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Commonwealth v. Gibbs

September 14, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARCUS GIBBS, APPELLANT



Appeal from the Judgment of Sentence August 11, 2008 In the Court of Common Pleas of Erie County Criminal at No(s): CP-25-CR-0002780-2007

The opinion of the court was delivered by: Freedberg, J.

BEFORE: SHOGAN, FREEDBERG and HUDOCK*fn1, JJ.

OPINION

¶ 1 Appellant, Marcus Gibbs, appeals from the judgment of sentence entered on August 1, 2008, by the Court of Common Pleas of Erie County. After review, we affirm.

¶ 2 The relevant facts and procedural history of this matter, which are taken from the trial court's opinion filed November 10, 2008, are as follows.

On August 14, 2007, members of the Erie Police Department were conducting an undercover investigation of Appellant's residence, located at 602 East 13th Street, Apartment 1, Erie, Pennsylvania. Police had received information from a confidential informant, John Poole ("Poole"),*fn2 that drugs could be purchased at Appellant's residence. As a result, the police orchestrated a controlled buy at that location.

On August 14th, Poole telephone Mr. Billie Joe Williams ("Williams")*fn3 , to arrange a purchase of crack cocaine. At approximately 9:00 p.m., Williams called Shanti Israel Bayette ("Bayette"), in order to obtain one half ounce of crack cocaine to deliver to Poole for $700.00. Williams and Bayette agreed (at Bayette's directive) to meet at Appellant's house to consummate the sale to Poole.

After his telephone conversation with Williams, Poole drove Williams to Appellant's residence. While Poole remained in the vehicle, Williams went to Appellant's home and spoke with Appellant on Appellant's porch.*fn4 Because Bayette was not yet at the residence, Williams returned to Poole's vehicle and waited. Approximately 20 minutes later, Bayette arrived and entered Appellant's home. Present were Bayette, some "kids", and Appellant. Williams entered the residence and obtained cocaine from Bayette. Because Bayette was "fronting" him the drugs, he did not have to pay Bayette at that time. At all times, Appellant was present at the residence. Williams left in Poole's vehicle. Moments later, police stopped the vehicle and arrested Williams. (This occurred at approximately 9:45 p.m.). They recovered 13.7 grams of crack cocaine from behind the passenger's seat. After Williams was arrested, Erie Police Department Lieutenant Michael Nolan applied for a search warrant for Appellant's residence. However, concerned that evidence might be destroyed, he decided to secure the residence with assistance from other officers. To do so, officers entered onto the Appellant's porch intending to knock on the door and engage the occupants in conversation. However, before they could do so, Appellant opened the door. From their vantage point on the porch, police observed stacks of cash and bags of apparent crack cocaine on the kitchen counter within two or three feet of Appellant. They also saw Bayette standing by a countertop holding a large amount of U.S. currency. (He dropped the money once he saw the police).*fn5 Appellant was located two to three feet from these items. Upon making these observations, the police entered the residence and secured it and the occupants while they awaited the search warrant. Once the warrant was obtained, police recovered $5,177.00 from the countertop and floor area, $540.00 from Appellant, three stolen handguns from a bedroom, two bags of crack cocaine (2.1 grams and 0.25 grams, respectively), and sandwich baggies.*fn6

Trial Court Opinion filed 11/10/08 at 1-3.

¶ 3 On December 13, 2007, Appellant filed a motion to suppress alleging the evidence seized was the product of an illegal entry in violation of the United States and Pennsylvania Constitutions. Appellant claimed that the police did not have a warrant to enter upon the front porch and that they failed to establish exigent circumstances. A hearing took placed on January 30, 2008. On March 4, 2008, the trial court issued an opinion denying the motion.

¶ 4 A non-jury trial on the charges against Appellant and his co-defendant took place on June 24, 2008. Appellant was found guilty of possession with intent to deliver,*fn7 possession of a controlled substance,*fn8 conspiracy,*fn9 possession of drug paraphernalia,*fn10 and three counts of receiving stolen property.*fn11 On August 1, 2008, Appellant was sentenced to the mandatory minimum of sixty (60) to one hundred and twenty (120) months of incarceration on the possession with intent deliver count to be served consecutively to Appellant's sentence for a previous drug conviction; and a sentence of eighteen (18) to thirty-six (36) months of incarceration on the first of the receiving stolen property counts to be served consecutively to the possession with intent to deliver count.*fn12 This resulted in an aggregate sentence of seventy-eight (78) to one hundred and fifty-six (156) months of incarceration to be served consecutively to the sentence Appellant was then serving. Appellant filed a post-sentence motion on August 11, 2008, which was denied by order of that same day. Appellant was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Accordingly, Appellant filed the 1925(b) statement, and the trial court subsequently issued its opinion.

¶ 5 On appeal, Appellant raises the following issues for our review:

1. Should the evidence of the police search have been suppressed?

2. Was the evidence presented by the Commonwealth insufficient to sustain the conviction of ...


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