Com v. Brown, J.
3299 EDA 2015
| Pa. Super. Ct. | Oct 27, 2016Background
- On May 23, 2012, police (with FBI task force) went to 2005 West Mayfield St. after a tip; officers smelled strong marijuana from the residence.
- Officers spoke briefly with Joshua Brown through a partially open front window; Brown retreated inside, officers heard breaking glass and items being thrown.
- Through the window an officer observed a handgun on a couch; an officer moved a curtain to maintain sight.
- Brown eventually opened the door, was detained, gave a false name/address, and officers later obtained and executed a search warrant.
- Search recovered a loaded .45 handgun, two bags of marijuana, 54 marijuana plants, a scale, a PH tester, an electric bill in homeowner Nakea Williams’s name, and cash.
- Brown was convicted (waiver trial) of possession with intent to deliver, possession, and possession of an instrument of crime; sentenced to 11.5–23 months plus probation. On appeal, he challenged the suppression ruling, weight, and sufficiency of the evidence.
Issues
| Issue | Brown's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Legality of search/protective sweep | Officers illegally peered through window, moved curtain, and conducted an unlawful protective sweep; evidence should be suppressed | Officers lawfully observed contraband/weapons from curtilage, moved curtain to view weapon and ensure safety, and conducted a permitted protective sweep | Waived on appeal for inadequate Rule 1925(b) statement; court also noted officers could view curtilage and move curtain for safety/exigency |
| Weight of evidence | Trial court’s verdict was against the weight of the evidence (Brown argued his testimony was credible) | Brown failed to preserve a weight claim; no pre/post-sentence motion or oral preservation | Waived for appeal (no preservation); if considered, not preserved |
| Sufficiency of evidence (constructive possession of plants) | Commonwealth failed to prove Brown constructively possessed the marijuana plants | Plants were in areas of joint access; Brown had been present for hours, listed the address as his own, had relationship with homeowner, and acted to destroy evidence | Waived for appeal (1925(b) statement recast as weight claim). Court noted, on merits, constructive possession could be inferred from shared access and Brown’s conduct |
Key Cases Cited
- Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (issues not raised in Pa.R.A.P. 1925(b) are waived)
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (same principle on waiver)
- Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006) (vague 1925(b) statements are the functional equivalent of no statement)
- Commonwealth v. Eichler, 133 A.3d 775 (Pa. 2016) (officers may enter curtilage in legitimate investigations; limits on areas visitors may reasonably access)
- Commonwealth v. Gibson, 638 A.2d 203 (Pa. 1994) (police may knock on doors for investigatory purposes)
- Commonwealth v. Bostick, 958 A.2d 543 (Pa. Super. 2008) (furtive movements in suspected drug activity can justify exigent/warrantless entry)
- Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014) (weight claim preservation rules)
- Commonwealth v. Lofton, 57 A.3d 1270 (Pa. Super. 2012) (weight claim preservation rules)
- Commonwealth v. Small, 741 A.2d 666 (Pa. 1999) (distinguishing weight and sufficiency claims)
- Commonwealth v. Mudrick, 507 A.2d 1212 (Pa. 1986) (constructive possession from shared access/control)
- Commonwealth v. Jackson, 659 A.2d 549 (Pa. Super. 1995) (shared access among co-occupants supports constructive possession)