Commonwealth v. Katona

• Decision Date: 14 June 2018
• Docket Number: No. 1995 WDA 2014,1995 WDA 2014
• Parties: COMMONWEALTH of Pennsylvania v. Dennis Andrew KATONA, Appellant
• Court: Pennsylvania Superior Court

191 A.3d 8

COMMONWEALTH of Pennsylvania

v.Dennis Andrew KATONA, Appellant

No. 1995 WDA 2014

Superior Court of Pennsylvania.

Argued September 13, 2017

Filed June 14, 2018

Paul D. Boas, Pittsburgh, for appellant.

Gregory J. Simatic, Office of the Attorney General, Pittsburgh, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., OTT, J., STABILE, J. AND DUBOW, J.

OPINION BY BOWES, J.:

Dennis Andrew Katona appeals from the judgment of sentence of forty to eighty months incarceration, imposed following his stipulated non-jury trial convictions for two counts of possession with intent to deliver and two counts of possession of a controlled substance. Appellant attacks the constitutionality of the search warrant, which led to the recovery of drugs, currency, and other items, as well as the sufficiency of the evidence. We affirm.

The facts germane to Appellant's issues largely concern the affidavit of probable cause for the anticipatory search warrant, which was executed at Appellant's residence on June 29, 2011. That application set forth the following. Beginning in 2009, the Pennsylvania State Police ("PSP") utilized a confidential informant ("CI") who was a member of the Pagan Motorcycle Club, and who had previously provided reliable information. On April 28, 2011, the CI informed the lead investigator, Pennsylvania State Police Trooper Matthew Baumgard, that Appellant, whom the CI identified as a member of the Pagan Motorcycle Club, unexpectedly arrived at his home and offered to sell him three one-half ounce packages of cocaine for $650 per package. The CI declined, stating that he had just purchased cocaine from "Tony" and was dissatisfied with the quality. The CI contacted the authorities to report this development.

On May 16, 2011, the CI informed Trooper Baumgard that Appellant had invited him to Appellant's home. Upon arrival, Appellant showed the CI one-half pounds of cocaine. Appellant said he obtained the package due to the CI's dissatisfaction with Tony's product, and offered him the entire package in exchange for $5,000 paid over time. The CI agreed and took the cocaine, which he then turned over to the authorities.

Based on this information, the authorities applied for an order authorizing a consensual wiretap of conversations occurring inside Appellant's residence pursuant to 18 Pa.C.S. § 5704(2)(iv), with the CI agreeing to wear a recording device.¹ The order was granted later that day, and, significant to Appellant's challenges on appeal, authorized continuous interception of all in-home conversations for a period of thirty days. The Commonwealth also obtained an extension of the order after the thirty days expired.

Thereafter, the CI made several visits to Appellant's home and recorded the ensuing conversations. On May 16, 20, 25, and 31, 2011, the CI went to Appellant's home and delivered cash provided by the authorities to Appellant in installments. Officers surveilled Appellant's home during each meeting, and met with the CI afterwards to discuss what occurred and retrieve the recordings.

Next, on June 9, 2011, Appellant gave the CI two more ounces of cocaine in exchange for his agreement to deliver payment over time. Additionally, Appellant offered to sell the CI methamphetamine for $1,300 per ounce. Later that evening, Appellant arrived at the CI's doorstep and delivered the methamphetamine.

On June 13, 2011, the CI paid cash to Appellant for the cocaine that was supplied on June 9, 2011. Additionally, on June 15, 2011, Appellant supplied more cocaine, which the CI then paid for on June 20, 2011.² Similarly, on June 22, 2011, Appellant gave the CI more cocaine at Appellant's residence.

On June 27, 2011, the CI visited Appellant's home and paid for the cocaine received five days prior. During this meeting, Appellant indicated that he would once again have a quantity of cocaine and methamphetamine available for pickup on June 29, 2011. On the basis of the foregoing information, Trooper Baumgard requested an anticipatory search warrant for Appellant's home, which was to be executed upon Appellant's contact with the CI on the 29th.

On June 29, 2011, Appellant called the CI and informed him that he was at home. Trooper Baumgard authorized the execution of the search warrant, which yielded the following items from the master bedroom: a United American bank bag containing drugs, a briefcase containing drugs in a separate bank bag, a digital scale, and a black accordion file next to the bed containing documents and mail establishing that Appellant and his wife lived at the home. A total of 84.2 grams of cocaine was seized in addition to 99.64 grams of methamphetamine. The parties stipulated to the recovery of these items following the search warrant, as well as to expert testimony that, based on all the circumstances, the drugs were possessed with the intent to deliver. Appellant was found guilty of all charges and received the aforementioned sentence. Appellant presents the following issues for our review.

I. Whether the June 29, 2011 search warrant for Appellant's home was rendered invalid because it relied almost exclusively on an order or search warrant as described in Commonwealth v. Brion , 539 Pa. 256, 652 A.2d 287 (1994) and as codified in 18 Pa.C.S. § 5704(2)(iv) which order or warrant allowed for, inter alia , unlimited intercepts over a period of thirty days, as opposed to allowing only a single intercept?

II. Whether the June 29, 2011 search warrant was invalid because it failed to meet the specific requirements of an anticipatory warrant?

III. Whether the Commonwealth presented sufficient evidence of possession to sustain the conviction against appellant?

Appellant's brief at 3.

We address Appellant's third issue first, since a successful sufficiency of the evidence charge requires discharge. Commonwealth v. Toritto , 67 A.3d 29 (Pa.Super. 2013). Our standard of review is well-settled. Whether the evidence was sufficient to sustain the charge presents a question of law. Our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Walls , 144 A.3d 926 (Pa.Super. 2016). In conducting our inquiry, we

examine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, support the jury's finding of all the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden by means of wholly circumstantial evidence.

Commonwealth v. Doughty , 633 Pa. 539, 126 A.3d 951, 958 (2015).

Herein, Appellant's sufficiency challenge is limited to whether the Commonwealth presented sufficient facts to sustain a finding that he possessed the drugs beyond a reasonable doubt. Appellant argues that the evidence only establishes that he was present in the same residence where the drugs were found. It is true that mere presence cannot sustain a finding of possession. However, the Commonwealth is not required to show actual physical possession of the drugs. Constructive possession is sufficient, which

is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as "conscious dominion." We subsequently defined "conscious dominion" as the power to control the contraband and the intent to exercise that control. To aid application, we have held that constructive possession may be established by the totality of the circumstances.

Commonwealth v. Muniz , 5 A.3d 345, 348–49 (Pa.Super. 2010) (citation omitted); Commonwealth v. Harvard , 64 A.3d 690, 699 (Pa.Super. 2013) ("In order to prove that a defendant had constructive possession of a prohibited item, the Commonwealth must establish that the defendant had both the ability to consciously exercise control over it as well as the intent to exercise such control."). The intent to exercise control over a piece of contraband can be proven by circumstantial evidence and all the circumstances in question. Muniz , supra .

Appellant argues that the Commonwealth could not establish possession because he was merely present and "there is no evidence regarding how long [Appellant] had been at the residence prior to law enforcement's arrival." Appellant's brief at 54 (emphasis in original). We do not find that this fact precludes a finding of possession. It would be rather remarkable to conclude that an unknown party secreted, without Appellant's knowledge, approximately 200 grams worth of drugs in his master bedroom. Additionally, Appellant highlights that his wife was present, suggesting that she may have possessed the drugs without Appellant's knowledge. However, our law holds that two persons may constructively possess the same item. See Commonwealth v. Macolino , 503 Pa. 201, 469 A.2d 132 (1983) (constructive possession in one defendant where both husband and wife had equal access to an area where the contraband was found); Commonwealth v. Valette , 531 Pa. 384, 613 A.2d 548, 550 (1992) ("Constructive possession may be found in one or more actors where the item in issue is in an area of joint control and equal access."). We find that, when viewed in the light most favorable to the Commonwealth, the totality of the circumstances established that Appellant constructively possessed the drugs.

We now address Appellant's averment that the search warrant was defective. "The ultimate issue in a suppression hearing is whether the police officer affiants had probable cause at the time they applied for a search warrant." Commonwealth v. Luton , 448 Pa.Super. 608, 672 A.2d 819 (1996).

[T]he Commonwealth has the burden of proving that the facts presented to the magistrate demonstrate probable cause. The standard for evaluating whether probable cause exists for the issuance of a search warrant is the "totality of the circumstances" test as set forth in Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)

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