Petition for Writ of Certiorari — Otterson v. Pennsylvania (No. 08-1195)

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\ 081195 JAN 16 2009

OFFICE OF THE CLERK

In we Wittam K. Suter, Cierk

Supreme Court of the United States

PATRICK H. OTTERSON,

Petitioner,

VS.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

On Petition For A Writ Of Certiorari

To The Superior Court Of Pennsylvania

PETITION FOR WRIT OF CERTIORARI

PATRICK H. OTTERSON, Pro-se

Prison No. GS-7641

SCI Coal Township

1 Kelley Drive

Coal Township, PA 17866-1020

570-644-7890

QUESTIONS PRESENTED FOR REVIEW

The Superior Court of Pennsylvania once again

affirmed the Court of Common Pleas of Montgomery

County’s decision refusing to grant suppression of

evidence seized as a result of the execution of search

warrants after the Supreme Court of Pennsylvania

granted the Petitioner’s previous Petition for allowance

of Appeal and ordered the Superior Court’s original 2 to

1 decision vacated, and remanded the matter back to

the Superior Court for consideration in light of

Commonwealth wv. Torres, 764 A.2d 532 (2001). In

Torres, the search warrant failed eee probable

cause under the requirements’ of the Fourth

Amendment to our United States Constitution and

Article 1 Section 8 of the Pennsylvania Constitution

because the Affidavit of Probable Cause did not

establish the basis of knowledge or veracity of the

anonymous sources or make a showing of the

reliability of the information that they relayed tw the

police; furthermore, there was no police corroboration

of criminal conduct.

1. Did the Superior Court of Pennsylvania err

in their decision affirming the Lower Court’s ruling

which conflicts with the standards set forth in the

Fourth Amendment to our United States Constitution

as well as Article 1 Section 8 of the Pennsylvania

Constitution in that the tips from anonymous sources

did not provide sufficient probable cause to issue the

primary search warrant in absence of corroborating

evidence for Warren Street, Norristown, Pennsylvania?

QUESTIONS PRESENTED

FOR REVIEW -—- Continued

2. Was the subsequent search warrant at

Sterigere Street, Norristown, Pennsylvania fruit of

the poisonous tree inasmuch as it was based upon

information derived from the illegai search and arrest

at the West Warren Street property and which was

not supported by independent probable cause?

ill

LIST OF PARTIES

1. Petitioner, Patrick H. Otterson, is an inmate

currently confined at SCI Coal Township, 1 Kelley

Drive, Coal Township, Pennsylvania 17866.

2. Respondent, Commonwealth of Pennsylvania,

is represented by the Montgomery County District

Attorney’s Office, Airy & Swede Streets, Norristown,

Pennsylvania:

Patricia E. Coonahan (Counsel of Record)

Montgomery County District Attorney’s Office

The Montgomery County Courthouse

P.O. Box 311

Norristown, PA 19404

610-278-3102.

TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved .... 1

BO EES EEO oR) RCTS Oe Ce RET

INE, CE GI CRD a onsck vic cnnsecctceccocccadsesccsnssesecs 2

Reasons for Granting the Petition......................... 10

ED EER, OO OTL A TE CRED 37

APPENDIX

Opinion of Superior Court dated April 29, 2008....App. 1

Order of Supreme Court of Pennsylvania dated

EPCOUNTIOE FG BOT isc cnniccecesscasascvvcssvessavisensats App. 27

Order of Superior Court dated October 19,

sca tots ehehindandcenonnidssssotadsadcnsnintyat neenenaein App. 28

Memorandum of Superior Court dated August

= The Rea LAPSE NPE NE Rae ONOEN res CRT. * ene TUE ORS eS App. 29

Opinion of Lower Court dated September 1,

AKA App. 52

Opinion of Lower Court dated December 5,

PII sii etasadiis vidcondbensamendvoucedaadiacscobataianiain ena App. 64

Order of Supreme Court of Pennsylvania dated

RN 0. SEE seidantinivincsavcccdeeesegdenseens App. 79

TABLE OF AUTHORITIES

Page

CASES

Commonwealth v. Edmunds, 586 A.2d 887 (Pa.

i a a a ee 16, 17, 26, 27

Commonwealth v. Johnston, 530 A.2d 74 (Pa.

a ee Te eR GER TS em el tg ert UO” eNO SEEN 24

Commonwealth v. Karns, 566 A.2d 74 (Pa.

I DE so iscskcosciscrssccrvesiasictonaricoreeneeapiaeens 3, 24, 26

Commonwealth v. Knowles, 327 A.2d 19 (1974)........28

Commonwealth v. Torres, 764 A.2d 532 (Pa.

BE ici6siichsacakeovictetuicubasbsashankiteseucisituaesgcmhinides passim

Florida v. J.L., 120 S.Ct. 1875, 529 U.S. 266

Is occa ee a ei ee ae 18, 26

Illinois v. Gates, 462 U.S. 213 (1983)....... 11, 87, 25, 26

United States v. Depew, 8 F.3d 1424 (C.A. 9,

| EER WERSRES otras Oo Nena ner dee Ele Wr ce ERY Tort 30, 33

United States v. Fields, 182 F.Supp.2d 575

ec aan cielo ay, 27

United States v. Wells, 223 F.3d 835 (C.A. 8,

ee eeu aaa 7. a

Wong Sun v. United States, 371 U.S. 471 (1963) ....27, 28

CONSTITUTIONS

Bee, OG, WORE, BV onic ssccescceceacecscccssss 1, 3, 16, 31, 33

OETA Pe ee IEE ROS kL, 3, 16

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Controlled Substance Act..............ccccccccccscccssoeses sicausielle a

MP ITI FIIIE os neseccnecesencssncsesesvecscacecscoessseves 5,6

RULES

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OPINION TO BE REVIEWED

Petitioner respectfully prays that a Writ of Cer-

tiorari issue to review the judgment below.

The Order of the highest state Court, the Su-

preme Court of Pennsylvania, to review the merits;

appears at App. 27 to the Petition and is reported at

941 A.2d 1255.

The Opinion of the Superior Court of Pennsy]l-

vania appears at App. 1 to the Petition and is re-

ported at 947 A.2d 1239.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourth Amendment of the United States Constitution.

Article 1 Section 8 of the Pennsylvania Constitution.

Pennsylvania Rules of Criminal Procedure:

Pa.R.Cr.P. 203, 42 Pa. C.S.A. — Requirements

for issuance of a Search Warrant

Pa.R.Cr.P. 205, 42 Pa. C.S.A. — Contents of

Search Warrant

Pa.R.Cr.P. 206, 42 Pa. C.S.A. — Contents of

Application for Search Warrant

JURISDICTION

The date on which the Superior Court of Penn-

sylvania decided my case on remand was April 29,

2008. A copy of that decision appears at App. 1.

A timely second Petition for Allowance of Appeal

was thereafter denied on October 7, 2008. A copy of

the order denying rehearing appears at App. 79.

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(a).

STATEMENT OF THE CASE

Petitioner, Patrick H. Otterson, seeks review in a

direct appeal from a judgment of sentence from the

Court of Common Pleas of Montgomery County,

Pennsylvania, as per Criminal Docket No. 9849-2004.

Petitioner is presently incarcerated at the State

Correctional Institution at Coal Township, Pennsy]-

vania, serving a sentence imposed upon him by the

Honorable Richard Hodgson, Judge of the Court of

Common Pleas of Montgomery County, on July 20,

2006.

Petitioner was convicted of having violated the

Controlled Substance Act for possession and manu-

facture of -aarijuana plants between October 27, 2004

and October 29, 2004 at Warren Street, Norristown,

PA, and between October 29, 2004 and October 30,

2004 at Sterigere Street, Norristown, PA. In addition,

Petitioner was also convicted of the same counts

between March 5, 2003 and October 30, 2004 at both

locations.

These charges arose from the execution of a

search warrant on October 27, 2004 at Warren Street,

Norristown, PA. As a result of the seizure of marijuana

plants and other information, the police obtained a

search warrant for the address on Sterigere Street

and seized additional marijuana plants.

A Motion to Suppress was timely filed. The

constitutionality of the warrants was challenged at

the suppression hearing on November 3, 2005, before

the Honorable William T. Nicholas, where Petitioner’s

counsel submitted to the Court “that there is no way

that these search warrants can pass constitutional

muster, either under the Fourth Amendment of the

United States Constitution or under the Pennsyl-

vania Constitution” (N.T. 11/3/05 pages 37, 80).

Petitioner’s counsel argued “that there was insuffi-

cient probable cause to issue the warrant at Warren

Street in that the tips from the anonymous and

confidential sources were not corroborated by the

police, their reliability is not established (N.T.

' During the suppression hearing, Petitioner’s counsel

asserted “that the three anonymous females must be presumed

one and the same,” in which Judge Nicholas resolves, “even if it

is the same female, it is someone other than the resident, so you

have two sources, at least two sources” (N.T. 11/3/05 page 64).

The District Attorney expressed to Judge Nicholas, “the number

of sources would actually be three,” which Petitioner's counsel

agreed (N.T. 11/3/05 page 87). However, on pages 5-6 of Judge

Nicholas’ Opinion (App. 64), in his Findings of Fact No. 4, No. 5

and No. 6, Judge Nicholas rationalized that there were three

anonymous informants and four confidential informants who served

to corroborate each other in which he cites Commonwealth v.

Karns, 566 A.2d 615 (Pa. Super. 1989). Petitioner contends that

the three “anonymous females” are in fact one anonymous

female and that there is no way of discerning whether this

female is not one of the confidential sources who appear to be

(Continued on following page)

11/3/05 pages 51-80), and the information the sources

relayed to the police was stale in that it contained no

time frame when the observations were made” (N.T.

11/3/05 pages 51-80, 176-182); furthermore, he em-

phasized “Pennsylvania does not have a ‘Good Faith’

exception that we recognize with regard to our search

warrants” (N.T. 11/3/05 pages 75, 172). Petitioner’s

counsel then argued “that if the Warren Street war-

rant falls, everything falls, (N.T. 11/3/05 pages 49-50)

because the search at Sterigere Street is fruit of the

poisonous tree (N.T. 11/3/05 pages 46, 81-83) in that

Petitioner’s arrest and statement are fruits of the

illegal search at Warren Street” (N.T. 11/3/05 pages

81-83, 161-173). He further added “that the police

trespassed when making observations at Sterigere

Street during an ongoing investigation without a

warrant” (N.T. 11/3/05 pages 46-49, 175-176). The

working with each other in providing information to the police

and therefore they were not “independent” and do not corrobo-

rate each other.

* On page 8 of Judge Nicholas’ Opinion (App. 64) he states

“We credit the suppression hearing testimony of Detective

Altieri over that of the defendant on the question of whether the

defendant was told that if he gave a statement, the police would

not charge his girlfriend, Tammy Taylor.” Yet, when Detective

Altieri was asked by Petitioner’s counsel, “And did you have a

discussion with Mr. Otterson prior to taking the statement from

him that you wouldn’t charge Tammy Taylor with regard to the

marijuana if he acknowledged that the marijuana in both the

car and residence was his?,” the Detective responded “I may

have, sure. I don’t want to charge someone who doesn’t have

involvement with a crime.” (N.T. 11/3/05 page 108).

Honorable William Nicholas denied that motion by

Order dated December 5, 2005 (App. 64).

The case was called to trial on March 29, 30,

2006 before the Honorable Richard Hodgson, sitting

without a jury. In his Opinion, Judge Hodgson

adopted the reasoning of the Honorable William

Nicholas (App. 52). At the conclusionof the trial,

Petitioner was found guilty of three Violations of the

Controlled Substance Act and for Violations of the

Uniform Firearms Act (VUFA).° Judge Hodgson

* The firearms seized during the subsequent search at the

Sterigere Street property were not listed as “items to be seized”

on the face of the Sterigere Street Warrant, nor were firearms

mentioned anywhere in the Affidavit, which is a requirement of

Pa.R.Cr.P. 205 and 206. Furthermore, the police had no reason

to believe that the firearms would have been illegal or illegally

possessed at the time of executing the search warrant. Nothing

showed up on the NCIC check (N.T. 11/3/05 pages 14-15) in the

Affidavit of the primary search warrant for Warren Street on

pages 4-5, nor was there any information provided anywhere in

either warrant that suggested that it was illegal for Petitioner to

possess firearms.

Petitioner was not charged for the double barrel shotgun

mentioned on page 6 of Judge Lally-Green’s Opinion (App. 1),

which was an old inoperable shotgun used as an ornament for

above the fireplace (N.T. 3/29-30/06 page 72). Petitioner was

charged for a .22 caliber Ruger target rifle legally purchased by

Petitioner many years before an incident in New Jersey where

Petitioner broke a man’s nose in a fight for which he plead out to

30 days in jail to be served on weekends in Cape May County,

New Jersey, followed by probation (N.T. 3/29-30/06 page 23).

Petitioner was not aware that he was no longer allowed to

possess firearms. There was also a Glock pistol which was one of

Petitioner’s Father’s guns that was legally owned and registered

to his Father at that address where Petitioner’s Father lived

(Continued on following page)

sentenced Petitioner on July 20, 2006 to a term of not

less than five years on the main Bill as well as con-

current terms of five years on Bill 9849.1 and 3-5

years on Bill 9849.2. A consecutive term of 1-5 years

imprisonment was imposed with respect to the VUFA

offense. Bail was revoked and Petitioner was sent to

prison on that date.

A Notice of Appeal was filed on July 25, 2006

with the Superior Court of Pennsylvania. The State-

ment of the Questions Involved are as follows: 1. Did

the lower Court err in denying the Petitioner’s Motion

to Suppress Evidence seized as the result of an execu-

tion of a search warrant which lacked probable cause

for Warren Street, Norristown, PA? 2. Did the lower

Court err in denying the Petitioner’s Motion to Sup-

press Evidence seized at Sterigere Street, Norris-

town, PA, which was tainted by the illegal search and

seizure conducted at Warren Street and which was

not supported by independent and lawfully acquired

probable cause? 3. Was the evidence insufficient as a

matter of law to establish Petitioner’s guilt beyond a

reasonable doubt on Bill 9849.2 where the prosecu-

tion did not establish that a corpus delicti existed as

to this offense?

until early 2004 (N.T. 1/26/05 pages 61-69). The pistol was

among things left by Petitioner's Father that he had not yet

picked up from when he moved (N.T. 3/29-30 pages 63-64).

Petitioner’s counsel argued that the warrants

were obtained in violation of Petitioner’s federal and

state constitutional rights to be free from unreason-

able searches and seizures in the respect that there

was not constitutionally sufficient probable cause

within the four corners of each Affidavit. The warrant

for Warren Street was not supported by sufficient

probable cause as it was based upon anonymous

tipsters with no record of previous reliability, whose

information was not corroborated by police investiga-

tion other than noncriminal general facts. The infor-

mants did not even offer how they would have

acquired their knowledge. The warrant should have

been suppressed and therefore the second warrant for

Sterigere Street should have been suppressed as the

fruit of the poisonous tree inasmuch as it was based

upon information derived from the illegal search at

Warren Street. The Sterigere Street Warrant was not

supported by independent probable cause and con-

tained information unlawfully acquired when the

police invaded the curtilage of Petitioner’s property to

obtain information for the warrant. Petitioner’s

counsel also argued that the Commonwealth failed to

present sufficient evidence of Petitioner’s guilt with

respect to Bill 9849.2 charging Petitioner with violat-

ing the Controlled Substance Act for possession and

manufacture of marijuana plants between March 5,

2003 and October 30, 2004 in the respect that the

prosecution failed to prove beyond a reasonable doubt

that there was a corpus delicti, as to this offense

existing independent of Petitioner’s oral and written

admissions as no marijuana was recovered to support

this charge.

The matter was heard in an oral argument on

February 14, 2007 before a panel of the Superior

Court Judges, Lally-Green, Gantman and Popovich,

as per No. 1968 EDA 2006. On August 21, 2007 a

Memorandum Opinion was issued on behalf of Judges

Lally-Green and Gantman (App. 29), with Judge

Popovich issuing a Dissenting Memorandum (App.

29). Judges Lally-Green and Gantman adopted Judge

Nicholas’ analysis of the suppression hearing as their

own (App. 29).

In Judge Popovich’s Dissenting Memorandum

(App. 29), he asserts that Affidavit for Warren Street

fails to show the reliability of the informants on its

face and the only facts corroborated by the police

were noncriminal in nature, were easily obtained by

the police, and do not point with a high degree of

probability that Petitioner was engaged in a mari-

juana growing operation (App. 29). Judge Popovich

found that the tips from the anonymous “concerned

citizens” and the tips from the confidential sources

presented information that was substantially similar

to each other. Based on the similarity of these tips he

was led to the conclusion that these tips provided

information that could have been obtained easily by

the police and were therefore, not sufficient to form

the basis for a warrant (App. 29). Judge Popovich

concluded that the evidence obtained from the Sterig-

ere Street property was the fruit of the search and

arrest at the Warren Street property. Based upon his

finding that all of the evidence obtained from Peti-

tioner’s arrest and statement following the illegal

search of the Warren Street property should have

been suppressed, Judge Popovich would reverse the

case and would not reach Petitioner’s third issue

(App. 29).

Petitioner’s counsel filed an Application for

Reargument En Banc with the Superior Court of

Pennsylvania on September 4, 2007 which was de-

nied by Order dated October 19, 2007 (App. 28).

On November 19, 2007 Petitioner’s counsel, filed

a Petition for Allowance of Appeal with the Supreme

Court of Pennsylvania as per No. 961 MAL 2607.

“The Statement of the Issues Presented for Review,”

was: Did the lower Courts err in refusing to grant

suppression of evidence seized as a result of the

execution of search warrants in Montgomery County

which lacked probable cause and/or were tainted by

the initial illegal search and seizure? Petitioner’s

counsel argued the same points as before in the

original appeal. In addition, Petitioner’s counsel

challenged the ruling of the Superior Court (App. 29).

By Order dated December 28, 2007 (App. 27), the

Supreme Court of Pennsylvania granted the Petition

for Allowance of Appeal and vacated the Order of the

Superior Court, remanding the case to that Court for

consideration in light of Commonwealth v. Torres, 764

A.2d 532 (Pa. 2001).

The same three-judge panel that had heard this

case in the first round of appellate activity before the

Superior Court, Judges Lally-Green, Gantman and

Popovich were once again assigned to this case. No

new oral argument was scheduled, although supple-

mental briefs were filed on February 26, 2008. That

panel issued an Opinion authored by Judge Lally-

Green on April 29, 2008 (App. 1), once again affirming

the ruling of the lower Court.

Petitioner’s counsel filed another Petition for

Allowance of Appeal with the Supreme Court of

Pennsylvania on May 20, 2008 as per No. 312 MAL

2008. The “Statement of the Issues Presented for

Review,” was: Did the Superior Court fail to follow

the Supreme Court of Pennsylvania’s decision in

refusing to grant suppression of evidence seized as a

result of the execution of sea:ch warrants in Mont-

gomery County, which lacked probable cause and/or

were tainted by the initial illegal search and seizure?

That Petition was denied by Order dated October 7,

2008 (App. 79).

REASONS FOR GRANTING THE PETITION

On December 28, 2007, the Supreme Court of

Pennsylvania granted Petitioner’s previous Petition

for Allowance of Appeal. In their Order (App. 27), the

Supreme Court of Pennsylvania vacated the ruling of

the Superior Court (App. 29) and remanded the

matter to that Court for consideration in light of

Commonwealth v. Torres, 764 A.2d 532 (Pa. 2001).

Thereafter, the same three-judge panel that had

initially ruled on this case issued a new Opinion

(App. 1), this time authored by Judge Lally-Green,

once again affirming the judgment of sentence.

In that first Opinion (App. 29), the Panel of the

Superior Court provided no analysis at all of Peti-

tioner’s claim that the search warrant for Warren

Street, was constitutionally deficient in that it lacked

probable cause to support its issuance under J/linois

v. Gates, 462 U.S. 213 (1983) and Commonwealth v.

Torres, supra. The panel merely adopted the Suppres-

sion Court’s ruling (App. 29).

In his Dissenting Memorandum (App. 29), Judge

Popovich declared that he would have suppressed the

evidence obtained from the search of the Warren

Street and Sterigere Street properties. Judge Pop-

ovich reasoned that the four corners of the Affidavit

for the Warren Street property failed to sufficiently

demonstrate that the anonymous sources had a basis

of knowledge regarding Petitioner’s alleged criminal

activity inside that location and also failed to estab-

lish their reliability. Judge Popovich emphasized that

the police provided corroboration only as to facts that

were noncriminal in nature, covld have been easily

obtained by the police and did ac. offer incriminatory

information regarding Petitioner having been en-

gaged in a marijuana growing operation. Judge

Popovich also rejected the Commonwealth’s argument

that the tips from the anonymous or confidential

sources could have provided self-corroboration since

they were substantially similar to each other and

could have been obtained easily by the police (App.

29).

In the Opinion of Judge Lally-Green (App. 1),

there is now a more full and extensive review of

Petitioner’s claim regarding the probable cause issue.

Nevertheless the Panel continued to adhere to the

view that there was a substantial basis for the issu-

ing authority to have found probable cause to support

the search warrants. Petitioner respectfully disagrees

and contends that his United States constitutional

and Pennsylvania constitutional right to be free from

unreasonable searches and seizures was violated.

On page 16 of Judge Lally-Green’s Opinion (App.

1) she states,

Here, unlike in Torres, the Affidavit in ques-

tion provided information regarding the ba-

sis of the confidential sources’ knowledge.

For example, the Affidavit specifically pro-

vided that one of the confidential sources

told the affiant that he/she smelled “skunk

weed”, and another source said they saw

marijuana growing inside the Warren Street

property.

However, the Affidavit does not provide how or

when the sources would have come about in making

their observations or offer their expertise on how they

would know what marijuana looks or smells like. The

source that claimed they saw marijuaiia growing

inside the property does not even give an actual

description of the alleged observation. In fact, on page

3 of the Warren Street Affidavit in the original tip,

the source stated “that he/she has seen several mari-

juana plants growing in pots in the first floor, inside

that residence.” However, when the police executed

the search warrant, all of the marijuana was found

growing on the second floor (N.T. 1/26/05 page 36),

which was equipped to grow marijuana, where there

were 64 plants (N.T. 3/29/06 page 31), which is a

number that is not associated with several. The

police do not corroborate eithér tip nor do they con-

firm “several marijuana lan growing in the first

floor” after executing the warrant.

On pages 16-17 of her Opinion (App. 1) Judge

Lally-Green states,

In addition, the veracity of the sources’ in-

formation was corroborated by independent

police investigation. After the first anony-

mous tip on August 31, 2004,* multiple law

enforcement officers began periodic checks of

the property. They saw the property as mul-

tiple sources described it with windows cov-

ered and air conditioning units running inside.

Furthermore the officers attempted to con-

duct a thermal imaging scan of the property.

Although the scan provided inconclusive

“ The Affidavit for Warren Street does not specify a date

when the tip was provided by the source, only when the tip was

relayed to Detective Altieri from Detective Kelly.

results, it did reveal air conditioning units

running inside the property in the cold

weather,’ as multiple sources had indicated

to police.

However, there is only one tip that the occupant

of the property covered the windows which was

provided by the final anonymous subject on page 9 of

the Warren Street Affidavit. The police spoke to this

source on October 27, 2004, the same date the war-

rant was issued and executed so there is no way that

the independent police investigation could have

corroborated this tip. This source stated, “that after

the police were ‘snooping’ around in late August, the

occupant showed up shortly after that and cleaned up

overgrown weeds in the rear of the property and also

covered up the windows more thoroughly so no one

could see inside.” Coincidently, Detective Altieri went

to the property on August 31, 2004 where he spoke to

a resident (Warren Street Affidavit, page 3). This was

most likely the same person due to the fact that the

only way this source would have known that the

police were “snooping” around is if Detective Altieri

introduced himself because he is a_plainclothes

Narcotics Detective that also works in an undercover

capacity (Sterigere Street Affidavit, page 2).

There were two tips that the air conditioners

were operating on a timer (Warren Street Warrant

* At the suppression hearing trial counsel established, “that

these units could just as well have been dual purpose heat-

ing/cooling units” (N.T. 11/3/05 pages 25-29, 54-55).

pages 6, 9). The latter tip on page 9, which is the final

anonymous subject again, stated “the air conditioners

still go on the same time every night,” suggesting

that they provided this information before. Therefore,

it is more than likely that this is the same source as

the anonymous female from September 16, 2004 who

also reported this on page 6 of the Affidavit, or that

they are working together. The police do not corrobo-

rate that the air conditioners are operating on a

timer. They only observe them running. Petitioner

submits that it is more than likely that there are only

two sources and that they are working with each

other in providing information to the police.

Judge Lally-Green on page 17 of her Opinion

(App. 1) then states,

While the information that the officers cor-

roborated was not necessarily criminal in na-

ture, it was consistent with a marijuana

growing operation. Finally, the information

that was corroborated by the officers in this

case was not “publicly available” in the same

sense as the information corroborated by the

affiant in Torres, who simply corroborated

the source by looking in the phone book.

Petitioner contends that seeing blinds and cur-

tains completely closed and hearing air conditioning

(or heating) units running which could be observed

standing on the public sidewalk in front of the prop-

erty was “publicly available” information just like in

Torres and that this does not qualify the veracity of

the sources.

In Commonwealth v. Torres, supra, the Supreme

Court of Pennsylvania held that the basis of knowl-

edge and the veracity of the Affiant’s anonymous

sources are factors to be considered in making a

probable cause determination, and that these factors

continue to retain a vital role in cases where the

Affidavit of Probable Cause is almost entirely based

upon information gleaned from anonymous sources.

In Torres, there was no attempt to establish either

prong and therefore, “a strong showing of the reliabil-

ity of the information” relayed to the police would be

required. /d. at 540. Importantly, in Footnote 8, the

Court noted that limited corroboration of general

information provided by the informant is not suffi-

cient to sustain the warrant. See Article 1 Section 8 of

the Pennsylvania Constitution, as well as U.S.C.A.

Constitution Amendment 4. The Court concluded that

the Affidavit of Probable Cause in that case failed to

provide a substantial basis upon which to issue a

warrant to search that defendant’s apartment. In

accord is Commonwealth v. Edmunds, 586 A.2d 887

(Pa. 1991), where the Supreme Court of Pennsylvania

found that an Affidavit for a search warrant lacked

probable cause because the one fact which would

have directly suggested criminal conduct (marijuana

growing near premises) was not confirmed by the

police, who were only able to confirm facts of a gen-

eral and noncriminal nature. Because these facts

were “thin” and equally consistent with noncriminal

as well as criminal conduct, the warrant was disap-

proved. In accordance with Pennsylvania law, there is

no “good faith” exception to the exclusionary rule. See

Torres, supra, at 540 and Edmunds, supra, at 903-

906.

The Affidavit for Warren Street failed to qualify

the anonymous sources’ basis of knowledge and

veracity as well as the reliability of the tips to the

police, which was the case in Torres. The police inves-

tigation was only able to corroborate facts that were

general and noncriminal in nature just like in Ed-

munds. The tips provided no predictive conduct or

information that would provide police with means to

test the informant’s knowledge or credibility as the

tip in Gates provided. All the police had to rely on was

bare reports from unknown, unaccountable _infor-

mants who neither explained how or when they made

their observations nor supplied any basis for believ-

ing they had inside information. See U.S. v. Wells,

223 F.3d 835 (C.A. 8, 2000) (Anonymous tip itself

insufficient); U.S. v. Fields, 182 F.Supp.2d 575 (E.D.

Tex. 2002) (Generalized uncorroborated statements of

an unidentified informant are insufficient to establish

probable cause, even according great deference to the

issuing magistrate’s determination. Furthermore,

suppressing evidence in this case properly effectuates

the purpose of the exclusionary rule of deterring

unlawful police conduct.)

The fact that the police discovered marijuana as

a result of executing the search warrant at Warren

Street does not imply that the police had provided

sufficient probable cause in the Affidavit to support

the issuance of the search warrant. In Florida v. J.L.,

120 S.Ct. 1375, 1379 (2000), the Supreme Court of

the United States held: “That the allegation about the

gun turned out to be. _-rect does not suggest that the

officers, prior to the frisks, had a reasonable basis for

suspecting J.L. of engaging in unlawful conduct.”

A review of the primary Affidavit Search Warrant

for Warren Street shows that probable cause was

lacking here. On page 3, the Affidavit begins with

August 31, 2004, when the Affiant, Officer Eugene

Parsley, reports that a detective has received infor-

mation from another detective that was provided by a

“confidential source” to the effect that marijuana was

growing inside this location, where that source had

seen marijuana plants growing in the first floor,

inside the residence.” Yet this information comes from

a source whose reliability is not established; further-

more, there is no time frame as to when the source

allegedly made such observations or when they

relayed this information to Detective Kelly.’ The

* There was nothing found on the first floor that would have

suggested that marijuana was ever growing on the first floor

during the execution of the warrant (N.T. 1/26/05 page 36)

including an air conditioner which the Affiant suggests in the

conclusion of the Affidavit that Petitioner may be utilizing to

offset the heat from the high-powered lamps used to grow

marijuana (Warren Street Affidavit, page 9). Not only was this

information not corroborated by the police, it was not confirmed

after executing the search warrant.

" On page 14 of Judge Lally-Green’s Opinion (App. 1), she states

“The Affiant provided that on August 31, 2004, a confidential source

(Continued on following page)

source did not give a detailed description of the

marijuana growing inside Warren Street or demon-

strate an inside basis of knowledge. Detective Altieri

attempted to corroborate that information but there

is no police corroboration of any actual criminal

activity at that location. Detective Altieri states that

the property was all locked up and the windows were

covered but does not say in any unusual manner.

The Affiant then provides information on page 4

of the Affidavit that Detective Altieri learned that

Patrick Otterson, the Petitioner, is the lessee for

“Wood Street, Norristown, PA” and that Petitioner

“has been arrested in the past ... for possession of a

small amount of marijuana.” However, the issuing

authority, who is supposed to be neutral in their

review, was not informed by the Affiant that Otter-

son’s arrest had occurred on September 14, 1996,

more than eight years prior to the issuance of the

warrant, and that the charges against Petitioner had

been dismissed. (N.T. 11/3/05 pages 14-15).

At this point in the Affidavit, the Affiant has the

name of Petitioner, however, none of the informants

advised Detective James Kelly of the Upper Moreland Police

Department that the Warren Street property was abandoned

and that marijuana plants were growing inside.” However, the

Affidavit docs not contain a date when the confidential source

provided information to Detective Kelly

West Wood Street is a couple blocks south of West Warren

Street in Norristown, PA.

in the Affidavit corroborate this information. Fur-

thermore, a neighbor provided information that the

occupant of Warren Street is a white male and that

he operates a silver pick-up truck. The police never

corroborated that the occupant is a white male or

that he owns or operates a silver pick-up truck any-

where in the Affidavit.’

The Affiant further claims that on September 14,

2004, information was received from an “anonymous

female” that marijuana was being grown at that

location (Warren Street Affidavit, page 5). A police

officer went to the premises and once again observed

that the residence was locked up and the windows

were completely covered. Again, it is not suggested

that the windows are covered in any unusual manner.

No corroboration was obtained, however, with respect

to the information provided by the “anonymous

female” concerning marijuana. The issuing authority

was provided with no information to suggest that the

anonymous female was reliable nor was he provided

with any information as to how or when this source

had acquired her information.

Next, the Affidavit refers to a “second anonymous

tip” on September 16, 2004, but there is no informa-

tion presented therein which would suggest that this

* The Affiant testified that he made no attempt to link

Petitioner to the silver pick-up truck or any address using the

DMV or by accessing governmental records when preparing the

Affidavit for Warren Street (N.T. 11/3/05 pages 22-23).

is a different “anonymous female” from the one on

September 14, 2004; a female once again claims that

marijuana is growing inside the residence. The source

of that information is alleged to be a neighbor who

has seen marijuana growing on the first floor. There-

fore, as to the information in the Affidavit concerning

marijuana, these paragraphs set forth no information

that would establish either reliability or basis of

knowledge that would support the tip. There is no

time frame given as to when the neighbor made their

observation or when it was relayed to the “anony-

mous female.” No police corroboration of the criminal

activity suggested in the tip is provided by the Affi-

ant.”

On page 6 of the Warren Street Affidavit the

Affiant states “the reason why everyone is concerned

is because of an incident that occurred in Philadel-

phia concerning firemen that had died in a fire where

marijuana had been growing.” The Affiant, Officer

Parsley, testified, “that it was Detective Altieri’s idea

to craft the two paragraphs about this incident in the

Affidavit and that the Affiant did not have a role in

making this decision” (N.T. 11/3/05 page 17). This

irrelevant information is a tactic to sway a neutral

magistrate to issue the search warrant.

'° The tipster claimed that the air conditioners and lights

operate on a timer, yet the police investigation disclosed that the

lights and air conditioners were on all the time (Warren Street

Affidavit pages 4, 7).

The Affiant then claimed that he had continually

checked the “aforementioned location” and yet failed

to observe Petitioner or his vehicle during the past

month.”

The police did obtain a sealed search warrant

issued by the Honorable William Nicholas, the Sup-

pression Judge, for the use of a thermal imaging

device on October 12, 2004, which is discussed in the

Warren Street Affidavit on pages 7-8." The supposed

result of the search was that the police were unable

to obtain an accurate reading because of the cold

weather, although no temperature was _ recorded.

However, the thermal imaging scan did indicate heat

coming from two air conditioners on the second floor,

which could have been dual purpose heating/air

conditioning window units (N.T. 11/3/05 pages 25-29).

Nevertheless, the Affidavit does not present any

attempt by the police to use the thermal imaging

detector on another occasion when the weather would

not have been a factor. Accordingly, the Affiant could

" During the execution of the warrant at Warren Street

there was no automatic watering system found that would allow

Petitioner to be away from the property for more than a couple

days at a time. Petitioner contends that he was at the property

almost every day even though he no longer spent the night.

* Petitioner has never seen a copy of this sealed search

warrant as it was not contained in his discovery packet. Peti-

tioner’s counsel did not challenge this search warrant because

his counsel’s strategy was to use the results of the thermal

search to further prove that the Affidavit lacked probable cause

(N.T. 11/3/05 pages 3-4, 68-73).

offer no criminal activity detected by the use of this

scientific device.

The Affidavit next reports that on October 27,

2004 Detective Jeffrey Koch contacted Detective

Altieri and stated that an “unknown female” left a

message on the Drug Tip Line that marijuana was

growing inside Warren Street and that the neighbors

have smelled strange odors emanating from the

property. Once again no information is presented

therein which would suggest that this source is a

different “anonymous female” from those of Septem-

ber 14 and 16 (N.T. 11/3/05 nage 29). There is no

information that would establish the reliability or the

basis of knowledge of the female that would support

the tip nor is there any information as to how or

when the “unknown female” had acquired her infor-

mation from the neighbors or how and when the

neighbors made their observations. In fact, Detective

Koch does not advise Detective Altieri when he re-

ceived the tip or when the female left the tip. Fur-

thermore, no _ police corroboration is_ obtained.

(Warren Street Affidavit, page 8).

The Affiant along with Detective Altieri claimed

to have spoken with an anonymous person on October

27, 2004, who allegedly reported to have smelled

what they described as “Skunk” Weed odor coming

from the residence, a term that supposedly means

“Home Grown” marijuana due to the strong odor it

produces.” The police also claimed to have spoken to

an unknown person who alleged to have personally

seen marijuana growing from within this location.

The issuing authority is not informed “when” these

events occurred or “how” they came about. The Affi-

ant offers no information on how the sources would

have been competent to determine these observations

were consistent with that of marijuana. Furthermore,

the police obtained no corroboration of this informa-

tion and the Affidavit sets forth no basis of knowledge

or anything concerning the veracity or reliability of

either “subject” (Warren Street Affidavit pages 8-9)."

‘* Importantly, no effort was made by the police to inspect

the premises themselves in order to determine whether or not

such an odor existed at that location. The Supreme Court of

Pennsylvania has held that the police can use a trained dog to

ascertain whether there is a scent of marijuana in the premises.

Commonwealth v. Johnston, 530 A.2d 74, 79 (Pa. 1987). Peti-

tioner contends that it was of great moment that this was not

done before the Affidavit was submitted to the issuing authority.

“ Petitioner notes that the Superior Court of Pennsylvania

appears to no longer be relying, as it did, in its Memorandum

Decision of August 21, 2007, upon Commonwealth v. Karns, 566

A.2d 615 (Pa. Super. 1989). In the first panel decision, the

Superior Court contended that under Karns, probable cause

could be found from “independent sources” who supplied “identi-

cal information.” However, in Karns, the Affidavit contained

information from an informant who had supplied police with

such information on ten previous occasions, resulting in seizures

of drugs, while a second informant had often purchased mari-

juana from the defendant over the previous two years, and both

informants were able to independently describe a hydroponic

system of marijuana growth at that location, thus establishing

their “inside” basis of knowledge. As discussed above, the

(Continued on following page)

In the Affiant’s “Conclusion” on page 9 of the

Affidavit, Officer Parsley states, “As an experienced

Narcotics Detective, Detective Altieri is aware that if

a person was to cultivate marijuana in a residence,

they would need Hydroponic lights, which would

draw excessive electricity for them to operate. These

high-powered lamps would create an excessive heat

source to radiate inside the residence.” However,

there is no information whatsoever ir tie Affidavit to

support these statements.”

Petitioner respectfully submits that the ruling of

the Superior Court of Pennsylvania in Petitioner’s

case cannot stand under Gates and Torres. As was the

case in Torres, here too, the police have relied upon

unnamed unidentified, and anonymous or confiden-

tiai sources who satisfy neither the basis of knowl-

edge nor reliability requirements under Gates and

Torres, supra. A reviewing Court cannot say with

confidence that these sources had a good reason to

know of what they spoke or that their information

was accurate. In the case at bar, none of the so-called

“sources” gave a detailed description of the alleged

growing marijuana they claimed to have seen. Contra,

information provided by the informants in the instant case had

no prior reliability and their tips clearly lacked police corrobora-

tion.

‘© Petitioner is amazed that Detective Altieri is not the

Affiant as he seems to have acquired most of the information

within the four corners of the Affidavit (N.T. 11/3/05 pages 9-21).

Karns at 615. Nor did they establish a time frame of

the alleged observations. See Edmunds, supra, at

891. There were no accounts of marijuana use or

sales and there were no predictive accounts of Peti-

tioner’s conduct or activities as there were in Gates.

There is no “inside” basis of knowledge demonstrated

by any of the sources. Furthermore there is no police

corroboration.

Just as in Florida v. J.L., supra, where the

Supreme Court of the United States found that there

was no reasonable basis for suspecting J.L. of engag-

ing in unlawful conduct even though the police found

a gun, here the anonymous tips did not provide

sufficient probable cause to issue a search warrant

even though the police found marijuana. The police

investigation in this case had failed to establish that

Petitioner was engaged in marijuana growing activity

at Warren Street. Judge Lally-Green states that the

police investigation produced information that “was

consistent with a marijuana growing operation,” yet

it was equally consistent with lawful and noncriminal

conduct. As to the sources who claimed to have

“smelled” or “seen” marijuana, there is no corrobora-

tion of that information even though the police have

'° Petitioner submits that the activity of a homeowner in

locking up his residence and completely covering their windows

by drawing the blinds and closing the curtains is surely not

inconsistent with innocent behavior. It is actually more consis-

tent with the notion that the homeowner is asserting that he has

a right of privacy that the Constitution must recognize.

continuously checked the property in the month prior

to filing the application for the warrant for Warren

Street.’ Even the thermal imaging scan on October

12, 2004 failed to provide objective information that

would have established that the information was

valid.

The Superior Court of Pennsylvania decided this

case in a manner which conflicts with decisions of the

Supreme Court of Pennsylvania and the Supreme

Court of the United States. As in Torres and Ed-

munds, U.S. v. Fields, and U.S. v. Wells, supra, this

Honorable Court cannot allow a search warrant to

stand that is based upon information that comes from

unestablished and unqualified anonymous sources

where attempts by the police to corroborate that

information were not successful except as to innocent

details and facts that were essentially public in

nature. Thus, there was no substantial basis for a

finding of probable cause.

Petitioner respectfully submits that in view of

the fact that the warrant executed at Warren Street

was unlawful, the warrant executed at Sterigere

Street was unlawful as the fruit of the poisonous tree.

Wong Sun v. United States, 371 U.S. 471 (1963).

'’ One can only imagine how quickly the police would have

inserted into the Affidavit of Probable Cause the fact that

during one of their many checks of this location, they had the

occasion to smell “skunk” weed or had obtained other informa-

tion that would have corroborated the claim that marijuana was

growing inside the house.

The Affidavit for the Warren Street property does

not mention the Sterigere Street property despite the

access to information available to the police. Review

of the record will indicate that the suspicion of mari-

juana growing at the Sterigere Street property arose

only after the police obtained Petitioner’s permission

to search his primary residence at [Home Address

Omitted], Norristown, PA, after his arrest at the

Warren Street property. The police had no informa-

tion whatsoever on the Village Green Lane or the

Sterigere Street addresses.”

It is clear that this second warrant was obtained

through exploitation of the previous unlawful police

conduct. Probable cause did not exist to issue the

second warrant absent the information obtained from

the search and arrest at Warren Street. See Com-

monwealth v. Knowles, 327 A.2d 19 (Pa. 1974); Wong

Sun, supra.

The Affidavit for the Sterigere Street search

warrant, which Detective Altieri is now the Affiant,

directly references the search at Warren Street where

police discovered marijuana growing at that location,

'* Petitioner contends that the search of his residence along

with his statement was coerced in order to release his girlfriend

without being charged. Detective Altieri testified that he would

not charge Petitioner’s girlfriend if he acknowledged that the

marijuana was his (N.T. 11/3/05 pages 108-110). Detective

Altieri, Officer Parsley, and Lieutenant Bernstiel drove Peti-

tioner’s girlfriend to Petitioner’s residence to conduct the search

(Sterigere Street Affidavit, page 5).

including the facts that the blinds were drawn, win-

dows were sealed, air conditioners were employed

and PVC piping was present. (Sterigere Street Affi-

davit, page 3).

On page 5, the Affidavit references Petitioner’s

statement to the police, but does not indicate that

this statement makes no reference whatsoever to any

location other than Warren Street. The Affidavit also

references the consensual search that the police

conducted at Village Green Lane, yet no evidence was

seized at that residence which identified another

location wherein a marijuana growing operation

would be found. However, the Affiant relied upon the

review of three calendars seized from that location

that had different harvest dates to support his conclu-

sion that the Petitioner would have more than one

growing location. Furthermore, Petitioner’s driver’s

license seized at that location, (Sterigere Street War-

rant, at page 5) which was Petitioner’s old “expired”

license, listed Sterigere Street as Petitioner’s address.

Because of the evidence derived from the search

at Warren Street, the Affiant, Detective Altieri, along

with Officer Parsley, went to Sterigere Street on

October 29, 2004. At that location, the police made

observations that the location on Sterigere Street was

consistent with the way they had seen the location at

Warren Street. On page 6 of the Sterigere Street

Affidavit, the police report that all the windows were

all covered up so no one could look inside and newer

air conditioners were in the upper windows.” The

police further report that the electric meter was

spinning as if there was an excessive electric draw,

yet offer no expert analysis of this issue. The Affiant

then reports smelling the distinct odor of marijuana

while standing at a lawful vantage point at the front

door of the residence.” In U.S. v. Depew, 8 F.3d 1424

(C.A. 9, 1993), the Ninth Circuit held that 6 feet from

garage door and 50-60 feet from defendant’s house

from which police officer smelled marijuana growing

'* It is not reported in the Affidavit for Sterigere Street that

the air conditioners were running as was the case in the Warren

Street Affidavit every time during the many police checks of the

property.

” On page 7 of the Sterigere Street Affidavit the Affiant

states “At the time of Otterson’s arrest, we took his keys and one

of the keys ‘opened’ the door of Sterigere Street, but we did

not make entry.” The Affiant would have had to first open the

storm door to access the front door. The Affiant uses the word

“opened” not “unlocked.” This is most likely the unlawful

vantage point that the Affiant smelled the distinct odor of

marijuana. The marijuana at this location was found on the

second and third floor loft or attic (N.T. 1/26/05 page 5). The

marijuana at the Warren Street property was found on the

second floor (N.T. 1/26/05, page 5) and yet the police were not

able to corroborate the smell of “skunk” weed odor when check-

ing the locked doors at that location or during many periodical

checks.

Petitioner finds it remarkable that on the face of the

Sterigere Street Warrant the Affiant describes the premises to

be searched as a 3-story white stucco home, yet from outside of

the home it appears to be a 2-story home with small attic

windows on either side, approximately one foot by one foot.

There are no full size windows or dormers that would suggest

that there was a third floor.

inside house, was within “curtilage” of house for

Fourth Amendment purposes.

Again, from an alleged lawful vantage point the

Affiant claimed to have noticed a trash bag on the

kitchen floor that matched the trash bags located in

Warren Street that contained marijuana. Also, Officer

Parsley noticed a magnet on the refrigerator with

P.H. Otterson, which was a magnetic business card,

even though the Affiant states near the beginning of

the same paragraph, “all the windows were all cov-

ered up so no one could look inside.” The police also

observed several empty Heineken bottles and cases in

the kitchen area (Sterigere Street Affidavit pages 6-

7).

The Affiant concluded that the location on Sterig-

ere Street had the “same characteristics to Warren

Street” in that both properties appeared abandoned,

had air conditioners in the windows, had windows

sealed up so as to avoid detection and had similar

PVC pipe outside (Sterigere Street Affidavit pages 7-

8).

A conclusion that the search at Warren Street

was unlawful will surely support a further conclusion

by this Honorable Court that the search at Sterigere

Street was tainted by that primary illegality and

therefore, suppression of the second warrant is also

required. The police did not have evidence independ-

ent of the information obtained from Warren Street to

support this second warrant.

During the entire police investigation, no evi-

dence was developed that there was a location at

Sterigere Street in which another marijuana growing

operation would be present. Nothing spoken by

Petitioner during his interview with police and noth-

ing obtained by the search of his primary residence

resulted in facts which would have supported such a

conclusion. The three calendars seized at Petitioner’s

residence that appeared to denote different harvest

dates did not create a probability that marijuana was

being grown at another location, and certainly pro-

vided the police with no indication that such an

operation could be found at Sterigere Street. There

was no basis to support a conclusion that multiple

harvest dates require different locations for growing

marijuana and no expert declaration to establish that

fact was offered.

Furthermore, when the police approached the

Sterigere Street house on October 29, 2004 at 7:00 pm,

they had to trespass the curtilage of this residence. At

the suppression hearing, Detective Altieri testified,

“that the house is set back from the street, sitting at

the end of a long driveway and that he pulled his

truck in the driveway, went onto the property and

proceeded to look into the windows” (N.T. 11/3/05

pages 40-43).” At that time the police officers put

* On the face of the Sterigere Street Warrant, in the

description of the premises to be searched, the Affiant states

“This warrant also includes the curtilage surrounding the home

which includes a green storage barn.” This contradicts Detective

(Continued on following page)

themselves in a position where they could allegedly

smell the odor of marijuana, yet they did not have a

search warrant and there were no exigent circum-

stances that would have excused one.

Under the Fourth Amendment, there is an over-

riding respect for the sanctity of the home and this

protection has been extended to the curtilage, which

is defined as an area where an individual reasonably

may expect that he has a right to privacy. The curti-

lage area is the area that surrounds and is immedi-

ately adjacent to the residence and is afforded a

greater privacy protection then that of an open field.

In the instant case, the area surrounding the

Sterigere Street premises was part of the “adjacent”

area with respect to the home and therefore, the

police clearly trespassed by leaving the public side-

walk and proceeding down the long driveway, ap-

proximately 40 yards, towards the home and then

standing on Petitioner’s patio (N.T. 11/3/05 page 43),

which was attached to the home, as they made visual

and soon after olfactory inspections of the home. All

without a search warrant. See Depew, supra.

Petitioner took clear steps to shield his premises

on Sterigere Street from public inspection. Petitioner

Altieri’s testimony, “that the property was an open field and a

yard,” then states “I think there was a fence around the back of

the property.” (N.T. 11/3/05 page 41). Petitioner asserts that the

one acre property is mostly surrounded by a fence including the

front and that the mailbox is on the street.

took measures to safeguard his privacy in an area

generally thought to be private, in a home that was

deeply recessed from the public street and beyond the

point at which a reasonable person would expect that

there would be public traffic. Therefore, Petitioner

exhibited an actual expectation of privacy with re-

spect to the content of the Sterigere Street property,

including but not limited to, the covering of windows

and doors with the complete closing of blinds and

curtains that shielded the inside of the house from

public inspection.

Accordingly, Petitioner respectfully submits that

under all of these circumstances, the issuing author-

ity did not have a substantial basis to authorize a

search at Sterigere Street. The warrant that was

issued was clearly influenced and tainted by the

results of the police search and investigation con-

ducted as a result of the unlawful search at Warren

Street. The additional information that was set forth

in the Affidavit for Sterigere Street was obtained by

an unlawful trespass by the police into a private area

that was not open to public traffic. An area that the

police would never have entered had there not been

the unlawful search at Warren Street. Therefore, the

Superior Court of Pennsylvania should have reversed

the Order denying suppression as to these premises

as well.

In the Affidavit for the primary search warrant

at Warren Street the anonymous sources did not

demonstrate an inside basis of knowledge and there

is no information that qualifies their reliability or

veracity. The sources provide no predictive accounts

of conduct or activity, criminal or otherwise and they

do not provide when or how they came to make their

observations. The sources did not know the occupant’s

name or any other address associated with him.

The police investigation revealed that the occu-

pant was not at the property during their many

periodic checks, the air conditioners and lights were

on continuously, the windows were covered by the

complete closing of blinds and curtains and the doors

were locked. Notwithstanding the locked doors, this

information could be observed from the “public”

sidewalk or street. These general observations were

publicly available and noncriminal in nature.

The police investigation failed to corroborate that

the occupant was a white male or that he owned or

operated a silver pick-up truck, which was informa-

tion presented to the police. Police did not associate

the occupant with any other address except the one

on Warren Street. The police did not corroborate that

somebody comes to pick up the mail, which is deliv-

ered every day, excluding Sunday, or that the occu-

pant removes trash bags at night. Police do not see

anyone coming or going to the property, yet there was

supposedly a marijuana growing operation going on

at the property. The police do not corroborate the two

tips that the air conditioning units and lights are

operating on a timer, only that they are continuously

on. It is not corroborated by the police that the odor of

marijuana existed or that marijuana could be seen

growing on the first floor. In fact, it was not confirmed

that marijuana was growing or that it was ever

growing on the first floor after the warrant was

executed. The police failed to establish through a

thermal search the existence of high powered hydro-

ponic lamps or that there was an excessive amount of

electricity being drawn at the property. Yet, this is

how the Affiant concludes his Affidavit of probable

cause.

If our United States Supreme Court allows the

primary search warrant at Warren Street to stand

along with the fruits of such which was obtained in

violation of Petitioner’s federal and state constitu-

tional rights, it will lead the way for government

intrusion of its citizens as well as corruption in our

police to run amuck conducting unreasonable

searches and seizures with unjust or no probable

cause, breaking the very framework installed in our

Constitution to prevent the loss of liberty of our

citizens.

The Supreme Court cannot allow our police to

conduct searches and seizures on the grounds of

accusations without any police or other corroboration

where the reliability, basis of knowledge and veracity

of anonymous sources are not established.

CONCLUSION

For all the reasons expressed herein, Petitioner,

Patrick H. Otterson, respectfully prays that the

Supreme Court of the United States grant this Peti-

tion for Writ of Certiorari and allow further review of

the ruling of the Superior Court of Pennsylvania and

award appropriate relief in the interest of justice and

fundamental constitutional concerns.

Respectfully submitted,

PATRICK H. OTTERSON, Pro-se

App. 1

2008 PA Super 85

COMMONWEALTH OF : IN THE SUPERIOR

PENNSYLVANIA, : COURT OF

PENNSYLVANIA

Appellee

Vv.

PATRICK H. OTTERSON, .

Appellant : No. 1968 EDA 2006

Appeal from the Judgment of Sentence July 20, 2006,

In the Court of Common Pleas of

Montgomery County,

Criminal Division at No. CP-46-CR-0009849-2004.

BEFORE: LALLY-GREEN, GANTMAN and POP-

OVICH, JJ.

OPINION BY

LALLY-GREEN, J.: FILED APRIL 29, 2008

{1 Appellant Patrick H. Otterson appeals from the

judgment of sentence entered on July 20, 2006, in

the Court of Common Pleas of Montgomery County,

following his conviction for possession with intent

to deliver (“PWID”) marijuana, violation of the

Uniform Firearms Act,’ and related offenses. This

case is before us once again on remand from our

Supreme Court. We affirm.

‘ 35 P.S. § 780-113(aX30).

* 18 Pa.C.S.A. § 6105 (persons not to possess, use, manufac-

ture, control, sell or transfer firearms).

App. 2

42 The relevant facts and procedural history of this

case were fully set forth in the trial court opinion as

follows:

On March 30, 2006, [Appellant] was con-

victed of three separate Bills of Information

for violation of the Controlled Substance,

Drug, Device, and Cosmetic Acts (the “Drug

Act”) and for possession of a firearm. The

main Bill charged three counts of violation of

the Drug Act for possession and manufacture

of marijuana plants between October 27,

2004[,] and October 29, 2004[,] at 420 West

Warren Street, Norristown, Montgomery

County, Pennsylvania (hereinafter, the “War-

ren Sireet property”). Bill of? Information

9849.1 charged the same counts for posses-

sion and manufacture of marijuana plants

between October 29, 2004[,] and October 30,

2004[,] at 1202-1208 Sterigere Street, Nor-

ristown, Montgomery County, Pennsylvania

(hereinafter, the “Sterigere Street property”).

Bill of Information 9849.2 charged [Appel-

lant] with the same three counts for continu-

ous manufacture and _ possession’ of

marijuana plants between March 5, 2003[,]

and October 30, 2004[,] at both the Sterigere

Street property and the Warren Street prop-

erty. These convictions were the result of

events that took place between October 27

and October 30, 2004.

On October 27, 2004, Officer Eugene

Parsley of the Norristown Police Department

executed a search warrant on the Warren

Street property. As a result of the search, the

App. 3

police seized 64 marijuana plants, hydro-

ponic lamps, two light timers, a timer for an

air conditioner, duct work, and filter and

fluorescent lights, among other items. The

Affidavit of Probable Cause executed by Offi-

cer Parsley may be summarized as follows:

On August 31, 2004, Detective Mi-

chael Altieri of the Montgomery

County Narcotics Enforcement Team

received information from Upper

Moreland Police Detective James

Kelly that a confidential source pro-

vided him with information that the

Warren Street property was aban-

doned, and that there was mari-

juana growing inside the residence

at that location. The confidential

source stated that he/she has seen

marijuana plants growing in pots on

the first floor inside that residence;

On August 31, 2004, Detective Alti-

eri went to the Warren Street prop-

erty to corroborate the information

from Detective Kelly. It appeared

that the property was locked up; the

windows were all covered; and an

air conditioner was running on the

second floor, front;

A resident of the 400-block of West

Warren Street told Detective Altieri

that a white male lives at the War-

ren Street property on a part-time

basis; that he drives a silver pick-up

App. 4

truck; only arrives once a week,

stays for a couple of hours and then

leaves;

Periodic checks of the property by

the police revealed that the lights on

the first floor stayed on all night. A

check of the entire neighborhood by

the police failed to locate the pick-up

truck;

The detective learned that [Appel-

lant] is the lessee of 420 West [War-

ren] Street, Norristown, Pennsylvania,

and that [Appellant] had been ar-

rested in the past for possession of a

small amount of marijuana;

On September 14, 2004, an anony-

mous female called the Norristown

Police to report that marijuana was

being grown inside the Warren

Street property; that no one lives

there, and that it was just a “front.”

In response to the call, Officer

Christopher Narkin went to the lo-

cation and observed that the resi-

dence was locked up, and the

windows were covered so no one

could see inside. He reported his

findings to Detective Altieri because

he felt that there was something

suspicious about how the residence

was covered up;

On September 16, 2004, a second

anonymous female called Detective

App. 5

Altieri and stated that marijuana

was growing inside the Warren

Street property. She said that a

white male arrives about once a

week and removes large trash bags

from the residence under the cover

of darkness and loads them onto his

pick-up truck, that the air condi-

tioners and lights operate on a

timer, and that the man does not

live there. She also said that one of

the neighbors has seen marijuana

growing on the first floor and that

she and the neighbors feared for

their safety and preferred to remain

anonymous for this reason;

Periodic checks of the property by

the investigating police officers dur-

ing the month prior to the issuance

of the search warrant on October 27,

2004[,] failed to reveal any sign of

[Appellant] or the pick-up truck. Yet,

the lights were seen to be always lit

on the first floor, the windows and

doors were covered up and the air

conditioner was running on the sec-

ond floor, even in extremely cool

weather.

On October 8, 2004, [the trial court]

issued a sealed search warrant for

the use of a thermal imaging device

at the Warren Street property.

App. 6

On October 12, 2004, the thermal

imaging scan was conducted, but

due to the cold weather conditions

(surrounding properties had their

heat on), an accurate reading could

not be obtained. Two air condition-

ers on the second floor were run-

ning, despite the cold weather;

On October 27, 2004, Detective Jef-

frey Koch reported to Detective Alti-

eri that an unknown female had

telephoned the Drug Tip Hotline

and left a message that marijuana

was growing inside the Warren

Street property; that no one lives

there; that a suspicious male goes to

the residence periodically; and that

the neighbors have smelled strange

odors emanating from the property;

On October 27, 2004, Officer Parsley

and Detective Altieri spoke to a con-

fidential informant who told them

that he/she smelled the strong odor

of “skunk weed” or “homegrown”

marijuana coming from the Warren

Street property;

On October 27, 2004, Officer Parsley

and Detective Altieri also spoke to

another confidential informant who

reported that he/she personally had

seen marijuana growing inside the

Warren Street property. This person

also said that, after the police began

App. 7

to investigate the property in late

August, the occupant appeared to

clear up the overgrown weeds and

also covered the windows more

thoroughly so no one could see in-

side. The confidential informant also

said the air conditioners still go on

every night, even with the cold

weather;

Both confidential informants said

that the occupant only comes to the

residence periodically and that he

“hasn't been seen there since last

week.”

While the officers were executing the

search warrant at the Warren Street prop-

erty, [Appellant] arrived. Upon seeing the of-

ficers, [Appellant] fled, but was apprehended

with his girlfriend a short time later. That

same night, [Appellant] was arrested and

read his Miranda warnings. He gave a

statement admitting that he had harvested

approximately 50 marijuana plants four

months earlier. [Appellant] thle]n signed a

consent ic search form for another one of his

residences located at 2804 Village Green

Lane, Norristown, Montgomery County,

Pennsylvania. As a result of this search, the

police seized calendars denoting different

harvest dates. Many of these harvest dates

overlapped[,] suggesting that [Appellant]

had more than one location where he [grew]

marijuana. The calendars included harvest

dates between March 5, 2003[,] and October

App. 8

30, 2004. The calendars and [Appellant’s]

statement formed the basis for [Appellant’s]

conviction on Bill of Information 9849.2.

On October 29, 2004, Detective Altieri

executed a search warrant on the Sterigere

Street property, the address shown on [Ap-

pellant’s] driver’s license. As a result of the

search, the police seized a total of 121 potted

marijuana plants, calendars, hydroponic

lamps, and a double barrel shotgun, among

other items.

Subsequently, [Appellant] filed a motion

to suppress the evidence seized pursuant to

the search warrants. A hearing on this mo-

tion was held on November 3, 2005[,] in front

of the Honorable William T. Nicholas. On

December 5, 2005, Judge Nicholas entered

an Order denying [Appellant’s] motion and

placed his findings of fact and conclusions of

law on the record. [Appellant’s] trial was held

on March 29, 2006[,] and March 30, 2006. The

[trial court] found [Appellant] guilty of the

three Bills of Information charging [Appellant]

[with] violations of the Drug Act. On July 25,

2006, [Appellant] was sentenced to not less

than 5 years on the main Bill, not less than 5

years on Bill of Information 9849.1 and 3 to 5

years on Bill of Information 9849.2. These

sentences were to run concurrent with one

another. [The trial court] also sentenced [Ap-

pellant] to 1 to 5 years for possession of a

firearm to run consecutive with the other

App. 9

sentences. [Appellant] appealed his judgment

of sentence on July 25, 2006. In accordance

with [Rule] 1925(b) of the Pennsylvania Rules

of Appellate Procedure, [the trial court] di-

rected [Appellant] to file a Concise Statement

of Matters Complained of on Appeal no later

than August 8, 2006. Appellant filed such

statement on August 4, 2006.

Trial Court Opinion, 9/5/2006, at 1-5 (footnotes omit-

ted).

{3 This case was previously before this Superior

Court panel in 2007. In an unpublished memorandum

filed on August 21, 2007, we affirmed Appellant’s

judgment of sentence. See Commonwealth v. Otter-

son, 938 A.2d 1119 (Pa. Super. 2007) (unpublished

memorandum). Appellant filed a timely petition for

allowance of appeal to the Pennsylvania Supreme

Court. In a per curiam order filed December 28, 2007,

the Supreme Court granted Appellant’s petition,

vacated this Court’s memorandum affirming the

judgment of sentence, and remanded the case to this

Court for reconsideration in light of Commonwealth

v. Torres, 764 A.2d 532 (Pa. 2001). See Common-

wealth v. Otterson, 2007 Pa. Lexis 2908 (Pa. Dec.

28, 2007).

4 On appeal, Appellant presents the following

issues for our review:

1. Did the [trial court] err in denying the

Appellant’s Motion to Suppress Evidence

seized as the result of an execution of a

search warrant which lacked probable

App. 10

cause for 420 W. Warren Street, Norris-

town, PA?

2. Did the [trial court] err in denying the

Appellant’s Motion to Suppress evidence

seized at 1202 Sterigere Street, Norris-

town, PA which was tainted by the ille-

gal search and seizure conducted at 420

W. Warren Street and which was not

supported by independent and lawfully

acquired probable cause?

3. Was the evidence insufficient as a mat-

ter of law to establish the Appellant’s

guilt beyond a reasonable doubt on Bill

No. 9849.2 where the [Commonwealth]

did not establish that a corpus delicti ex-

isted as to this offense?

Appellant’s Brief at 4.°

975 In his first and second issues, Appellant chal-

lenges the denial of his motion to suppress. Appellant

first argues that the affidavit filed in support of the

search warrant for the Warren Street property did

not provide probable cause to search. Appellant

claims the affidavit was fatally flawed because it was

based on information obtained from confidential

* In his supplemental brief filed post-remand, Appellant did

not raise the third issue challenging the Commonwealth’s

failure to establish the corpus delicti of the drug offense. Never-

theless, because our initial memorandum disposing of this claim

was vacated, we will again address this issue in the instant

memorandum.

App. 11

informants who did not have a history of reliability,

there was no showing of how the informants acquired

their information, and the criminal information was

not corroborated by independent police investigation.

As a result, Appellant claims that the court erred in

denying his motion to suppress the evidence obtained

from the Warren Street property. See Supplemental

Brief for Appellant at 8. In his second issue, Appel-

lant asserts that because the Warren Street property

search was improper, the warrant obtained for the

Sterigere Street property was unlawful as “fruit of a

poisonous tree.” Jd. at 17.

46 We review orders denying a motion to suppress

in accordance with the following, well established,

standards:

Our standard of review of a denial of sup-

pression is whether the record supports the

trial court’s factual findings and whether the

legal conclusions drawn therefrom are free

from error. Our scope of review is limited; we

may consider only the evidence of the prose-

cution 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.

App. 12

Commonwealth v. Brown, 924 A.2d 1283, 1286 (Pa.

Super. 2007), quoting Commonwealth v. Reppert,

814 A.2d 1196, 1200 (Pa. Super. 2002).

{ 7 Our Supreme Court has adopted the “totality of

the circumstances” test for determining whether a

search warrant was supported by probable cause. See

Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985).

This test was first set forth by the United States

Supreme Court in Illinois v. Gates, 462 U.S. 213

(1983). Pursuant to the totality of the circumstances

test:

[T]he task of the issuing authority is to make

a practical, common sense assessment whether,

given all the circumstances set forth in the affi-

davit, there is a fair probability that contra-

band or evidence of a crime will be found in a

particular place. Further, [a] magistrate’s

finding of probable cause must be based on

facts described within the four corners of the

affidavit[. ]

Commonwealth v. Jones, 928 A.2d 1054, 1059 (Pa.

Super. 2007) (internal quotes and citations omitted).

“(PJrobable cause does not demand the cer-

tainty we associate with formal trials.”

(Gates, 462 U.S. at 246.] Rather, a determi-

nation of probable cause requires only that

the totality of the circumstances demon-

strates “a fair probability that contraband or

evidence of a crime will be found in a par-

ticular place.” (Torres, 764 A.2d at 537, quot-

ing Gates, 462 U.S. at 238-239]. Thus, where

App. 13

the evidence available to police consists of an

anonymous tip, probable cause may be estab-

lished upon corroboration of major portions

of the information provided by the tip. See

Gates, 462 U.S. at 246. Similarly, where the

evidence consists of the allegations of a po-

lice informant who has not previously pro-

vided information, probable cause requires

only corroboration of principal elements of

information not publicly available. See Tor-

res, 764 A.2d at 539-540. As recognized by

the Court in Gates,“|iJt is enough, for pur-

poses of assessing probable cause, that

‘{(clorroboration through other sources of in-

formation reduced the chances of a reckless

or prevaricating tale,’ thus providing ‘a sub-

stantial basis for crediting the hearsay.’”

(Gates, 462 U.S. at 244-245, quoting Jones

v. United States, 362 U.S. 257, 269, 271

(1960).]

Brown, 924 A.2d at 1286-1287.

7 8 Our Supreme Court remanded the instant case

to this panel for our consideration in light of Torres.‘

‘ Torres involved consolidated appeals from two co-

defendants. The Supreme Court explained that judicial economy

was best served by disposing of the two appeals together because

the police used the same affidavit of probable cause to support

their applications for search warrants to both defendants’

apartments located at 5631 Rippey Street in Pittsburgh, Penn-

sylvania. See Torres, 764 A.2d at 535. For our purposes in the

instant matter, we note that our discussion of the Torres case

reflects only the facts and holding of the Supreme Court with

respect to the defendant identified as “Torres” in that case.

App. 14

Therefore, we will review that case in detail. Torres

was arrested and charged with three counts of homi-

cide after the police found two guns and other in-

criminating items during a search of his apartment

conducted pursuant to a warrant. Torres filed a pre-

trial motion to suppress the evidence found in his

apartment, asserting that the warrant was not sup-

ported by probable cause. Following a hearing, the

suppression court found that the affidavit of probable

cause filed with the warrant application was “frus-

tratingly sparse” in that it merely set forth in narra-

tive form the information that the affiants had

learned without clearly explaining where they ob-

tained each piece of information. See Torres, 764

A.2d at 538. Further, the court found that there was

no way for the issuing authority to tell from the

affidavit how the anonymous sources cited therein

had obtained their information.’ Finally, the suppres-

sion court found that the only corroboration that

imparted any reliability to the information obtained

* The affidavit at issue in Torres identified the witnesses as

follows:

Numerous interviews have been conducted in this

case. The identity of these witnesses is known to your

affiants. These witnesses will be available to testify at

any necessary court proceedings.

Torres, 764 A.2d at 535. The Supreme Court explained that the

tipsters were properly considered “anonymous sources” by the

lower courts because “since none of them [was] named, there

was no indication that any of them had previously provided

information to the police and no reason was given for the failure

to divulge their names.” Id. at 537 n.3.

App. 15

from the anonymous sources was the officers’ obser-

vations of a vehicle outside Torres’ apartment com-

plex that matched the general description of the get-

away car at the murder scene. In light of the lack of

information regarding the basis of the unnamed

sources’ knowledge or their veracity, as well as the

failure of the affidavit to credit each piece of informa-

tion to one of the sources, the suppression court

concluded that the corroborated information was

insufficient to sustain the search warrant. Id. As

such, the court granted the defendant’s motion to

suppress.

{9 The Commonwealth appealed to this Court. We

held that although the affidavit failed to expressly

establish either the veracity of anonymous sources or

the basis for their knowledge, the information that

they provided to the police was sufficiently bolstered

by certain indicia of reliability. See Commonwealth

v. Torres, 714 A.2d 416, 420 (Pa. Super. 1998). As

such, we concluded that the affidavit provided the

issuing authority with a substantial basis to support

his finding of probable cause to search, and reversed

the order granting the defendant’s motion to sup-

press.

{10 On appeal, our Supreme Court reversed. The

Supreme Court held that this Court “gave too much

weight to the indicia of reliability attending the

information included in the affidavit” and therefore

erred in reversing the suppression order. Torres, 764

A.2d at 539. The Court rejected the Commonwealth’s

claim that a commonsense reading of the affidavit

App. 16

indicated that at least one of the anonymous sources

had personal knowledge of the events in question.

The Supreme Court explained that:

[T]he mere fact that one or more of the

anonymous sources provided a somewhat de-

tailed account of the activities of the victims

and their assailants preceding the murders

does not, in and of itself, constitute a signifi-

cant indicia of the reliability of that informa-

tion. In addition, the fact that the police

verified the address, phone number and gen-

eral age given to them for Torres — whose

address and phone number were listed in the

phone book and were therefore freely avail-

able to the public — does not constitute a sig-

nificant indicia of the reliability of the other

information provided to the police by the

anonymous sources.

Id.

{11 The Supreme Court also distinguished Torres

from the United States Supreme Court’s holding in

Gates, noting that the information provided by the

anonymous sources in Gates contained not only a

detailed account of the defendant’s activities in fur-

therance of the crime, but also a correct prediction of

future criminal acts. Id. at 539 n.7. No such predic-

tive information was provided by the anonymous

sources in Torres. Finally, the Court explained that

the affiant’s observation of the vehicle parked outside

Torres’ apartment complex (which matched the descrip-

tion of the car seen fleeing from the murder scene) was

not sufficient corroboration of the anonymous source’s

App. 17

information. The Court explained that there was no

clear indication in the affidavit as to how the police

obtained their description of the fleeing vehicle. Even

though the affidavit explained that the vehicle had a

New York license plate, which was consistent with

information that Torres indicated he was from New

York, the affidavit did not provide that the police

linked the plate to Torres or his co-defendant. Id. at

539-540.

412 The Supreme Court concluded in Torres:

Although the basis of knowledge and verac-

ity of anonymous sources are only factors to

be considered by the issuing authority in

making probable cause determinations, they

retain a vital role in cases such as the in-

stant one, where the affidavit of probable

cause is almost entirely based on information

gleaned from anonymous sources. Where, as

here, there is no attempt made to estab-

lish either the basis of knowledge of the

anonymous sources or their general ve-

racity, a strong showing of the reliabil-

ity of the information that they have

relayed to the police in the specific case

is required in order to support a finding

of probable cause. Such a showing is sim-

ply not made by the affidavit of probable

cause in the instant case.

Id. at 540 (emphasis added).

413 The case presently before us is distinguishable

from Torres. The affidavit at issue here was presented

App. 18

as part of the application for a search warrant on

October 27, 2004. The affiant provided that on August

31, 2004, a confidential source advised Detective

James Kelly of the Upper Moreland Police Depart-

ment that the Warren Street property was abandoned

and that marijuana plants were growing inside. That

day, Detective Altieri went to the Warren Street

property and found the property locked up, the win-

dows covered, and the air conditioning unit on the

second floor turned on. In addition, the back deck of

the property was overgrown with weeds. The affidavit

provided that Detective Altieri spoke to an unidenti-

fied neighbor who informed him that a white male

typically arrived at the Warren Street property once

per week, stayed a few hours, and then would leave.

The neighbor stated that the man drove a silver

pickup truck.

4114 The affidavit further provided that Sergeant

Robert Sobeck of the Norristown Police Department

performed periodic checks of the Warren Street

property. During these checks, he noticed that there

was no change in the condition of the property and

the lights on the first floor stayed on all night. In

addition, the affidavit indicated that Detective Alti-

erl’s investigation revealed that Appellant was the

lessee of the property and that he had previously

been arrested for possession of marijuana.

App. 19

715 The affidavit also cited two tips from anony-

mous females.° The first anonymous tip provided that

nobody lived at the Warren Street property and that

it was being used as a “front” for a marijuana growing

operation. The second anonymous source indicated

that a white male visited the property once per week

and was seen removing large trash bags under cover

of darkness. The affidavit indicated that the second

anonymous female stated that she and her neighbors

wished to remain anonymous out of fear for their

safety.

4716 The affiant indicated that in the month prior to

filing the application for a search warrant, he con-

tinuously checked the property and found no sign of

Appellant or his vehicle. During the checks in the

middle of the night, the affiant noticed that the lights

remained on, the air conditioning remained on, and

the windows and doors remained covered.

{17 The affidavit provided that a warrant to use a

thermal imaging device on the property was obtained

on October 8, 2004. The thermal imaging scan was

conducted on October 12, 2004. Due to cold weather

conditions, an accurate reading could not be obtained.

Nevertheless, the scan revealed two air conditioners

running on the second floor of the property.

* We note that it is unclear from the affidavit whether there

were two separate anonymous female sources, or two separate

tips from the same source.

App. 20

718 The affidavit also provided that the affiant

spoke with two confidential sources. One of these

sources stated that he/she smelled “skunk weed,” a

term commonly used to describe home grown mari-

juana, coming from the Warren Street property. The

other source informed the affiant that he/she person-

ally saw marijuana growing inside the Warren Street

property and that after the police began “snooping”

around in late August, a person came and cleaned out

overgrown weeds in the rear of the property and

covered the windows more thoroughly. Both sources

stated that the occupant came home only periodically

and had not been there within the previous week.

Again, the affidavit stated the confidential infor-

mants did not want their identity revealed because

they feared retaliation.

719 Here, unlike in Torres, the affidavit in ques-

tion provided information regarding the basis of the

confidential sources’ knowledge. For example, the

affidavit specifically provided that one of the confi-

dential sources told the affiant that he/she smelled

“skunk weed,” and another source said they saw

marijuana growing inside the Warren Street property.

In addition, the veracity of the sources’ information

was corroborated by independent police investigation.

After the first anonymous tip on August 31, 2004,

multiple law enforcement officers began periodic

checks of the property. They saw the property as the

multiple sources described it with windows covered

and air conditioning units running inside. Further-

more, the officers attempted to conduct a thermal

App. 21

imaging scan of the property. Although the scan

provided inconclusive results, it did reveal air condi-

tioning units running inside the property in cold

weather, as multiple sources had indicated to police.

While the information that the officers corroborated

was not necessarily criminal in nature, it was consis-

tent with a marijuana growing operation. Finally, the

information that was corroborated by the officers in

this case was not “publicly available” in the same

sense as the information corroborated by the affiant

in Torres, who simply corroborated the source by

looking in the phone book.

7 20 We have reviewed the four corners of the

affidavit filed in support of the search warrant for

Appellant’s Warren Street property. We conclude that

the affidavit provided a substantial basis to support

the issuing authority’s finding of probable cause to

search. Furthermore, because we conclude the search

of the Warren Street property was legal, it follows

that Appellant’s claim that the evidence obtained

from the Sterigere Street property is fruit from a

poisonous tree also fails. Accordingly, we will not

disturb the suppression court’s denial of the motion to

suppress. Appellant’s first two issues are without

merit.

421 In Appellant’s final issue he claims that the

evidence was not sufficient to support his conviction

on Bill 9849.2 for possession of marijuana with intent

to distribute. More specifically, Appellant argues the

Commonwealth failed to establish the corpus delicti

for the crimes charged on Bill 9849.2. Appellant

App. 22

claims that the evidence the trial judge relied upon in

finding him guilty was limited to his oral and written

admissions that he possessed 21 to 50 marijuana

plants between March 5, 2003 and October 30, 2004.

He asserts that the court erred in relying on his

admissions because there was no evidence presented

that the crime occurred. He claims, therefore, that his

admissions should not have been considered by the

court in reaching its verdict. See Appellant’s Brief at

29.

{22 Initially, we point out that even though Appel-

lant has framed his argument as a challenge to the

sufficiency of the evidence, the corpus delicti rule

applies to the admissibility of evidence. See Com-

monwealth v. Dupre, 866 A.2d 1089, 1097 (Pa.

Super. 2005), appeal denied, 879 A.2d 781 (Pa. 2005).

“Our standard of review on appeals challenging an

evidentiary ruling of the trial court is limited to a

determination of whether the trial court abused its

discretion.” Id. To the extent that Appellant’s argu-

ment challenges the sufficiency of the evidence, we

note that our standard of review for such claims is

also limited:

The standard we apply in reviewing the suf-

ficiency of evidence is whether, viewing all

the evidence admitted at trial in the light

most favorable to the verdict winner, there is

sufficient evidence to enable the factfinder to

find every element of the crime beyond a

reasonable doubt.

App. 23

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa.

Super. 2006).

{23 The corpus delicti rule provides that the Com-

monwealth bears a burden of showing that the

charged crime actually occurred before a confession or

admission by the accused can be admitted as evi-

dence. See Commonwealth v. Rivera, 828 A.2d

1094, 1103 (Pa. Super. 2003), appeal denied, 842 A.2d

406 (Pa. 2004). “The corpus delecti sic] is literally the

body of the crime; it consists of proof that a loss er

injury has occurred as a result of the criminal conduct

of someone.” Id. “The purpose of the corpus delicti

rule is to guard against ‘the hasty and unguarded

character which is often attached to confessions and

admissions and the consequent danger of a conviction

where no crime has in fact been committed.’” Com-

monwealth v. Edwards, 903 A.2d 1139, 1158 (Pa.

2006), quoting Commonwealth v. Reyes, 681 A.2d

724, 727 (1996) (“Reyes I”).

124 In Commonwealth v. Reyes, 870 A.2d 888

(Pa. 2005) (“Reyes II”), our Supreme Court explained

that Pennsylvania law requires courts to apply the

corpus delicti ru e in two phases:

In the first phase, the court determines

whether the Commonwealth has proven the

corpus delicti of the crimes charged by a pre-

ponderance of the evidence. If so, the confes-

sion of the defendant is admissible. In the

second phase, the rule requires that the Com-

monwealth prove the corpus delicti to the fact-

finder’s satisfaction beyond a_ reasonable

App. 24

doubt before the factfinder is permitted to

consider the confession in assessing the de-

fendant’s innocence or guilt.

Id. at 894 n.4 (citations omitted).

4 25 Pennsylvania has adopted an exception to the

corpus delicti rule. This exception, known as the

“closely related crimes” exception, provides:

[Wlhere a defendant’s confession relates to

separate crimes with which he is charged,

and where independent evidence establishes

the corpus delicti of only one of those crimes,

the confession may be admissible as evidence

of the commission of the other crimes. This

exception applies only where the relationship

between the crimes is sufficiently close so as

to ensure that the purpose underlying the

corpus delicti rule, i.e., to prevent conviction

where no crime has occurred, is not violated.

Dupre, 866 A.2d at 1099.

{26 In the instant matter, the record reflects the

following. The Commonwealth initially filed 23

separate Bills of Information charging Appellant with

multiple violations of the Drug Act between the dates

of March 5, 2003 and October 30, 2004. The location

of these offenses was both the Warren Street and the

Sterigere Street properties. The Commonwealth con-

solidated the charges into one Bill, number 9849.2,

because all of the charges stemmed from a continuous

course of conduct by Appellant. See N.T., 3/29/03, at

25-30.

App. 25

{27 Following his arrest, on October 27, 2004,

Appellant made a statement to police in which he

admitted that he had been growing and selling mari-

juana for over one and one-half years. Appellant

argues that this statement should not have been

admitted into evidence or considered by the court in

reaching its verdict because the corpus delicti of the

crime was not established. We disagree.

{28 The record reflects that the Commonwealth

introduced into evidence several photographs show-

ing Appellant with marijuana plants. In addition, the

Commonwealth introduced numerous calendars that

had been found during the search of Appellant’s

properties. On these calendars, on specific dates,

were handwritten notes indicating when plants were

to be watered as well as projected harvesting dates

and other information related to harvesting. These

dates spanned from March 2003, through October

2004. Furthermore, the search of Appellant’s Warren

and Sterigere Street properties revealed multiple

marijuana plants at these locations. This combined

evidence was certainly sufficient to establish by a

preponderance of the evidence that Appellant was

involved in an ongoing operation of growing mari-

juana. Therefore, the corpus delicti was sufficiently

proven and the court did not abuse its discretion in

admitting Appellant’s statement to police into evi-

dence. Moreover, the combined evidence was suffi-

cient to establish beyond a reasonable doubt that

Appellant violated the Drug Act between March 2003

and October 2004. Therefore, we conclude that the

App. 26

trial court did not act erroneously or abuse its discre-

tion in considering Appellant’s admission in reaching

its verdict. Reyes I.

47 29 Furthermore, even if the corpus delicti for the

crimes charged in Bill 9849.2 was not established by

independent evidence, we nevertheless would affirm

the trial court based on the “closely related crimes”

exception. At the very least, Appellant’s statement to

the police was related to his other drug charges on

Bills 9849 and 9849.1. The corpus delicti for those

charges is not in dispute. Therefore, because inde-

pendent evidence established the corpus delicti of the

other crimes charged, Appellant’s confession was

properly considered as evidence for the closely related

charges on Bill 9849.2. Dupre.

{30 For the reasons set forth above, Appellant’s

conviction on Bill of Information 9849.2 was sup-

ported by sufficient evidence. Appellant’s arguments

to the contrary fail. Accordingly, we affirm the judg-

ment of sentence.

{31 Judgment of sentence affirmed.

Judgment Entered.

/s/ Karen Reid Bramblett

Prothonotary

Date:

App. 27

2007 WL 4555270

Supreme Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Respondent

v. Patrick H. OTTERSON, Petitioner.

No. 961 MAL 2007.

Dec. 28, 2007.

Petition for Allowance of Appeal from the Order

of the Superior Court entered August 21, 2007, at No.

1968 EDA 2006, affirming the Judgment of Sentence

of the Court of Common Pleas of Montgomery County,

Criminal Division, entered July 20, 2006, at No. CP-

46-CR-0009849-2004.

ORDER

PER CURIAM.

AND NOW, this 28th day of December, the Peti-

tion for Allowance of Appeal is hereby GRANTED, the

Order of the Superior Court is VACATED, and the

matter is REMANDED to the Superior Court for

consideration in light of Commonwealth v. Torres,

764 A.2d 532 (Pa.2001).

App. 28

COMMONWEALTH OF : IN THE SUPERIOR

PENNSYLVANIA, : COURT OF

Appellee - PENNSYLVANIA

PATRICK H. OTTERSON, .

Appellant : No. 1968 EDA 2006

ORDE

AND NOW, this 19th day of October, 2007, IT IS

HEREBY ORDERED:

THAT the application filed September 4, 2007, re-

questing reargument/reconsideration of the decision

dated August 21, 2007, is DENIED.

PER CURIAM

App. 29

COMMONWEALTH : IN THE SUPERIOR

OF PENNSYLVANIA, COURT OF

é PENNSYLVANIA

ppellee

PATRICK H. OTTERSON,

Appellant . No. 1968 EDA 2006

Appeal from the Judgment of Sentence July 20, 2006,

In the Court of Common Pleas of Montgomery County,

Criminal Division at No. CP-46-CR-0009849-2004.

BEFORE: LALLY-GREEN, GANTMAN and POP-

OVICH, JJ.

MEMORANDUM: FILED AUGUST 21, 2007

Appellant Patrick H. Otterson appeals from the

judgment of sentence entered on July 20, 2006, in the

Court of Common Pleas of Montgomery County,

following his conviction for possession with intent to

deliver (‘PWID”) marijuana,’ violation of the Uniform

Firearms Act,’ and related offenses. Upon review, we

affirm.

The relevant facts and procedural history of this

case were fully set forth in the trial court opinion as

follows:

' 35 P.S. § 780-113(a)(30).

* 18 Pa.C.S.A. § 6105 (persons not to possess, use, manufac-

ture, control, sell or transfer firearms).

App. 30

On March 30, 2006, [Appellant] was con-

victed of three separate Bills of Information

for violation of the Controlled Substance,

Drug, Device, and Cosmetic Acts (the “Drug

Act”) and for possession of a firearm. The

main Bill charged three counts of violation of

the Drug Act for possession and manufacture

of marijuana plants between October 27,

2004[,] and October 29, 2004[,] at 420 West

Warren Street, Norristown, Montgomery

County, Pennsylvania (hereinafter, the “War-

ren Street property”). Bill of Information

9849.1 charged the same counts for posses-

sion and manufacture of marijuana plants

between October 29, 2004[,] and October 30,

2004[,] at 1202-1208 Sterigere Street, Nor-

ristown, Montgomery County, Pennsylvania

(hereinafter, the “Sterigere Street property”).

Bill of Information 9849.2 charged [Appel-

lant] with the same three counts for continu-

ous manufacture and possession of marijuana

plants between March 5, 2003[,] and October

30, 2004[,] at both the Sterigere Street prop-

erty and the Warren Street property. These

convictions were the result of events that

took place between October 27 and October

30, 2004.

On October 27, 2004, Officer Eugene

Parsley of the Norristown Police Department

executed a search warrant on the Warren

Street property. As a result of the search, the

police seized 64 marijuana plants, hydro-

ponic lamps, two light timers, a timer for an

air conditioner, duct work, and filter and

fluorescent lights, among other items. The

App. 31

Affidavit of Probable Cause executed by Offi-

cer Parsley may be summarized as follows:

On August 31, 2004, Detective

Michael Altieri of the Montgomery

County Narcotics Enforcement Team

received information from Upper

Moreland Police Detective James

Kelly that a confidential source pro-

vided him with information that the

Warren Street property was aban-

doned, and that there was mari-

juana growing inside the residence

at that location. The confidential

source stated that he/she has seen

marijuana plants growing in pots on

the first floor inside that reside::ce;

On August 31, 2004, Detective Alti-

eri went to the Warren Street prop-

erty to corroborate the information

from Detective Kelly. It appeared

that the property was locked up; the

windows were all covered; and an

air conditioner was running on the

second floor, front;

A resident of the 400-block of West

Warren Street told Detective Altieri

that a white male lives at the War-

ren Street property on a part-time

basis; that he drives a silver pick-up

truck; only arrives once a week,

stays for a couple of hours and then

leaves;

App. 32

Periodic checks of the property by

the police revealed that the lights on

the first floor stayed on all night. A

check of the entire neighborhood by

the police failed to locate the pick-up

truck;

The detective learned that [Appel-

lant] is the lessee of 420 West

[Warren] Street, Norristown, Penn-

sylvania, and that [Appellant] had

been arrested in the past for posses-

sion of a small amount of marijuana;

On September 14, 2004, an anony-

mous female called the Norristown

Police to report that marijuana was

being grown inside the Warren

Street property; that no one lives

there, and that it was just a “front.”

In response to the call, Officer

Christopher Narkin went to the lo-

cation and observed that the resi-

dence was locked up, and the

windows were covered so no one

could see inside. He reported his

findings to Detective Altieri because

he felt that there was something

suspicious about how the residence

was covered up;

On September 16, 2004, a second

anonymous female called Detective

Altieri and stated that marijuana

was growing inside the Warren

Street property. She said that a

App. 33

white male arrives about once a

week and removes large trash bags

from the residence under the cover

of darkness and loads them onto his

pick-up truck, that the air condi-

tioners and lights operate on a

timer, and that the man does not

live there. She also said that one of

the neighbors has seen marijuana

growing on the first floor and that

she and the neighbors feared for

their safety and preferred to remain

anonymous for this reason;

Periodic checks of the property by

the investigating police officers dur-

ing the month prior to the issuance

of the search warrant on October 27,

2004[,] failed to reveal any sign of

[Appellant] or the pick-up truck. Yet,

the lights were seen to be always lit

on the first floor, the windows and

doors were covered up and the air

conditioner was running on the sec-

ond floor, even in extremely cool

weather.

On October 8, 2004, [the trial court]

issued a sealed search warrant for

the use of a thermal imaging device

at the Warren Street property.

On October 12, 2004, the thermal

imaging scan was conducted, but

due to the cold weather conditions

(surrounding properties had their

App. 34

heat on), an accurate reading could

not be obtained. Two air condition-

ers on the second floor were run-

ning, despite the cold weather;

On October 27, 2004, Detective Jef-

frey Koch reported to Detective Alti-

eri that an unknown female had

telephoned the Drug Tip Hotline

and left a message that marijuana

was growing inside the Warren

Street property; that no one lives

there; that a suspicious male goes to

the residence periodically; and that

the neighbors have smelled strange

odors emanating from the property;

On October 27, 2004, Officer Parsley

and Detective Altieri spoke to a con-

fidential informant who told them

that he/she smelled the strong odor

of “skunk weed” or “homegrown”

marijuana coming from the Warren

Street property;

On October 27, 2004, Officer Parsley

and Detective Altieri also spoke to

another confidential informant who

reported that he/she personally had

seen marijuana growing inside the

Warren Street property. This person

also said that, after the police be-

gan to investigate the property in

late August, the occupant appeared

to clear up the overgrown weeds

and also covered the windows more

App. 35

thoroughly so no one could see in-

side. The confidential informant also

said the air conditioners still go on

every night, even with the cold

weather;

Both confidential informants said

that the occupant only comes to the

residence periodically and that he

“hasn't been seen there since last

week.”

While the officers were executing the

search warrant at the Warren Street prop-

erty, [Appellant] arrived. Upon seeing the of-

ficers, [Appellant] fled, but was apprehended

with his girlfriend a short time later. That

same night, [Appellant] was arrested and

read his Miranda warnings. He gave a

statement admitting that he had harvested

approximately 50 marijuana plants four

months earlier. [Appellant] thle]n signed a

consent to search form for another one of his

residences located at 2804 Village Green

Lane, Norristown, Montgomery County,

Pennsylvania. As a result of this search, the

police seized calendars denoting different

harvest dates. Many of these harvest dates

overlapped[,] suggesting that [Appellant]

had more than one location where he [grew]

marijuana. The calendars included harvest

dates between March 5, 2003[,] and October

30, 2004. The calendars and [Appellant’s]

statement formed the basis for [Appellant’s]

conviction on Bill of Information 9849.2.

App. 36

On October 29, 2004, Detective Altieri

executed a search warrant on the Sterigere

Street property, the address shown on [Ap-

pellant’s] driver’s license. As a result of the

search, the police seized a total of 121 potted

marijuana plants, calendars, hydroponic

lamps, and a double barrel shotgun, among

other items.

Subsequently, [Appellant] filed a motion

to suppress the evidence seized pursuant to

the search warrants. A hearing on this mo-

tion was held on November 3, 2005[,] in front

of the Honorable William T. Nicholas. On

December 5, 2005, Judge Nicholas entered

an Order denying [Appellant’s] motion and

placed his findings of fact and conclusions of

law on the record. [Appellant’s} trial was

held on March 29, 2006[,] and March 30,

2006. The [trial court] found [Appellant]

guilty of the three Bills of Information charg-

ing [Appellant] [with] violations of the Drug

Act. On July 25, 2006, [Appellant} was sen-

tenced to not less than 5 years on the main

Bill, not less than 5 years on Bill of Informa-

tion 9849.1 and 3 to 5 years on Bill of

Information 9849.2. These sentences were

to run concurrent with one another. [The

trial court] also sentenced [Appellant] to 1

to 5 years for possession of a firearm to

run consecutive with the other sentences.

[Appellant] appealed his judgment of sen-

tence on July 25, 2006. In accordance with

[Rule] 1925(b) of the Pennsylvania Rules of

App. 37

Appellate Procedure, [the trial court] di-

rected [Appellant] to file a Concise State-

ment of Matters Complained of on Appeal no

later than August 8, 2006. Appellant filed

such statement on August 4, 2006.

Trial Court Opinion, 9/5/2006, at 1-5 (footnotes omit-

ted).

On appeal, Appellant presents the following

issues for our review:

1. Did the [trial] court] err in denying the

Appellant’s Motion to Suppress Evidence

seized as the result of an execution of a

search warrant which lacked probable

cause for 420 W. Warren Street, Norris-

town, PA?

Did the [trial court] err in denying the

Appellant’s Motion to Suppress evidence

seized t 1202 Sterigere Street, Norris-

town, PA which was tainted by the ille-

gal search and seizure conducted at 420

W. Warren Street and which was not

supported by independent and lawfully

acquired probable cause?

Was the evidence insufficient as a mat-

ter of law to establish the Appellant’s

guilt beyond a reasonable doubt on Bill

No. 9849.2 where the [Commonwealth]

did not establish that a corpus deliciti

existed as to this offense?

Appellant’s Brief, at 4.

App. 38

In his first and second issues, Appellant chal-

lenges the trial court’s denial of his motion to sup-

press. Appellant first argues that the affidavit of

probable cause was not sufficient to support the

search warrant for the Warren Street property. Spe-

cifically, Appellant asserts that the confidential

informants did not have a history of reliability, there

was no showing of how the informants acquired their

information, and the information was not corrobo-

rated by independent police investigation. See Appel-

lant’s Brief at 11. In a related argument, Appellant

asserts that because the search of the Warren Street

property was improper, the warrant obtained for the

Sterigere Street property was unlawful as “fruit of a

poisonous tree.” Id. at 20. Our review of such claims

is governed by the following, well established, stan-

dards:

Our standard of review of a denial of sup-

pression is whether the record supports the

trial court’s factual findings and whether the

legal conclusions drawn therefrom are free

from error. Our scope of review is limited; we

may consider only the evidence of the prose-

cution 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 Jegal conclusions based upon

the facts.

App. 39

Commonwealth v. Brown, 2007 PA Super 149, 4 6,

quoting Commonwealth v. Reppert, 814 A.2d 1196,

1200 (Pa. Super 2002).

We have thoroughly reviewed the certified record,

the parties’ briefs, and the findings of fact and conclu-

sions of law issued by Judge William T. Nicholas,

dated December 5, 2005. The record reveals support

for Judge Nicholas’s findings of fact and we are

satisfied that the legal conclusions drawn from those

facts are not erroneous. Therefore, we adopt Judge

Nicholas’s analysis related to the legitimacy of the

warrant for the Warren Street property as our own.

See Findings of Fact, Conclusions of Law and Order

Sur Defendant’s Motion to Suppress Evidence,

12/5/05, at 1-7, 12. Furthermore, because we conclude

that the search of the Warren Street property was

legal, it follows that Appellant’s ciaim that the evi-

dence obtained from the Sterigere Street property is

fruit from a poisonous tree also fails. Accordingly, we

will not disturb the suppression court’s denial of the

motion to suppress. Appellant’s first two issues are

without merit.

In Appellant’s final issue he claims that the

evidence was not sufficient to support his conviction

on Bill 9849.2 for possession of marijuana with intent

to distribute. More specifically, Appellant argues the

Commonwealth failed to establish the corpus delicti

for the crimes charged on Bill 9849.2. Appellant

claims that the evidence the trial judge relied upon in

finding him guilty was limited to his oral and written

admissions that he possessed 21 to 50 marijuana

App. 40

plants between March 5, 2003 and October 30, 2004.

He asserts that the court erred in relying on his

admissions because there was no evidence presented

that the crime occurred. He claims, therefore, that his

admissions should not have been considered by the

court in reaching its verdict. See Appellant’s Brief at

29.

Initially, we point out that even though Appellant

has framed his argument as a challenge to the suffi-

ciency of the evidence, the corpus delicti rule applies

to the admissibility of evidence. See Commonwealth

v. Dupre, 866 A.2d 1089, 1097 (Pa. Super. 2005),

appeal denied, 879 A.2d 781 (Pa. 2005). “Our stan-

dard of review on appeals challenging an evidentiary

ruling of the trial court is limited to a determination

of whether the trie! court abused its discretion.” Jd.

To the extent that Appellant’s argument challenges

the sufficiency of the evidence, we note that our

standard of review for such claims is also limited:

The standard we apply in reviewing the suf-

ficiency of evidence is whether, viewing all

the evidence admitted at trial in the light

most favorable to the verdict winner, there is

sufficient evidence to enable the factfinder to

find every element of the crime beyond a

reasonable doubt.

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa.

Super. 2006).

The corpus delicti rule provides that the Com-

monwealth bears a burden of showing that the

App. 41

charged crime actually occurred before a confession or

admission by the accused can be admitted as evi-

dence. See Commonwealth v. Rivera, 828 A.2d

1094, 1103 (Pa. Super. 2003), appeal denied, 842 A.2d

406 (Pa. 2004). “The corpus delecti {sic} is literally the

body of the crime; it consists of proof that a loss or

injury has occurred as a result of the criminal conduct

of someone.” Id. “The purpose of the corpus delicti

rule is to guard against ‘the hasty and unguarded

character which is often attached to confessions and

admissions and the consequent danger of a conviction

where no crime has in fact been committed.’” Com-

monwealth v. Edwards, 903 A.2d 1139, 1158 (Pa.

2006), quoting Commonwealth v. Reyes, 681 A.2d

724, 727 (Pa. 1996) (“Reyes I’).

In Commonwealth v. Reyes, 870 A.2d 888 (Pa.

2005) (“Reyes II”), our Supreme Court explained that

Pennsylvania law requires courts to apply the corpus

delicti rule in two phases:

In the first phase, the court determines

whether the Commonwealth has proven the

corpus delicti of the crimes charged by a pre-

ponderance of the evidence. If so, the confes-

sion of the defendant is admissible. In the

second phase, the rule requires that the

Commonwealth prove the corpus delicti to

the factfinder’s satisfaction beyond a reason-

able doubt before the factfinder is permitted

to consider the confession in assessing the

defendant’s innocence or guilt.

Id. at 894 n.4 (citations omitted).

App. 42

Pennsylvania has adopted an exception to the

corpus delicti rule. This exception, known as the

“closely related crimes” exception, provides that:

[Where a defendant’s confession relates to

separate crimes with which he is charged,

and where independent evidence establishes

the corpus delicti of only one of those crimes,

the confession may be admissible as evidence

of the commission of the other crimes. This

exception applies only where the relationship

between the crimes is sufficiently close so as

to ensure that the purpose underlying the

corpus delicti rule, i.e., to prevent conviction

where no crime has occurred, is not violated.

Dupre, 866 A.2d at 1099.

In the instant matter. the record reflects the

following. The Commonwealth initially filed 23

separate Bills of Information charging Appellant with

multiple violations of the Drug Act between the dates

of March 5, 2003 and October 30, 2004. The location

of these offenses was both the Warren Street and

the Sterigere Street properties. The Commonwealth

consolidated the charges into one Bill, number

9849.2, because all of the charges stemmed from a

continuous course of conduct by Appellant. See N.T.,

3/29/03, at 25-30.

Following his arrest, on October 27, 2004, Appel-

lant made a statement to police in which he admitted

that he had been growing and selling marijuana for

over one and one-half years. Appellant argues that

this statement should not have been admitted into

App. 43

evidence or considered by the court in reaching its

verdict because the corpus delicti of the crime was not

established. We disagree.

The record reflects that the Commonwealth

introduced into evidence several photographs show-

ing Appellant with marijuana plants. In addition, the

Commonwealth introduced numerous calendars that

had been found during the search of Appellant’s

properties. On these calendars, on specific dates,

were handwritten notes indicating when plants were

to be watered as well as projected harvesting dates

and other information related to harvesting. These

dates spanned from March 2003, through October

2004. Furthermore, the search of Appellant’s Warren

and Sterigere Street properties revealed multiple

marijuana plants at these locations. This combined

evidence was certainly sufficient to establish by a

preponderance of tne evidence that Appellant was

involved in an ongoing operation of growing mari-

juana. Therefore, the corpus delicti was sufficiently

proven and the court did not abuse its discretion in

admitting Appellant’s statement to police into evi-

dence. Moreover, the combined evidence was suffi-

cient to establish beyond a reasonable doubt that

Appellant violated the Drug Act between March 2003

aad October 2004. Therefore, we conciude that the

trial court did not act erroneously or abuse its discre-

tion in considering Appellant’s admission in reaching

its verdict. Reyes IT.

Furthermore, even if the corpus delicti for the

crimes charged in Bill 9849.2 was not established by

App. 44

independent evidence, we nevertheless would affirm

the trial court based on the “closely related crimes”

exception. At the very least, Appellant’s statement to

the police was related to his other drug charges on

Bills 9849 and 9849.1. The corpus delicti for those

charges is not in dispute. Therefore, because inde-

pendent evidence established the corpus delicti of the

other crimes charged, Appellant’s confession was

properly considered as evidence for the closely related

charges on Bill 9849.2. Dupre.

For the reasons set forth above, Appellant’s

conviction on Bill of Information 9849.2 was sup-

ported by sufficient evidence. Appellant’s arguments

to the contrary fail. Accordingly, we affirm the judg-

ment of sentence, in part on the basis of the suppres-

sion court’s findings of fact and conclusions of law.

Judgment of sentence affirmed.

Popovich, J. files a Dissenting Memorandum.

Judgment Entered.

/3s/ Karen Reid Bramblett

Prothonotary

Date:

App. 45

FILED AUGUST 21, 2007

DISSENTING MEMORANDUM BY POPOVICH, J.:

Respectfully, I dissent from the Majority’s affir-

mation of the trial court’s denial of Appellant’s sup-

pression motisn. Based upon my review of the record,

I would reverse the trial court’s order and suppress

the evidence obtained from the search of both the

Warren Street property and the Sterigere Street

property and would remand the case to the trial

court. Consequently, I would not reach Appellant’s

final issue regarding the corpus delicti rule.

When testing the sufficiency of an affidavit to

obtain a search warrant, this Court applies the

following guidelines:

Before an issuing authority may issue a

constitutionally valid search warrant, he or

she must be furnished with information suf-

ficient to persuade a reasonable person that

probable cause exists to conduct a search.

The information offered to demonstrate

probable cause must be viewed in a common

sense, nontechnical, ungrudging and positive

manner. It must also be remembered that

probable cause is based on a finding of the

probability, not a prima facie showing of

criminal activity, and that deference is to be

accorded a magistrate’s finding of probable

cause. [ ... ]. And the duty of the reviewing

court is simply to ensure that the magistrate

had a substantial basis for [... ] concluding

that probable cause existed.

App. 46

Commonwealth v. Wilkinson, 647 A.2d 583, 585-86

(Pa. Super. 1994) (citations and quotation marks

omitted).' Additionally, the propriety of the issuance

of a search warrant to an affiant must be judged

solely upon the information before the magisterial

district judge at the time of its issuance. Id., 647 A.2d

at 586 (citation and quotation marks omitted). Con-

sequently, the magistrate’s decision must be based on

the four corners of the affidavit in support of the

issuance of the warrant. Id., 647 A.2d at 586 (citation

and quotation marks omitted).

Often, the basis for issuing a search warrant

arises from information provided to police by an

informant’s tip. The reliability of an informant should

be established by some objective facts that would

enable any court to conclude that the informant was

reliable. See Commonwealth v. Smith, 784 A.2d

182, 187 (Pa. Super. 2001) (citation omitted). To that

end, the informant’s veracity, reliability, and basis of

knowledge must be assessed by the magistrate who is

to issue the search warrant. In the Interest of O.A.,

552 Pa. 666, 676, 717 A.2d 490, 495 (1998) (plural-

ity).” Where the reliability of the informant is not

established, the totality of the circumstances sur-

rounding the tip must provide sufficient indicia of

‘ This test is known as the “totality of the circumstances”

test. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921

(1985).

* Although In the Interest of O.A. was a plurality decision

of our Supreme Court, I note that its reasoning was adopted by

this Court in Smith. See, Smith, 784 A.2d at 187.

App. 47

reliability to support a finding of probable cause.

Smith, 784 A.2d at 187. Corroboration by police

investigation of the details of an informant’s tip can

provide sufficient indicia of reliability to an otherwise

unreliable tip. In the Interest of O.A., at 680, 717

A.2d at 497. On this subject, our Supreme Court has

held the following:

When police are relying on an infor-

mant’s tip, it is important that the tip pro-

vide information that demonstrates “inside

information” [which represents] a_ special

familiarity with the defendant’s affairs. If

the tip provides inside information, then po-

lice corroboration of this inside information

can impart additional reliability to the tip. If

the facts that are supplied by the tip itself

are no more than those easily obtained, then

the fact that the police corroborated them is

of no moment. I[t is only where the facts pro-

vide inside information, which represent(s] a

special familiarity with a defendant’s affairs,

that police corroboration of the information

imparts indicia of reliability to the tip to

support a finding of probable cause. Thus,

police corroboration of an informant’s tip en-

hances the indicia of reliability and thereby

strengthens the determination that the facts

and circumstances surrounding the tip war-

rant a finding of probable cause.

In the Interest of O.A., at 681-82, 717 A.2d at 498

(citations omitted); see also Smith, 784 A.2d at 187

(citing In the Interest of O.A., at 681-82, 717 A.2d at

498).

App. 48

I cannot conclude that the magisterial district

judge’s decision to issue a search warrant was sup-

ported by sufficient information. In my view, except

for the informants who stated that they saw mari-

juana being grown inside the Warren Street property,

the four corners of the affidavit fail to demonstrate

the informants’ bases of knowledge regarding Appel-

lant’s alleged criminal activity therein. Likewise, my

reading of the affidavit demonstrates that the affida-

vit fails to show the reliability of the informants on

its face. The Commonwealth concedes these points,

but it asserts that the tips set forth in the affidavit

were reliable and, therefore, generated probable

cause because they were corroborated by independent

police investigation. See Smith, 784 A.2d at 187. My

review of the affidavit indicates that the only facts

corroborated by the police via their investigation were

as follows: (1) Appellant was not present at the War-

ren Street property during their investigation, de-

spite his status as lessee of the property; (2) the air

conditioners and lights were on continuously at night,

despite Appellant’s absence; (3) the windows were

covered; and (4) the Warren Street property was

locked. I would conclude that these facts are non-

criminal in nature, were easily obtained by the police,

and do not point with a high degree of probability

that Appellant was engaged in a marijuana growing

operation. Consequently, I would also conclude that

the affidavit was, on its face, insufficient to support

the issuance of a search warrant of the Warren Street

property. Id., 784 A.2d at 187 (citing In the Interest

of O.A., at 681-82, 717 A.2d at 498). Indeed, my

App. 49

reading the affidavit indicates that none of the infor-

mants’ allegations of criminal activity were ever

corroborated by police investigation.

Nevertheless, as the Commonwealth argues, the

credibility of an anonymous “concerned citizen” tip is

difficult to evaluate, but an otherwise unreliable tip

may be rendered reliable and, thus, supportive of

probable cause if corroborated by a second, independ-

ent tip. See Commonwealth v. Cramutola, 676

A.2d 1214, 1216-17 (Pa. Super. 1996). Despite this

principle, it is my belief that, in the present case, the

tips from anonymous “concerned citizens” and the

tips from the confidential informants presented

information that was substantially similar to each

other. Based on the similarity of these tips, I am led

to the conclusion that these tips provided information

that could have been obtained easily by the police and

were, therefore, not sufficient to form the basis for a

warrant. Smith, 784 A.2d at 187 (citing In the

Interest of O.A., at 681-82, 717 A.2d at 498) (If facts

that are supplied by the tip itself are no more than

those easily obtained, then the fact that the police

corroborated them is of no moment.). Consequently, I

cannot join in the Majority’s conclusion that the

allegations within the affidavit were sufficient for the

issuance of a search warrant for the Warren Street

property. Id., 784 A.2d at 187 (citing In the Interest

of O.A., at 681-82, 717 A.2d at 498). Therefore, I

would conclude the evidence obtained from the search

should have been suppressed by the trial court.

App. 50

Based on my above conclusion, I would also find

that the evidence obtained from the search of the

Sterigere Street property was the “fruit of the poison-

ous tree.” See, e.g., Commonwealth v. Hernandez,

892 A.2d 11, 20 (Pa. Super. 2006). My review of the

facts of this case indicates that the police learned of

the Sterigere Street property only after Appellant

was arrested at the Warren Street property following

the illegal search, provided a statement (not referring

to the Sterigere Street property), and gave permission

to the police to search his primary residence at 2804

Village Green Lane, Lower Providence Township,

whereat the police discovered three different calen-

dars indicating different marijuana harvest dates.

Thereafter, the police learned from Appellant’s

driver’s license that Appellant also had an address at

the Sterigere Street property. Accordingly, 1 would

find that the information regarding the three harvest

dates (and three possible growing locations) in Appel-

lant’s primary residence would not have been ob-

tained save for Appellant’s arrest and statement

stemming from the illegal search of the Warren

Street property.

The Commonwealth alleges that the evidence

obtained from Sterigere Street would have been

discovered inevitably and, therefore, it was purged of

its taint of illegality. See, e.g., Commowealth v.

Ingram, 814 A.2d 264, 272 (Pa. Super. 2002). I do not

find this argument convincing. My review of the

affidavit for the Warren Street property indicates

that the affidavt does not mention the Sterigere

App. 51

Street property, despite the information on Appel-

lant’s driver’s license (which information the police

had access to prior to the execution of the Warren

Street search). Likewise, my review of the record

indicates that the suspicion that marijuana was

growing at the Sterigere Street property arose only

after the police obtained Appellant’s perniission to

search his primary residence after his arrest at the

Warren Street property and found in his primary

residence the three calendars with differing harvest

dates (implying three different growing locations).

Consequently, I would conclude that the evidence

obtained from the Sterigere Street property would not

have been discovered inevitably but, instead, was the

fruit of the search and arrest at the Warren Street

property. Consequently, I would find that all evidence

obtained as a result of the search and arrest at the

Warren Street property, including that obtained from

the search of the Sterigere Street property, must be

suppressed as fruits of the poisonous tree. Hernan-

dez, 892 A.2d at 20. Based upon my finding that all

evidence obtained from Appellant’s arrest and state-

ment following the illegal search of the Warren Street

property should have been suppressed, I would re-

verse the case and would not reach Appellant’s third

issue.

As such, I dissent from the memorandum of the

learned Majority.

App. 52

IN THE COURT OF COMMON PLEAS OF

MONTGOMERY COUNTY, PENNSYLVANIA

CRIMINAL ACTION

COMMONWEALTH NO. 9849-04

OF PENNSYLVANIA

Vv.

PATRICK OTTERSON ., = 1968 EDA 2006

OPINION

HODGSON, J. September 1, 2006

The Appellant, Patrick Otterson, appeals his

judgment of sentence imposed upon him by this Court

on July 20, 2006.

FACTS AND PROCEDURAL HISTORY

On March 30, 2006, the Appellant was convicted

of three separate Bills of Information for violation

of the Controlled Substance, Drug, Device and Cos-

metic Acts (the “Drug Act”) and for possession of a

firearm. The main Bill charged three counts of viola-

tion of the Drug Act for possession and manufacture

of marijuana plants between October 27, 2004 and

October 29, 2004 at 420 West Warren Street, Norris-

town, Montgomery County, Pennsylvania (hereinaf-

ter, the “Warren Street property”). Bill of Information

9849.1 charged the same counts for possession

and manufacture of marijuana plants between Octo-

ber 29, 2004 and October 30, 2004 at 1202-1208

Sterigere Street, Norristown, Montgomery County,

App. 53

Pennsylvania (hereinafter, the “Sterigere Street

property”). Bill of Information 9849.2 charged the

Appellant with the same three counts for continuous

manufacture and possession of marijuana plants

between March 5, 2003 and October 30, 2004 at both

the Sterigere Street property and the Warren Street

property. These convictions were the result of events

that took place between October 27 and October 30,

2004.

On October 27, 2004, Officer Eugene Parsley of

the Norristown Police Department executed a search

warrant on the Warren Street property. As a result of

the search, the police seized 64 marijuana plants,

hydroponic lamps, two light timers, a timer for an air

conditioner, duct work, and filter and fluorescent

lights, among other items. The Affidavit of Probable

Cause executed by Officer Parsley may be summa-

rized as follows:

Altieri of the Montgomery County Nar-

cotics Enforcement Team, received in-

formation from Upper Moreland Police

Detective James Kelly that a confiden-

tial source provided him with informa-

tion that the Warren Street property

was abandoned, and that there was

marijuana growing inside the residence

at that location. The confidential source

stated that he/she has seen marijuana

plants growing in pots on the first floor

inside that residence;

App. 54

On August 31, 2004, Detective Altieri

went to the Warren Street property to

corroborate the information from Detec-

tive Kelly. It appeared that the property

was locked up; the windows were all

covered; and an air conditioner was run-

ning on the second floor, front;

A resident of the 400-block of West War-

ren Street told Detective Altieri that a

white male lives at the Warren Street

property on a part-time basis; that he

drives a silver pick-up truck; only ar-

rives once a week, stays for a couple of

hours and then leaves;

Periodic checks of the property by the

police revealed that the lights on the

first floor stayed on all night. A check of

the entire neighborhood by the police

failed to locate the pick-up truck;

The detective learned that the Appellant

is the lessee of 420 West Wood (sic)’

Street, Norristown, Pennsylvania, and

that the Appellant had been arrested in

the past for possession of a small

amount of marijuana;

On September 14, 2004, an anonymous

female called the Norristown police to

report that marijuana was being grown

' Officer Parsley testified that this was a typographical

error and should have read West Warren Street (N.T., Suppres-

sion Hearing, p. 22).

App. 55

inside the Warren Street property; that

no one lives there, and that it was just a

“front.” In response to the call, Officer

Christopher Narkin went to the location

and observed that the residence was

locked up, and the windows were cov-

ered so no one could see inside. He re-

ported his findings to Detective Altien

because he felt that there was something

suspicious about how the residence was

covered up;

On September 16, 2004, a second anony-

mous female called Detective Altieri and

stated that marijuana was growing in-

side the Warren Street property. She

said that a white male arrives about

once a week and removes large trash

bags from the residence under the cover

of darkness and loads them onto his

pick-up truck, that the air conditioners

and lights operate on a timer, and that

the man does not live there. She also

said that one of the neighbors has seen

marijuana growing on the first floor and

that she and the neighbors feared for

their safety and preferred to remain

anonymous for this reason;

Periodic checks of the property by the

investigating police officers during the

month prior to the issuance of the search

warrant on October 27, 2004 failed to

reveal any sign of the Appellant or the

pick-up truck. Yet, the lights were seen

to be always lit on the first floor, the

App. 56

windows and doors were covered up and

the air conditioner was running on the

second floor, even in extremely cool

weather;

o On October 8, 2004, this Court issued a

sealed search warrant for the use of a

thermal imaging device at the Warren

treet property.’

o On October 12, 2004, the thermal imag-

ing scan was conducted, but due to the

cold weather conditions, (surrounding

properties had their heat on), an accu-

rate reading could not be obtained. Two

air conditioners on the second floor were

running, despite the cold weather;

o On October 27, 2004, Detective Jeffrey

Koch reported to Detective Altieri that

an unknown female had telephoned the

Drug Tip Hotline and left a message that

marijuana was growing inside the War

ren Street property; that no one lives

there; that a suspicious male goes to the

residence periodically; and that the

neighbors have smelled strange odors

emanating from the property;

Detective Altieri spoke to a confidential

informant who told them that he/she

smelled the strong odor of “skunk weed”

* This warrant is not being challenged on appeal.

App. 57

or “homegrown” marijuana coming from

the Warren Street property;

On October 27, 2004, Officer Parsley and

Detective Altieri also spoke to another

confidential informant who reported that

he/she personally had seen marijuana

growing inside the Warren Street prop-

erty. This person also said that, after the

police began to investigate the property

in late August, the occupant appeared to

clear up the overgrown weeds and also

covered the windows more thoroughly so

no one could see inside. The confidential

informant also said the air conditioners

still go on every night, even with the

cold weather;

Both confidential informants said that

the occupant only comes to the residence

periodically and that he “hasn’t been

seen there since last week.”

While the officers were executing the search

warrant at the Warren Street property, the Appellant

arrived. Upon seeing the officers, the Appellant fled,

but was apprehended with his girlfriend a short time

later. That same night, the Appellant was arrested

and read his Miranda warnings. He gave a statement

admitting that he had harvested approximately 50

marijuana plants four months earlier. The Appellant

than signed a consent to search form for another

one of his residences located at 2804 Village Green

Lane, Norristown, Montgomery County, Pennsyl-

vania. As a result of this search, the police seized

App. 58

calendars denoting different harvest dates. Many of

these harvest dates overlapped suggesting that the

Appellant had more than one location where he

grows marijuana. The calendars included harvest

dates between March 5, 2003 and October 30, 2004.

The calendars and the Appellant’s statement formed

the basis for the Appellant’s conviction on Bill of

Information 9849.2.

On October 29, 2004, Detective Altieri executed a

search warrant on the Sterigere Street property, the

address shown on Otterson’s driver’s license. As a

result of the search, the police seized a total of 121

potted marijuana plants, calendars’, hydroponic

lamps, and a double barre] shotgun, among other

items. The Affidavit of Probable Cause executed by

Detective Altieri may be summarized as follows.

o The search of the Warren Street prop-

erty revealed a large-scale marijuana

growing operation conducted by the Ap-

pellant;

The Appellant gave a statement admit-

ting his marijuana growing operation;

The Appellant consented to a search of

his residence at 2804 Village Green

Lane, and the search was conducted at

approximately 1:00 a.m. on October 29,

2004. Among the items seized were three

* These calendars also formed the basis for the Appellant’s

conviction on Bill of Information 9849.2

App. 59

calendars denoting different harvest

dates, leading to the belief that the

Appellant has more than one location

where he grows marijuana;

On October 29, 2004, Detective Altieri

proceeded to the Sterigere Street prop-

erty, the address shown on the Appel-

lant’s driver’s license. The windows and

doors were all covered up as they were

at the Warren Street property and newer

air conditioners were in the upper win-

dows. One of the Appellant’s keys, taken

from him at the time of his arrest,

opened the front door, but police did not

enter until they had obtained a search

warrant;

While standing at the front door of the

\ residence, Detective Alfieri could smell

the distinctive odor of marijuana. The

property was not enclosed by a fence or

any other barrier.

Subsequently, the Appellant filed a motion to

suppress the evidence seized pursuant to the search

warrants. A hearing on this motion was held on

November 3, 2005 in front of the Honorable William

T. Nicholas. On December 5, 2005, Judge Nicholas

entered an Order denying the Appellant’s motion and

placed his findings of fact and conclusions of law on

the record. The Appellant’s trial was held on March

29, 2006 and March 30, 2006. The undersigned found

the Appellant guilty of the three Bills of Information

charging the Appellant was violations of the Drug

App. 60

Act. On July 25, 2006, the Appellant was sentenced to

not less than 5 years on the main Bill, not less than 5

years on Bill of Information 9849.1 and 3 to 5 years

on Bill of Information 9849.2. These sentences were

to run concurrent with one another. We also sen-

tenced the Defendant to 1 to 5 years for possession of

a firearm to run consecutive with the other sentences.

The Appellant appealed his judgment of sentence on

July 25, 2006. In accordance with Section 1925(b) of

the Pennsylvania Rules of Appellate Procedure, we

directed the Appellant to file a Concise Statement of

Matters Complained of on Appeal no later than

August 8, 2006. The Appellant filed such statement

on August 4, 2006.

LEGAL DISCUSSION

On appeal, the Appellant asserts that

o This court erred in denying the Appel-

lant’s pretrial motion to suppress evi-

dence seized pursuant to the search

warrants. The Appellant asserts that the

search warrants were obtained in viola-

tion of his federal and state constitu-

tional rights because the warrants were

not supported by sufficient probable

cause. Further, the search warrant for

Sterigere Street property was also the

fruit of the poisonous tree inasmuch as it

was based upon information derived

from the illegal search of the Warren

Street property;

App. 61

The Commonwealth failed to present

sufficient evidence of the Appellant’s

guilt with respect to Bill of Information

9849.2 because the prosecution failed to

prove beyond a reasonable doubt that

there was a corpus delecti as to this of-

fense existing independent of the Appel-

lant’s oral and written admission as no

marijuana was recovered to support this

charge.

Search Warrants

With regard to this issue, we adopt the cogent

and comprehensive reasoning of the Honorable Wil-

liam T. Nicholas as set forth in his Findings of Fact

and Conclusions of Law entered on December 5, 2005

and, therefore, we need not issue another full opinion

in accordance with Rule of Appellate Procedure

1925(a).*

Corpus Delecti

The Appellant argues that the Commonwealth

failed to present sufficient evidence of the Appellant’s

guilt with respect to Bill of Information 9849.2 be-

cause the prosecution failed to prove beyond a rea-

sonable doubt that there was a corpus delecti as to

* A copy of the Court’s Findings of Fact, Conclusions of Law

and Order Sur Defendant’s Motion to Suppress Evidence is

attached to this opinion.

App. 62

this offense existing independent of the Appellant’s

oral and written admission because no marijuana was

recovered to support this charge.

The corpus delecti is literally the body of a crime.

It consists of proof that a loss or injury has occurred

as a result of the criminal conduct of someone. Comm

v. Dupre, 866 A.2d 1089, 1097-98 (Pa. Super. 2005).

The historical purpose of the rule is to prevent a

conviction based solely on the incriminatory state-

ment of the accused. Jd. In order to establish the

corpus delecti, the Commonwealth must have inde-

pendent evidence that a crime has been committed

before an p&écriminating statement of the accused is

admissibfe. Contrary to the Appellant’s assertion, the

Commonwealth need not prove the existence of a

crime beyond a reasonable doubt to establish the

corpus delecti. Rather, the Commonwealth must show

that it is more likely than not that a crime has actu-

ally occurred. Id.

In the instant matter, the independent evidence

is highly indicative of criminal activity and is more

consistent with a crime actually occurring than not. A

search of both the Warren Street property and the

Sterigere Street property revealed over 50 marijuana

plants. A search of the 2804 Village Green Lane

Property and the Sterigere property revealed several

calendars all illustrating projected harvest and

harvest dates. These dates stretched from March

2003 through October 2004. These facts are sufficient

to establish corpus delecti that the Appellant had

engaged in marijuana growth activities prior to the

App. 63

actual search of these properties. Accordingly, the

Commonwealth has properly met its burden.

CONCLUSION

Based on the foregoing, the Appellant’s Judgment

of Sentence should be AFFIRMED.

BY THE COURT:

/s/ Ricard J. Hodgson

Copies sent 09/1/06 to:

By Interoffice Mail:

Robert J. Sander, Esquire,

Assistant District Attorney

By Certified Mail:

Burton A. Rose, Esquire,

Attorney for the Appellant

/s/ Phyllis Twist

Judicial Secretary

App. 64

IN THE COURT OF COMMON PLEAS OF

MONTGOMERY COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH NO. 09849-04

OF PENNSYLVANIA

Vs.

PATRICK OTTERSON

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND ORDER SUR DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

AND NOW, this 5th day of December, 2005, after

hearing before the undersigned on November 3, 2005,

pursuant to Pa.R.Crim.P. 581, and consideration of

the briefs of counsel, based upon the following find-

ings of fact and conclusions of law, the defendant’s

Motion to Suppress Evidence is hereby DENIED.

FINDINGS OF FACT

SEARCH WARRANT FOR

420 W. WARREN STREET, NORRISTOWN, PA

1. The search warrant issued by Magisterial

District Judge Francis Bernhardt on October 27, 2004

for 420 West Warren Street, Norristown, PA, (Exhibit

C-1) a two-story row home leased by the defendant,

was properly issued, as it was supported by probable

cause that an illegal marijuana growing operation

was ongoing inside the premises.

App. 65

2. The four corners of the Affidavit of Probable

Cause, when reviewed in a common sense, non-

technical, practical manner, as we are required to do,

is sufficient to support a belief that it was fairly

probable, given the totality of the circumstances

presented therein, that the property was then being

utilized to grow marijuana.

3. The Affidavit of Norristown Police Officer

Eugene Parsley, an experienced drug law enforcement

officer, consisting of ten pages, may be summarized as

follows:

(a) on August 31, 2004, Detective

Michael Altieri of the Montgomery County

Narcotics Enforcement Team, received in-

formation from Upper Moreland Police De-

tective James Kelly that a_ confidential

source provided him with information that

420 West Warren Street was abandoned, and

that there was marijuana growing inside the

residence at that location. The confidential

source stated that he/she has seen marijuana

plants growing in pots on the first floor in-

side that residence;

(b) Detective Altieri went to the loca-

tion on August 31, 2004 to corroborate the in-

formation from Detective Kelly. It appeared

that the property was locked up; the win-

dows were all covered; and an air conditioner

was running on the second floor, front;

Warren Street told Detective Altieri that a

white male lives at 420 West Warren Street

App. 66

on a part-time basis; that he drives a silver

pick-up truck; only arrives once a week,

stays for a couple of hours and then leaves;

(d) periodic checks of the property by

the police revealed that the lights on the first

floor stayed on all night. A check of the entire

neighborhood by the police failed to locate

the pick-up truck;

(e) Detective Altieri learned that the

defendant is the lessee of 420 West Wood

(sic)' Street, Norristown, PA, and that the

defendant had been arrested in the past for

possession of a small amount of marijuana;

(f) on September 14, 2004, an anony-

mous female called the Norristown police to

report that marijuana was being grown in-

side 420 West Warren Street; that no one

lives there, and that it was just a “front”. Of-

ficer Christopher Narkin went to the location

and observed that the residence was all

locked up, and the windows were all covered

so no one could see inside. Officer Narkin re-

ported this to Detective Altieri, as he felt

that there was something suspicious about

how the residence was all covered up;

(g) on September 16, 2004, a second

anonymous female called Detective Altieri

and stated that marijuana was growing in-

side the residence at 420 West Warren

' This was a typographic error. (N.T. Suppression Hearing,

p. 22).

App. 67

Street. She said that a white male arrives

about once a week and removes large trash

bags from the residence under cover of dark-

ness and loads them onto his pick-up truck.

She said that the air conditioners and lights

operate on a timer, and that the man does

not live there. She also said that one of the

neighbors has seen marijuana growing on

the first floor. She said that she and the

neighbors feared for their safety and pre-

ferred to remain anonymous for this reason;

(h) periodic checks of the property by

the investigating police officers during the

month prior to the issuance of the search

warrant on October 27, 2004 failed to reveal

any sign of the defendant Otterson or the

pick-up truck. Yet, the lights were seen to be

always lit on the first floor; the windows and

doors were all covered up and the air condi-

tioner was running on the second floor, even

with extremely cool weather;

(i) hydroponic lamps, which give off ex-

cessive heat, are used to grow marijuana in-

doors. Air conditioners may be used to offset

the heat from the lamps;

(j) on October 8, 2004, the undersigned

issued a sealed search warrant for the use of

a thermal imaging device at 420 West War-

ren Street. This warrant was not challenged;

(k) on October 12, 2004, the thermal

imaging scan was conducted, but, due to the

cold weather conditions (surrounding proper-

ties had their heat on), an accurate reading

App. 68

could not be obtained. Two air conditioners

on the second floor were running, despite the

cold weather;

(1) on October 27, 2004, Detective Jef-

frey Koch reported to Detective Altieri that

an unknown female had telephoned the Drug

Tip Hotline and left a message that mari-

juana was growing inside 420 West Warren

Street; that no one lives there; that a suspi-

cious male goes to the residence periodically;

and that the neighbors have smelled strange

odors emanating from the property;

(m) on October 27, 2004, Officer Pars-

ley and Detective Altieri spoke to a confiden-

tial informant who told them that he/she

smelled the strong odor of “skunk weed” or

“home grown” marijuana coming from 420

West Warren Street;

(n) on October 27, 2004, Officer Parsley

and Detective Alfieri also spoke to another

confidential informant who reported that

he/she personally had seen marijuana grow-

ing inside 420 West Warren Street. This per-

son also said that, after the police began to

investigate the property in late August, the

occupant appeared to clear up the overgrown

weeds and also covered the windows more

thoroughly so no one could see inside. The

confidential informant also said the air con-

ditioners still go on every night, even with

the cold weather;

(o) both confidential informants said

that the occupant only comes to the residence

App. 69

periodically and that he “hasn’t been seen

there since last week”;

4. The information provided by three anony-

mous informants and four different confidential

informants was virtually identical and was corrobo-

rated by the police officers’ own ongoing, periodic

observations of 420 West Warren Street between

August 31, 2004 and October 27, 2004. Given the

totality of the circumstances, as seen through the

eyes of a trained police officer, and according great

deference to Magisterial District Judge Bernhardt’s

finding of probable cause, as we are required to do,

this court concludes that the affidavit was sufficient

to establish a fair probability that the premises were

being used for a marijuana grow operation, which

was ongoing on the date that the search warrant

issued, October 27, 2004.

5. The information provided by four different

confidential informants, all to the same effect, carried

sufficient indicia of reliability. Indeed, “a known

informant places himself at risk of prosecution for

filing a false claim if the tip is untrue, whereas, an

unknown informant faces no such risk.” Common-

wealth v. Krisko, 884 A.2d 296, at 301 (Pa. Super.

2005), citing Commonwealth v. Jackson, 548 Pa.

484, 490, 698 A.2d 571, 573 (1997); Commonwealth

v. Weidenmoyer, 518 Pa. 2, 539 A.2d 1291 (1988).

6. The three anonymous tips received between

August 31, 2004 and October 27, 2004, and the four

confidential citizen informants served to corroborate

App. 70

each other. See Commonwealth v. Karns, 566 A.2d

615 (Pa. Super. 1989):

“There is a low probability two independent

sources would supply identical information if

it were not probably accurate, and this prob-

ability produces the necessary reliability to

establish probable cause.” 566 A.2d at 617.

7. Contrary to the defendant’s contention, the

Affidavit of Probable Cause is not deficient merely

because it does not state the precise date when the

anonymous informants and the confidential infor-

mants came by their knowledge. Absent obvious

chronological inconsistencies, the issuing authority

could properly conclude that informants were speak-

ing of the present or the immediate past. Staleness is

not to be determined by rigorous exactitude where, as

here, it may fairly be concluded that the criminal

activity is ongoing. See Commonwealth v. Baker,

513 Pa. 23, 518 A.2d 802 (1986)

Here, the affidavit is sufficient to establish a fair

probability that criminal activity, i.e., the marijuana

grow operation, is ongoing and continued up to the

time of the issuance of the warrant. In such circum-

stances, otherwise “stale” information remains viable.

Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114

(1995). See, too, Commonwealth v. Klinedinst, 589

A.2d 1119 (Pa. Super. 1991); Commonwealth v.

Marzel, 463 A.2d 639 (Pa. Super. 1981).

App. 71

8. The Affidavit of Probable Cause for 420 West

Warren Street contained no material misrepresenta-

tions and/or omissions. The defendant claims that

Officer Parsley made a material omission because he

failed to note that the prior arrest of the defendant

for possession of a small amount of marijuana oc-

curred eight years earlier and that the charges were

ultimately nolle prossed. We disagree. It was appro-

priate to include the fact of arrest. The charges might

have been nolle prossed for a variety of reasons. In

any event, the reference to the defendant’s earlier

arrest for possession of a small amount of marijuana

was relatively insignificant in the total context of the

affidavit. Even if the arrest reference had been de-

leted entirely, or had the omitted information been

included, the Affidavit of Probable Cause remained

sufficient to support the issuance of the s“arch war-

rant.

THE DEFENDANT’S ARREST AND

STATEMENT TC POLICE

ON OCTOBER 27, 2004

9. The defendant was lawfully arrested at

around 10:45 p.m. on October 27, 2004, when he

appeared at the premises while the police were exe-

cuting the search warrant. The defendant began

unlocking the door with his key and fled when he saw

the police inside. The defendant ran to his car, where

he was apprehended by the officers. His girlfriend,

Tammy Taylor, was in the car. The defendant’s chal-

lenge to his arrest and his subsequent statement was

App. 72

predicated upon the contention that the search war-

rant for 420 West Warren Street was defective, be-

cause it was not supported by probable cause. As we

have found that the search warrant was supported by

probable cause and was lawful, it follows that the

defendant’s arrest was lawful.

10. Following the defendant’s lawful arrest, he

was transported to the Norristown Police Depart-

ment, where he was given his Miranda warnings

prior to any custodial interrogation. The defendant

was given his Miranda warnings and signed his

acknowledgment of the same and agreed to give a

statement at 11:09 p.m. on October 27, 2004. (Exhibit

C-3) The court finds that this statement was given

knowingly, intelligently, and voluntarily, and that it

was not the product of duress, coercion or any other

improper inducements. Even before he was given his

Miranda warnings, the defendant volunteered to the

police that his “father was a retired Philadelphia

police officer”. He also told the officers “look, I’m

going to cooperate with you guys. I’m not a bad guy.”

We credit the suppression hearing testimony of

Detective Altieri over that of the defendant on the

question of whether the defendant was told that if he

gave a statement, the police would ne* charge his

girlfriend, Tammy Taylor. We find that no such in-

ducement was made by the detective. It was the

defendant who stated that he wished to cooperate

and give a statement, in the course of which he

absolved Tammy Taylor of any responsibility for the

marijuana grow operation. The court also finds,

App. 73

crediting Detective Altieri’s suppression hearing

testimony over that of the defendant, that the defen-

dant never invoked his right to counsel prior to giving

the statement, consistiing of two and one-half pages,

before he terminated it at 11:55 p.m.

CONSENT TO SEARCH RESIDENCE AT

2804 VILLAGE GREEN LANE, TROOPER,

LOWER PROVIDENCE TOWNSHIP

11. At 12:29 a.m. on October 28, 2004, while the

defendant was at the Norristown Police Station

following his arrest, the defendant signed a consent

to search form for his residence at 2804 Village Green

Lane. (Exhibit C-4) The defendant did not challenge

the consent to search on any basis other than the

contention that the search of 420 West Warren Street,

and the defendant’s subsequent arrest, were illegal.

As we have found that they were not, the search

conducted at the defendant’s residence, pursuant to

the consent to search, was lawful. The consent to

search form was executed knowingly, intelligently

and voluntarily. Among the items seized during this

search were three (3) calendars denoting different

harvest dates, reasonably leading to the belief that

the defendant has more than one location where he

grows marijuana.

App. 74

| SEARCH WARRANT FOR

1202-1208 STERIGERE STREET

NORRISTOWN, PA

12. On October 29, 2004 at about 7:00 p.m.,

Detective Alfieri proceeded to 1208 Sterigere Street,

the address shown on Otterson’s driver’s license. The

windows and doors were all covered up (as they were

at 420 West Warren Street) and newer air condition-

ers were in the upper windows.

13. While standing outside the front door of the

residence, Detective Altieri could smell the distinctive

odor of marijuana.

14. PVC pipe was seen on the side of the adjoin-

ing properly, 1202 Sterigere Street, which matched

the PVC pipe found inside the Warren Street prop-

erty. The Warren Street property and 1

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