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COMMONWEALTH PENNSYLVANIA v. WILLIAM J. BRUNER (07/03/89)

submitted: July 3, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM J. BRUNER, APPELLANT



Appeal from the Judgment of Sentence Docketed November 1, 1988 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 2526 C.D. 1986.

COUNSEL

Michelle A. Fox, Harrisburg, for appellant.

Julia A. Merl, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Wieand, Montemuro and Cercone, JJ.

Author: Cercone

[ 388 Pa. Super. Page 89]

This appeal is from the judgment of sentence of the Court of Common Pleas of Dauphin County. We affirm.

In October, 1986, appellant was arrested and charged with two counts of unlawful possession of a controlled substance with intent to deliver,*fn1 and one count of possession of drug paraphernalia.*fn2 A jury found appellant guilty of all charges. His post-trial motions were denied and he was sentenced, on the convictions of possession of controlled substances with intent to deliver, to concurrent terms of not less than five (5) nor more than ten (10) years and a total fine of two hundred dollars ($200.00) (one hundred dollars on each count). On the charge of possession of drug paraphernalia, appellant was sentenced to a term of imprisonment of not less than six (6) months nor

[ 388 Pa. Super. Page 90]

    more than twelve (12) months, to run concurrently to his sentence on the other charges, and a find of one hundred dollars ($100.00).

Appellant's motion for modification of sentence was denied, and he filed the instant timely appeal.

The facts of the case as adduced by the lower court are as follows:

On October 10, 1986, officers from the Harrisburg Police Department arrested defendant on an assault complaint. The complainant was Angelo M. Pennella, a contractor who had been working at a property located at 2259 North Sixth Street in Harrisburg when the building was owned by the defendant. The arrest took place at that location.

The assault victim notified the police that he had observed marijuana and cocaine in the first floor rear apartment of defendant's building and further information was received from an unidentified informant stating defendant was involved in drug sales. Accordingly two officers, Teel and Goshert, sought a search warrant for defendant's building. After the arrest in [sic] the assault charge, but prior to the execution of the search warrant, an individual, known to the police as a drug dealer, came to City Hall and attempted to retrieve defendant's keys to the apartment. Faced with this situation, two officers and a canine dog were dispatched to secure the premises pending the arrival of the search warrant. The search of the apartment occurred after the search warrant arrived. Fourteen plastic bags containing a total of 81 grams of marijuana and in addition white powder analyzed as 4.47 grams of heroin were found. A triple beam scale for gram measurement was found in the living room behind the couch, together with numerous baggies. Numerous bills and items of correspondence were recovered containing the name of the defendant and the address of 2259 North Sixth Street, Harrisburg.

After the arrest, the defendant was questioned and he denied living in the first floor rear apartment, claiming a

[ 388 Pa. Super. Page 91]

    person by the name of Jack Jones lived there. Brunner [sic] asserted he resided on the second floor in the rear bedroom. Brunner [sic] had, at that point, not been told that a search of the second floor bedroom had yielded bags of marijuana and cocaine and that an examination of that room indicated occupancy by a Terry Wells, a half brother of William Brunner [sic].

Appellant contends on appeal that (1) the suppression court erred in denying his Hall motion and motion to suppress and abused its discretion by refusing to order the appearance of a witness for the defense;*fn3 (2) the evidence was insufficient to support the convictions; (3) the trial court erred in admitting certain physical evidence without establishing an unbroken chain of custody; (4) the trial court erred in denying appellant's motions for mistrial; (5) trial counsel was ineffective; and (6) the sentencing court abused its discretion. We will address these claims seriatim.

Appellant's first contention is that the lower court erred in denying his motion to suppress the October 10, 1986 search of his residence. Specifically, appellant claims that prior to the search of his residence pursuant to warrant, two police officers and a police dog entered his building, including the first floor apartment, and searched it. This entry, appellant contends, was illegal, and thus, the evidence obtained pursuant to warrant a few hours later was inadmissible and should have been suppressed.

In reviewing a suppression court's denial of a motion to suppress, the appellate court's responsibility is to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Hughes, 521 Pa. 423, 437, 555 A.2d 1264, 1271 (1989). In making this determination, the reviewing court "will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as,

[ 388 Pa. Super. Page 92]

    fairly read in the context of the record as a whole, remains uncontradicted." Id., 521 Pa. at 438, 555 A.2d at 1271-72, quoting Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976).

Evidence adduced at the suppression hearing revealed that three police officers arrived at appellant's residence on October 10, 1986 at approximately 4:30 p.m. The purpose of the officers' presence there was to secure the premises until the executed search warrant could be obtained. The officers admitted themselves to the apartment, and two of them waited in the kitchen while the third officer walked through the apartment to determine if any other persons were present therein. Testimony was offered that the officers did not search the premises until the executed search warrant arrived at 5:05 p.m. Nor did any seizure take place during this time, and nothing was observed in plain view, according to the testimony, which later became evidence in the case. There was also testimony that nothing occurred during the time the officers were present on the premises prior to receiving the warrant which altered any of the warrant's language.

The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." U.S. Const. amend. IV; Pa.Const. art. 1, ยง 8. Warrantless searches are, "subject only to a few specifically established and well-delineated exceptions," per se unreasonable and are therefore prohibited by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). However, the Fourth Amendment does not require suppression of evidence seized from a private residence pursuant to a valid search warrant, notwithstanding an earlier illegal entry by police, where the warrant was issued on information obtained by the police before the entry into the residence. Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Where the warrant and the information on which it was based were unrelated to the

[ 388 Pa. Super. Page 93]

    illegal entry, they constitute an independent source for the evidence, and thus the evidence does not require suppression. Id.

These are exactly the circumstances present in the instant case. The search warrant in this case was based on information received independently from and prior to the entry of police on the premises without a warrant. The warrantless entry of the police did not result in a search, seizure, or observation of evidence, or in any change in the already executed warrant. Thus, the warrantless entry did not invalidate the subsequent search pursuant to warrant and the lower court did not err in denying the motion to suppress on this basis.

Nevertheless, appellant contends that the evidence should have been suppressed because the warrant was lacking in sufficient probable cause. The affidavit of probable cause in the instant case contained information provided by (1) a named informant; (2) a confidential source; and (3) three anonymous citizens' complaints. Appellant argues that the named informant's remarks must be viewed with suspicion and that the information from the confidential and anonymous informants lacked sufficient reliability.

"Before an issuing authority may issue a constitutionally valid search warrant he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search." Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984). Probable cause to support issuance of a search warrant is present where facts and circumstances within the affiant's knowledge, of which he has reasonable trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in belief that a search should be conducted. Commonwealth v. Bonasorte, 337 Pa. Super. 332, 486 A.2d 1361 (1984). The information offered to demonstrate probable cause to search "must be viewed in a common sense, non-technical, ungrudging and positive manner." Commonwealth v. Jones, supra. It is based on a

[ 388 Pa. Super. Page 94]

    finding of probability, not a prima facie showing of criminal activity. Id.

The named informant in this case was the victim of the assault with which appellant had been originally charged. The victim, who had been working as a contractor at the building in which appellant resided, advised the police that he had observed marijuana and cocaine in the first floor apartment of the building, the apartment which was subsequently searched by police. We have held that identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances. Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981); Commonwealth v. Frazier, 269 Pa. Super. 527, 410 A.2d 826 (1979). Appellant has cited no special circumstances which would cast doubt on the inherent trustworthiness of this informant. Thus, the affidavit was supported by probable cause on the basis of his information alone.

In addition, the reliability of the confidential informant was established by the recitation that he [the informant] had been in the residence and had purchased cocaine from the defendant within seven days of the date of the warrant, and that the informant had given prior reliable information which had led to the arrest of persons and discovery of evidence. See Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981) (drug search warrant based on information ten days old valid); Commonwealth v. Albert, 264 Pa. Super. 390, 399 A.2d 1106 (1979) (court did not err in finding informant reliable in view of affiant's statement that previous information from informant had led to two arrests and seizure of dangerous drugs). The three anonymous citizens' complaints tended to bolster the credibility of the information provided by the other two informants. See ...


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