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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN AMIR HARRIS
Appellant No. 2915 EDA 2013
Appeal from the Judgment of Sentence October 2, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004630-2012
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED JANUARY 23, 2015
Appellant, Shawn Amir Harris appeals from the judgment of sentence
entered by the Honorable Kevin F. Kelly, Court of Common Pleas of
Delaware County. After careful review, we affirm the trial court’s denial of
Harris’s motion to suppress evidence, but vacate the judgment of sentence
and remand for re-sentencing.
As we write primarily for the parties, who are familiar with the
circumstances of this matter, we will set forth only so much of the factual
and procedural history as is necessary to address the issue on appeal.
Harris, who at relevant times was on parole pursuant to a prior drug
trafficking conviction, was seen in a high crime area of the City of Chester by
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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his parole officer, Scott Peterson. Peterson, his partner, and his supervisor
spoke with Harris, and informed Harris that they were going to perform a
compliance check of Harris’s residence pursuant to the terms of his parole
agreement. See N.T., Suppression Hearing, 1/30/13, at 30-35, 59-60.
The agents drove Harris to his residence, unrestrained, and
accompanied Harris into his home. See id., at 60-61. While inside, Agent
Peterson observed, in plain sight, plastic baggies that he recognized through
his training as paraphenalia in furtherance of drug trafficking. See id., at
62-63. At this point, he handcuffed Harris and searched the room, locating
packaged cocaine, unpackaged cocaine, a scale, and empty baggies. See
id., at 63-64.
Harris subsequently filed a motion to suppress the evidence found in
Agent Peterson’s search. The trial court denied the motion, and Harris
proceeded to a stipulated bench trial before Judge Kelly. At the conclusion
of testimony, the trial court convicted Harris of possession of eighty-four and
one half ounces of cocaine with intent to deliver. The trial court
subsequently applied the mandatory minimum sentence found in 18
Pa.C.S.A. § 7508 and sentenced Harris to a term of incarceration of 5 to 15
years. This timely appeal followed.
On appeal, Harris raises only a single issue for our review. Harris
contends that the trial court erred in denying his motion to suppress the
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evidence found pursuant to Agent Peterson’s search of his residence. Our
standard of review is well-settled.
[W]e are limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. We may consider the
evidence of the witnesses offered by the prosecution, as verdict
winner, and only so much of the defense evidence that remains
uncontradicted when read in the context of the record as a
whole.
Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)
(citation omitted). “Moreover, if the evidence supports the factual findings
of the suppression court, this Court will reverse only if there is an error in
the legal conclusions drawn from those findings.” Commonwealth v.
Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010) (citation omitted).
We conclude that Commonwealth v. Smith, 85 A.3d 530 (Pa. Super.
2014), which also involved Agent Peterson, is directly on point and controls
this issue. In Smith, Agent Peterson performed a compliance check on a
parolee. During this check, Agent Peterson noticed the smell of unburnt
marijuana emanating from the basement. The Smith panel held that, upon
smelling the marijuana, Agent Peterson developed “the requisite reasonable
suspicion to conduct a search for the marijuana.” Id., at 537. The panel
found that the ‘plain view’ doctrine rendered the search permissible, as
Agent Peterson was lawfully inside the parolee’s home, and the incriminating
nature of the smell emanating from the basement was immediately
apparent. See id.
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Here, once again, Agent Peterson was lawfully inside Harris’s residence
pursuant to a parole compliance check. While inside, Agent Peterson
observed the plastic baggies that his training and experience informed him
were used in the narcotics trade. At this point, Agent Peterson developed
the requisite reasonable suspicion to conduct a search for narcotics that may
be in the residence. We therefore conclude that Harris’s sole issue on appeal
merits no relief.
We note, however, that this Court has recently held that 18 Pa.C.S.A.
§ 7508 is facially invalid pursuant to the Supreme Court of the United
States’s decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013). See Commonwealth v. Fennell, ___ A.3d
___, 2014 WL 6505791 (Pa. Super. Nov. 21, 2014). Furthermore, this issue
cannot be waived, and we may raise it sua sponte. See Commonwealth v.
Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) (holding that
violations of Alleyne could not be waived). We therefore vacate the
judgment of sentence in its entirety and remand for re-sentencing. See
Commonwealth v. Goldhammer, 517 A.2d 1280, 1283-1284 (Pa. 1986).
Conviction affirmed. Judgment of sentence vacated, and remanded for
re-sentencing. Jurisdiction relinquished.
Judge Platt joins in the memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2015
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