J-S38029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL HOLLY
Appellant No. 2022 MDA 2014
Appeal from the Judgment of Sentence October 17, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0000108-2014
BEFORE: WECHT, MUSMANNO, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 10, 2015
Appellant, Michael Holly, appeals from the judgment of sentence
entered October 17, 2014 for his convictions of two counts of unlawful
possession of a controlled substance.1 Upon review, we affirm.
Appellant was charged with, inter alia, possession of cocaine and
possession of heroin. On September 3, 2014, Appellant moved to suppress
“all drugs and drug paraphernalia and statements of [Appellant]” that were
obtained as a result of using the key fob taken from Appellant’s person
during “illegal searches” by State Parole Officer (PO) Michael Welsh.
Appellant’s Motion to Suppress Evidence, 9/3/14, at 23. The trial court held
a suppression hearing on September 17, 2014, at which the Commonwealth
presented the testimony of Officer Anthony Fiore and PO Welsh.
1
35 P.S. § 780-113(a)(16).
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Based on the testimony given at the suppression hearing, the trial
court denied Appellant’s motion to suppress. The case proceeded to trial
following which a jury convicted Appellant of two counts of unlawful
possession based on the cocaine and heroin found in the Hyundai that PO
Welsh accessed after taking a key fob from Appellant’s person that allowed
entry into the vehicle.2 The trial court sentenced Appellant to an aggregate
term of incarceration of twenty-eight to fifty-six months in a state
correctional institution along with costs totaling $100. Trial Court Opinion
(TCO), 5/15/15, at 1. Appellant timely filed a post-sentence motion, which
the trial court denied on October 30, 2014.
On November 28, 2014, Appellant timely filed a notice of appeal and,
subsequently, complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
statement. In his Rule 1925(b) statement, Appellant alleged, inter alia, that
the trial court erred in denying his motion to suppress because neither
Officer Fiore’s Terry3 stop nor PO Welsh’s personal and property search of
Appellant were based on reasonable suspicion. Appellant’s Rule 1925(b)
Statement, 2/18/15, at 1.
In its Pa.R.A.P. 1925(a) opinion, the trial court found that both Officer
Fiore’s Terry stop and PO Welsh’s search of Appellant’s person and property
were based on reasonable suspicion. TCO, 5/15/15, at 7-13. The trial court
2
The jury acquitted Appellant of possession with intent to deliver cocaine
and of possession with intent to deliver heroin. 35 P.S. § 780-113(a)(30).
3
Terry v. Ohio, 392 U.S. 1 (1968).
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held that PO Welsh “properly exercised his authority as a parole officer” in
searching Appellant’s person, because “Appellant was running from the area
of a reported mob of people some of whom may have been armed” and
because “[o]nce PO Welsh discovered Appellant was under state supervision
the actions of Appellant and [the circumstances] surrounding the encounter
provided enough reasonable suspicion to pat him down pursuant to 61
Pa.[]C.S.A. §[]6153(d).” Id. at 12-13.
On appeal, Appellant raises three issues for our review:
I. Whether the trial court erred in denying Appellant’s
suppression motion where police officers conducted a
suspicionless investigative detention and Terry frisk of
Appellant and parole officers conducted a suspicionless
personal and property search of Appellant in violation of
Article I, Section 8 of the Pennsylvania Constitution and the
Fourth Amendment to the United States Constitution?
II. Whether the trial court erred in denying Appellant’s Post-
Sentence Motion for Modification of sentence where
Appellant’s sentence is excessive and unreasonable in light of
Appellant’s rehabilitative needs as the punitive measures
inherent in the sentencing scheme could have been
accomplished by the imposition of a lesser sentence?
III. Whether the trial court erred in denying Appellant’s Post-
Sentence Motion for Arrest of Judgment where Appellant’s
convictions were against the weight of the evidence so as to
shock one’s sense of justice as Appellant was never shown to
have possessed the controlled substances in question?
Appellant’s Brief at 8.
Where a trial court denies a motion to suppress,
An appellate court’s standard of review in addressing a challenge
to a trial court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. [Because] the prosecution prevailed in the
suppression court, we may 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
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as a whole. Where the record supports the factual findings of
the trial court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Smith, 85 A.3d 530, 534 (Pa. Super. 2014). Our
Supreme Court has clarified that the scope of appellate review is limited to
the evidence produced at the suppression hearing—not the entire record. In
the Interest of L.J., 79 A.3d 1079 (Pa. 2013).
Article I, § 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution both protect the
people from unreasonable searches and seizures. Jurisprudence
arising under both charters has led to the development of three
categories of interactions between citizens and police. The first,
a “mere encounter,” does not require any level of suspicion or
carry any official compulsion to stop or respond. The second, an
“investigative detention,” permits the temporary detention of an
individual if supported by reasonable suspicion. The third is an
arrest or custodial detention, which must be supported by
probable cause.
Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citing
Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003)).
Mindful of our standard of review, and after a careful reading of the
record and analysis of the applicable law, we agree with the well-reasoned
conclusions of the trial court and adopt its May 15, 2015 Rule 1925(a)
opinion as the decision of this Court. We direct that a copy of the trial
court’s May 15, 2015 Rule 1925(a) opinion be attached to any future filings
in this case.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2015
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Com. v. Holly, M.
Combined Opinion