Com. v. Wilson, U.

J-S42039-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

UZZIAH J. WILSON :

:

Appellant : No. 652 MDA 2024

Appeal from the Judgment of Sentence Entered April 11, 2024

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP-06-CR-0001217-2021

BEFORE: LAZARUS, P.J., BECK, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 20, 2024

Appellant, Uzziah J. Wilson, appeals from the judgment of sentence of

9½ to 19 months’ incarceration, imposed after a jury convicted him of carrying

a firearm without a license, possession of a firearm by a person prohibited,

possession of a controlled substance, possession of drug paraphernalia, and

driving under the influence of alcohol or a controlled substance. On appeal,

Appellant seeks to challenge the trial court’s denial of his pretrial motion to

suppress evidence. Additionally, Appellant’s counsel, William Bispels, Esq.,

seeks to withdraw his representation of Appellant pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of

sentence and grant counsel’s petition to withdraw.

Appellant was arrested and charged with the above-stated offenses after

the vehicle he was driving was stopped in March of 2021. During the stop,

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police officers smelled a strong odor of burnt marijuana, observed marijuana

cigars in plain view, and believed Appellant was intoxicated. Appellant

admitted he had smoked marijuana shortly before the stop, and then failed

field sobriety tests. He was arrested, searched, and found to be in possession

of the controlled substance phencyclidine (PCP). Police then obtained a

warrant to search Appellant’s vehicle, wherein they found marijuana, as well

a firearm inside a fanny pack on the front passenger seat.

Prior to trial, Appellant filed a motion to suppress the evidence recovered

from his vehicle. After a hearing on June 16, 2021, the court denied

Appellant’s motion and his case proceeded to a jury trial. At the close thereof,

he was convicted of the above-stated offenses. On April 11, 2024, he was

sentenced to the aggregate term set forth supra.

Appellant filed a timely notice of appeal. In response to the trial court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal, Appellant’s counsel, Attorney Bispels, filed a Pa.R.A.P. 1925(c)(4)

statement of his intent to file a petition to withdraw and an Anders brief. On

August 28, 2024, counsel filed those documents with this Court, concluding

that the following issue Appellant seeks to raise on appeal is frivolous:

“Whether the [c]ourt erred in denying the [s]uppression [m]otion in this

matter.” Anders Brief at 6. Appellant filed a pro se brief on October 29,

2024.

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Attorney Bispels concludes that Appellant’s challenge to the denial of his

suppression motion is frivolous, and that Appellant has no other, non-frivolous

issues he could pursue herein. Accordingly,

this Court must first pass upon counsel’s petition to withdraw

before reviewing the merits of the underlying issues presented by

[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa. Super. 2007) (en banc).

Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established

by our Supreme Court in Santiago. The brief must:

(1) provide a summary of the procedural history and facts,

with citations to the record;

(2) refer to anything in the record that counsel believes

arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is

frivolous; and

(4) state counsel’s reasons for concluding that the appeal is

frivolous. Counsel should articulate the relevant facts of

record, controlling case law, and/or statutes on point that

have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Counsel also must provide a copy of

the Anders brief to his client. Attending the brief must be a letter

that advises the client of his right to: “(1) retain new counsel to

pursue the appeal; (2) proceed pro se on appeal; or (3) raise any

points that the appellant deems worthy of the court[’]s attention

in addition to the points raised by counsel in the Anders brief.”

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.

2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

After determining that counsel has satisfied these technical

requirements of Anders and Santiago, this Court must then “conduct a

simple review of the record to ascertain if there appear[s] on its face to be

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arguably meritorious issues that counsel, intentionally or not, missed or

misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.

2018) (en banc). However, where the appellant files a pro se or counseled

response to the Anders brief, we treat this filing as an advocate’s brief and

limit our review “to examining only those issues raised and developed in the

brief.” See Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super.

2015).

In this case, Attorney Bispels’ Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history, he refers to portions of the record that could arguably

support Appellant’s claims, and he sets forth his conclusion that Appellant’s

appeal is frivolous. He also explains his reasons for reaching that

determination, and supports his rationale with citations to the record and

pertinent legal authority. Attorney Bispels states in his petition to withdraw

that he has supplied Appellant with a copy of his Anders brief. Additionally,

he attached a letter directed to Appellant to his petition to withdraw, in which

he informed Appellant of the rights enumerated in Nischan. Accordingly,

counsel has complied with the technical requirements for withdrawal. We will

now independently review the record to determine if Appellant’s issue is

frivolous, and to ascertain if there are any other, non-frivolous claims he could

pursue on appeal.

We begin by recognizing the following legal precepts that guide our

review in this case:

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Our standard of review for an order denying a motion to suppress

is well-established.

We are 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, we are bound by these

findings and may reverse only if the suppression court’s

legal conclusions are erroneous. Where, as here, 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 suppression court are subject to our plenary review.

Both the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania

Constitution protect individuals from unreasonable searches

and seizures by police in areas where individuals have a

reasonable expectation of privacy. If a person has a

reasonable expectation of privacy in a place, then these

constitutional provisions generally require police to obtain a

warrant to search the place; a search warrant must be

supported by probable cause and issued by a neutral,

detached magistrate. Warrantless searches are

presumptively unreasonable under the state and federal

constitutions.

Probable cause is a practical, non-technical concept. To

establish probable cause, the Commonwealth must

demonstrate that a search meets the requirements of the

totality-of-the-circumstances test. Pursuant to that test,

when presented with an application for a warrant, 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.

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Commonwealth v. Boyd, 296 A.3d 1270, 1274–75 (Pa. Super. 2023)

(cleaned up).

In the instant case, Appellant seeks to challenge the adequacy of the

warrant to search his vehicle, contending, inter alia, that there was no

probable cause to issue the warrant. Thus, we begin by discussing the facts

set forth in the affidavit of probable cause filed by the affiant in this case,

Criminal Investigator Darren C. Smith (CI Smith) of the City of Reading Police

Department.

At the outset, the affidavit states that at the time of the March 17, 2021

police-citizen interaction, CI Smith had been a police officer for over 19 years,

with the most recent 11 years serving as a Criminal Investigator in the Vice

Unit. See Affidavit of Probable Cause, 3/17/21, at 1, 3 (Commonwealth’s Ex.

No. 1).1 During CI Smith’s years of service, he has been involved in hundreds

of narcotics and firearms investigations that resulted in arrests and

convictions. Id. CI Smith has also assisted in federal and state prosecutions

that resulted in arrests and convictions, and which involved search warrants,

surveillance details, undercover drug buys, and purchases of illegal firearms.

Id. at 3. Additionally, CI Smith attested that he is a qualified expert in the

field of narcotics, and he has become familiar with the drug culture in the City

of Reading. Id. at 4. CI Smith then listed his knowledge of typical conduct

____________________________________________

1 The affidavit of probable cause is attached to counsel’s Anders Brief. The

document bears several numbers at the bottom of each page; for clarity, we

cite to the first number listed under the words on the pages of the affidavit.

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exhibited by drug traffickers, based on his training and experience. Id. at 4-

7.

CI Smith next detailed that he sought a warrant for Appellant’s vehicle,

and alleged that he believed Appellant “ha[d] violated and continue[s] to

violate” three crimes: possession of a controlled substance, possession of a

small amount of marijuana, and possession of drug paraphernalia. Id. at 9.

He asserted that there was probable cause to believe that items of contraband

related to controlled substances, including “marijuana and related

paraphernalia[,]” would be found in Appellant’s vehicle. Id. at 10, 13. He

based that probable cause on the following facts:

On Thursday March 17, 2021, Berks County Adult Probation

Officers (APO), Juvenile Probation Officers (JPO), Pennsylvania

State Troopers, Berks County Detectives, Berks County Deputies

along with Officers from the Reading City Police Department

organized a detail in an attempt to curb a spike in violence;

specially [sic] firearms violence including numerous homicides,

shootings, and assaults involving young offenders with suspected

gang affiliation.

At approximately 1248 hours, Officers from the Reading Police

Department[] conducted a traffic stop on a gold BMW 5251

bearing Pennsylvania KYK-4592 for an inspection violation under

Title 67 / Title 75 in the 400 block of N. 5th Street. The driver was

subsequently identified as [Appellant].

It should be noted, [Appellant] is a known violent offender with

an extensive criminal history.[2] Officers recently received

information from … Berks County Detectives regarding an ongoing

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2 Just prior to setting forth these facts, CI Smith listed Appellant’s criminal

history, including convictions for two felony drug charges in New York in 1996

and 1999; two convictions in 2005 for aggravated assault and carrying a

firearm without a license; and a 2017 conviction for possession of a loaded

firearm in New York. See Affidavit of Probable Cause at 10.

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feud with a known Reading Gang Member and[,] in particular[,]

information was received that [Appellant] has been acting

paranoid. It was learned [Appellant] is usually armed with

firearms and in addition [h]as been seen with body armor.

As Officers interacted with [Appellant,] they could smell a strong

odor of burnt marijuana coming from within the vehicle.

Furthermore, Officers observed several suspected marijuana

blunts and small marijuana particulars in plain view inside of the

ashtray. Upon talking to [Appellant,] he admitted to the officers[

that] he smoked 15 minutes prior to the incident. Also,

[Appellant] admitted the suspected marijuana inside of the

ashtray was his.

Under Section 301 of the medical marijuana law (Unlawful use of

Medical Marijuana)[, Appellant] was in clear violation of the

section and deemed a violation of the Controlled Substance, Drug,

Device, and Cosmetic Act (Title 35) by smoking the suspected

medical violation [sic]. In addition, the marijuana was not kept

within its original prescription container.

Furthermore, [Appellant] was in control of a motor vehicle while

under the influence of any amount of a controlled substance(s),

here being suspected marijuana, a schedule one controlled

substance[]. As a result of his possible impairment while driving

under the influence of marijuana, [Appellant] was requested to

perform a field sobriety test. [Appellant] granted the Troopers

permission to perform the test[,] and it was determined … that he

failed. [Appellant] was then transported to St Joseph’s Hospital

to have his blood drawn [for] further testing. Upon searching

[Appellant] incident to arrest, Officer[s] … located a glass bottom

with a black top that contained a substance that later … tested

positive for PCP (Phencylidine or Phenylcyclohexyl Piperidine).

Id. at 11-12.

CI Smith stated that, based on his training, experience, and the above-

stated facts, he believed that evidence of crimes would be found in Appellant’s

vehicle. Id. at 12. He identified the specific items to be searched for and

seized as follows:

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1 - Controlled Substances (to include marijuana and related

paraphernalia, including but not limited to: packaging material for

controlled substances, bags, cutting/mixing agents, razors,

mirrors, plates, heat sealing equipment, scales, cellular

telephones, and two[-]way communication devices).

2 - Identification of occupants / suspects / defendants of said

investigation, including but not limited to: Driver’s license, social

security cards, welfare cards, employment identification,

employment records, birth certificates, insurance cards,

registration cards, and personal records.

3 - Any and all items to be used for processing of latent fingerprint

evidence.

Id. at 13.

In Appellant’s motion to suppress, he argued that the search warrant

was invalid for the following reasons:

a. The search warrant was issued without probable cause;

b. The affidavit of probable cause was overbroad, thus resulting

in a fishing expedition;

c. The affidavit of probable cause included voluminous extraneous

information;

d. The affidavit of probable cause provided unnecessary and

prejudicial information in the form of [Appellant’s] prior

criminal record dating back to 1997;

e. The inclusion of [Appellant’s] prior criminal record overlaid the

probable cause with an unavoidable veil of suspicion, thereby

tainting the Magisterial District Justice’s neutral and detached

assessment of the proffered facts and circumstances[;]

f. The affidavit of probable cause that was placed before the

issuing Magisterial District Justice did not include any

information from which the justice could determine probable

cause existed to search for the entire panoply of items listed in

the boilerplate search warrant application. The mere suspicion

that [Appellant] was involved in drug trafficking beyond the

minutiae observed, i.e., raw marijuana flakes, the burnt

marijuana blunt cigars, and the personal use amount of PCP

found on [Appellant’s] person, does not negate the fact that

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the affidavit submitted … offered no facts to establish probable

cause of drug trafficking activity.

Omnibus Pretrial Motion, 5/27/21, at 7 (unnumbered; unnecessary

capitalization omitted). Thus, Appellant sought suppression of the evidence

obtained during the search of his vehicle. In particular, he sought suppression

of a firearm, which was discovered inside a fanny pack found on the front

passenger seat of his vehicle. See Trial Court’s Finding of Facts and

Conclusions of Law, 8/1/21, at 7 (stating a “black fanny pack style bag was

found on the front passenger seat of [Appellant’s] vehicle, which Trooper

Goodling had seen [Appellant] carrying at 12:45 p.m. earlier that day”); id.

at 10 (stating “[t]he fanny pack found on the front passenger seat was lawfully

searched for controlled substances and paraphernalia” and “[t]he firearm was

then found by law enforcement officers at a lawful vantage point, along with

other items in the fanny pack”).

In denying Appellant’s suppression motion, the trial court stated the

following:

8. In the instant case, the search warrant set forth C.I. Smith’s

extensive background and experience to have allowed the

Magistrate to rely on his expert opinion to support the search for

items of drug possession and paraphernalia listed in the search

warrant.

9. The seizure of the firearm was not listed as an item to be seized

pursuant to the search warrant. The firearm was lawfully seized

in this instance based upon law enforcement’s knowledge that

[Appellant] was prohibited from possessing a firearm due to his

prior criminal convictions and lack of permission to carry a

concealed firearm. Furthermore, the police must come upon

evidence inadvertently, in a place where they have a legal right to

be at the time of discovery, and it must be immediately apparent

to them that the evidence is of an incriminating character. See

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Commonwealth v. Millard, … 417 A.2d. 1171, 1174 ([Pa.

Super.] 1979). See also, Commonwealth v. Anderson, 40

A.3d 1245 (Pa. Super. 2012).

10. In the instant case, law enforcement officers also came upon

the firearm inadvertently and in a place where they had a legal

right to be at the time of the discovery of the firearm.

11. Furthermore, law enforcement officers were lawfully executing

a valid search warrant for [Appellant’s] vehicle. The fanny pack

found on the front passenger seat was lawfully searched for

controlled substances and paraphernalia as authorized by the

search warrant. The firearm was then found by law enforcement

officers at a lawful vantage point, along with other items in the

fanny pack.

12. In the instant case, an examination of the totality of the

circumstances contained within the four corners of the search

warrant application reveals that the issuing magistrate had a

substantial basis for concluding that probable cause existed. As

such, [Appellant’s] Motion to Suppress evidence is denied.

Id. at 9-10.

Now, in Attorney Bispel’s Anders brief, he claims that Appellant wishes

to challenge the affidavit of probable cause for the search warrant on the basis

that it “contained paragraphs of boilerplate language pertaining to drug

trafficking, seeking to search for cutting and mixing agents, heat-sealing

equipment, cellphones, and two-way communication devices.” Anders Brief

at 13. Appellant seeks to argue

that this boilerplate language relating to drug trafficking was not

relevant to the charges being faced by Appellant. Rather, it

appears that this was an investigation into drug trafficking and the

warrant was prepared accordingly. Appellant assert[ed] that,

because there is nothing in the affidavit of probable cause for the

search warrant that suggests drug dealing, the search warrant

[was] impermissibly overbroad and should have been suppressed.

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Id. at 13-14 (unnecessary capitalization omitted). Appellant reiterates these

overbreadth arguments in his pro se brief filed in response to Attorney Bispels’

petition to withdraw. See Appellant’s Pro Se Brief at 1 (claiming the search

warrant was overly broad and improperly “used as a general investigation

tool”); id. at 3 (contending that the affidavit of probable cause did not set

forth sufficient information to establish probable cause to “search for the

entire panoply of items listed in the boilerplate search warrant application”

and that the affidavit contained “no facts to establish probable cause of drug

trafficking activity”).

Attorney Bispels concludes that Appellant’s claim is frivolous. He

explains:

It is obvious that the police were conducting an investigation that

involved Appellant and that the traffic stop was an excuse to stop

him in an attempt to find evidence of criminal behavior. This

argument is buttressed by the fact that the search warrant

application contained extensive language about drug dealing even

though there was no evidence of such observed by the police that

day. He was charged with simple possession, not possession with

intent to deliver.

However, [counsel] believes and avers that these inconsistencies

do not amount to reversible error. There was no mention of a

firearm in the application for a search warrant. The firearm was

found during a search of Appellant’s vehicle and would have been

found regardless of what the police were searching for. The

violations referenced in the search warrant were [driving under

the influence] and possession of … PCP, marijuana, and

paraphernalia. The warrant was an attempt to find evidence of

these crimes. The discovery of the firearm was inevitable,

regardless of why the original search warrant was requested.

Anders Brief at 15-16 (unnecessary capitalization omitted).

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While we agree with Attorney Bispels’ conclusion that Appellant’s

suppression claim is frivolous, we reach that decision based on the concept of

severability, rather than inevitable discovery.

The doctrine of severance mandates that invalid portions of

a search warrant may be stricken and the remaining

portions held valid, as long as the remaining portions of the

warrant describe with particularity the evidence to be

seized. Where a search warrant authorizes seizure of

some items for which there is probable cause and

other items for which there is no probable cause, the

warrant is not wholly invalid. In such cases,

suppression will be required only of the evidence

which was seized without probable cause.

Further, to be severable, a warrant must not be essentially general

in character.

Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012)

(emphasis added).

In Anderson, police officers legally entered Anderson’s apartment,

where they observed marijuana in plain view. Id. at 1246. When Anderson

refused the officers’ request to search his apartment, they obtained a warrant,

identifying the items to be searched for and seized as follows:

Cocaine (crack cocaine), Marijuana, Heroin or any other controlled

substance. Any paraphernalia used to manufacture, deliver,

dilute, process for distribution, possess, or use any controlled

substance. Any records or other documents indicative of

distribution. Any indicia of residency. Any property … used or

intended to be used to facilitate any violation of the Controlled

Substance, Drug Device and Cosmetic Act, including but not

limited to currency found in close proximity to, or traceable to the

controlled substance.

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Id. (citation omitted). “After conducting a search, the officers seized, in

addition to the marijuana initially discovered, cocaine, a digital scale, Ziploc[]

baggies, and baggies with the corners cut off.” Id.

Anderson filed a motion to suppress the evidence recovered during the

search, arguing that there was no probable cause to search for cocaine,

heroin, or drug paraphernalia. Id. at 1247. In response, the Commonwealth

conceded that the warrant only stated probable cause to search for marijuana,

but it argued that, because the cocaine and drug paraphernalia were found in

plain view during the course of the lawful search for marijuana, that evidence

should be admitted. Id. The trial court disagreed and granted suppression,

after which the Commonwealth appealed. In reversing the trial court’s order

suppressing the cocaine and drug paraphernalia, this Court stressed that the

officers “had a search warrant supported by probable cause to search for

marijuana[,]” and that

[d]uring their legal search for marijuana, they discovered the

other seized items, whose criminal nature was readily apparent.

There is no argument that they were not lawfully on the property,

that they exceeded the scope of the valid portion of the search

warrant when they discovered the additional items, or that the

incriminating nature of the items was not readily apparent. Thus,

the suppression court erred when it granted [Anderson’s] motion

to suppress the cocaine and paraphernalia.

Id. at 1249 (citations and footnote omitted).

The facts of this case are similar to Anderson. Here, the search warrant

was valid in authorizing a search for marijuana, as CI Smith clearly provided

probable cause that marijuana would be found in Appellant’s vehicle. Namely,

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CI Smith averred that the police officers who stopped Appellant’s vehicle

smelled a strong odor of burnt marijuana, observed marijuana in plain view in

Appellant’s ashtray, and Appellant admitted he had smoked marijuana shortly

before the stop. Additionally, Appellant failed field sobriety tests and was

found in possession of PCP when he was searched incident to his arrest. These

facts were sufficient to demonstrate a fair probability that marijuana, or other

controlled substances, would be found in Appellant’s vehicle.

Moreover, the warrant was particular in listing controlled substances,

and specifically marijuana, as items to be searched for. The warrant was also

limited in scope to Appellant’s vehicle, and the controlled substances to be

searched for were related to the crimes under investigation, i.e., possession

of a controlled substance, possession of marijuana, and possession of drug

paraphernalia. See Commonwealth v. Rivera, 816 A.2d 282, 290 (Pa.

Super. 2003) (stating “[i]t is a fundamental rule of law that a warrant must

name or describe with particularity the property to be seized and the person

or place to be searched”); id. (“A warrant unconstitutional for its lack of

particularity authorizes a search in terms so ambiguous as to allow the

executing officers to pick and choose among an individual’s possessions to

find which items to seize.”); id. (“A warrant unconstitutional for its

overbreadth authorizes in clear or specific terms the seizure of an entire set

of items, or documents, many of which will prove unrelated to the crime under

investigation….”).

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During the course of the officers’ lawful search for marijuana, they

opened the fanny pack on the front passenger seat, which could have

contained drugs. Inside, they found a firearm in plain view. In Appellant’s

motion to suppress, he made no argument that the stop of his vehicle was

illegal, that the officers exceeded the scope of the warrant by searching the

fanny pack, or that the incriminating nature of the firearm was not

immediately apparent. See Anderson, 40 A.3d at 1248 (“[T]he plain view

doctrine provides that evidence in plain view of the police can be seized

without a warrant,” and it “applies if 1) police did not violate the Fourth

Amendment during the course of their arrival at the location where they

viewed the item in question; 2) the item was not obscured and could be seen

plainly from that location; 3) the incriminating nature of the item was readily

apparent; and 4) police had the lawful right to access that item”). Thus, even

accepting Appellant’s argument that there was no probable cause to search

for paraphernalia related to drug distribution, those invalid portions of the

warrant were severable from the valid portion permitting the search for

marijuana, and did not impact the legality of the seizure of the firearm found

in plain view during that search. Consequently, we agree with Attorney

Bispels that Appellant’s challenge to the trial court’s denial of his motion to

suppress the firearm is frivolous.

Next, we briefly address several additional arguments that Appellant

raises in his pro se response to Attorney Bispels’ motion to withdraw. First,

he argues that “[t]he Commonwealths [sic] evidence fail[ed] to establish that

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[Appellant] was aware of the firearms [sic] presence in the vehicle[,] as the

location where they claim they found a firearm does not appear in the affidavit

of probable cause….” Appellant’s Pro Se Brief at 1. Appellant’s argument is

frivolous. The location where the firearm was ultimately found was not set

forth in the affidavit of probable cause because CI Smith had no knowledge at

that point that a firearm would be discovered inside the fanny pack in

Appellant’s vehicle. It is also unclear whether, at the time CI Smith filed the

affidavit, that the officers who had stopped Appellant had noticed the fanny

pack in the front seat of the vehicle. Moreover, to the extent Appellant is

attempting to challenge the sufficiency of the evidence to prove he possessed

the gun, he fails to explain how the evidence presented at trial was

insufficient. “This Court will not act as counsel and will not develop arguments

on behalf of an appellant.” Commonwealth v. Hardy, 918 A.2d 766, 771

(Pa. Super. 2007). Therefore, no relief is due.

Second, Appellant claims that “[t]he probable cause provided in the

search warrant application relied upon information without support, to wit:

that [Appellant] is a ‘known violent offender with an extensive criminal

history[’]….” Id. at 2. We disagree. As discussed supra, in the affidavit of

probable cause, CI Smith set forth Appellant’s prior convictions, which

included the violent offense of aggravated assault and multiple other felony

crimes. Thus, CI Smith provided adequate information to support his

statement that Appellant is a violent offender with an extensive criminal

history.

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Third, Appellant mentions that he “has a legit[imate] medical marijuana

card.” Id. Even if true, however, the officers who stopped Appellant’s vehicle

smelled a strong odor of burnt marijuana, observed marijuana blunts in the

ashtray, and Appellant admitted he had smoked marijuana shortly before the

stop. It is illegal to smoke medical marijuana. See 35 P.S. §

10231.304(b)(1). Thus, Appellant’s claim that he has a medical marijuana

card does not diminish the probable cause that evidence of a crime would be

found in his vehicle.

Finally, Appellant claims that the inclusion of his prior criminal record in

the affidavit of probable cause “taint[ed] the Magisterial District Justices [sic]

neutral and detached assessment of the proffered facts and circumstances.”

Appellant’s Pro Se Brief at 3. Appellant cites no legal authority to support that

it was improper for CI Smith to include Appellant’s prior record in the affidavit

of probable cause, especially where Appellant had committed prior drug

offenses and the warrant was being sought to investigate drug offenses.

Rather than being prejudicial, the information about Appellant’s prior criminal

history was relevant to the assessment of whether probable cause existed to

issue a search warrant. Therefore, this claim is frivolous.

In sum, we conclude that the arguments Appellant seeks to raise herein

are frivolous. Accordingly, we affirm his judgment of sentence and grant

Attorney Bispels’ petition to withdraw.

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Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/20/2024

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