Com. v. Banks, T.

J-A24042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TREY ANTHONY BANKS :
:
Appellant : No. 495 WDA 2019

Appeal from the Judgment of Sentence Entered February 25, 2019
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000507-2018

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 10, 2021

Trey Anthony Banks (“Banks”) appeals from the judgment of sentence

entered following his conviction of two counts of possession of a controlled

substance.1 We affirm in part, vacate in part, and remand for resentencing.

Banks, an individual who was on parole, was under the supervision of

Agent Christopher Bellotti (“Agent Bellotti”) of the Pennsylvania Board of

Probation and Parole (“PBPP”). On October 11, 2017, Kelly Gibbs (“Gibbs”),

Banks’s cousin and home plan provider for his parole, informed Agent Bellotti

and other PBPP agents that Banks was selling cocaine and other narcotics out

of his residence at 7704 Bennett Street, in the Homewood neighborhood of

Pittsburgh; Banks kept firearms in his residence; and there were known gang

members going in and out of the residence. Based on this information, as

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1 35 P.S. § 780-113(a)(16).
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well as other parole violations observed by Agent Bellotti when he visited

Banks’s residence on prior occasions, Agent Bellotti and his supervisor decided

to search the residence and interview Banks.

On the morning of October 17, 2017, Agent Bellotti, accompanied by

other PBPP agents and Pittsburgh Bureau of Police officers, knocked on the

front door of Banks’s residence. Banks did not answer. Agent Bellotti

confirmed that Banks was in the residence, based upon confirmation with the

company that monitors Banks’s GPS tracker. After several additional attempts

to contact Banks, and requests for anyone present in the residence to come

out, agents entered through an unsecured door in the rear of the residence.

Agents discovered that the door was barricaded with furniture. Once agents

had entered the residence, Banks confirmed that he was upstairs, and was

taken into custody. A subsequent search of the residence yielded suspected

cocaine, crack cocaine, morphine tablets, and four scales. Banks was arrested

and charged with the above-referenced offenses, plus one additional count of

possession of cocaine with the intent to deliver, and one count of possession

of drug paraphernalia.

On August 3, 2018, Banks filed a Motion to suppress, wherein he alleged

that the warrantless search of his residence was illegal, and that the evidence

seized from the search should be suppressed. At the suppression hearing,

Agent Bellotti testified as to the circumstances underlying the search of

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Banks’s residence. On November 7, 2018, the trial court entered an Order

denying Banks’s Motion to suppress.

On December 20, 2018, Banks filed a Motion to dismiss pursuant to

Pa.R.Crim.P. 600. On January 7, 2019, the trial court denied Banks’s Motion

without a hearing. Following a non-jury trial on February 25, 2019, the trial

court convicted Banks of the two possession counts, and found Banks not

guilty of the remaining counts. The trial court sentenced Banks to serve two

concurrent terms of nine to eighteen months in prison, with credit for time

served, followed by two years of probation. Banks filed a post-sentence

Motion, which the trial court denied. Banks filed a timely Notice of Appeal and

a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.

Banks raises the following issues for our review:

I. Did the trial court err in denying the suppression Motion, as
parole agents did not have a reasonable suspicion that the house
contained contraband or that [] Banks violated the conditions of
his supervision?

II. Did the trial court err in summarily denying the [] Motion to
dismiss pursuant to Rule 600 without a hearing, and when the
Commonwealth failed to exercise due dilligence [sic] in bringing
the case to trial?

III. Did the trial court impose illegal sentences at counts [two] and
[three,] because the sentence at each count exceeded the
statutory maximum?

Brief for Appellant at 6 (capitalization omitted).

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First, Banks argues that the trial court erred in denying his Motion to

suppress the evidence seized from his residence. Id. at 16. Banks asserts

that Agent Bellotti lacked reasonable suspicion that Banks’s residence

contained contraband or other evidence that Banks had violated the terms of

his parole. Id. Banks claims that the search of his residence was not a routine

parole check, but was instead an “impermissible fishing expedition where

parole agents worked with multiple police officers to create and carry out a

planned search of a property for evidence of a crime.” Id. at 19. Further,

Banks points to the factors listed in 42 Pa.C.S.A. § 9912(d), and argues that

Agent Bellotti lacked reasonable suspicion to conduct a search of his residence.

Brief for Appellant at 25-32.

We adhere to the following standard of review:

An appellate court’s 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
supported by the record, the appellate court is bound by those
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 courts below are subject to plenary review.

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Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation,

brackets, and ellipses omitted).

“[P]arolees agree to ‘endure warrantless searches’ based only on

reasonable suspicion in exchange for their early release from prison.”

Commonwealth v. Curry, 900 A.2d 390, 394 (Pa. Super. 2006) (quoting

Commonwealth v. Appleby, 856 A.2d 191, 195 (Pa. Super. 2004)).

“[Parole] agents need not have probable cause to search a parolee or his

property; instead, reasonable suspicion is sufficient to authorize a search.”

Id. A search will be deemed reasonable “if the totality of the evidence

demonstrates: (1) that the parole officer had a reasonable suspicion that the

parolee had committed a parole violation, and (2) that the search was

reasonably related to the parole officer’s duty.” Commonwealth v. Gould,

187 A.3d 927, 935 (Pa. Super. 2018) (citation omitted). Additionally, in order

to establish reasonable suspicion, a parole agent need not personally observe

the appellant engage in illegal activity or suspicious conduct.

Commonwealth v. Altadonna, 817 A.2d 1145, 1152 (Pa. Super. 2003).

“[Parole agents] may rely upon information from third parties in order to form

reasonable suspicion.” Id.; see also 42 Pa.C.S.A. § 6153(d)(6)(ii).

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Pursuant to 61 Pa.C.S.A. § 6153(d)(6),2 the following factors may be

considered in determining whether reasonable suspicion exists for a parole

officer to search a parolee’s residence:

(i) The observations of agents.

(ii) Information provided by others.

(iii) The activities of the offender.

(iv) Information provided by the offender.

(v) The experience of the agents with the offender.

(vi) The experience of agents in similar circumstances.

(vii) The prior criminal and supervisory history of the offender.

(viii) The need to verify compliance with the conditions of
supervision.

61 Pa.C.S.A. § 6153(d)(6).

At the hearing, the Commonwealth presented testimony that the agents

had received information from a known source, Gibbs, that Banks, who was

on parole, was selling narcotics out of the residence, had firearms in the

residence, and that known gang members were going in and out of the

residence. N.T., 10/22/18, at 6. Agent Bellotti, who had supervised Banks’s

parole for several months prior to receiving the information from Gibbs,

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2 We note that Banks and the Commonwealth both reference the provisions in
section 9912 when referencing Agent Bellotti’s warrantless search of Banks’s
residence. However, section 9912 governs warrantless searches of individuals
under the supervision of county probation agents, while, section 6153 governs
warrantless searches of individuals under the supervision of state parole
agents. See 61 Pa.C.S.A. § 6153. Nevertheless, the statutes contain
substantially similar provisions with regard to the issues raised herein.

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testified that Banks had violated his parole on other occasions, including

positive urinalyses for cocaine, one of the narcotics allegedly being sold out of

Banks’s residence. Id. at 6-7. Because of Banks’s previous violations, he was

required to wear a GPS ankle monitor. Id. at 7. Further, Agent Bellotti

testified that he had observed, on prior visits to Banks’s residence, open

bottles of alcohol, individuals coming and going at odd hours, and the smell

of marijuana. Id. at 22-23. Finally, Agent Bellotti testified that, after

consulting with his supervisor, he made the decision to visit Banks’s residence

on October 17, 2017, to “try to clear the allegations that were made by []

Gibbs[,] search the residence, talk to [] Banks and … make a decision on

where to go from there.” Id. at 7-8. This evidence, collectively, established

that Agent Bellotti had reasonable suspicion to search Banks’s residence. See

Gould, 187 A.3d at 935, 936; see also Altadonna, supra. Accordingly, we

can grant Banks no relief on this claim.

In Banks’s second issue, he argues that the trial court erred in

dismissing his Rule 600 Motion without a hearing, as his trial began 480 days

after he was charged—115 days after the 365-day period in Rule 600. Brief

for Appellant at 33. Though Banks concedes that he was responsible for a

delay of 61 days, he asserts that his trial nevertheless began after the

expiration of his adjusted run date. Id. at 35-38. Banks also claims that the

trial court’s failure to hold a hearing on his Rule 600 Motion constituted an

abuse of discretion, as a hearing was necessary for the Commonwealth to

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provide an explanation as to why it had failed to bring Banks to trial in a timely

fashion. Id. at 38-41. Finally, Banks argues that even if the trial court had

held a hearing on his Rule 600 Motion, the hearing would have demonstrated

that the Commonwealth had failed to exercise due diligence in bringing Banks

to trial in compliance with Rule 600. Id. at 41-47.

“In evaluating Rule 600 issues, our standard of review of a trial court’s

decision is whether the trial court abused its discretion.” Commonwealth v.

Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en banc).

The proper scope of review … is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of the
trial court. An appellate court must view the facts in the light most
favorable to the prevailing party.

Additionally, when considering the trial court’s ruling,
this Court is not permitted to ignore the dual purpose
behind Rule 600. Rule 600 serves two equally
important functions: (1) the protection of the
accused’s speedy trial rights, and (2) the protection of
society. In determining whether an accused’s right to
a speedy trial has been violated, consideration must
be given to society’s right to effective prosecution of
criminal cases, both to restrain those guilty of crime
and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed
to insulate the criminally accused from good faith
prosecution delayed through no fault of the
Commonwealth.

***

So long as there has been no misconduct on the part
of the Commonwealth in an effort to evade the
fundamental speedy trial rights of an accused, Rule
600 must be construed in a manner consistent with
society’s right to punish and deter crime.

Id. at 1238-39 (internal citations and quotation marks omitted).

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Rule 600 provides, in pertinent part, as follows:

(A) Commencement of Trial; Time for Trial

***

(2) Trial shall commence within the following time periods.

(a) Trial in a court case in which a written complaint is filed
against the defendant shall commence within 365 days from
the date on which the complaint is filed.

Pa.R.Crim.P. 600(A)(2)(a). “Rule 600 generally requires the Commonwealth

to bring a defendant … to trial within 365 days of the date the complaint was

filed.” Hunt, 858 A.2d at 1240. To obtain relief, a defendant must have a

valid Rule 600 claim at the time he files his motion for relief. Id. at 1243.

“The mechanical run date is the date by which the trial must commence

under Rule 600.” Commonwealth v. McNear, 852 A.2d 401, 406 (Pa.

Super. 2004).

It is calculated by adding 365 days (the time for commencing trial
under Rule 600) to the date on which the criminal complaint is
filed. The mechanical run date can be modified or extended by
adding to the date any periods of time in which delay is caused by
the defendant. Once the mechanical run date is modified
accordingly, it then becomes an adjusted run date.

Id. In the context of Rule 600, “excludable time” is differentiated from

“excusable delay” as follows:

“Excludable time” is defined in Rule 600(C) as the period of time
between the filing of the written complaint and the defendant’s
arrest, provided that the defendant could not be apprehended
because his whereabouts were unknown and could not be
determined by due diligence; any period of time for which the
defendant expressly waives Rule 600; and/or such period of delay
at any stage of the proceedings as results from: (a) the
unavailability of the defendant or the defendant’s attorney; (b)

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any continuance granted at the request of the defendant or the
defendant’s attorney. “Excusable delay” is not expressly defined
in Rule 600, but the legal construct takes into account delays
which occur as a result of circumstances beyond the
Commonwealth’s control and despite its due diligence.

Hunt, 858 A.2d at 1241 (internal citations and footnote omitted; emphasis

added); see also Commonwealth v. Burno, 154 A.3d 764, 793-94 (Pa.

2017) (explaining that excusable delay is not calculated against the

Commonwealth in a Rule 600 analysis, as long as the Commonwealth acted

with due diligence at all relevant times).

In this case, Banks was arrested on October 13, 2017. Thus, the

mechanical run date for Rule 600 purposes was October 13, 2018. Banks’s

trial commenced on February 5, 2019, 115 days beyond the mechanical run

date. Banks’s original trial date was set for August 6, 2018. On August 3,

2018, three days before Banks’s trial was scheduled to begin, Banks filed his

Motion to suppress. The trial court subsequently continued the proceedings

to August 16, 2018. On August 16, 2018, the Commonwealth requested a

continuance due to an unavailable witness, to which Banks consented, and the

proceedings were continued to September 20, 2018. Accordingly, the 45-day

span from August 6, 2018, to September 20, 2018, was excludable for the

purposes of Rule 600. See Hunt, 858 A.2d at 1241 (stating that a defendant’s

consent to a Commonwealth request for a continuance is excludable).

On September 20, 2018, the Commonwealth again requested a

continuance due to unavailability of witnesses, to which Banks objected. On

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October 9, 2018, the trial court moved the proceedings to October 22, 2018,

as Banks was not available after being returned to prison and not having been

ordered to return. Banks’s suppression hearing was held on October 22, 2018,

and the trial court entered its Order denying his Motion to suppress on

November 7, 2018; accordingly, the 29-day period from October 9, 2018, to

November 7, 2018 is excludable. See Commonwealth v. Anderson, 959

A.2d 1248, 1249 (Pa. Super. 2008) (stating that a two-week continuance that

was necessary because the defendant was not brought down for trial was not

chargeable to the Commonwealth).

Adding the total of 74 days of excludable time to Banks’s mechanical

run date yields an adjusted run date of December 26, 2018. Banks filed his

Rule 600 Motion on December 20, 2018. Therefore, Banks’s Rule 600 Motion

was premature, and we discern no abuse of discretion in the trial court’s denial

of Banks’s Motion. See Hunt, 858 A.2d at 1243.

In Banks’s final issue, he argues that the trial court imposed an illegal

sentence regarding his two convictions for possession of a controlled

substance. Brief for Appellant at 48-49. Specifically, Banks claims that

because he had a prior conviction for possession of a controlled substance, his

concurrent sentences of nine to eighteen months in prison, followed by two

years of probation, were illegal. Id. at 48. Banks points to 35 P.S. § 780-

113(b), which dictates that individuals with such prior convictions can only be

issued a maximum sentence of three years. Brief for Appellant at 48.

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Accordingly, Banks asserts that his sentence, which has a maximum prison

term of three-and-a-half years, was illegal. Id. at 48-49.

“A claim that implicates the fundamental legal authority of the court to

impose a particular sentence constitutes a challenge to the legality of the

sentence.” Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010)

(en banc). “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction. An illegal sentence must be

vacated.” Id. (quoting Commonwealth v. Watson, 945 A.2d 174, 178-79

(Pa. Super. 2008)). Likewise, a sentence that exceeds the statutory

maximum is illegal. Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa.

2003).

“In imposing an order of probation the court shall specify at the time of

sentencing the length of any term during which the defendant is to be

supervised, which term may not exceed the maximum term for which the

defendant could be confined, and the authority that shall conduct the

supervision.” 42 Pa.C.S.A. § 9754(a).

The sentencing statute at issue in his case, 35 P.S. § 780-113, states

as follows:

(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:

***

(16) Knowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this
act, or a practitioner not registered or licensed by the

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appropriate State board, unless the substance was obtained
directly from, or pursuant to, a valid prescription order or
order of a practitioner, or except as otherwise authorized by
this act.

***

(b) Any person who violates [subsection (16)] shall be guilty of a
misdemeanor, and … on conviction thereof, be sentenced to
imprisonment not exceeding one year[;] but, if the violation is
committed after a prior conviction of such person for a violation
of this act under this section has become final, such person shall
be sentenced to imprisonment not exceeding three years….

35 P.S. § 780-113(a)(16), (b).

In this case, the trial court convicted Banks of two counts of possession

of a controlled substance at section 780-113(a)(16), and sentenced Banks to

two identical, concurrent terms of nine to eighteen months in prison, followed

by an additional two years of probation. N.T., 2/25/19, at 4-6 (wherein the

trial court imposes its sentence). Accordingly, Banks’s maximum possible

sentence was three years and six months, which exceeds the statutory

maximum sentence of three years.3 See 42 Pa.C.S.A. § 9754(a).

Accordingly, we vacate the judgment of sentence and remand for re-

sentencing as to the length of Banks’s probationary period. See Catt, supra.

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3 The parties are in agreement that Banks has a prior conviction under 35 P.S.
§ 780. See Brief for Appellant at 49; Commonwealth’s Brief at 28. Further,
the trial court, in its Opinion, agreed that, “although the period of incarceration
of 9 to 18 months was within the three-year statutory maximum penalty, the
consecutive period of two years [of] probation did result in a sentence beyond
the statutory maximum.” Trial Court Opinion, 11/25/19, at 15. The
Commonwealth concedes the necessity of a remand. See Commonwealth’s
Brief at 28.

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Judgment of sentence vacated. Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2021

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