Appeal from the Judgment of Sentence entered March 2, 2012, in the Court of Common Pleas of Chester County, Criminal Division, at No(s) CP-15-CR-0001335-2010
The opinion of the court was delivered by: Allen, J.:
BEFORE: GANTMAN, ALLEN, and OTT, JJ.
Alexis Martinez ("Appellant") appeals from the judgment of sentence imposed following his convictions for possession with intent to deliver a controlled substance ("PWID"), possession of a controlled substance, possession of a small amount of marijuana, and resisting arrest.*fn1 We affirm. The trial court recited the underlying facts and procedural history of this case as follows:
The charges herein arise from incidents which occurred on December 8, 2009, when members of the Pennsylvania State Police conducted a search, including a strip search, of [Appellant].
It is undisputed that the search warrant itself (Commonwealth Exhibit-1) was properly issued and supported by probable cause. The search warrant was based upon information from a confidential informant who advised police that one Michelle Tedesco was going to be taking her source to Brooklyn, New York to obtain a large quantity of heroin. The police corroborated this information by arranging a controlled meeting between the informant and Tedesco, during which the informant provided Tedesco with U.S. currency for the purchase of heroin. The informant advised police that Tedesco would be proceeding to Lancaster to pick up her source, returning with her source to Exton to trade vehicles, and then traveling to New York. The police corroborated this information through surveillance, wherein they observed Tedesco driving alone toward Lancaster and next observed her driving a Dodge Neon with a then unidentified male passenger traveling toward New York. The police applied for and obtained the instant search warrant based upon this information. The search warrant authorized the search of a 2005 Dodge Neon, Michelle Tedesco, and the "person of the unidentified male passenger in the vehicle with Michelle L. Tedesco." The unidentified male passenger was later identified as [Appellant].
The Dodge Neon was thoroughly searched and no heroin was recovered. Tedesco was searched by a female officer and no heroin was recovered. Tedesco admitted she had gone to New York to obtain heroin, but did not know where it was stored. A pat-down search of [Appellant] was conducted and no heroin was recovered. A strip search of [Appellant] was then conducted and [Appellant] began to struggle and resist. Three officers and the use of a taser were necessary to subdue [Appellant]. [Appellant's] pants and underwear were removed and, as a result of the search, the police recovered one clear plastic bag containing 14.5 grams of heroin. The heroin was found underneath [Appellant's] clothing, between his buttocks in the area underneath his scrotum.
[Appellant was charged with the aforementioned crimes.] Prior to trial, [Appellant] filed a Motion to Suppress and, after a hearing held on April 13, 2011, [Appellant's] Motion was denied. On August 22, 2011 [Appellant] filed a Motion for Reconsideration of Denial of the Motion to Suppress, which was denied on August 29, 2011.
On October 19, 2011, following a stipulated fact bench trial, [Appellant] was found guilty of one count of Possession with Intent to Deliver a Controlled Substance (Heroin), one count of Possession of a Controlled Substance (Heroin), one count of Possession of a Small Amount of Marijuana and one count of Resisting Arrest. At trial, the Commonwealth submitted a stipulation, Commonwealth Exhibit 1, attaching the transcript from the April 13, 2011 suppression hearing.
On March 2, 2012, [Appellant] was sentenced to a total of not less than five (5) years nor more than ten (10) years of imprisonment. Specfically, [Appellant] was sentenced as follows:
Count 1: Possession with Intent to Deliver, imprisonment for not less than 5 nor more than 10 years;
Count 3: Possession of a Controlled Substance, merged with Count 1;
Count 4: Possession of a Small Amount of Marijuana, imprisonment for not less than 30 days and nor more than 30 months, concurrent with Count 1;
Count 5: Resisting Arrest, imprisonment for not less than 6 nor more than 24 months, concurrent with Count 1.
[Appellant] filed a Notice of Appeal on March 6, 2012. On March 6, 2012, we ordered [Appellant] to file a Concise Statement of Errors Complained of on Appeal within twenty-one
(21) days. [Appellant] filed his Concise Statement of Matters Complained of on Appeal on March 15, 2012.
Trial Court Opinion, 4/17/12, at 1-3.
On appeal, Appellant presents the following suppression-related issues
1. Did the search warrant admitted as C1 in the trial court, allow the police to conduct a strip search of [Appellant], consistent with the Fourth Amendment of the Federal Constitution and Article 1, Section 8 of the Pennsylvania Constitution? Alternatively, did the Suppression Court err in denying [Appellant's] Motion to Suppress Physical Evidence and Motion for Reconsideration of the denial of the Motion to Suppress Physical Evidence?
(a) Was the search warrant one that could be characterized as a warrant authorizing "searches of the person found to be engaging in illegal activity," and thus improper pursuant to Pennsylvania Supreme and Superior Court caselaw?
(b) Alternatively, was the search warrant one that could [be] characterized as an "all person present" warrant and if so, did the totality of circumstances establish a sufficient nexus between the person to be searched, the location, and the suspected criminal ...