Com. v. Kuhn, C.

J-S04013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CAITLYN CHANTEL KUHN :

:

Appellant : No. 960 MDA 2017

Appeal from the Judgment of Sentence May 17, 2017

In the Court of Common Pleas of Adams County Criminal Division at No(s):

CP-01-CR-0000714-2016

BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 27, 2018

Appellant, Caitlyn Chantel Kuhn, appeals from the judgment of

sentence imposed on May 17, 2017, following her nonjury conviction of

various drug offenses. We affirm.

The trial court, sitting as the suppression judge, entered the following

findings of fact:

1. On May 27, 2016, [Appellant] resided at 344 South

Washington Street, Apartment 1, Gettysburg, Adams

County, Pennsylvania, with [Appellant’s] boyfriend,

Walter Brown.

2. This residence was an approved residence for Walter Brown,

who was under the supervision of the Adams County

Department of Probation Services on or about May 27,

2016. Walter Brown was on supervision for possession with

intent to deliver crack cocaine and DUI.

3. Walter Brown signed Adams County Department of

Probation Services Standard Rules of Supervision for

Probation, Intermediate Punishment and Parole in the

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presence of Probation Officer Livelsberger on December 14,

2015. Included was Rule 4 which stated “you must agree to

permit any probation/parole officer, to search your person,

enter into and search your residence, vehicle or any other

property under your control without warrant at any time

upon reasonable suspicion of violation and to ensure

compliance with all conditions of your sentence.”

4. On or about May 27, 2016[, Appellant] allowed

Walter Brown to live with her at the above address.

[Appellant] knew that Walter Brown was on probation

supervision.

5. Probation Officer Clayton McKim received information from a

confidential informant (hereinafter CI) several days to a

week prior to the search on May 27, 2016. The CI bought

drugs from [Appellant] at her residence, 344 South

Washington Street, Apartment 1. The CI also advised

Officer McKim that the CI was aware that on multiple

occasions over a period of several months prior to May 27,

2016, other individuals bought drugs at the apartment of

[Appellant] and Walter Brown, including heroin, crack

cocaine and pain killers.

6. Officer McKim received additional information from an

unidentified informant concerning drug dealing at

[Appellant’s] and Walter Brown’s apartment within a month

prior to the search on May 27, 2016.

7. Several days prior to May 27, 2016, Officer McKim provided

the above information to Probation Officer

Matthew Livelsberger who was supervising Walter Brown.

8. Officer Matthew Livelsberger had been supervising

Walter Brown since December 2015. Walter Brown was on

supervision with the Department of Probation Services for

possession with intent to deliver crack cocaine and DUI.

9. Between December 2015 and May 27, 2016,

Officer Livelsberger had attempted visits with Walter Brown

at 344 South Washington Street, Apartment 1, Gettysburg

on numerous occasions at different times throughout the

day and each time no one at the residence would answer

the door.

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10. On May 26, 2016, Officer Livelsberger obtained permission

from his supervisor to conduct a warrantless search of the

residence of Walter Brown at 344 South Washington Street,

Apartment 1, Gettysburg, Pennsylvania to search for

controlled substances.

11. On May 27, 2016, at approximately 6:00 a.m. Probation

Officers Livelsberger and McKim, two other probation

officers and two Gettysburg Borough Police Officers arrived

at [Appellant’s] and Walter Brown’s apartment and knocked

on the front door, back door and windows for at least 10 to

15 minutes and announced their presence, but no one

responded.

12. Probation Officer Livelsberger spoke on the telephone with a

woman who identified herself as Walter’s girlfriend’s mother.

This woman informed Officer Livelsberger that Walter and

[Appellant] should be at the residence, but “If he wasn’t

there, there was a possibility he was at SCCAP [a food bank]

doing community service.”

13. Officer Livelsberger ultimately determined that Walter Brown

was not at SCCAP.

14. Officer Livelsberger learned from an upstairs neighbor that

the landlord could provide access to the apartment. The

landlord unlocked an outside door which opened into the

sunroom/laundry room of [Appellant’s] and Walter Brown’s

apartment. Probation officers then proceeded to another

interior door which they determined was locked. Officers

knocked on that door, and Walter Brown answered the door

almost immediately.

15. Per probation’s procedures, Walter Brown was handcuffed

and Officer Livelsberger explained they were there to

conduct a probation search.

16. Officer Livelsberger spoke with [Appellant]. [Appellant] and

her daughter were escorted out of the apartment.

[Appellant] remained outside the apartment during the

initial probation search.

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17. Officer Livelsberger, Officer McKim and the two Gettysburg

Police Officers entered the apartment, drew their firearms

and ensured no one else was present in the apartment.

18. The two probation officers and Gettysburg Police officers

conducted a search of the apartment. Officer Livelsberger

searched the bathroom and observed an open closet which

contained men’s body wash, women’s body wash, towels,

soap and other items, including a clutch-style purse. The

purse was open and at eye level. Officer Livelsberger

observed a pinkish colored pill. Officer Livelsberger opened

the clutch purse and observed two clear plastic baggie

corners containing suspected crack cocaine.

19. At that point, Officer Livelsberger stopped the probation

search and contacted Trooper James O’Shea with the

Pennsylvania State Police, Vice-Narcotics Unit. Within 45

minutes to an hour, Trooper O’Shea arrived at the

apartment. At this point, because of the heat, Walter Brown

and [Appellant] were brought back into the apartment.

[Appellant] was not handcuffed at this point.

20. Trooper O’Shea reviewed the alleged contraband discovered

in the purse/clutch and determined that probable cause

existed to obtain a search warrant for the residence.

21. Trooper O’Shea spoke with [Appellant] and asked whether

she would provide written consent for a search of the

apartment. [Appellant] requested an opportunity to speak

with an attorney and was provided this opportunity.

22. Trooper O’Shea advised [Appellant] that she could provide

written consent to search the apartment, which would

expedite the process, or Trooper O’Shea would apply for a

search warrant.

23. Prior to granting consent, Trooper O’Shea observed

[Appellant] clutching a large purse, and at that time

removed the purse from [Appellant] and handcuffed

[Appellant] for officer safety.

24. Ultimately, [Appellant] agreed to provide written consent for

a search of her residence. Trooper O’Shea read the entire

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written consent form to [Appellant] and [Appellant]

voluntarily signed the consent form.

25. A search of [Appellant’s] purse revealed numerous pills and

United States currency.

Findings of Fact and Conclusions of Law, 3/21/17, at 1–5.

Appellant was charged with various drug offenses on May 27, 2016,

and on December 8, 2016, she filed a pretrial motion to suppress. The trial

court conducted a suppression hearing on February 13, 2017, and March 21,

2017, denying Appellant’s request for suppression.

In denying Appellant’s motion, the suppression court entered the

following conclusions of law:

1. Adams County Probation Officers McKim and Livelsberger had

sufficient reasonable suspicion to conduct a warrantless

probation search on the apartment of [Appellant] and

Walter Brown on May 27, 2016 and followed proper

procedures in accordance with 42 Pa. C.S.A. § 9912.

2. The “knock and announce” rule, set forth in Pennsylvania Rule

of Criminal Procedure 207 was not applicable in this case

because law enforcement authorities were not executing a

search warrant on the apartment of [Appellant] and Walter

Brown. See Pennsylvania Rule of Criminal Procedure 207 and

Commonwealth v. Richter, 791 A.2d 1181, 1186 (Pa.

Super 2002).

3. Adams County Probation Officers acted reasonably when they

entered the apartment of [Appellant] and Walter Brown by

knocking and announcing their purpose for approximately 15

minutes, attempting to locate Walter Brown at another

location, calling the emergency contact person to determine

the whereabouts of Walter Brown, utilizing the landlord to

peacefully enter the sunroom/laundry room of [Appellant’s]

and Walter Brown’s apartment, and by knocking and

announcing their presence at the locked interior door before

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entering into the kitchen of the apartment of [Appellant] and

Walter Brown.

4. Trooper O’Shea of the Pennsylvania State Police had sufficient

probable cause to obtain a search warrant for the apartment

of [Appellant] and Walter Brown based on his observations of

suspected crack cocaine located in the clutch purse.

5. Trooper O’Shea legally and correctly advised [Appellant] that

if [Appellant] did not provide written consent to search the

apartment then Trooper O’Shea would apply for and obtain a

search warrant for a search of the apartment.

6. [Appellant] was in custody prior to [Appellant] providing

consent to search the apartment.

7. [Appellant’s] written consent was knowing and voluntary.

See Commonwealth v. Dressner, 336 A.2d 414, 415–417

(Pa. Super. 1975) for factors to consider when determining

voluntariness of a consent to search.

Findings of Fact and Conclusions of Law, 3/21/17, at 5–7 (emphasis

supplied).

Appellant proceeded to a waiver trial on March 21, 2017. The trial

court summarized the remaining procedural history as follows:

At the conclusion of the non-jury trial, this [c]ourt found

Appellant guilty of count 2, possession with intent to deliver a

controlled substance (Oxycodone and Alprazolam); count 3,

simple possession (cocaine); count 4, simple possession

(Oxycodone and Alprazolam), and count 5, possession of drug

paraphernalia.20 This [c]ourt found Appellant not guilty of count

1, possession with intent to deliver controlled substance

(cocaine).21

2035 [P.S.] §§§ 780-113(a)(30), 780-113(a)(16),

780-113(a)(32), respectively.

21 35 [P.S.] § 780-113(a)(30).

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On May 15, 2017, this [c]ourt sentenced Appellant on

count 2 to no less than three (3) months nor more than twenty

three (23) months in partial confinement at the Adams County

Adult Correctional Complex. This [c]ourt imposed a probationary

sentence of twelve (12) months for counts 3 and … 5, but did

not impose a sentence on count 4 as it merged with count 2.

The sentence[s] for counts 3 and 5 were to run [concurrently to]

each other but consecutive to the sentence imposed on count 2.

Thereafter, on June 23, 2017, Appellant filed a Motion for Bail

Pending Appeal. On July 18, 2017, this [c]ourt held a hearing on

[Appellant’s] Motion for Bail Pending Appeal, which was granted

with certain conditions imposed.

On June 12, 2017, Appellant filed a Notice of Appeal. By

Order of Court dated June 13, 2017, Appellant was directed to

file a concise statement of matters complained of on appeal.

Appellant filed a Motion for Extension of Time to file her concise

statement wherein counsel requested fourteen days from the

date defense counsel received the notes of testimony. This

[c]ourt, by Order of Court dated July 10, 2017, granted

Appellant’s request. Appellant timely filed her concise statement

on July 31, 2017.

Trial Court Opinion, 8/7/17, at 3–4.

Appellant presents the following questions for our consideration:

1. Did the suppression court err in failing to find that the

probation officers did not have reasonable suspicion or

probable cause to search [Appellant’s] residence based on an

uncorroborated confidential informant’s tip in violation of

[Appellant’s] right to be free from unreasonable search and

seizure under both, the Pennsylvania and United States’

constitutions?

2. Did the suppression court err in failing to find that the

probation officers’ entry into [Appellant’s] residence was

effectuated from a government agent’s unlawful entry into

the residence in violation of [Appellant’s] right to privacy

under, both, the Pennsylvania and United States’

constitutions?

Appellant’s Brief at 2.

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As a preliminary matter, we examine whether Appellant has properly

preserved her issues. “Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). See also

Commonwealth v. Williams, 980 A.2d 667, 671 (Pa. Super. 2009)

(argument waived where the appellant does not “even allege that he raised

the issue at the suppression hearing”); Commonwealth v. York, 465 A.2d

1028, 1032 (Pa. Super. 1983) (citation omitted) (“[A] new and different

theory of relief may not be successfully advanced for the first time on

appeal.”).

In her motion to suppress, Appellant asserted that the search of her

residence was unlawful for the following reasons:

a) Said search was conducted without a search warrant.

b) Said search was conducted without voluntary consent.

c) The search of [Appellant’s] residence and personal effects,

including pocket books and purses, was not properly ancillary

to any probation search of Walter Brown.

Motion for Suppression of Evidence, 12/8/16, at ¶ 4.

On appeal, Appellant first contends that the suppression court erred in

denying her motion because the warrantless search of her residence was not

supported by reasonable suspicion or probable cause. Appellant’s Brief at 8.

The crux of Appellant’s argument is that “[t]he confidential informant’s tip

was unreliable, uncorroborated, and without a basis of knowledge at the

time officers’ [sic] entered [Appellant’s] residence.” Appellant’s Brief at 14.

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Upon review of the certified record, we decline to address Appellant’s

issue, as presented. Appellant did not challenge the warrantless search of

her apartment before the suppression court on grounds that it was not

supported by reasonable suspicion or probable cause because the CI’s

information was unreliable.1 Rather, she first raised this argument in her

Pa.R.A.P. 1925(b) statement. Pa.R.A.P. 1925(b) Statement, 7/31/17, at ¶

1. Thus, Appellant’s first issue is waived. Pa.R.A.P. 302(a); Williams, 980

A.2d at 671; York, 465 A.2d at 1032.2

Appellant next argues that the suppression court erred in denying her

motion to suppress because entry into her residence was illegally effectuated

through a government agent, i.e., her landlord. Appellant’s Brief at 14. The

____________________________________________

1 We note that defense counsel, Attorney Cook, argued to the suppression

court that, “this confidential informant . . . does not make a controlled buy.”

N.T. Suppression, 2/13/17, at 76. At that point, the suppression court

stated:

THE COURT: Let me help you out, Mr. Cook. I believe that the

Commonwealth has presented sufficient evidence to show that

they had a reasonable suspicion to conduct a probation search.

I find . . ., looking at the totality of the circumstances and that’s

for probable cause, I think given the totality of the

circumstances they determined there was reasonable suspicion

so I have made that finding.

Id. Appellant has not challenged this conclusion, which incorporated

Appellant’s argument that the CI did not make a controlled buy.

2 Even if not waived, Appellant’s first issue would not warrant relief. We

reach this conclusion based on the suppression court’s findings of fact, which

are supported by the record, and its conclusions of law, which are without

error.

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Commonwealth asserts that this issue “was not properly raised in

[Appellant’s] Motion for Suppression of Evidence.” Commonwealth’s Brief at

11 (citing Pa.R.Crim.P. 581(D)).

Although Appellant did not expressly raise this argument in her motion

to suppress, it was the basis for the trial court’s solicitation of memoranda

from the parties and reopening the suppression hearing without objection

from the Commonwealth. N.T. (Suppression), 2/13/17, at 71, 76, 78–80;

N.T. (Suppression), 3/21/17, at 3. Appellant summarized this issue in her

memorandum as follows:

Here, the landlord was acting as a police agent when she

provided them with the passkey. The testimony was clear that

this was not a common area but rather was within the leasehold

of [Appellant]. Since there was no testimony that the police

officers announced their identity and purpose at the time the

landlord admitted them into the residence, the manner in which

the search was conducted was unreasonable and unlawful.

Thus, all evidence seized by the government is fruit of the

poisonous tree. The suppression motion should be granted.

Memorandum in Support of Motion for Suppression of Evidence, 2/23/17, at

5. The Commonwealth responded to Appellant’s issue, Commonwealth’s

Memorandum in Opposition to Defendant’s Motion for Suppression of

Evidence, 2/27/17, at 2–6, and it was litigated at the reopened suppression

hearing. N.T. (Suppression), 3/21/17, at 4–12. Thus, we conclude that

Appellant sufficiently preserved this issue.

Regarding suppression rulings, our standard of review:

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is limited to determining whether the factual findings are

supported by the record and whether the legal conclusions

drawn from those facts are correct.

We may consider only the evidence of the prosecution and

so much of the evidence for the defense as remains

uncontradicted when read in the context of the record as a

whole. Where the record supports the findings of the

suppression court, we are bound by those facts and may reverse

only if the court erred in reaching its legal conclusions based

upon the facts.

Moreover, it is within the lower court’s province to pass on

the credibility of witnesses and determine the weight to be given

to their testimony.

Commonwealth v. Williams, ___ A.3d ___, 2017 PA Super 382, at *11–

12 (Pa. Super. 2017) (internal citations omitted). Furthermore, the scope of

review of orders granting or denying motions to suppress is limited to the

evidence presented at the suppression hearing. In the Interest of L.J., 79

A.3d 1073, 1085 (Pa. 2013).

On appeal, Appellant continues to argue that her “landlord, who did

not have authority to enter her residence, acted as a government agent

when she unlocked [Appellant’s] door at the request of probation officers.”

Appellant’s Brief at 16. In response, the Commonwealth argues:

Here, the suppression court indicated following testimony

that it believed Adams County Probation possessed reasonable

suspicion and obtained proper authority to conduct the

warrantless search at issue. The question then becomes

whether there was anything improper about the landlord

providing access to the sunroom. It is well settled that a

landlord cannot consent to a warrantless search of the property.

See, e.g., Commonwealth v. Davis, 743 A.2d 946, 951 (Pa.

Super. 1999). However, the property owner here did not

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consent to the warrantless search, but rather merely supplied a

key enabling the officers access to the sunroom.

Commonwealth’s Brief at 13–14.

The suppression court addressed this issue in its third conclusion of

law:

3. Adams County Probation Officers acted reasonably when they

entered the apartment of [Appellant] and Walter Brown by

knocking and announcing their purpose for approximately 15

minutes, attempting to locate Walter Brown at another

location, calling the emergency contact person to determine

the whereabouts of Walter Brown, utilizing the landlord to

peacefully enter the sunroom/laundry room of [Appellant’s]

and Walter Brown’s apartment[,] and by knocking and

announcing their presence at the locked interior door before

entering into the kitchen of the apartment of [Appellant] and

Walter Brown.

Findings of Fact and Conclusions of Law, 3/21/17, at 6.

Upon review, we find that the suppression court’s findings of fact, set

forth supra, are supported by the record, and its legal conclusion regarding

access to Appellant’s sunroom is without error. As a probationer,

Walter Brown had “limited Fourth Amendment rights because of a

diminished expectation of privacy.” Commonwealth v. Parker, 152 A.3d

309, 316 (Pa. Super. 2016). In fact, Walter Brown’s signature on the

probation regulations acts as acknowledgment that the probation officer “has

a right to conduct reasonable searches of the probationer’s residence listed

on the probation agreement without a warrant.” Id. at 318 (quoting

Commonwealth v. E. Williams, 692 A.2d 1031, 1036 (Pa. 1997)).

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Here, pursuant to 42 Pa.C.S. § 9912, Probation Officer Livelsberger

obtained permission to conduct a warrantless search of the approved

residence of Walter Brown, which was Appellant’s residence. Once at the

residence, the probation officers knocked on the front door, back door, and

windows for at least ten to fifteen minutes and announced their presence,

but no one responded. A neighbor assisted Officer Livelsberger in contacting

the landlord, who unlocked an outside door which opened into the sunroom

of Appellant’s residence. Probation officers then proceeded to another

interior door, which was locked. The officers knocked on that door, and

Walter Brown answered the door almost immediately. Thus, contrary to

Appellant’s argument, the landlord did not engage in any conduct as a

government agent to gain information for the police; she simply supplied

access to a back door.3 This measure was authorized by the Adams County

Probation Policy to avoid the use of more force than necessary to secure

entry into a probationer’s residence. Commonwealth Exhibit 1 at ¶

6(c)(iv)(6) (“Probation officers should enter using only the amount of force

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3 Cf. Commonwealth v. Rathfon, 705 A.2d 448 (Pa. Super. 1997)

(affirming that defendant’s girlfriend acted as government agent when she

entered his residence without permission at request of federal authorities

and gathered information that served as basis for search warrants), and

Commonwealth v. Strafford, 749 A.2d 489 (Pa. Super. 2000) (affirming

that defendant’s friend acted as government agent when he entered

defendant’s residence at request of police and observed marijuana plants).

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necessary to secure entry. Keys can often be obtained from

landlords. . . .”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/18

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