249 A.3d 1146
Pa. Super. Ct.2021Background
- Appellant Trey Anthony Banks was on state parole and supervised by a PBPP agent; his cousin/home-plan provider Kelly Gibbs reported Banks was selling narcotics, keeping firearms, and hosting gang members at his Homewood residence.
- On Oct. 17, 2017, parole agents (with Pittsburgh police) confirmed via GPS that Banks was inside, knocked, received no answer, then entered through an unsecured rear door (barricaded inside) and arrested Banks upstairs.
- A warrantless search recovered suspected cocaine, crack, morphine tablets, and scales; Banks was charged with multiple drug offenses.
- Banks moved to suppress (arguing no reasonable suspicion for a parole search) and moved to dismiss under Pa.R.Crim.P. 600 for speedy-trial violation; suppression was denied and the Rule 600 motion was denied without a hearing.
- After a non-jury trial Banks was convicted of two counts of possession, sentenced to concurrent 9–18 month terms plus two years’ probation; on appeal the Superior Court affirmed suppression and the Rule 600 ruling but vacated the judgment of sentence and remanded for resentencing because the probation term caused the aggregate sentence to exceed the statutory maximum.
Issues
| Issue | Commonwealth's Argument | Banks's Argument | Held |
|---|---|---|---|
| Validity of warrantless parole search | Agents had reasonable suspicion based on tip from Gibbs, agent observations (prior positive UAs, alcohol, marijuana smell, people coming/going), GPS confirmation, and supervisory authorization | Search was an impermissible fishing expedition; agent lacked reasonable suspicion under parole-search standards and applicable statutory factors | Affirmed denial of suppression: totality of information provided reasonable suspicion to search under parole-search law |
| Rule 600 (speedy-trial) | Delays were excludable (defendant’s suppression filing, agreed continuances, periods when defendant unavailable); adjusted run date fell after Banks’s Rule 600 motion, so motion premature | Trial began 115 days after mechanical run date; even accounting for defendant-claimed responsibility for 61 days, the Commonwealth failed to exercise due diligence and violated Rule 600 | Affirmed denial of Rule 600 relief: 74 days were excludable, adjusted run date was Dec. 26, 2018, and Banks’s Dec. 20, 2018 motion was premature |
| Legality of sentence (probation term) | Acknowledged remand necessary where probation plus incarceration exceeded statutory maximum for repeat drug offender | Concurrent 9–18 month sentences plus two years’ probation produced a maximum greater than the statutory 3-year maximum for a repeat §780-113 offender, making sentence illegal | Judgment of sentence vacated and case remanded for resentencing limited to a probation term that does not cause the overall sentence to exceed statutory maximum |
Key Cases Cited
- Commonwealth v. Smith, 164 A.3d 1255 (Pa. Super. 2017) (standard of review for suppression denials)
- Commonwealth v. Curry, 900 A.2d 390 (Pa. Super. 2006) (parolees accept warrantless searches on reasonable suspicion)
- Commonwealth v. Appleby, 856 A.2d 191 (Pa. Super. 2004) (parole-search expectations and standards)
- Commonwealth v. Gould, 187 A.3d 927 (Pa. Super. 2018) (two-part reasonable-suspicion test for parole searches)
- Commonwealth v. Altadonna, 817 A.2d 1145 (Pa. Super. 2003) (third-party information can supply reasonable suspicion)
- Commonwealth v. Hunt, 858 A.2d 1234 (Pa. Super. 2004) (Rule 600 framework, dual purposes, and review standard)
- Commonwealth v. McNear, 852 A.2d 401 (Pa. Super. 2004) (mechanical vs. adjusted Rule 600 run date)
- Commonwealth v. Burno, 154 A.3d 764 (Pa. 2017) (excusable delay and due-diligence analysis under Rule 600)
- Commonwealth v. Anderson, 959 A.2d 1248 (Pa. Super. 2008) (unavailability of defendant may be excludable time)
- Commonwealth v. Catt, 994 A.2d 1158 (Pa. Super. 2010) (illegal sentence must be vacated)
- Commonwealth v. Watson, 945 A.2d 174 (Pa. Super. 2008) (principles on sentence legality review)
- Commonwealth v. Bradley, 834 A.2d 1127 (Pa. 2003) (sentence exceeding statutory maximum is illegal)