ARGUED: May 8, 2012
Appeal from the Judgment of Superior Court entered on 12/15/2010 at No. 2724 EDA 2008 affirming the Judgment of Sentence entered on 8/18/2008 in the Court of Common Pleas, Philadelphia County, Criminal Trial Division at No. CP-51-CR-0010866-2007.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
MR. CASTILLE CHIEF JUSTICE
This Court granted allocatur to consider whether a probation condition authorizing warrantless, suspicionless searches of a probationer's home violates statutory and constitutional precepts. For the reasons that follow, we vacate the order of the Superior Court on statutory grounds and remand for resentencing.
This matter emanates from the Philadelphia Gun Court, a specialized court within the Court of Common Pleas. That body was instituted by the First Judicial District on January 10, 2005 as a response to the marked increase in gun violence in Philadelphia, and was established to provide prompt adjudication of gun-related offenses. All Philadelphia gun cases where the most serious charge was a violation of the Pennsylvania Uniform Firearms Act of 1995 ("VUFA"), 18 Pa.C.S. § 6101 et seq., were to be handled by the Philadelphia Gun Court.
Testimony at appellant's trial established that in the early morning hours of September 1, 2007, a Philadelphia police officer observed appellant standing next to a parked automobile on the 3900 block of Mellon Street in Philadelphia. Appellant was pointing a handgun through the passenger window at the driver. The police officer ordered appellant to drop his weapon. Appellant did not comply, but instead, gun in hand, retreated to a nearby residence. The police officer repeated his demand that appellant drop his weapon. Appellant finally complied, and placed himself on the ground in compliance with the officer's direction. The police officer, and a second officer who arrived on the scene in response to a call for back up, retrieved a loaded .38 caliber revolver. Police also recovered seven packets of marijuana and five packets of cocaine from appellant.
Appellant was tried non-jury. He was represented at trial by the Defender Association of Philadelphia ("Defender Association"). At trial, in addition to evidence relative to appellant's conduct on September 1, 2007, the Commonwealth presented the Quarter Sessions file from a previous prosecution in which appellant was convicted of another VUFA offense; this information was relevant to prove that appellant was a convicted felon prohibited from possessing a firearm.
Following the bench trial, appellant was convicted of three counts of VUFA: 18 Pa.C.S. § 6105 (persons not to possess or own firearms), § 6108 (unlicensed carrying of firearm in public in Philadelphia), and § 6110.2 (possessing firearm with altered serial number). He was also convicted of one count of possession of a controlled substance, 35 P.S. § 780-113(a)(16).
On August 18, 2008, appellant was sentenced by the Honorable Susan I. Schulman. The trial court noted that it was sentencing appellant only on the charge of violating Section 6105; no sentence was imposed on the remaining charges. N.T., 8/18/2008, at 62-63. The Commonwealth requested a sentence of 3 to 6 years, a term falling in the standard range of the sentencing guidelines. Id. at 58. The trial court instead sentenced appellant to a mitigated-range sentence of 2½ to 5 years' incarceration, to be followed by three years' probation. Id. at 62-63.
The trial court emphasized that there was no stricter probation than Gun Court probation. As a condition of probation and of parole, the trial court authorized warrantless, suspicionless searches of appellant's residence for weapons, and prohibited him from residing in a household where anyone had a firearm. The court also explained that Gun Court probation officers had smaller caseloads and reported directly to the judge; and that any violation of the probation would result in appellant serving the balance of his sentence in jail. Id. at 63-64. Appellant did not object to the probationary condition at sentencing, nor did he file a post-sentencing motion.
Appellant filed a pro se notice of appeal; it is not clear why his court-appointed counsel did not file the notice. Appellant failed to comply with the trial court's directive that he file a Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal. On February 10, 2009, the trial court filed an opinion stating that all claims were waived.
On February 12, 2009, an attorney from the Defender Association entered an appearance in the Superior Court. Counsel petitioned the Superior Court for a remand to file a Rule 1925 statement. Remand was granted, and counsel filed a Rule 1925(b) Statement which challenged, for the first time, the propriety and "legality" of the condition allowing for random searches during the term of parole and probation.
Subsequently, the trial court issued an opinion explaining the reasons for the condition. The trial court emphasized that appellant, who was only 20 years old at the time of sentencing, already had an extensive criminal history. Also, the crimes for which appellant was convicted were serious. The trial court also observed that "[h]is conduct in this case - pointing a loaded gun at a passenger in a car - showed his propensity for violent, and possibly deadly, behavior." Tr. ct. slip op., dated 5/04/2008, at 4.
The trial court explained that the probation condition permitting warrantless, suspicionless searches of appellant's residence for weapons comported with the statutory authorization that a sentencing court may "impose 'reasonable conditions' that it deems necessary to 'insure or assist the defendant in leading a law-abiding life.'" Id. (quoting 42 Pa.C.S. § 9754). The trial court opined that this condition complies with Section 9754. The trial court stated that "[i]t has been the considered judgment of not only this [c]ourt, but also its predecessors sitting in Gun Court, that random searches of the residence of a probationer convicted of violating the most serious VUFA offense, that of possessing a firearm as a prior convicted felon . . ., [are] both reasonable and necessary." Id. at 4-5.
Finally, the trial court recognized that there are statutory limits on a probation officer's authority to search a probationer or his property. Id. at 5 (citing, inter alia, 61 P.S. § 331.27b, recodified at 42 Pa.C.S. § 9912, effective October 13, 2009). The trial court recognized that Section 9912 provides that a probation officer may conduct warrantless searches of the property of an offender only if the officer has reasonable suspicion to believe that the property contains contraband or other evidence of violations of the offender's conditions of probation. The trial court, however, did not find that this statutory framework confined its authority to fashion a sentence. Instead, the trial court reasoned that "there is no violation of Appellant's constitutional protections where the specific condition or probation prevents Appellant from residing where anyone has a firearm, and where Appellant is advised that there could be random searches to determine whether he is compliant." Tr. ct. slip op., dated 5/04/2008, at 5.
On appeal to the Superior Court, appellant argued that the warrantless, suspicionless searches condition was invalid. Appellant argued, inter alia, that the condition violated the Fourth Amendment of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution. He also claimed that the condition was in tension with Section 9912's provision that a probation officer may conduct a warrantless search of a probationer's property only if the officer has reasonable suspicion that contraband or other evidence of a violation of probation will be found.
On October 14, 2009, a panel of the Superior Court affirmed in part and vacated in part the judgment of sentence in a brief memorandum opinion. The panel vacated that portion of the sentence which authorized warrantless, suspicionless searches as a condition of probation or parole on a state sentence. The panel also rejected the Commonwealth's argument that appellant had waived the claim by failing to raise it before the trial court, characterizing the claim as one sounding in sentencing legality.
The Commonwealth sought, and was granted, reargument. The Superior Court en banc issued a split decision which affirmed the search condition as it applied to the probationary sentence, but vacated the condition as it applied to "the state parole aspect of the sentence." Commonwealth v. Wilson, 11 A.3d 519 (Pa. Super. 2010). Judge Panella, joined by Judges Stevens, Shogan, and Allen, authored the lead opinion which was denoted as an Opinion in Support of Affirmance ("OISA"), notwithstanding the mandate of partial vacatur The OISA first considered the Commonwealth's argument that appellant's challenge went to the discretionary aspects of his sentence and was waived as appellant failed to raise it before the trial court. Citing Superior Court authority, the OISA rejected this argument and found that "whether the trial court possessed the authority to impose a particular sentence ...