218 A.3d 935
Pa. Super. Ct.2019Background
- On October 25, 2016, a police investigation into heroin sales used a confidential informant (CI) who arranged a buy with a seller known as “Flex.”
- The CI placed recorded/intercepted cell calls with Flex; officers set up surveillance at the agreed meeting location (vacant Weis supermarket parking lot).
- A silver BMW matching the CI’s description arrived within minutes; the CI identified the driver as Flex. Officers arrested Appellant (Bernard) and, on search incident to arrest, recovered the target cell phone, $245, and 25 glassine bags later tested and confirmed as heroin.
- At trial the Commonwealth introduced stipulations as to Officer Spathelf’s expected testimony and the forensic lab results; Appellant waived a jury and was tried by the court (bench trial).
- The court convicted Bernard of attempted delivery, possession with intent to deliver (PWID), criminal use of a communication facility, possession, and paraphernalia; sentencing included consecutive terms and post-sentence proceedings resulted in partial merger but not for attempt and PWID.
- On appeal Bernard challenged (1) denial of suppression (probable cause from CI) and (2) legality of sentencing/merger of attempt and PWID; appellate court affirmed convictions but vacated the sentence for attempted delivery and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Bernard) | Held |
|---|---|---|---|
| Whether seizure/arrest was supported by probable cause based on an unproven CI | CI tip corroborated by recorded calls and surveillance; officers independently verified description, timing, and vehicle | CI was unreliable and uncorroborated; arrest was warrantless and unlawful so evidence should be suppressed | Denied suppression; probable cause existed based on corroboration by intercepted calls, surveillance, CI participation in past deals, and matching vehicle/behavior |
| Whether convictions for PWID and attempted delivery must merge for sentencing | The offenses are legally distinct; Commonwealth proved intent and substantial step toward delivery allowing separate convictions | Attempt and PWID arose from same actus reus (possessing drugs and arriving at the meet) so attempt is a lesser-included offense and must merge | Convictions affirmed but sentence for attempted delivery vacated because attempt is subsumed by PWID; remanded for resentencing to restructure consecutive terms |
Key Cases Cited
- Commonwealth v. Smith, 164 A.3d 1255 (Pa. Super. 2017) (standard of review for suppression rulings)
- Commonwealth v. Goldsborough, 31 A.3d 299 (Pa. Super. 2011) (informant tips may support probable cause with corroboration or demonstrated reliability)
- Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011) (probable cause from CI depends on veracity, reliability, and basis of knowledge in a commonsense manner)
- Commonwealth v. Sanchez, 907 A.2d 477 (Pa. 2006) (CI information may suffice with independent police corroboration)
- Commonwealth v. Manuel, 194 A.3d 1076 (Pa. Super. 2018) (same principle on CI corroboration)
- Commonwealth v. Calhoun, 52 A.3d 281 (Pa. Super. 2012) (statutory merger under 42 Pa.C.S. § 9765 requires that all elements of one offense be included in the other)
- Commonwealth v. Roberts, 133 A.3d 759 (Pa. Super. 2016) (elements of PWID: possession plus intent to deliver; factors to infer intent)
- Commonwealth v. Thur, 906 A.2d 552 (Pa. Super. 2006) (remand for resentencing when vacatur disrupts trial court's sentencing scheme)