J-A24016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAN SILVERMAN :
:
Appellant : No. 799 EDA 2018
Appeal from the Judgment of Sentence Entered February 2, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006099-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 27, 2019
Appellant, Jan Silverman, appeals from the February 2, 2018 Judgment
of Sentence entered in the Philadelphia County Court of Common Pleas
following his conviction of Possession of a Firearm Prohibited.1 On appeal,
Appellant challenges, inter alia, the denial of his Motion to Suppress. After
careful review, we reverse and vacate the Judgment of Sentence.
We glean the following facts from the certified record. In 2013, Appellant
was released on parole from a 2005 conviction for Aggravated Assault.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6105(a)(1).
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Pursuant to 18 Pa.C.S. § 6105(b), because he had a prior aggravated assault
conviction, Appellant was prohibited from possessing a firearm.2
On October 3, 2015, Parole Agent Jasmine Brunson received an
anonymous tip via a community complaint hotline, from a woman reporting
that Appellant possibly had a firearm in his residence. Agent Brunson
discussed the call with her supervisor, who determined that Agent Brunson
should conduct a search at Appellant’s residence.
Based only on that anonymous tip, on October 5, 2015, parole agents,
including Agent Brunson, conducted a search of Appellant’s residence. The
agents found a firearm in his bedroom nightstand. Appellant was subsequently
charged with Possession of a Firearm Prohibited.
Appellant filed a Motion to Suppress, contending that the October 5,
2015 search was illegal. A suppression hearing was held on September 1,
2017, and October 2, 2017,3 in which Agent Brunson testified.
The court denied the Motion to Suppress and the matter proceeded to a
stipulated trial. The court found Appellant guilty of Possession of a Firearm
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2 In addition, as a condition of parole, he could not own or possess any
firearms.
3 On September 1, 2017, the court continued the hearing to October 2, 2017,
because Agent Brunson informed the court that she had written notes about
the anonymous tip, but had not brought them with her to court. The court
stopped the hearing, and told Agent Brunson to “[g]o back, get your notes,
get yourself prepared . . . and do this motion properly.” N.T. Suppression
Hearing, 9/1/17, at 30.
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Prohibited, and requested a pre-sentence report and mental health
assessment. On February 2, 2018, the court sentenced him to five to ten years
of imprisonment. Appellant filed a Post-Sentence Motion, which the trial court
denied.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Where [p]arole [a]gents did not have the requisite reasonable
suspicion to search Appellant’s home, which was based on an
anonymous “community complaint,” and did not demonstrate
the basis of the knowledge of the tipster, did the lower Court
err in not suppressing the evidence in this case?
2. Where the sentence of the lower [c]ourt was excessive under
the circumstances of the case, provided an inadequate
statement of reasons for imposing sentence, and violated
sentencing norms, should the lower [c]ourt’s sentence be
vacated?
3. Where the [c]ourt below failed to give Appellant credit for the
time spent in jail before the sentence was imposed, was this
an error of law?
Appellant’s Br. at 3.
In his first argument, Appellant asserts that the trial court erred in
denying his Motion to Suppress because parole agents lacked reasonable
suspicion to search his residence. Id. at 13-18.
When we evaluate a court order denying a suppression motion, “we
consider the factual findings of the suppression court and whether they are
supported by record evidence.” Commonwealth v. Coleman, 130 A.3d 38,
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42 (Pa. Super. 2015) (citation omitted). We may not consider evidence
outside the suppression hearing record. In re L.J., 79 A.3d 1073, 1075 (Pa.
2013). “We consider only the evidence of the Commonwealth’s witnesses and
testimony of the defendant’s witnesses that are not contradicted by the
suppression record.” Coleman, 130 A.3d at 42 (citation omitted). Where the
evidence supports the suppression court’s factual findings, we are bound by
them and will reverse only where the legal conclusions are erroneous.
Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super. 2018). “[W]e
are not bound by the legal determinations of the suppression court.”
Coleman, supra, at 42.
A parolee has limited Fourth Amendment rights. 61 Pa.C.S. § 6153;
Commonwealth v. Moore, 805 A.2d 616, 620 (Pa. Super. 2002). “In
exchange for early release from prison, [a] parolee cedes away certain
constitutional protections[.]” Commonwealth v. Sperber, 177 A.3d 212,
215 (Pa. Super. 2017) (citation omitted). Nonetheless, a parolee still has
“limited constitutional protections” related to warrantless searches. Coleman,
130 A.3d at 42. Thus, “[p]arole officers may perform a search of a parolee’s
residence only where the totality of the circumstances demonstrates
reasonable suspicion that evidence of contraband or a violation of parole will
be discovered.” Id. (citing 61 Pa.C.S. § 6153).4
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4 The following factors may be taken into account when determining the
existence of reasonable suspicion: (i) the observations of agents; (ii)
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Our Supreme Court has concluded that an anonymous tip alone is
unreliable and “insufficient to establish a reasonable suspicion of criminal
activity.” Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000)
(citations omitted). In order for an anonymous tip to give rise to a reasonable
suspicion that a parole violation has occurred, it must be of sufficient quality
that it may be found reliable. Coleman, supra at 47. To be of sufficient
quality, an anonymous tip must provide “something more”—an independent
reason to believe that a suspect is involved in criminal activity, such as inside
information—a specific familiarity with the suspect’s affairs, including “future
actions of third persons ordinarily not easily predicted.” Wimbush, supra at
812. In other words, there must be corroboration of criminal activity, or
“corroboration of predictive aspects of the [anonymous] tip.” Id. at 813.
Examples where courts have found anonymous tips to support
reasonable suspicion include Alabama v. White, 496 U.S. 325, 331-32
(1990), where police corroborated the tip’s highly detailed inside information
about the suspect’s not-easily-predicted future actions, including the specific
time the suspect would eventually leave a specific apartment in a specific
vehicle and travel to a specific motel with cocaine.5 In Commonwealth v.
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information provided by others; (iii) the activities of the offender; (iv)
information provided by the offender; (v) the experience of agents with the
offender; (vi) the experience of agents in similar circumstances; (vii) the prior
criminal and supervisory history of the offender; and (viii) the need to verify
compliance with the conditions of supervision. 61 Pa.C.S. § 6153(d).
5The U.S. Supreme Court noted that Alabama v. White was a “close case.”
496 U.S. at 332.
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Sperber, 177 A.3d 212, 215-16 (Pa. Super. 2017), an anonymous tip was
corroborated with reports of similar information from named informants, and
thus, the Court concluded that the tip did not need to provide predictive
information.
Courts have found anonymous tips unreliable where the tip is lacking
corroboration that criminal activity is or will be afoot. For example, in
Wimbush, the Court concluded an anonymous tip that a man “Tony”
possessed drugs and was driving a white van with a specific license plate on
a certain road did not give rise to a reasonable suspicion of criminal activity
even though a police check of license plate number revealed a van registered
to “Anthony.” 750 A.2d at 809. Our Supreme Court distinguished the case
from Alabama v. White, explaining that the tip in Wimbush provided facts
existing at the time of the call, not inside information of the suspect’s future
actions. Id. at 813-14.
Similarly, in Commonwealth v. White,6 our Supreme Court held that
an anonymous tip about possible drug activity at a specific residence and that
also described the suspect as a black male wearing a white shirt and shorts
riding a girl’s black bicycle, did not give rise to a reasonable suspicion because
the tip did not provide insider information related to the criminal activity. Id.
at 810, 812-13.
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6Our Supreme Court consolidated two cases, Commonwealth v. Wimbush,
and Commonwealth v. White. 750 A.2d 807.
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In Coleman, this Court held that an anonymous tip that the appellant
was one of the largest drug sellers in the area and had a driving suspension,
the latter detail having been verified, was unreliable because the tip did not
specifically articulate facts that the appellant was engaged in criminal activity.
130 A.3d at 46-47.
Here, the Commonwealth concedes that the trial court erred in denying
Appellant’s suppression motion. Commonwealth’s Br. at 7. Based on our
review of the record and applicable case law, we agree.
In its 1925(a) Opinion, the trial court concluded that the anonymous tip
was reliable because Agent Brunson had determined that the anonymous
caller was the mother of Appellant’s ex-girlfriend, and the information was
specific enough to give Agent Brunson a reasonable suspicion that Appellant
was violating the terms of his parole. Trial Ct. Op., filed 11/8/18, at 6.
The suppression record, however, does not support the trial court’s
determination. At the suppression hearing, Agent Brunson discussed the
anonymous tip she received on October 3, 2015. She stated that the
anonymous caller reported that “[Appellant] possibly had a firearm in his
residence,” and that she learned this information from her daughter, who
knew Appellant. N.T. Suppression Hearing, 9/1/17, at 18. Agent Brunson
testified that the caller did not provide her name nor her daughter’s name, 7
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7 Contrary to the trial court’s 1925(a) Opinion, Agent Brunson was unaware
of the identity of the anonymous caller on October 3, 2015. The identity of the
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but she did provide Appellant’s name and address. Agent Brunson
acknowledged that the anonymous phone call was the only information she
had received about Appellant’s possible possession of a firearm. Because she
was concerned about the possible firearm possession based on her knowledge
of Appellant’s criminal history, she discussed the call with her supervisor. Her
supervisor advised her to conduct a search of Appellant’s residence.
The anonymous tip Agent Brunson received on October 3, 2015, alone
falls short of providing a “reasonable suspicion” to believe that Appellant may
have been involved in criminal activity. See Wimbush, supra at 812;
Coleman, supra at 46-47. The parole agents did not have specific or
articulable insider information about Appellant’s “future actions . . . ordinarily
not easily predicted” to give rise to a reasonable suspicion that Appellant
possibly had a firearm in his residence. See Wimbush, supra at 812.
Additionally, agents had no corroborating information that Appellant may have
been involved in criminal activity from known individuals. The search was
based on an unreliable bare bones assertion. Thus, the search violated
Appellant’s Fourth Amendment rights, and the court’s legal conclusion was
erroneous. Accordingly, the judgment of sentence must be reversed.8
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caller was revealed only when discussing bail after the trial court denied the
Motion to Suppress—approximately two years after the anonymous call. N.T.
Suppressing Hearing, 10/2/17, at 26.
8 Because this issue is dispositive, we need not address Appellant’s remaining
issues in this appeal.
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Judgment of sentence reversed. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/19
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