Commonwealth v. Hall

• Decision Date: 28 November 2018
• Docket Number: No. 1905 WDA 2017,1905 WDA 2017
• Citation: 199 A.3d 954
• Parties: COMMONWEALTH of Pennsylvania v. Gary Allen HALL, Appellant
• Court: Pennsylvania Superior Court

199 A.3d 954

COMMONWEALTH of Pennsylvania

v.Gary Allen HALL, Appellant

No. 1905 WDA 2017

Superior Court of Pennsylvania.

Submitted July 30, 2018

Filed November 28, 2018

Frank N. Paganie, Public Defender, Beaver, for appellant.

Richard E. Absey, Assistant District Attorney, Beaver, for Commonwealth, appellee.

BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER,^* J.

OPINION BY McLAUGHLIN, J.:

Gary Allen Hall appeals from the judgment of sentence entered following his convictions for possession with intent to deliver (PWID) and related crimes. He challenges the denial of his Motion to Suppress, the sufficiency and weight of the evidence, and the giving of a joint possession charge to the jury. We affirm.

After police searched two properties and seized evidence, Hall was charged with two counts of PWID (cocaine and heroin), and one count each of possession of cocaine, possession of heroin, and possession of drug paraphernalia.¹ Hall moved to suppress physical evidence, and at a hearing, the Commonwealth presented evidence of the following.

In May 2015, Agent David Sedon of the Pennsylvania Board of Probation and Parole received a tip from a former parolee that Louis Vearnon was residing with Hall at 2011 Main Street in Aliquippa. Vearnon was the subject of multiple outstanding arrest warrants. Hall rented a one-bedroom apartment at 2011 Main Street.

Agent Sedon contacted Agent Daniel Opsatnik of the Pennsylvania Attorney General's Office, and Agent Opsatnik went to the residence and observed Vearnon leave the property and reenter. Agents Opsatnik and Sedon received backup from Aliquippa police officers and Probation and Parole agents. The team formed a perimeter around the building, and police knocked on the door. They could hear voices and the sounds of people moving around inside. No one answered the door until five to six minutes later, when Vearnon and four other people, one of whom was Hall, appeared in the doorway. Law enforcement escorted them onto the front lawn and arrested Vearnon.

While outside the apartment, Police Captain Ryan Pudik saw a box of ammunition on a coffee table inside the apartment. Captain Pudik identified the ammunition as 5.7 caliber, which he knows to be "armor defeating." N.T. Suppression, 2/7/17, at 19. He and other officers entered the building and conducted a sweep of the home to make sure that there was nobody hidden inside. Id. at 20; see also 13-14. The sweep "took approximately 30 to 40 seconds" and "began immediately after the occupants exited the apartment." Suppression Court Opinion and Order, filed March 9, 2017, at 3. The officers did not look in any small containers. N.T. Suppression, 2/7/17, at 21-22. During the sweep, Captain Pudik observed in plain sight in the living room small glassine packets, or "stamp bags," and a cutting agent, benzocaine

hydrochloride. Suppression Ct. Op. at 3. He also saw what he believed to be a bundle of stamp bags in the bedroom.

Based on the items observed in plain sight during the sweep, the police obtained a search warrant for the apartment. They then searched the home and recovered roughly 50 grams of cocaine and more than 20 bricks of heroin. They found the majority of the drugs in the living room, inside the coffee table and behind a large couch. The police also recovered the items that Captain Pudik had seen during the sweep – the 5.7-caliber ammunition, bottle of benzocaine

hydrochloride, and stamp bags – as well as a large amount of additional evidence – digital scales, several cell phones, a glass pipe, a counterweight, a bottle of lidocaine, over $700 cash, a money-counting machine, numerous collectable coins, gold, and silver. They also found a rent receipt issued to Hall for 2011 Main Street, as well as numerous other documents bearing Hall's name: a vehicle registration, a bank statement, a lottery claim form, a check, and a tax statement. They did not find anything indicating anyone other than Hall lived in the apartment.

Some of the items police recovered referred to Hall's other residence, 217 Highland Avenue, and police obtained a warrant to search that address. Upon its execution, officers recovered additional ammunition and heroin.

The trial court denied Hall's suppression motion and he proceeded to a jury trial at which the Commonwealth presented as evidence the items recovered during the search of 2011 Main Street. However, they did not introduce any items seized from 217 Highland Avenue. See N.T. Trial, 5/8/17, at 74-76, 80-103, 108-09.

After the close of evidence, the court held a charging conference at which Hall objected to a jury instruction on joint possession. N.T. Trial, 5/9/17, at 150. Hall argued that because the Commonwealth did not charge any of the other individuals present in 2011 Main Street with possession crimes, it was improper to instruct the jury that it could conclude that Hall jointly possessed the contraband with another person. The trial court overruled the objection and gave the instruction.

The jury convicted Hall of the above charges, and the trial court later sentenced him to a total of 87 to 300 months in prison. Hall filed a post-sentence motion challenging, among other things, the weight of the evidence, and it was denied by operation of law. After the trial court reinstated Hall's appellate rights nunc pro tunc , Hall filed this appeal.

Hall raises the following issues, which we have reordered for ease of discussion:

1. Whether the suppression court erred in failing to suppress the initial search and subsequent search warrant obtained for the residence located at 2011 Main Street, Aliquippa, Pennsylvania, where the individual for which there was an arrest warrant, along with the four (4) other persons (including [Hall] ), had stepped outside the residence, were detained outside the residence[,] and the search of the residence was then conducted under the premise of a "protective sweep," with no other specific or articulable facts that the area to be swept harbored any other individuals posing a danger to those on the arrest scene?

2. Whether the suppression court erred in failing to suppress the search warrant issued for the residence located at 217 Highland Avenue, Aliquippa, Pennsylvania, when mail located from the initial search and search warrant obtained from the residence at 2011 Main Street, Aliquippa, Pennsylvania, indicated that [Hall] had another residence/address?

3. Whether [Hall]'s convictions at all counts should be reversed because the Commonwealth failed to present sufficient evidence to prove beyond a reasonable doubt that [Hall] possessed and/or constructively possessed the controlled substances required to find him guilty of the crimes of which he was convicted?

4. Whether [Hall]'s convictions at all counts should be reversed because the verdict rendered was against the weight of the evidence required to prove beyond a reasonable doubt that [Hall] was guilty of the crimes of which he was convicted?

5. Whether the trial court erred in permitting the jury instruction of joint possession over the objection of [Hall]'s counsel?

Hall's Br. at 10-11 (capitalization and answers omitted).

I. Suppression of Evidence Recovered From 2011 Main Street

Hall first argues that the trial court should have granted his motion to suppress the evidence recovered from 2011 Main Street. He contends that the protective sweep was illegal because Captain Pudik failed to articulate at the suppression hearing sufficient grounds to justify the sweep. Hall additionally argues that there was no valid threat to law enforcement because, according to Hall, all of the apartment's occupants were already on the front lawn by the time of the sweep, where they had submitted to police authority. Hall argues that because the sweep was illegal, the affidavit of probable cause supporting the search warrant, which was based on items seen during the sweep, was tainted. He thus argues the court should have suppressed the evidence recovered from 2011 Main Street.

Our standard of review on appeal of the denial of a motion to suppress is limited to determining "whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. Griffin , 24 A.3d 1037, 1041 (Pa.Super. 2011) (quoting Commonwealth v. Lohr , 715 A.2d 459, 461 (Pa.Super.1998) ).² If the record supports the factual findings of the trial court, we reverse "only if there is an error in the legal conclusions drawn from those factual findings." Id. (citation omitted).

Police may perform a "protective sweep" as an incident to a lawful arrest, in order to protect the safety of police officers and others. See Buie v. Maryland , 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In such circumstances, officers may look into "spaces immediately adjoining the place of arrest from which an attack could be immediately launched" without any degree of suspicion other than that necessary to support the arrest. Commonwealth v. Taylor , 565 Pa. 140, 771 A.2d 1261, 1267 (2001) (quoting Buie , 494 U.S. at 327, 110 S.Ct. 1093 ). A protective sweep beyond such "immediately adjoining" areas is proper if police can "articulate specific facts to justify a reasonable fear" for the safety of police officers or others. Taylor , 771 A.2d at 1267. We consider the information available to police at the time of the sweep from the perspective of a reasonably prudent police officer. Id. at 1267-68.³

Here, the testimony at the suppression hearing was "that the officers knocked at the front door of [Hall's] residence for several minutes before the door was opened and during such time they heard people moving about inside the residence." Suppression Ct. Op. at 6. After five people left the residence, Captain Pudik observed, from his lawful vantage point on the front porch, a box of ammunition inside the apartment. Id. Based on the totality of the evidence, the suppression court found that Captain Pudik...