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Commonwealth of Pennsylvania v. Frank William Colon

October 28, 2011

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
FRANK WILLIAM COLON, APPELLANT



Appeal from the Judgment of Sentence February 22, 2011 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003373-2009

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

J-A29001-11

BEFORE: STEVENS, P.J., BENDER, and PANELLA, JJ.

OPINION BY STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of York County following Appellant's conviction by a jury on the charges of possession with the intent to deliver a controlled substance, possession of a controlled substance, and possession of drug paraphernalia.*fn1 Appellant contends (1) the suppression court erred in denying Appellant's motion to suppress and (2) the trial judge's questioning of the sole defense witness was prejudicial and partisan, thus requiring reversal. We affirm.

The relevant facts and procedural history are as follows: Appellant was arrested and, on March 9, 2010, he filed a counseled pre-trial motion seeking to suppress, inter alia, physical evidence, which was seized by the police. On September 29, 2010, the lower court held a suppression hearing, at which Parole Agent Scott Lapp, who has been a parole officer for ten years, was the sole testifying witness. Specifically, Agent Lapp testified that he began supervising Appellant, who was on parole, in October or November of 2008. N.T. 9/29/10 at 4. Agent Lapp indicated that Appellant was not working regularly and, therefore, Agent Lapp told him to go to the Career Link to find a job. N.T. 9/29/10 at 6.

One evening, Agent Lapp saw Appellant driving his vehicle around a bar in an area that was known for drug activity. N.T. 9/29/10 at 6. Agent Lapp observed as Appellant picked up an individual in front of the bar, drove around the area for a few blocks, returned to the same location in front of the bar, and dropped off the individual. N.T. 9/29/10 at 6. Agent Lapp pulled his vehicle alongside Appellant's vehicle, told Appellant what he had just observed, and informed Appellant that what he just did was "illegal." N.T. 9/29/10 at 6. Agent Lapp told Appellant that he could call the Columbia Police Department and have Appellant's vehicle searched; however, Agent Lapp decided to give Appellant "one last opportunity to knock it off." N.T. 9/29/10 at 6.

Subsequently, when Agent Lapp was at the Columbia Police Department, an officer informed him that he believed Appellant was living in the Cool Creek area, which was not the location of Appellant's approved residence. N.T. 9/29/10 at 7. Agent Lapp took a photograph of Appellant to the Cool Creek Apartments and showed it to the manager, who recognized Appellant. N.T. 9/29/10 at 7. The manager confirmed that Appellant was staying at the apartments with Amy Bachman. N.T. 9/29/10 at 7. Agent Lapp returned to his office and discovered that Amy Bachman was on parole supervision by the York office for drug possession. N.T. 9/29/10 at 7. Agent Lapp contacted Ms. Bachman's supervising parole agent, who informed Agent Lapp that Appellant's vehicle was always parked outside of Ms. Bachman's apartment when he conducted morning home visits and Appellant would leave when the agent arrived for the home visit. N.T. 9/29/10 at 8. Agent Lapp testified that he never saw Appellant at his approved residence and, when he called, Appellant was always somewhere else. N.T. 9/29/10 at 16.

Agent Lapp, along with parole agents from Lancaster and York, including Ms. Bachman's supervising parole agent, conducted a search of Ms. Bachman's apartment at 8:00 a.m. on May 1, 2009, which, Agent Lapp testified, was a few weeks after Agent Lapp had observed Appellant's activities outside of the bar. N.T. 9/29/10 at 5, 8-9. Upon arrival into Ms. Bachman's apartment, Agent Lapp saw Appellant standing at the top of the steps with his car keys in his hands. N.T. 9/29/10 at 9. Appellant was handcuffed, Agent Lapp removed the car keys from Appellant's hands, and Agent Lapp searched Appellant's pockets, discovering a scale, a large amount of money, and a couple of cell phones. N.T. 9/29/10 at 9, 14. Appellant indicated he used the scale to weigh food. N.T. 9/29/10 at 15.

Agent Lapp and another parole agent then searched Appellant's vehicle, which was parked outside of Ms. Bachman's apartment. N.T. 9/29/10 at 10. Therein, they discovered numerous envelopes, which bore Appellant's name, and a jacket, out of which "popped...an envelope and it had suspected drugs in it along with his driver's license." N.T. 9/29/10 at 10. At this point, Agent Lapp telephoned the local police, who took custody of the contraband and filed charges against Appellant. N.T. 9/29/10 at 10.

On cross-examination, Agent Lapp testified that, when he was assigned Appellant's parole case from a retiring agent, Appellant's file contained anonymous complaints regarding drug activity. N.T. 9/29/10 at 11. Agent Lapp admitted that his records revealed he saw Appellant outside of the bar two months, and not two weeks, prior to searching his car on May 1, 2009. N.T. 9/29/10 at 12. Agent Lapp indicated that, based on the anonymous complaints, the activity he observed outside of the bar, and the fact he believed Appellant was residing with Ms. Bachman, which was not Appellant's approved residence, Agent Lapp decided to search Appellant's person and his vehicle after he was discovered at Ms. Bachman's residence.

N.T. 9/29/10 at 12. Agent Lapp testified that, on May 1, 2009, after searching Appellant's vehicle, Agent Lapp searched Appellant's sister house, which was Appellant's approved residence. N.T. 9/29/10 at 14. Agent Lapp did not discover any contraband during the search of Appellant's sister's house. N.T. 9/29/10 at 14.

By order and opinion entered on December 6, 2010, the lower court denied Appellant's suppression motion, and on January 13, 2011, Appellant proceeded to a jury trial. At the conclusion of trial, Appellant was convicted of the crimes as indicated supra, and on February 24, 2011, Appellant was sentenced to an aggregate of five years to fifteen years in prison. This timely, counseled appeal followed, and the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant timely complied, and the trial court filed a responsive Pa.R.A.P. 1925(a) opinion.

Appellant contends the lower court erred in denying his pre-trial suppression motion. Our standard of review is well-settled.

In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa.Super. 2011)

(quotation omitted).

Appellant initially challenges the following suppression court's factual findings on the basis the findings are not supported by the record: (1) After taking over the supervision of Appellant's case, Agent Lapp continued receiving reports that Appellant was engaged in drug trafficking, (2) Agent Lapp observed Appellant driving his vehicle outside a bar, which is known to be "a hub for drug dealing," (3) Agent Lapp told Appellant to "stop selling drugs," and (4) Appellant was "living" at Ms. Bachman's residence.

Suppression Court Opinion filed 12/6/10 at 1-2, 4.

We have carefully reviewed the notes of testimony from the suppression hearing, and we find no merit to Appellant's contentions. For instance, with regard to the first challenged finding, Agent Lapp testified:

After discussing with my supervisor and agents and the York supervisors that [Ms. Bachman] was still on parole, she was under supervision and that he has a history of drug sales, that's on drug sales after what I witnessed in the parking lot and allegations that were being made against him, we decided to conduct a search of [Ms. Bachman's] residence[.]

N.T. 9/29/10 at 8. This testimony sufficiently supports the suppression court's factual finding that "Agent Lapp continued receiving reports that [Appellant] was engaged in drug trafficking," Suppression Court Opinion filed 12/6/10 at 1 (citation to record omitted), and in any event, any prejudice with regard to this ...


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