super.2002) ("The matter of whether the trial court possesses the authority to impose a particular sentence is a matter of legality.").

We recently applied the foregoing legal principles in Commonwealth v. Mears, 972 A.2d 1210 (Pa.Super.2009). In Mears, apanel of this Court considered a sentencing order in which the trial court ordered that Mears be subjected to random searches by the Gun Violence Task Force while he was on probation or parole. On appeal, Mears argued that the trial court imposed a "condition of parole contrary to statutory law and state and federal constitutional protections...." Id.,...