HomeMy WebLinkAboutCP-21-CR-0001648-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) POSSESSION WITH INTENT TO
: DELIVER A CONTROLLED SUB.
: (2) POSSESSION OF DRUG
: PARAPHERNALIA
JARRAD MICHAEL SIPE :
OTN: K539592-4 : CP-21-CR-1648-1008
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., December 22, 2009.
In this criminal case, Defendant was found guilty following a bench trial by
the Honorable M.L. Ebert, Jr., of possession with intent to deliver a Schedule I
controlled substance, a felony, and possession of drug paraphernalia, a
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misdemeanor. He was sentenced on the felony charge to pay a fine of $200.00
and to undergo a period of imprisonment in the county prison of not less than four
months nor more than 23 months, and on the misdemeanor charge to undergo a
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concurrent period of probation of 12 months.
From the judgment of sentence, Defendant has filed an appeal to the
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Pennsylvania Superior Court. The sole basis for the appeal has been expressed in
a statement of matters complained of on appeal as follows:
The Trial Court/Suppression Court Judge erred as a matter of law in
determining the probable cause affidavit in support of a search warrant for
the Defendant’s residence contained within its four corners was legally
sufficient grounds for issuance of the search warrant and that the evidence
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obtained as a result of the search warrant was admissible in evidence.
The order complained of on appeal, denying Defendant’s suppression
motion, was entered by the undersigned judge, following a hearing, on February
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See Information, filed August 13, 2008; Order of Court, August 21, 2009 (verdict).
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Order of Court, October 27, 2009 (sentence).
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Defendant’s Notice of Appeal, filed November 24, 2009.
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Defendant’s Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b),
filed December 11, 2009.
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20, 2009. This opinion in support of the order is written pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of a search pursuant to a warrant of Defendant’s apartment in
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Lemoyne Borough, Cumberland County, Pennsylvania, on May 15, 2008,
Defendant was charged with possession of a controlled substance with intent to
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deliver and possession of drug paraphernalia. He was arraigned on August 19,
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2008.
More than two and a half months later, on November 6, 2008, Defendant
filed an untimely omnibus pretrial motion in the form of a motion to suppress,
essentially challenging the sufficiency of the probable cause affidavit which
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accompanied the application for the warrant. No explanation for the delay in
filing the motion was included in the motion.
A hearing on Defendant’s motion was held on February 19, 2009. At the
hearing, the Commonwealth formally objected to the motion on the basis of its
untimeliness:
THE PROSECUTOR: . . . A preliminary matter, the arraignment in
this case was August 19th. Discovery was provided at that time. The
suppression motion was filed on November 6th of 2008.
THE COURT: Are you raising an issue as to its timeliness?
THE PROSECUTOR: We are.
THE COURT: [Defense Counsel?]
DEFENSE COUNSEL: Your Honor, the dates that Mr. Dailey
indicated are correct. We were in the process of doing some research on
this issue, and I had inadvertently—I did not get that filed in time due to
some other caseload of mine and running my office.
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Order of Court, February 20, 2009.
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N.T. 7, Suppression Hearing, February 19, 2009 (hereinafter N.T. __).
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Criminal Complaint, filed May 16, 2008.
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Acknowledgment of Arraignment, filed August 14, 2009.
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Defendant’s Motion To Suppress, filed November 6, 2009.
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I would note that this was something that was
discussed, and it would be our position that if the motion is granted and the
suppression motion would be denied on untimeliness, it will probably
come back on appeal anyway on an ineffectiveness of counsel claim
because I would have been ineffective for not having filed it. It wasn’t
done intentionally, it was done just simply because of juggling numerous
cases and wanting to research this issue.
So we could ask the Court—I know it is
outside the normal bounds of time, but we are not on a strict application of
law. I know we have had thing—I have done—you know, throughout time
in this County and other counties, we have had some relaxation of the
rules. I know there is one county in particular that enforces the rules to the
letter.
THE COURT: All right. Well, I will take that issue under
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advisement, and we will continue with the hearing.
The affiant in the case, Pennsylvania State Trooper James Borza, testified
that in the course of an investigation of Defendant he had applied for the search
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warrant sub judice. By way of background, he stated that Mr. Sipe had been
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suspected for about two months of selling drugs out of his apartment, that around
midnight on May 13, 2008, he had arrested one Joseph Ritter following a late-
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evening “buy-bust,” and that following a conversation with Mr. Ritter he had
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typed up an application for the search warrant on May 14, 2008, obtained the
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search warrant at 10:25 a.m. on May 15, 2008, and executed it later that day at
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5:15 p.m.
The probable cause affidavit in support of the application for the search
warrant read as follows:
Your affiant has been a Pa. State Trooper for over 18 years, and during
that time I have been assigned to the Bureau of Drug Law Enforcement for
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N.T. 4-5.
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N.T. 5-6.
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N.T 12.
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N.T. 7-8.
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N.T. 6-7, 15.
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N.T. 7.
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N.T. 9.
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N.T. 10.
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6 years and my present assignment is Troop Vice for the last 3 years. Your
affiant has conducted numerous undercover drug investigation as well as
the serving of search warrants for violations of the controlled substance
act.
This investigation concerns the residence located at 304 Market Street,
Apt. # 10, Lemoyne Boro., Cumberland County.
On 05/13/08, this officer conducted a buy/bust on a Joseph RITTER in
Silver Spring Twp., Cumberland. At the time of RITTER’S arrest, approx.
10 ounces of marijuana was seized. While this officer was interviewing
RITTER, he related that he has been selling marijuana for the past year.
RITTER related that the marijuana seized from his person was obtained
from a person by the name of “Jarrad” who lives above a guitar shop
located at 304 Market Street, Lemoyne Boro, Cumberland County.
RITTER stated that he obtained the marijuana that wa[s] seized by this
officer from “Jarrad” on 05/13/08 at “Jarrad’s” residence.
This officer along with Det. Tim RINE of the Cumberland County Drug
Task Force has been in the process of conducting an ongoing investigation
of a Jarrad SIPE, W/N/M-27 and knows that SIPE lives at 304 Market
Street, Apt. #10, Lemoyne Boro, Cumberland County. We have had many
tips on SIPE dealing marijuana from this residence.
On 03/02/03, SIPE was arrest[ed] by Lower Swatara Twp. PD, Dauphin
Co. for the felony charge of CS13A30 and plead guilty to that offense.
The marijuana that [was] seized from RITTER on 05/13/08 was field
tested by this officer via a NIK test kit. This marijuana showed a positive
result for the presence of marijuana.
Based on the fact marijuana was obtained from “Jarrad” at 304 Market St.
Apt. # 10 in Lemoyne Boro, Cumberland County, your affiant is
requesting approval for a search warrant to be executed upon the named
residence. The named subject is not authorized by Act 64 to possess or
distribute any controlled substances, in particular marijuana. I am also
requesting that any and all persons in or around the property be searched,
due to the fact that weapons and controlled substances can and many times
are concealed on the person of subjects involved in the use and sale of
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controlled substances.
At the conclusion of the hearing, the position of Defendant on the merits of
the suppression motion as expressed by his counsel was that (a) the information
from Mr. Ritter as related in the affidavit was not from a reliable source or
corroborated by other evidence and (b) the information was stale as of the time of
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the warrant’s execution.
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Commonwealth’s Ex. 1 (probable cause affidavit), Suppression Hearing, February 19, 2009.
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N.T. 17-21.
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On February 20, 2009, the court issued an order denying Defendant’s
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motion to suppress.
DISCUSSION
Timeliness of omnibus pretrial motion. Under Pennsylvania Rule of
Criminal Procedure 579(A), it is provided as follows:
Except as otherwise provided in these rules, the omnibus pretrial motion
for relief shall be filed and served within 30 days after arraignment, unless
opportunity therefore did not exist, or the defendant or defense attorney, or
the attorney for the Commonwealth, was not aware of the grounds for the
motion, or unless the time for filing has been extended by the court for
cause shown.
In the present case, it did not appear that any of the exceptions to the general rule
as to the deadline for filing such a motion were applicable, and, as noted, the
Commonwealth exercised its prerogative not to waive the issue.
Sufficiency of affidavit of probable cause for search warrant. The general
principle applicable to a review of the sufficiency of a probable cause affidavit
supporting an application for a search warrant has been stated as follows:
Once a warrant has been issued it is [the reviewing court’s] duty to
decide whether the [issuing authority] had a substantial basis for
concluding that probable cause existed for issuance of a search warrant.
When determining whether probable cause exists, we use the totality of
circumstances test. In making this determination we note that, “the
information offered to demonstrate probable cause must be viewed in a
common sense, nontechnical, ungrudging and positive manner. It must
also be remembered that the probable cause is based on a finding of the
probability, not a prima facie showing of criminal activity, and that
deference is to be accorded a[n issuing authority’s] finding of probable
cause.”
Commonwealth v. Waltson, 703 A.2d 518, 522 (Pa. Super. Ct. 1997) (citations
omitted).
The dependability of information supplied by an informant may be
evidenced in such an affidavit by independent corroborative facts and/or by indicia
of reliability related to the informant himself. Thus, factors relevant to such a
determination include whether the informant had previously given reliable
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Order of Court, February 20, 2009.
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information, whether the informant’s information was corroborated by any other
source, whether the informant’s statements were a declaration against interest, and
whether the defendant’s reputation supported the informant’s tip. Commonwealth
v. Moyer, 270 Pa. Super. 393, 398, 411 A.2d 776, 778-79 (1979).
With respect to staleness, it is well settled that “probable cause cannot as a
general rule be founded upon stale or temporarily remote information.”
Commonwealth v. Schickler, 451 Pa. Super 415, 419, 679 A.2d 1291, 1292 (1996).
“[I]n determining whether the lapse in time prior to the issuance of a warrant is so
great that there no longer is probable cause to believe that the items to be seized
are still on the premises, the [issuing authority] should examine the facts and
circumstances of the particular case before him.” Commonwealth v. Toner, 289 Pa.
Super. 200, 202, 433 A.2d 25, 26 (1981). Information as to an informant’s
observation of marijuana four days prior to the application for a search warrant has
been characterized as “not stale.” Commonwealth v. Gray, 509 Pa. 476, 481, 503
A.2d 921, 924 (1985).
In the present case, where the affidavit of probable cause supporting the
application for a search warrant for Defendant’s apartment included averments
that (a) a named informant made a statement against penal interest to the affiant
that he had obtained certain marijuana from a person named “Jarrad” at the latter’s
residence at Apartment No. 10 at 304 Market Street, Lemoyne, Cumberland
County, Pennsylvania, on May 13, 2008, (b) this information was corroborated in
part by the affiant’s observation and testing of the alleged marijuana on that same
date and his knowledge that a Jarrad Sipe lived in the apartment named by the
informant, (c) the said Jarrad Sipe had a felony criminal record for marijuana
distribution or possession with intent to distribute, (d) the affiant had received
many tips that the said Jarrad Sipe was currently selling marijuana out of his
apartment, and (e) the said Jarrad Sipe was already the subject of an on-going
investigation on the part of the local drug task force, and where the affiant
obtained a search warrant for the apartment of Jarrad Sipe less than 60 hours after
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the purported acquisition of marijuana by the informant at the apartment, the court
was persuaded that the totality of circumstances recited in the affidavit provided
probable cause to believe that Defendant’s apartment at that time contained
contraband.
For the foregoing reasons, Defendant’s motion to suppress was denied.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Bryan S. Walk, Esq.
523 West Chocolate Avenue
Suite 1500
Hershey, PA 17033
Attorney for Defendant
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