from the Judgment of Sentence September 26, 2016 In the Court
of Common Pleas of Montgomery County Criminal Division at
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA,
J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and
Christian John Yorgey, appeals from the Judgment of Sentence
entered by the Montgomery County Court of Common Pleas
following his conviction of one count of Possession of Drug
Paraphernalia and two counts of Possession of a Small Amount
of Marijuana. On appeal, he challenges the trial
court's denial of his Motion to Suppress. Appellant's
counsel filed a Petition to Withdraw as Counsel and a Brief
pursuant to Anders v. California, 386 U.S.
738 (1967), as elucidated by our Supreme Court in
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After careful review, we grant counsel's Petition
to Withdraw and affirm Appellant's Judgment of Sentence.
summarize the relevant facts, as gleaned from the certified
record, the suppression hearing, and the trial court's
Pa.R.A.P. 1925(a) Opinion, as follows. On December 3, 2015,
someone in Appellant's home called 911 to report a
domestic dispute at the family's apartment. Corporal
Michael Slattery and Officer Jeremy Bonner of the Lower
Providence Township Police Department responded to the call.
entered the apartment building, Appellant was walking down
the stairs from the second-floor apartment. The officers
informed Appellant of their purpose, and Officer Bonner
remained downstairs with Appellant while Corporal Slattery
went upstairs to Appellant's apartment. Corporal Slattery
knocked on the door and, after securing the dogs, Ms. Yorgey,
Appellant's wife, opened the door and invited him inside
the apartment. She then explained to Corporal Slattery that
the domestic dispute had been a verbal argument.
Cherelle Cutting arrived in the apartment shortly thereafter,
and pointed out to Corporal Slattery that a gold-colored
marijuana grinder was sitting in plain view on the floor next
to the sofa. When asked about the grinder, Ms. Yorgey told
the police officers, "That's not mine. That's
[Appellant's] grinder." N.T. Suppression, 7/1/16, at
22, 35. She also stated "[t]hat's where he sits at
the couch. He'll do drugs at the table there. He'll
smoke his marijuana there. I don't smoke marijuana.
I'm on too many medications. . . . I don't like when
he smokes in the house." Id. at 23, 35.
Slattery then went back downstairs to speak with Appellant,
patted him down for weapons, and took him into custody for
possession of drug paraphernalia, i.e., the
marijuana grinder. In conducting a search incident to arrest,
Corporal Slattery found a "one-hitter" in
Appellant's right-side back pocket. Appellant then
informed Corporal Slattery that before they transported him
to county jail, he wanted to get his cell phone from his
truck. Officer Bonner retrieved the phone from the truck, and
then informed Corporal Slattery that he had noticed a strong
odor of marijuana coming from inside the vehicle. When
Corporal Slattery asked Appellant about the odor, Appellant
told him that he would find marijuana in the center console
of his truck and gave his permission to retrieve it. Officer
Bonner then retrieved a small amount of marijuana and a lit
smoking bowl from Appellant's truck.
Commonwealth charged Appellant with the above offenses.
Represented by Kevin Horan, Esq., of the public
defender's office, Appellant filed a Motion to Suppress
seeking the exclusion of all physical evidence obtained by
police officers. At the suppression hearing, Appellant
specifically alleged that the officers did not have consent
to enter the apartment and lacked probable cause to arrest
him for constructive possession of the marijuana grinder.
1, 2016, the suppression court held a hearing on the motion.
Corporal Slattery testified to the above facts. Id.
at 10-39. Officer Cutting briefly testified that she first
observed the marijuana grinder on the floor of the Yorgey
apartment and that Ms. Yorgey had unequivocally stated that
the marijuana grinder belonged to Appellant. Id. at
Yorgey testified for the defense that she did not hear the
police knock on the door and did not invite the police
inside. Id. at 45-48, 51. She further testified that
she smokes marijuana, but the marijuana grinder was not hers,
and could have belonged to her son, to her nephew, or to
Appellant. Id. at 53-56, 58. She also testified that
the marijuana grinder was on the floor beside her, and that
she had handed it to the police officers when they noticed
it. Id. at 53, 57.
the testimony of Corporal Slattery and Officer Cutting more
credible than Ms. Yorgey, the court denied the Motion to
Suppress, concluding that the evidence recovered by the
police officers in the Yorgey's apartment was sufficient
to give rise to probable cause for Appellant's arrest.
Id. at 86. Because the police officers had lawfully
arrested Appellant for his constructive possession of the
grinder, the evidence seized from Appellant's person and
his truck was not "fruit of the poisonous tree" and
was admissible at trial.
a trial, a jury found Appellant guilty of the Drug
Paraphernalia offense. The court found him guilty of the two
Possession of a Small Amount of Marijuana
offenses. On September 26, 2016, the trial court
imposed an aggregate sentence of 150 days of probation, a
$100 fine, and the automatic suspension of his license
temporarily. N.T. Trial, 9/26/16, at 212-14. Appellant
did not file a Post-Sentence Motion.
October 26, 2016, public defender Christa M. Miller, Esq.,
filed a timely appeal on Appellant's behalf. On November
10, 2016, Appellant filed a pro se Pa.R.A.P. 1925(b)
Statement alleging that trial counsel was ineffective for
failing to subpoena relevant evidence and witnesses. Attorney
Miller subsequently filed a Motion for Leave to Withdraw due
to a conflict created by Appellant's claim of her
colleague's ineffectiveness. The trial court granted
Attorney Miller's Motion and appointed Bonnie-Ann Brill
Keagy, Esq., to represent Appellant on direct appeal. The
court ordered new counsel to file an amended Pa.R.A.P.
February 3, 2017, counsel filed an amended Rule 1925(b)
Statement asserting that the trial court erred in denying
Appellant's Motion to Suppress because "[n]o exigent
circumstances existed to support the search of either the
residence or the vehicle." Pa.R.A.P. 1925(b) Statement,
filed 2/3/17, at 1. On April 26, 2017, counsel filed a Brief
and a Petition to Withdraw pursuant to Anders and
Santiago, supra. Appellant did not file a
response to counsel's Anders Brief.
Anders Brief, ...