Commonwealth of Pa. v. Alexander

• Decision Date: 18 March 2011
• Citation: 16 A.3d 1152,2011 PA Super 54
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Antonio ALEXANDER, Appellant.
• Court: Pennsylvania Superior Court

16 A.3d 1152

2011 PA Super 54

COMMONWEALTH of Pennsylvania, Appellee

v.Antonio ALEXANDER, Appellant.

Superior Court of Pennsylvania.

Argued March 11, 2010.Filed March 18, 2011.

Owen W. Larrabee, Public Defender, and Peter Thompson, Public Defender, Philadelphia, for appellant.Hugh J. Burns, Jr., Assistant District Attorney, and Priya Travassos, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.BEFORE: FORD ELLIOTT, P.J., and STEVENS, GANTMAN, PANELLA, DONOHUE, SHOGAN, ALLEN, LAZARUS and MUNDY, JJ.

OPINION BY LAZARUS, J.:

Antonio Alexander appeals from his judgment of sentence after entering an open guilty plea to violations of the Uniform Firearms Act (VUFA).¹ Alexander was sentenced to 1–2 years of imprisonment, to be followed by three years of reporting probation. On the same day he was sentenced, the court also imposed a condition on Alexander's probation and/or parole that makes him subject to random searches of his residence (limited to the space he occupies) by agents of the Gun Violence Task Force. On appeal, Alexander challenges the validity of the search condition, contending that such suspicionless searches are unconstitutional under both federal ² and state ³ constitutions and beyond the authority of the trial court. We agree and vacate and remand for sentencing.

FACTS

On the evening of December 14, 2007, Philadelphia Police Detectives saw Alexander, a convicted felon at the time, walking on the street carrying a handgun over his shoulder. When the officers attempted to stop him, he ran and tossed the gun aside. The police recovered the gun, an inoperable 9mm automatic loaded with 33 rounds, and noticed that its serial number had been removed. The case was assigned to Philadelphia Gun Court, where Alexander pled guilty before the Honorable Susan I. Schulman.

At sentencing, the trial judge ordered Alexander to serve 1–2 years in prison for his section 6105 violation, to be followed by three years of probation for his section 6110.2 infraction. The court also informed Alexander that he would not be eligible for early parole and that he would be on “Gun Court” probation, explaining:

In my mind this could easily be an aggravated range sentence, easily, without much hesitation. The guidelines here are low for you. However, I have a great deal of concern about your ability to be on the street. So if you would please rise, I'll impose your sentence.

* * *

You have been on probation a lot before. You will be on my probation for three years when you're released.

The difference between the probation you were on and the probation you will be on is light-years. There is no stricter probation than gun court probation. So those other probation terms you were on, forget what that was like entirely. Gun court probation is supervised only by gun court probation supervisors through the gun violence task force. They only supervise people such as yourself convicted of gun court crimes. They respond and report directly to me; very small case loads of people.

There is zero tolerance, Mr. Alexander, for any type of gun court probation violation whatever. And I'm going to set out for you what that means now so that we both have an understanding from the getgo. There will be—obviously, the gun in this case will be relinquished and destroyed.

You are never permitted to own or possess a firearm even for the briefest amount of time Mr. Alexander. There will be 20 hours of community service, firearm safety class, random drug screen and anger management, vocational counseling. All of those things get put into place in an attempt to help you, Mr. Alexander.

* * *

However, if you—here's where it gets hard: If you are arrested for anything at all while you're on gun court probation, just arrested for anything, you violate that probation, you will serve out a very long time in jail, no excuses.[.]

* * *

In regard to what we're talking about [regarding the 6105 order], when you're released from prison, when you're on parole and when you're on probation, I'm ordering that you are not permitted to reside in a house where anyone has a gun. All right?

So I'm signing an order allowing random searches of your residence. So that if you reside in a house where there's a gun, that would also be a violation of your probation or parole.

N.T. Sentencing, 8/15/2008, at 15–21 (emphasis added).

Alexander filed a post-sentence motion to reconsider his sentence and strike the probation/parole condition allowing for the random residential searches. The court denied the motion, finding that the random searches were both reasonable and necessary for a convicted felon on probation who is prohibited from having a firearm or residing with anyone who has a firearm. Alexander filed this timely appeal, again contesting the constitutionality and reasonableness of the search condition.⁴

DISCUSSION

Before we address the merits of Alexander's claim on appeal, we must first determine whether he has preserved this issue for our review. The Commonwealth contends that the issue regarding the validity of the random, warrantless search condition on Alexander's parole and/or probation is one that challenges the discretionary aspect of his sentence. The Commonwealth further argues that because Alexander has failed to demonstrate that a substantial question exists as to whether the imposed sentence was appropriate under the Sentencing Code as a whole, the claim is waived on appeal. We disagree.

Our full Court recently addressed this exact issue in Commonwealth v. Wilson, 11 A.3d 519 (Pa.Super.2010) (en banc), where a similar search condition was imposed on Wilson's sentence. In that decision, a majority of the Court held that the issue involved one of legality of sentence because it essentially questions the court's authority to impose conditions on a defendant's probation and parole. Id. at 524–25, 535–36.⁵ Because we are bound by the Wilson Court's determination that the issue on appeal is a challenge to the legality of Alexander's sentence,⁶ the claim is non-waivable. See Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95 (2007) (challenges to sentences based upon their legality are not subject to waiver).

Probationary Condition

Alexander claims, as did the defendant in Wilson, that in order to be valid, the searches of his residence while he is on probation must be based, at least, upon a minimal level of reasonable suspicion. Without this particularized suspicion or any statutory authority giving the trial court the power to order such suspicionless searches, Alexander asserts that the court exceeded its authority and violated his constitutional right to be free of unreasonable searches. We agree.

In Wilson, supra, our Court was equally divided on the validity of the same search condition that was imposed on the defendant's probation sentence. Although a plurality affirmed the trial court, finding that such probation conditions were “lawful under § 9754(b)⁷ of the Sentencing Code as the condition was reasonably related to Wilson's rehabilitation and public safety[,]” id. at 531, this author issued a plurality decision to reverse Wilson's sentence, stating:

[A] court lacks authority to order the performance of an act that is contrary to statutory law and that any order purporting to require such an act is a legal nullity. See Commonwealth v. Mears, 972 A.2d 1210 (Pa.Super.2009) (holding imposition by trial court of condition of parole to be legal nullity as statutory law vests such authority solely with Board of Probation and Parole). Here, the trial court ordered that [the defendant] be subjected by the Department of Probation to random, warrantless searches in contravention of Section 331.27b,⁸ which requires that probationary searches be supported by reasonable suspicion. As a result, I would vacate that portion of [the defendant's] sentence requiring that he be subjected to such searches.

Wilson, supra at 537.

Our Commonwealth has recognized that individuals on probationary supervision have a diminished expectation of privacy, Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031 (1997); however, that does not mean that the search of a probationer's residence can be conducted at any time and for any reason. See 61 P.S. § 331.27a, b (now repealed statute authorizing state and county parole and probation officers to perform searches where there is at least reasonable suspicion to believe parolee or probationers possess or control evidence violating conditions of parole or probation). To further this point, Alexander cites to Williams, supra, which held that there must be at least reasonable suspicion to search the residences of parolees without a warrant.

In Williams, unlike this case, the defendant signed a form expressly consenting to the warrantless search of his residence by agents while on parole. Acknowledging the factual distinctions between this case and Williams, the most significant being that here the search condition is tied to a probation sentence, Alexander correctly points out that the constitutional rights of a parolee and a probationer are indistinguishable. Id. at 585 n. 7, 692 A.2d 1031, citing Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 3, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Thus, Alexander argues that just as Williams' residence could not be searched while he was on parole without at least a minimum level of reasonable suspicion, so too should the same level of suspicion be required to apply to the search of his home while he is on probation. We agree.

As the opinion in support of reversal concluded in Wilson, the instant probation condition imposed by the trial court on Alexander's sentence has no basis in statutory authority or other legal authority. In fact, the condition violates the plain language of section 331.27b, which requires probation officers to support their searches with reasonable suspicion. Wilson, 11 A.3d at 536–37. There must be some level of reasonable suspicion present in order to...