J-A06034-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TERRY LEE MCINTYRE, :
:
Appellant : 853 WDA 2017
Appeal from the Judgment of Sentence May 3, 2017
in the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000199-2016
BEFORE: BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 11, 2018
Terry Lee McIntyre (Appellant) appeals from the May 3, 2017 judgment
of sentence of 19 to 38 years of incarceration following his jury convictions for
47 drug charges including, inter alia, manufacture of methamphetamine.
Specifically, Appellant challenges 1) the denial of his pre-trial suppression
motion and 2) the trial court’s failure to merge the manufacture of
methamphetamine with a child present with manufacture of
methamphetamine. We affirm.
On March 1, 2016, Pennsylvania Board of Probation and
Parole (PBPP) agents Wetzel and Oliver visited 20 Best Road in
Rimersburg, Pennsylvania to conduct a home plan investigation of
the property for a future parolee. Prior to visiting the property,
the Agents contacted the Clarion County Probation Office for
background information on the property. At the time, Clarion
County Probation Officer Blum had an arrest warrant for Natasha
Anthony, who had absconded from probation. He had obtained
information from a reliable source indicating that Anthony was
*Retired Senior Judge assigned to the Superior Court.
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residing at 20 Best Road with Justin McIntyre. Probation Officers
Blum and Kerle agreed to accompany Agents Wetzel and Oliver to
the property to serve as back-up and to arrest Anthony if she was
found at the property. Officers Blum and Kerle parked on the road
outside of 20 Best Road to observe the property, while Agents
Wetzel and Oliver would enter the property first and phone
Officers Blum and Kerle if they saw Anthony.
The property consists of several trailers, including a green
and white trailer, a camper, a shed, a garage, and several parked
vehicles. The agents knocked on the door of what appeared to be
the main trailer, but no one answered. As they proceeded back
to their vehicle, they heard the sound of children yelling, but could
not identify where the sound originated. Justin McIntyre emerged
from the area near the green and white trailer and approached
the agents. McIntyre immediately acted belligerent toward the
agents, yelling at them to leave the property. Agent Wetzel, who
had supervised McIntyre in the past, asked him whether his
current parole agent knew he was at the property. McIntyre said
he had permission to be on the property, but after calling his
parole agent, Agent Wetzel learned that McIntyre did not have
permission to be there.1 McIntyre’s parole agent requested that
Agents Wetzel and Oliver take McIntyre into custody for violating
his parole.
______
1 Later, while discussing the home plan with Mary George,
the owner of the 20 Best Road property, Agent Wetzel
learned that Justin McIntyre had been staying at the
property for several days. McIntyre had also stayed in the
green and white trailer overnight in the past.
… Agent Oliver observed McIntyre becoming belligerent,
repeatedly dropping his phone, and appearing somewhat off-
balance. McIntyre repeatedly put his hand into his pocket, and
Agent Oliver asked him to keep his hands in view. When McIntyre
refused, Agent Oliver patted him down and found three knives in
one pocket and a vial containing white powder residue in another
pocket. While the timeline of events is unclear, Agents Wetzel and
Oliver also testified that McIntyre stated that he would test
positive for methamphetamine at that time. Based on the items
they had found on his person, as well as the request of his current
parole agent, Agents Wetzel and Oliver handcuffed McIntyre to
take him into custody.
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At some point during the interaction with Justin McIntyre,
Agent Wetzel telephoned Officers Blum and Kerle and requested
that they enter the property to serve as back-up. Upon entering
the property, Officer Blum observed [Appellant] reclined in the
driver’s seat of a van, with [a] woman reclined in the passenger’s
seat. Both appeared to be unconscious, but not in any type of
distress. [Appellant] remained unconscious during the various
officers’ interactions with McIntyre and while Officers Blum and
Kerle later retrieved Anthony from the green and white trailer.2
______
2 [Appellant] testified that he woke up and heard the
probation officers loudly kicking the door to the trailer and
breaking the lock to forcibly enter the trailer. He further
testified that a uniformed police officer prevented him from
approaching Officers Kerle and Blum, even after he told the
officer that they would need a search warrant to enter the
trailer. The [trial] court does not find this testimony
credible, in light of the testimony of four law enforcement
officers that [Appellant] was unconscious during the entire
interaction with McIntyre. Further, the officers testified that
no uniformed state police troopers arrived on the scene until
after Officers Blum and Kerle had retrieved Anthony from
the trailer and called the local state police barracks for a
search warrant.
When the PBPP agents handcuffed him, McIntyre said
something to the effect of, “If I’m going to jail, she’s going with
me.” McIntyre then addressed Officers Blum and Kerle and said,
“the person you’re looking for is in that trailer,” indicating the
green and white trailer. Officer Blum pointed at the green and
white trailer and said “that one?” McIntyre confirmed and further
stated that “Natasha” was in the first bedroom of the trailer. The
officers approached the trailer, knocked on the door, and
announced their presence. When there was no response, the
officers entered the trailer. While there was a padlock on a hook
on the door, the hinge was not properly aligned with the door, and
the lock did not actually function to secure the door. The officers
were able to push the door open without touching the lock.
Officer Kerle testified that upon entering the trailer, he saw
three mason jars containing white powder residue and a “bladder”
from a cold compress on the floor. While approaching the room
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where Anthony was located, he observed a gallon jug with
“sludge” on the bottom sitting on the trailer floor. Officer Kerle
recognized these items as elements of a one-pot
methamphetamine lab. The officers then found Anthony in the
room where McIntyre had indicated she would be located and
placed her under arrest.
Officers Blum and Kerle reported their observations in the
trailer by phone to Pennsylvania State Trooper Jared Thomas, who
applied for a search warrant for the entire 20 Best Road property.
The search warrant included all trailers, vehicles, residences, and
other structures on the property. Law enforcement officers
remained on the property for several hours while waiting for the
warrant. Once the search warrant was obtained, officers searched
the entire property, including [Appellant’s] van. [Appellant] was
passed out in the van at the time. Through the search of the
property, state police uncovered many other items common to the
one-pot methamphetamine lab and took statements from others
on the property implicating [Appellant] in the manufacture of
methamphetamine.
Opinion and Order, 3/14/2017, at 1-5 (unnecessary capitalization omitted).
Appellant was arrested and charged with 48 counts of drug-related crimes
pertaining to the manufacture of methamphetamine.
Appellant filed a motion to suppress on August 15, 2016, challenging
the constitutionality of the search at 20 Best Road. Following a suppression
hearing, the trial court denied the motion by order and opinion on October 25,
2016, finding that Appellant did not have a reasonable expectation of privacy
in the property. Pending trial, new counsel was appointed to represent
Appellant. Thereafter, Appellant filed an amended motion to suppress on
February 21, 2017, arguing that Appellant had a reasonable expectation of
privacy in the green and white trailer. The trial court again held a suppression
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hearing, and denied Appellant’s motion to suppress by order and opinion on
March 14, 2017, finding that although Appellant had a reasonable expectation
of privacy in the trailer, Justin McIntyre consented to the search of the trailer.
Appellant was convicted following a jury trial and sentenced as indicated
above.1 Appellant timely filed a notice of appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925. Appellant presents the following
questions for our consideration.
I. Did the trial court err in denying [Appellant’s] amended
suppression motion and denying suppression of all further
evidence collected as fruit of the poisonous tree?
II. Did the trial court err in failing to merge [Appellant’s]
manufacture of methamphetamine charge with the
manufacture of methamphetamine with a child present
charge?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
We consider Appellant’s suppression claim mindful of the following.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
1 Relevant to this appeal, Appellant was sentenced at count one, manufacture
of methamphetamine, to 60 to 120 months of incarceration. At counts three
and four, manufacture of methamphetamine with a child present, Appellant
was sentenced to 30 to 60 months of incarceration at each count, to run
concurrently with each other, and consecutively to the period of incarceration
imposed for manufacture of methamphetamine.
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supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where
... the appeal of the determination of the suppression court turns
on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the court[] below are
subject to our plenary review.
Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).
Appellant argues that the trial court erred in finding that Justin McIntyre
consented, or even had authority to consent, to a search of the trailer.
Appellant’s Brief at 11-17. We do not reach this argument because we affirm
the trial court’s order denying the motion to suppress on another basis.2
This Court’s decision in Commonwealth v. Muniz, 5 A.3d 345 (Pa.
Super. 2010), is instructive here. In that case, the defendant challenged the
trial court’s denial of his motion to suppress based on the argument that
“because the police’s initial entry into [Muniz’s] apartment … was predicated
solely upon an arrest warrant for Timothy Baldwin, and not upon an arrest
warrant for him or a search warrant for the premises, the search was illegal.”
Id. at 349. Muniz relied on Steagald v. United States, 451 U.S. 204 (1981),
and Commonwealth v. Martin, 620 A.2d 1194 (Pa. Super. 1993) (per
curiam), in support of his argument. The trial court and the Commonwealth
2 This Court may affirm the trial court’s decision on any valid basis.
Commonwealth v. Janda, 14 A.3d 147, 161 n.8 (Pa. Super. 2011).
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argued that the underlying facts were more appropriately considered under
the holdings of Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982), and
Commonwealth v. Conception, 657 A.2d 1298 (Pa. Super. 1995). This
Court held that the appropriate analysis “harmonized application of all four
cases[.]” Muniz, 5 A.3d at 350.
Specifically, in Steagald the United States Supreme Court
addressed the narrow issue of “whether an arrest warrant—as
opposed to a search warrant—is adequate to protect the Fourth
Amendment interests of persons not named in the warrant, when
their homes are searched without their consent and in the absence
of exigent circumstances.” Steagald, 451 U.S. at 212[]. In that
matter, the authorities arrived at a location armed with an arrest
warrant to arrest a fugitive. Prior to entry into the residence, they
were confronted by the defendant/owner of the residence. The
authorities explained that they were looking for a fugitive that
they believed to be in the residence. The defendant/owner stated
that she did not know the fugitive and denied the authorities entry
into the residence. Nevertheless, the authorities entered and
searched the residence, with the mistaken understanding that the
arrest warrant provided them authority to search the
residence. As a result of that search, the authorities found
cocaine, but not the fugitive. The defendant/owner was arrested.
On appeal, the United States Supreme Court explained the
difference in the interests protected by arrest warrants and search
warrants, and held that the arrest warrant naming a person who
was not the owner of the residence was inadequate to justify the
search of the defendant/owner’s residence. Absent consent or
exigent circumstances, the Supreme Court explained that a search
warrant was required in such a case.
Over ten years later, in [] Martin,[] this Court issued a per
curiam opinion, reversing a denial of a suppression motion and
vacating a judgment of sentence, finding the situation in that
matter indistinguishable from Steagald. Of importance to both
the Steagald and Martin decisions was the fact that the rights of
the third party owner/possessor (and not the subject of the arrest
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warrant) were being considered. In both cases, the evidence
against the third party owner/possessor was suppressed.
In the Stanley matter, the Pennsylvania Supreme Court
considered a similar situation, but that holding focused on the
rights of the subject of the arrest warrant—not the rights of the
third party owner/possessor. In Stanley, police received a tip
that a fugitive was hiding in a woman’s apartment. The police
proceeded to the apartment, entered the residence and
apprehended the fugitive. The fugitive challenged the entry into
the woman’s apartment, but the Court held that based upon the
information provided in the tip, the police had “reason to believe”
that the fugitive was within the residence. Stanley relied on the
United States Supreme Court’s holding in Payton v. New
York, 445 U.S. 573[] (1980), that police armed with an arrest
warrant and “reason to believe” that the subject of that warrant
was within the suspect’s own home could enter the home and
arrest the suspect without a search warrant. The Stanley Court
held that an arrestee has even less of a privacy interest in the
home of another, so he could be arrested there.
Resolution of the combination of situations occurred in []
Conception,[] where we considered the Fourth Amendment
rights of a third party when her residence was entered under the
mistaken belief that it was also the residence of someone subject
to an arrest warrant—a factual scenario nearly identical to this
matter. In Conception the police showed up at the defendant’s
apartment with an arrest warrant for Robert Vargas and Martin
Rivera, and a reasonable belief that they lived at the subject
apartment. Instead of Vargas or Rivera, the defendant opened
the door, stated that she did not know either man and refused the
police entry into the premises. Nevertheless, the police forcibly
entered the apartment and searched the premises for Vargas and
Rivera. As a result of that search, the police found marijuana in
plain view. The defendant was consequently placed under arrest.
On appeal, the defendant in Conception relied on
Steagald for the position that, notwithstanding the arrest warrant
for Vargas and Rivera, the police were required to have a valid
search warrant to search her premises. However, in
the Conception decision we distinguished Steagald, explaining
that in Steagald the police understood the premises to belong to
a third party. In Conception, however, the police believed the
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apartment to be the residence of one of the subjects of the arrest
warrant (i.e. Vargas). Therefore, although the individual asserting
the Fourth Amendment rights in Conception was the third-party
(as in Steagald), the person being searched for was believed to
reside at the premises. Under this analysis, we held
that Stanley was more applicable. Thus, because the authorities
had a reason to believe that a subject of the arrest warrant lived
within the premises, they did not need a search warrant to enter
the premises to search for the suspects.
Id. at 350-51 (some citations and footnote omitted). Following the above
analysis, this Court held that the officers’ entry into Muniz’s apartment was
not illegal.
Here, the officers had an arrest warrant for Natasha Anthony. A reliable
source informed the officers that she was currently residing at 20 Best Road
with Justin McIntyre. Two parole agents accompanied the officers to 20 Best
Road and encountered a belligerent McIntyre. At the request of his parole
agent, McIntyre was taken into custody. Once handcuffed, McIntyre informed
the parole agents that Anthony was in the first bedroom of the green and
white trailer. The officers knocked on the door of the trailer to execute the
arrest warrant and announced their presence. Receiving no response, the
officers entered the unlocked trailer to apprehend Anthony. En route to the
first bedroom where she was located, Officer Kerle observed several items
that were immediately apparent as elements of a one-pot methamphetamine
lab. After observing these items, the officers contacted the local state police
barracks to apply for a search warrant to search the entirety of 20 Best Road.
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Applying Muniz to Appellant’s case, we find that the entry into the green
and white trailer was not illegal. The officers had a valid arrest warrant for
Anthony, and entered the green and white trailer based on reliable information
that she was residing within. Based upon this reasonable belief and the arrest
warrant for Anthony, the officers had a legal basis to enter the trailer to
execute Anthony’s arrest warrant, and the entry did not violate Appellant’s
Fourth Amendment rights. Consequently, Officer Kerle observed the
methamphetamine lab items from a lawful vantage point as they were in plain
view while he was executing the arrest warrant, and the items could be used
as the basis for the subsequent search warrant. Accordingly, we find that the
trial court did not err in denying the motion to suppress, albeit for a different
reason. See Commonwealth v. Anderson, 40 A.3d 1245, (Pa. Super. 2012)
(stating that plain view doctrine applies where police observe an item in plain
view from a lawful vantage point, and the incriminating nature of the item is
immediately apparent) (citations omitted).
We next consider Appellant’s claim that his two convictions of
manufacture of methamphetamine with a child present should have merged
with his single conviction for manufacture of methamphetamine. “Whether
Appellant’s convictions merge for sentencing is a question implicating the
legality of Appellant’s sentence. Consequently, our standard of review is de
novo and the scope of our review is plenary.” Commonwealth v. Baldwin,
985 A.2d 830, 833 (Pa. 2009).
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We begin by examining the merger doctrine.
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless
the crimes arise from a single criminal act and all of
the statutory elements of one offense are included in
the statutory elements of the other offense. Where
crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher
graded offense.
42 Pa.C.S. § 9765.
The statute’s mandate is clear. It prohibits merger unless
two distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.
Baldwin, 985 A.2d at 833.
When considering whether there is a single
criminal act or multiple criminal acts, the question is
not “whether there was a ‘break in the chain’ of
criminal activity.” The issue is whether “the actor
commits multiple criminal acts beyond that which is
necessary to establish the bare elements of the
additional crime, then the actor will be guilty of
multiple crimes which do not merge for sentencing
purposes.”
Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.[ ]Super.
2012).
In determining whether two or more convictions arose from
a single criminal act for purposes of sentencing, we must examine
the charging documents filed by the Commonwealth.
Commonwealth v. Jenkins, 96 A.3d 1055, 1060 (Pa.[ ]Super.
2014) (holding, consistent with our Supreme Court’s
jurisprudence, “We must determine whether [defendant’s] actions
... constituted a single criminal act, with reference to elements of
the crime as charged by the Commonwealth.”) (internal quotation
marks and citation omitted).
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Commonwealth v. Martinez, 153 A.3d 1025, 1030–31 (Pa. Super. 2016).
Appellant argues that “the Amended Information only offers a vague
summary of the offense describing ‘numerous occasions.’ There is no basis
the jury (or the trial court) could find that the allegations, as described in the
Criminal Information, justify the acts as separate and distinct from one
another.” Appellant’s Brief at 20. However, Appellant’s argument ignores the
evidence presented at trial.
Here, the Commonwealth’s witnesses testified to seeing
[Appellant] make methamphetamine on several occasions over
several months, not just on the one occasion when the two
children were present. Natasha Anthony testified that during the
time she lived at the McIntyre property “Big Terry[,” Appellant],
would give her methamphetamine. She knew how to make it.
She learned from [Appellant]. She watched him make it. She
saw [Appellant] and two others making methamphetamine every
day, usually at night. Natasha Anthony testified she saw
[Appellant] and others making it and keeping the materials and
ingredients in the green and white trailer located on the McIntyre
property. She also stated she had seen [Appellant] manufacturing
methamphetamine in front of Tonya Barger’s two kids in the little
brown and white camper. Because the fumes were burning her
nose, she put a blanket over the little boy’s head to try to protect
him. Anthony testified she saw [Appellant] making
methamphetamine in the gray handicap van, in the brown
camper[,] and in the green and white trailer. On a couple of
occasions Tonya Barger was there with the kids.
Next, Melanie Brink testified that on nine occasions she
purchased pills used for making meth and gave them to
[Appellant] and she helped him and saw him crushing the pills.
She saw Tonya Barger’s children around one time when
[Appellant] was making meth. She crushed pills to make meth in
her car and she was in the trailer when others were making it.
[Appellant] was with her in her car. There was a whole lot of
shaking going on. She saw processes of making the meth take
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place in her car, in the gray handicapped van, the green and white
trailer, and in the brown camper and [Appellant] was present in
all of those places helping with the making of meth.
Tonya Barger testified that [Appellant] is the grandfather of
her two children. She was living with Derick Fowler for a couple
months in a camper at the McIntyre property. Her kids are two
and four years of age. She bought Sudafed to make meth at
[Appellant’s] request and with money he gave her five times and
all five times she gave the pills to [Appellant]. He made meth
with it. She saw meth being made two to three times per week,
maybe more, and [Appellant] was involved each time. Her
children were around and [Appellant] was present. In addition to
this testimony, law enforcement officials testified that they found
meth making materials in various locations on the McIntyre
property.
Since the testimony clearly establishes that [Appellant]
participated in making methamphetamine on multiple occasions
and at multiple locations, the jury could have reasonably believed
that [Appellant] committed this offense many times when it found
him guilty. If so, the three offenses would not constitute a “single
criminal act,” regardless of whether one offense is a lesser
included offense of the other.
Trial Court Opinion, 7/12/2017, at 2-4 (unnumbered) (citations omitted).
We agree with the trial court. The charging document states that
Appellant manufactured methamphetamine “on numerous occasions between
the dates of March 16, 2015 [,]and March 16, 2016[,]” Amended Criminal
Information, 2/21/2017, at count 1; and manufactured methamphetamine
with a child present “on numerous occasions[,]” id., at counts 3 and 4. Based
upon the language of the amended criminal information and the evidence
presented at trial, we find that ample evidence existed to support the
conclusion that Appellant committed multiple, distinct, crimes of
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manufacturing methamphetamine, with and without children present.
Accordingly, we discern no error in the sentences imposed by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2018
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