J-A04032-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ZACHARY HOSSEIN AFSHAR, :
:
Appellant : No. 812 WDA 2014
Appeal from the Judgment of Sentence Entered December 20, 2013
in the Court of Common Pleas of Indiana County,
Criminal Division, at No(s): CP-32-CR-0001111-2012
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 14, 2015
Zachary Hossein Afshar (Appellant) appeals from the judgment of
sentence imposed on December 20, 2013 following his convictions for
various drug offenses. We affirm Appellant’s conviction, vacate Appellant’s
judgment of sentence, and remand with instructions.
The trial court summarized the relevant facts of this case as follows.
On January 11, 2012, State Probation Officer James
Cutshall [was conducting a routine visit with a probationer when
he] reported the odor of marijuana in the apartment building at
919 Water Street, Indiana, Pennsylvania. Patrol Officer Cory
Williams of the Indiana Borough Police Department was
dispatched to investigate. [Officer] Williams noted a strong odor
of marijuana coming from apartment 1, just inside the entrance
of the building. [Appellant] answered the door at apartment 1
when [Officer] Williams knocked. [Officer] Williams noted that
the odor of marijuana was stronger when the door was opened.
[Appellant] was instructed to sit in the living room while [Officer]
Williams and other officers secured and cleared the area. A
search warrant was then obtained. Pursuant to the search
*Retired Senior Judge assigned to the Superior Court.
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warrant, officers recovered illegal drugs and paraphernalia from
[Appellant’s] apartment, including from a safe within his
bedroom that had to be pried open. [Appellant] was then placed
under arrest.
Trial Court Opinion, 5/17/2013, at 1-2.
Appellant filed an omnibus pre-trial motion seeking to suppress the
narcotics and paraphernalia seized during the search. A hearing on
Appellant’s motion was held on February 14, 2013. Following the hearing,
both parties submitted briefs to the trial court. On May 17, 2013, the trial
court issued an order denying Appellant’s motion to suppress.
On June 7, 2013, Appellant filed a motion to reconsider the
suppression ruling. The trial court granted this request. On July 23, 2013,
the Commonwealth requested to reopen the suppression record. This
request was also granted, and on July 29, 2013, the Commonwealth
supplemented the suppression record with the affidavit of probable cause
and warrant obtained prior to the search of Appellant’s home.1
This matter proceeded to a non-jury trial. On October 4, 2013,
Appellant was found guilty of possession of cocaine with the intent to
deliver, possession of marijuana, possession of methylenedioxypyrovalerone
(commonly known as “bath salts”), possession of cocaine, and possession of
drug paraphernalia. On December 20, 2013, Appellant was sentenced at
count one, possession of cocaine with the intent to deliver, to a mandatory
1
The record does not indicate that there was a new ruling on Appellant’s
suppression motion after reconsideration was granted.
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term of three to six years’ incarceration. He received no further penalty on
the other charges. Appellant was also ordered to pay a fine of $15,000 and
the costs of prosecution.
On December 30, 2013, Appellant timely filed a post-sentence motion,
which was denied by the trial court on April 17, 2014. This timely filed
appeal followed. The trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Rule of Appellate
Procedure 1925(b), and one was filed.
Appellant raises the following issues on appeal.
1. Did the trial court err in ruling that Pennsylvania law allows
for the mere odor of marijuana to be the only basis for a search
warrant of one’s home when Pennsylvania law requires odor plus
another circumstance indicating criminal activity?
2. Did the trial court abuse its discretion when it allowed the
[Commonwealth] to reopen the suppression record after the
suppression ruling was made and after new case law favorable to
the [Appellant’s] position was brought to the court’s attention?
[3.] Did the trial court err when it ordered costs of prosecution
to be paid without honoring a pertinent statute and precedent
requiring certain due process protections?
[4.] Did the trial court err when it allowed the Department of
Corrections to calculate a [Appellant’s] credit for time served?
[5.] When drug weight was used to trigger a mandatory
minimum without that fact being proven beyond a reasonable
doubt is the sentence illegal under [Alleyne v. United States,
133 S.Ct. 2151 (2013)]?
Appellant’s Brief at 7 (questions reordered for ease of disposition; trial court
answers omitted).
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Appellant’s first two issues challenge the trial court’s denial of his
motion to suppress.
When reviewing the denial of a motion to suppress, we must
consider only the evidence of the prosecution and so much of the
evidence for the defense as remains uncontradicted when read in
the context of the record as a whole. We are bound by the
suppression court’s findings if they are supported by the record.
Factual findings wholly lacking in evidence, however, may be
rejected. We may only reverse the suppression court if the legal
conclusions drawn from the findings are in error.
Commonwealth v. Gatlos, 76 A.2d 44, 52 (Pa. Super. 2013) (internal
quotations and citations omitted).2
Instantly, Appellant contends that Officer Williams needed something
more than the odor of marijuana, what he refers to throughout his brief as
“odor + plus,” to establish the probable cause necessary to obtain a search
warrant for his apartment. Appellant’s Brief at 20. We disagree.
“Both the Fourth Amendment of the United States
Constitution and Article 1 Section 8 of the Pennsylvania
Constitution protect citizens from unreasonable searches and
seizures.” Commonwealth v. Cook, [] 735 A.2d 673, 674
([Pa.] 1999). The Fourth Amendment to the United States
Constitution provides that:
2
We are mindful that our Supreme Court has held that, when reviewing a
challenge to the trial court’s suppression ruling, “it is inappropriate to
consider trial evidence as a matter of course, because it is simply not part of
the suppression record, absent a finding that such evidence was unavailable
during the suppression hearing.” In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).
The Court in L.J. determined that this rule applies prospectively. Id. at
1089. As the suppression hearing in the case at bar occurred prior to the
decision in L.J., it is inapplicable, and we adhere to the scope of review as
stated above.
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The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const.Amend. IV. The Pennsylvania Constitution provides:
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches
and seizures, and no warrant to search any place or
to seize any person or things shall issue without
describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const. Art. I, § 8.
Commonwealth v. Ayala, 791 A.2d 1202, 1207 (Pa. Super. 2002).
The standard for evaluating whether probable cause
exists for the issuance of a search warrant is the
totality of the circumstances test as set forth in
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983) and adopted by the
[Pennsylvania] Supreme Court in Commonwealth
v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925
(1985). A magistrate is to make a practical common-
sense decision whether, given all the circumstances
set forth in the affidavit before him, including the
veracity and basis of knowledge of persons supplying
hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a
particular place.
In reviewing the validity of a search warrant, the reviewing court
is limited to determining whether there is substantial evidence
supporting the issuing authority’s decision to approve the
warrant.
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Commonwealth v. Hawkins, 45 A.3d 1123, 1127 (Pa. Super. 2012) (some
citations and quotations omitted).
Contrary to Appellant’s assertions, while more than the odor of
marijuana is necessary for a warrantless search, odor alone may form the
basis for the issuance of a search warrant. As this Court acknowledged in
Commonwealth v. Stoner, 344 A.2d 633 (Pa. Super. 1975), where an
officer is lawfully in a particular location, his detection of the odor of
marijuana is sufficient to establish probable cause. See also
Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984);
Commonwealth v. Trenge, 451 A.2d 701 (Pa. Super. 1982).
As the trial court aptly noted,
[…] only that odors alone do not authorize a search
without a warrant. If the presence of odors is
testified to before a magistrate and he finds the
affiant qualified to know the odor, and it is one
sufficiently distinctive to identify a forbidden
substance, this Court has never held such a basis
insufficient to justify issuance of a search warrant.
Indeed, it might very well be found to be evidence of
the most persuasive character.
[] Trenge, 451 A.2d at 706 (quoting Johnson v. United
States, 333 U.S. at 13)). The reasoning behind permitting a
warrant to be issued for odor alone when it would be
inappropriate to conduct a warrantless search involves the
following:
The point of the Fourth Amendment is not that it
denies law enforcement the support of the usual
inferences which reasonable men draw from
evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached
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magistrate instead of being- judged by the officer
engaged in the often competitive enterprise of
ferreting out crime.
Johnson v. United States, 333 U.S. at 13-14.
Trial Court Opinion, 5/17/2013, at 4.
Instantly, there is no dispute that Officer Williams detected the odor of
marijuana in a public area of Appellant’s apartment building, and that the
odor grew stronger once Appellant opened the door to his apartment.
Officer Williams’ familiarity with the smell of burning marijuana, coupled with
the probation officer’s detection of the same in a location where both officers
were authorized to be, provided the issuing authority with a substantial basis
upon which he could issue a warrant.3 See Commonwealth v. Johnson,
68 A.3d 930, 936 (Pa. Super. 2013) quoting Commonwealth v. Waddell,
61 A.3d 198 (Pa. Super. 2012) (“[O]nce the odor of marijuana was detected
emanating from the residence, the threshold necessary to establish probable
cause to obtain a search warrant was met”). Accordingly, because the
warrant issued herein was supported by sufficient probable cause, we
conclude the trial court did not err in denying Appellant’s motion to
suppress.
3
The affidavit of probable cause authored by Officer Williams only included
these facts. We agree with the trial court that the warrant is not tainted by
any observations made during the officer’s illegal warrantless entry into
Appellant’s apartment. See Trial Court Opinion, 5/17/2013, at 3 (“Indeed, in
seeking the warrant, the only basis was the odor of burnt marijuana. Thus
the search warrant was obtained from the magistrate without utilizing fruit
of the warrantless entry.”).
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Next, Appellant takes issue with the trial court’s decision to permit the
Commonwealth to present the testimony of Officer Williams at the
suppression hearing as a substitute for the actual warrant and affidavit of
probable cause. Appellant’s Brief at 23-39. Appellant contends that,
because the Commonwealth failed to enter the warrant and attached
affidavit into evidence at the time of the suppression hearing, the trial court
erred in denying suppression, particularly in light of our Supreme Court’s
recent decision in Commonwealth v. James, 69 A.3d 180 (Pa. 2013).
Appellant’s Brief at 31-33.
In James, our Supreme Court outlined the parties’ respective burdens
during a suppression hearing. The Court concluded that, pursuant to Rule of
Criminal Procedure 203(D), a suppression court reviewing a defendant’s
“generic, global challenge” to the sufficiency of an affidavit of probable cause
is limited to consideration of information contained within the four-corners of
the affidavit. James, 69 A.3d at 187-90. By contrast, where a defendant
challenges specific omissions and ambiguities within the affidavit, extrinsic
evidence and witness testimony is permitted to resolve such deficiencies. Id.
Herein, Appellant argues that, because he presented a global challenge to
the sufficiency of the affidavit, the trial court erred in permitting Officer
Wilson’s testimony and the Commonwealth, which did not admit the affidavit
itself as evidence at the suppression hearing, failed to meet its burden of
proof. We disagree.
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Contrary to Appellant’s assertion that any testimony is precluded
where a challenge to a warrant is “global,” in James, our Supreme Court
recognized the value of cross-examination as a safeguard to “test the
truthfulness of the recitals of the warrant.” Id. at 187-88.
The burden is on the Commonwealth to establish the
validity of the search warrant and the burden is not
carried by merely introducing the search warrant and
affidavit with no supporting testimony because then
the only way for the defendant to challenge the
veracity of the information is to call witnesses
himself and this effectively shifts onto him the
burden of disproving the veracity of the information,
an almost impossible burden. If the procedure
followed by the Commonwealth in this case were
upheld then policemen could recite in an affidavit as
probable cause for the issuance of a search warrant
any and all statements which they felt were of help
in obtaining the warrant, irrespective of the truth or
veracity of those statements, their legality or
illegality, or constitutionality or unconstitutionality,
realizing that such statements would be insulated
from defendant’s right of cross-examination since
the Commonwealth did not have to call witnesses
who would be subject to cross-examination to
establish the facts necessary to support the issuance
of the search warrant. Therefore, we must hold that
the Commonwealth failed to carry its burden of proof
at the suppression hearing. To rule otherwise would
permit police in every case to exaggerate or to
expand on the facts given to the issuing authority
merely for the purpose of meeting the probable
cause requirement, thus precluding an objective
determination of whether probable cause for the
warrant existed.
[Commonwealth v.] (William) Ryan, [407 A.2d 1345, 1348
(Pa. Super. 1979)] (citations omitted) (emphasis added).
Significantly, the [Superior C]ourt rejected the Commonwealth’s
assertion that Pa.R.Crim.P. 2003(b), the predecessor to Rule
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203, only required submission of the affidavit to meet the
burden of proof at the hearing:
The rule stands for the proposition that only
evidence as set forth in the affidavit can be
considered in determining whether or not the issuing
authority had probable cause to issue the warrant. It
does not mean that only the affidavit, i.e. the
physical document itself, can be admitted into
evidence. As discussed above the mere introduction
of the physical document is not sufficient to sustain
the Commonwealth’s burden of proof because the
document does not lend itself to cross-examination
which is the defendant’s right. Commonwealth v.
Hall, [302 A.2d 342 (Pa. 1973)]. While the court
could not venture outside the four corners of the
affidavit in deciding whether probable cause existed,
it is still the Commonwealth’s burden to prove the
validity of the statements contained in the affidavit
and this can only be done by real, live witnesses who
are subject to cross-examination by the defendant.
Id. (emphasis added).
James, 69 A.3d at 188-89 (emphasis in original).
Instantly, Officer Williams’ testimony was limited to the four-corners of
the affidavit and afforded Appellant the opportunity to cross-examine the
veracity of the statements contained within the affidavit. Accordingly, we
find no error in the trial court permitting Officer Williams’ testimony.
Moreover, as it is permissible for the suppression court to reopen the
record to receive omitted evidence, we find no error in the trial court’s
decision to reopen the record herein to allow the Commonwealth to admit a
search warrant and affidavit it failed to move into evidence at the
suppression hearing. Appellant’s argument to the contrary is unavailing.
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The Commonwealth admitted that its failure to move the affidavit and
accompanying search warrant into evidence was inadvertent. The documents
were attached to Appellant’s pre-trial motion, were referenced at the
suppression hearing by defense counsel, and formed the basis of the
Commonwealth’s evidence presented during the hearing. Based on the
foregoing, Appellant is not entitled to relief. See Commonwealth v.
Ferguson, 231 A.2d 327 (Pa. Super. 1974) (holding, inter alia, that where a
warrant was relied upon by the Commonwealth during the suppression
hearing and made available to the court and defense counsel, but
inadvertently excluded from the record, the interests of justice permit the
record to be reopened to admit the missing document).
Appellant’s final three issues pose various challenges to the legality of
his sentence. We address those claims mindful of the following. “Issues
relating to the legality of sentence are questions of law, and thus, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013) (citation
omitted).
In his third issue, Appellant claims that his sentence is illegal because
the court ordered Appellant to pay court costs without requiring the
Commonwealth to provide an accounting of those costs. Appellant’s Brief at
45-50.
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All necessary expenses incurred by the district attorney or his
assistants or any office directed by him in the investigation of
crime and the apprehension and prosecution of persons charged
with or suspected of the commission of crime, upon approval
thereof by the district attorney and the court, shall be paid by
the county from the general funds of the county. In any case
where a defendant is convicted and sentenced to pay the costs
of prosecution and trial, the expenses of the district attorney in
connection with such prosecution shall be considered a part of
the costs of the case and be paid by the defendant.
16 Pa.C.S. § 1403.
Specifically, Appellant takes issue with two entries on the itemized list
of court costs entitled “District Attorney Costs (Indiana)” which total
$233.55. Appellant’s Brief at 49. The certified record does not contain any
invoices associated with these entries; however, in its brief, the
Commonwealth avers that the charges correspond to fees incurred following
transcript requests by Appellant’s first attorney. Commonwealth’s Brief at 17
n. 7. Indeed, two entries, dated December 20, 2012 and February 20,
2013, entitled “Reimbursement District Attorney” appear in the certified
docket prior to trial in this matter. Nonetheless, we are constrained to agree
with Appellant that these notations, without more, are insufficient to carry
the Commonwealth’s burden. Accordingly, we remand for a new hearing on
the bill of costs attributable to the Commonwealth.4
4
Because Appellant takes issue only with the costs payable to the
Commonwealth, we direct that the hearing should be limited to testimony
regarding those charges.
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In his fourth issue, Appellant argues that the trial court “abrogated its
judicial function” by allowing the Department of Corrections (DOC) to
calculate Appellant’s credit time. Appellant’s Brief at 50. We disagree with
Appellant’s characterization of the error herein, but nonetheless remand for
a proper calculation of Appellant’s credit time in light of the following.
Section 9760 of the Sentencing Code provides, in relevant part, as
follows.
[T]he court shall give credit as follows:
(1) Credit against the maximum term and any minimum term
shall be given to the defendant for all time spent in custody as a
result of the criminal charge for which a prison sentence is
imposed or as a result of the conduct on which such a charge is
based. Credit shall include credit for time spent in custody prior
to trial, during trial, pending sentence, and pending the
resolution of an appeal.
42 Pa.C.S. § 9760(1).
It is undisputed that Appellant is entitled to credit for time served.
Specifically, he requests eight days of credit time, from January 11, 2012 to
January 18, 2012, accrued between when he was arrested for this incident
until his first preliminary hearing. Trial Court Opinion, 4/17/2014, at 6. At
sentencing, the trial court indicated it agreed with Appellant’s calculation of
applicable credit time. N.T., 12/20/2013, at 10-11. To this end, in its
sentencing order, the trial court granted Appellant “[c]redit for time served
as allowed by law.” Sentencing Order, 12/20/2013. However, the DC-
300(B) court commitment form submitted to the DOC after Appellant’s
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sentencing indicates that Appellant has no applicable credit time. “[T]he
Department of Corrections, an executive agency, has no power to change
sentences, or to add or remove sentencing conditions, including credit for
time served; this power is vested with the sentencing court.”
Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014)
(citation omitted).
42 Pa.C.S. § 5505, provides for modification of
orders as follows:
Except as otherwise provided or prescribed by law, a
court upon notice to the parties may modify or
rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of
court, if no appeal from such order has been taken
or allowed.
However, “patent or obvious mistakes” in an order may be
modified beyond the thirty-day modification period. An alleged
error must qualify as a clear clerical error or a patent and
obvious mistake in order to be amenable to correction.
Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014)
(citations omitted).
Based on our review of the record, we conclude that the omission of
eight days of credit time from the DC-300(B) court commitment form
constituted a patent and obvious error that was amenable to correction by
the trial court. Accordingly, we vacate Appellant’s sentencing order and
remand for modification of the applicable credit time.
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Finally, the parties and the trial court agree that the mandatory
minimum sentence imposed pursuant to 18 Pa.C.S. § 7508(a)(3) is illegal
and must be vacated. Appellant’s Brief at 41-45; Commonwealth’s Brief at
16; Trial Court Opinion, 7/8/2014, at 3. We agree. See Commonwealth v.
Fennell, 105 A.3d 13 (Pa. Super. 2014) (holding that section 7508 was
facially unconstitutional in its entirety in light of the United States Supreme
Court’s holding in Alleyne). Accordingly, we vacate Appellant’s sentence and
remand for resentencing without consideration of the mandatory minimum
sentence provided in section 7508.
Convictions affirmed. Judgment of sentence vacated. Case remanded
with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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