Commonwealth v. Coleman

• Citation: 130 A.3d 38
• Decision Date: 14 December 2015
• Docket Number: No. 1839 WDA 2014,1839 WDA 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Mark COLEMAN, Appellant.
• Court: Pennsylvania Superior Court

130 A.3d 38

COMMONWEALTH of Pennsylvania, Appellee,

v.Mark COLEMAN, Appellant.

No. 1839 WDA 2014

Superior Court of Pennsylvania.

Argued Sept. 17, 2015.

Filed Dec. 14, 2015.

David C. James, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, OLSON, AND STABILE, JJ.

OPINION BY BOWES, J.:

Mark Coleman appeals from the judgment of sentence of five to ten years incarceration to be followed by five years probation after a jury found him guilty of two counts of possession with intent to deliver ("PWID"), and one count each of possession of a controlled substance and possession of drug paraphernalia. After careful review, we reverse.

On December 17, 2012, State Parole Agent Thomas Pekar received an anonymous telephone call from a woman claiming that Appellant was one of the largest drug sellers in the West View, Allegheny County area and had received a driving under suspension citation. One of the conditions of Appellant's parole was that he report any contact with police to his parole officer. Agent Pekar confirmed that Appellant had received a citation for driving with a suspended license. Appellant had not informed his parole officer of that citation.

Previously, Appellant had contacted a prior parole agent to change his address. Appellant provided that he was going to reside at 102 Center Avenue, West View, Pennsylvania. He completed Pennsylvania Board of Probation and Parole Form 348 on November 19, 2012, acknowledging that he would be living at the 102 Center Avenue address. Appellant's parole officer, Agent Pekar, had attempted on approximately three occasions to meet with Appellant at his address. On one occasion, Appellant agreed to meet with Agent Pekar but never appeared at the address.

In light of these facts, agents met with Appellant at the parole office and searched him on December 18, 2012. That search revealed nothing and Agent Timothy Wolfe told Appellant that he had information that he was involved in drug activity and was going to search his apartment. Agent Pekar and Agent William McKay traveled to Appellant's residence while Appellant remained at the parole office. The agents retrieved a key from the rental office manager, whose office was located next door to Appellant's apartment. After entering the apartment, the agents observed a digital scale in plain view that had white powder on it. The apartment also had a trash bag in the living room area and a Comcast cable bill addressed to Appellant at the address. The apartment was leased in Appellant's grandmother's name. The trash bag contained a white substance that appeared to be cocaine.

The agents seized the suspected cocaine and scale and contacted a City of Pittsburgh police officer. That officer field tested the suspected narcotic, which tested positive as cocaine. Since Appellant's residence was not within Pittsburgh city limits, the parole agents alerted Allegheny County police. Allegheny County Detective Todd Naylor charged Appellant with the aforementioned crimes.

Appellant filed and litigated a motion to suppress, contending that the warrantless search was unconstitutional. The court denied that motion and the matter proceeded to trial. After his initial trial resulted in a hung jury, a subsequent jury found Appellant guilty of PWID, possession of cocaine, and possession of drug paraphernalia. The court sentenced Appellant to five to ten years incarceration to be followed by five years probation. This timely appeal ensued. The trial court directed Appellant to file and serve a Pa.R.A.P.1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its Rule 1925(a) decision. The matter is now ready for this Court's consideration. Appellant presents two issues for our review.

I. Did the trial court err when it denied Mr. Coleman's motion to suppress because the parole officers' warrantless search of 102 Center Avenue was unreasonable and unsupported by the requisite reasonable suspicion to believe that criminal activity was afoot, thus violating Mr. Coleman's rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution ?

II. Was the evidence insufficient to prove, beyond a reasonable doubt, that Mr. Coleman committed any of the offenses at CC 2013–04456 because the Commonwealth failed to establish that Mr. Coleman possessed the cocaine and paraphernalia, and could not place Mr. Coleman inside the apartment?

Appellant's brief at 6.

Since a sufficiency claim warrants automatic discharge rather than retrial, we address that issue at the outset. In performing a sufficiency review, we consider all of the evidence admitted, even improperly admitted evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super.2013) (en banc ). We view the evidence in a light most favorable to the Commonwealth as the verdict winner, drawing all reasonable inferences from the evidence in favor of the Commonwealth. Id.

The evidence "need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Id. When evidence exists to allow the fact-finder to determine beyond a reasonable doubt each element of the crimes charged, the sufficiency claim will fail. Id. In addition, the Commonwealth can prove its case by circumstantial evidence. Where "the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances[,]" a defendant is entitled to relief. Id. This Court does not "re-weigh the evidence and substitute our judgment for that of the fact-finder." Id. Determining whether a person possessed a drug with an intent to deliver is based upon the totality of circumstances. Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233 (2007). Necessarily, if a person possesses narcotics with intent to deliver, he is guilty of possession.

Appellant argues that the Commonwealth failed to prove that he constructively possessed the cocaine inside 102 Center Avenue. He maintains that there is no evidence that he actually was inside the address nor did anyone observe him in possession of or selling the drug. Appellant asserts that the evidence establishes at most that he resided at the address at one time.

The Commonwealth responds that the circumstantial evidence in this matter proved beyond a reasonable doubt that Appellant constructively possessed the cocaine and digital scale. It notes that Appellant had informed his parole agent that he lived at 102 Center Avenue and that a Comcast bill dated December 3, 2012, was inside the apartment on top of the garbage bag containing the drugs. In addition, there is no dispute that over 100 grams of cocaine was located inside the apartment.

Constructive possession is determined by examining the totality of the circumstances. We look to whether the defendant had the ability to exercise a conscious dominion over the item, the defendant's power of control over the item, and his intent to exercise such control. Commonwealth v. Johnson, 611 Pa. 381, 26 A.3d 1078, 1086 (2011). Here, Appellant informed his parole agent that he lived at the address. Further, a bill addressed to him at the apartment from two weeks earlier was inside. Appellant's grandmother's name was on the lease, but there was no indication that she lived there. Men's clothing was located inside the apartment. The circumstantial evidence was more than sufficient to establish Appellant used or lived inside the apartment and therefore constructively possessed the drugs and scale. In addition, the Commonwealth elicited expert testimony that based on the amount of drugs that Appellant possessed those drugs with intent to deliver. Appellant's sufficiency claim is devoid of merit.

Having determined that the evidence in this matter was sufficient to find Appellant guilty of the pertinent charges, we now consider his suppression claim. In evaluating a court order denying a suppression motion, we consider the factual findings of the suppression court and whether they are supported by record evidence. In re T.B., 11 A.3d 500, 505 (Pa.Super.2010). We consider only the evidence of the Commonwealth's witnesses and testimony of the defendant's witnesses that are not contradicted by the suppression record.Id.¹ Where the evidence supports the suppression court's factual findings, we are bound by them and will reverse only where the legal conclusions derived from those facts are in error. Id. In this latter regard, we are not bound by the legal determinations of the suppression court.

Appellant acknowledges that, as a parolee, under both statutory authority and case law, he has less constitutional search and seizure protections than the regular citizen. However, he correctly asserts that parolees still have limited constitutional protections relative to warrantless searches. Parole officers may perform a search of a parolee's residence where the totality of the circumstances demonstrates reasonable suspicion that evidence of contraband or a violation of parole will be discovered. 61 Pa.C.S. § 6153.

Appellant maintains that the parole officers herein lacked reasonable suspicion to search his apartment. He contends that the search was based "on an unreliable, uncorroborated, anonymous tip received by Agent Pekar on December 17, 2012." Appellant's brief at 24. Appellant submits that the anonymous caller did not indicate that she saw Appellant in possession of drugs or selling drugs and only stated that he was a large drug dealer in the area. In addition, Appellant argues that, although Agent Pekar confirmed that the anonymous caller was correct that Appellant had been cited for driving with a suspended license, this fact does not render the caller reliable. In support, Appellant relies on Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), Commonwealth v....