*1 presence with bined Terry
sсene, for the the sole reasons were Ac- Baker. by Sergeant
stop conducted prudent we do not find it
cordingly, weight micro-analyze
time Spotter”
should be afforded to “Shot technologies reason-
system and similar as- probable cause
able and/or
sessments.4
Judgment sentence affirmed. Pennsylvania
COMMONWEALTH MCCLELLAN, Appellant
Eric
No. 2014 EDA 2016 Pennsylvania.
Superior Court of
Argued October January
Filed future, unique come with caveat that it circum- In the circumstances must Spotter” instance, call into the value of "Shot stance-dependent. identifying For purpose, probative for this data and its discharge shooting at a of a firearm change weight may A from case to case. sus- hours, during range, business temporal relationship pect's spatial to strong of a evidence of сommission crime. Spot- location "Shot time and identified Accordingly, prudent most believe the significance appears crucial ter” time is to address this course action at this purposes. such information for identification basis, technology case-by-case new rath- strong Spotter” provide The "Shot evi- does every possible try anticipate er than combi- occurred, dence that a crime inde- to its fu- nation circumstances attendаnt identify- pendent part might play ing suspects; use. even that conclusion ture *3 Norristown, appel- George, for M.
Paul lant. C, Bardo, District At- Assistant
Daniel Commonwealth, Norristown, torney,' .for n appellee. J., OTT, STABILE, J., BEFORE: *, P.J.E.- STEVENS STEVENS, BY P.J.E.:. ORINION McClellan, appeals Eric Appellant, judgment sentence entered Montgomery Pleas Court Common which, sitting as of fact County, finder trial, him of convicted Appellant’s bench Possess, Manufacture, To Persons Not Herein, or Transfer Firearms.1 Control denying challenges order suppression motion and contends constructively he prove at trial failed * P.S, 780-113(a)(16) Substance, Supe- assigned § and the specially Former Justice Court. Drug Paraphernalia, rior for Possession other 780-113(a)(32), § Common- but the 35 P.S. 6105(a)(1). The court § trial 1. 18 Pa.C.S.A. drug of- subsequently prossed the nol wealth Appellant on two additional also convicted sentencing. prior to fense convictions charges, one of a Controlled for Possession handgun from the officer recovered down went finished basement family affirm. basemеnt home. We and discovered loaded firearm. N.T. at Charges 61-63. were filed.' 2014, Agent On Dominick April Scott Pennsylvania Board Parole 30, 2015, On November Appellant filed in a participating Police LCB/Norristown which, motion suppress, hearing, after a Department sweep of local bars the court denied. bench trial noncompliant parol- absconder and/or day, ensued on the ending same with the ees, one of his parolees, saw state convicting cоurt Appellant on the above- exiting p.m. a bar Appellant, at 11:30 charges.,On mentioned March Agent stopped Dominick vio- g imposed range standard sentence lating two conditions of his one parole, years’ five to ten on the incarceration p.m. imposing an 8:00 curfew the other charge persons N.T., to possess. prohibiting presence drinking es- 3/1/16, After post- 34-35. denial *4 Appel- N.T. tablishment. at 12-13. 11/30/15 motions, sentence timely appeal fol- displayed signs lant of alcohol outward lowed. consumption, but a frisk of his person pro- presents Appellant ques- following cash, phones, duced and a cell $320 tions for review: our key. house N.T. at 19-20. I. THE WAS EVIDENCE INSUF- engag- On that Appellant was TO FICIENT BE- ESTABLISH ing in other violations at the bar consistent A YOND DOUBT REASONABLE history of drug dealing, Agent with his APPELLANT HAD THAT THE Dominick permission obtained to search TO CONTROL THE POWER residence, Appellant’s approved grand- FIREARM AND THE INTENT home, from who supervisor, mother’s TO THAT CON- EXERCISE was on the scene at the time. N.T. TROL, WHERE THE FIREARM had, at parole, of his outset THE RECOVERED IN parole WAS signed agreement also form con- BASEMENT OF APPELLANT’S senting to warrantless of his resi- searches AND HOME GRANDMOTHER’S N.T. 14-15. dence. RE- WHERE TESTING agents Appellant’s Parole searched THAT MORE THAN VEALED grandmother’s home Po- while Norristown HAD PERSON HANDLED ONE security presence lice maintained a inside THE FIREARM? participating otherwise without di- II. DID THE SUPPRESSION recting Agent the search. N.T. at 21-22. home, ERRONEOUSLY DENY COURT Dominick familiar hav- with . TO MOTION ing APPELLANT’S previously conducted routine numerous there, EVI- field visits SUPPRESS PHYSICAL knew DENCE, father, THE grandmother, WHERE lived with FACTS AND parole adult sister.2 officer went CIRCUMSTANCES Appellant’s TO straight to and uncov- THE PAROLE bedroom KNOWN THE PRIOR ered from underneath his clear TO mattress AGENT bag containing a DID NOT sandwich trace amount ESTABLISH SEARCH parole cocaine. N.T. at 22-23. A different TO REASONABLE SUSPICION night father was no that he search. See testified infra. longer living at the home in 878 claim, this ciency of the THAT
BELIEVE THERE WAS may reweigh substi- OTHER EV- CONTRABAND OR judgment tute of the fact- our OF IDENCE OF VIOLATIONS Williams, finder. Commonwealth v. 153 THE OF CONDITIONS SUPER- 2016). (Pa.Super. A.3d APPELLANT’S VISION INSIDE RESIDENCE? Illegal possession of a firearm Appellant’s brief at 6. posses by constructive be established Parker, sion. Commоnwealth v. issue, Appellant In his con first respect (Pa.Super. With DNA and evi circumstantial tends this Court possession, constructive link him to offered to the loaded dence held: found in the basement insuf handgun not found on the When contraband is prove beyond doubt
ficient
reasonable
person, the Commonwealth
defendant’s
constructively possessed
gun,
that he
possession,”
must establish “constructive
an element
the crime
Persons Not
is, the
to control the contra
рower
of which he was
We
Possess
convicted.
to exercise that
band and
intent
disagree.
Valette,
control. Our standard
review suffi
(1992).
The fact
Pa.
Furthermore, fact, gun that the found neither in the trier of evidence court, believe, containing nor in any a room this case the free to bedroom trial but, all, instead, belongings, part, presented personal none of the evidence primarily by his making crеdibility used father determinations. basement Beasley, whole 138 and fami- A.3d otherwise accessible ly. In (Pa.Super. deciding 45 suffi- originated
The Commonwealth counters that DNA Appellant from a relative and samples gun implicated taken from unknown, two unrelated individuals.4 Appellant and that fur- Therefore, the basement was laboratory concluded there area, primarily as nished a common “strong support” Appellant that con- presence evidencеd exercise tributed to this mixture.5 equipment upright posi- and a futon in Testing sample of the DNA retrieved tion with a opposite day TV it gun’s from the magazine yielded also search. sample conclusion that DNA was at respect With adduced least times if probable more trial,3 prosecution established originated from Appellant and two un- samples each the four DNA swab taken known, unrelated individuals than gun produced profile from the represent- originated frоm a relative ing a con- mixture at least three DNA unknown, two unrelated individuals. tributors, group from Thus, agree with the trial court could N.T. excluded. 11/30/15 the DNA strongly implicated Because there possibility existed the Appellant as gun possessor found one or of Appellant’s more members approved in the basement of his residence. family among were the three DNA con- regard, In this tributors, the fact that other family testing additional DNA members have handled the analyses alsо were undertaken assess not preclude Appellant’s the relative does probability that constructive Appellant, member, it, than a family posses rather as the constructive contributed concept the DNA pos sion allows for more than mixture. one sessor. Id. See also Commonwealth v. samples Of the four DNA taken from Macolino, 503 Pa. gun in question, yielded one conclu- (1983) (overturning ruling that “pro another, trigger, sion from the sanctuary a privileged vide fоr the storage probable more if it came a relative of illegal Simply by storing contraband. unknown, unrelated *6 place contraband a controlled more individuals if Appellant than it came from roommate, than party, spouse, part one unknown, and two unrelated individuals. ner impervious would all to prose render However, the DNA two other swab sam- cution”). pointed ples heavily Appellant, more to First, such, it As establishing Ap- was determined that the DNA evidence that gun’s pellant dealing drugs taken from grip kept the was at was that he if hidden in probable approved least times more the sam- his his bedroom home, ple originated from Appellant gun and two un- had discovered in the handled known, home, unrelated individuals than if it basement of that had unre- trial, Appellant lodged objection At no analysis 3. 5.This same also concluded that it admissibility 1,000,000 of the Commonwealth’s DNA ev- times more that the DNA idence. gun's grip belonged Appellant on the to unknown, two unrelated individuals than if it Hence, Appellant’s record belies conten- unknown, originated from unrelated in- three tion that DNA evidence failed to address the dividuals, "very lending strong support” thus probability Appellant’s that a relative unknown, Appellant that and two unrelated unknown, unrelated individuals had con- individuals this mixture contributed to rather brief, Appellant’s tributed to the mix. See unknown, than three unrelated individuals. In that the trial errone arguing suffi- to the basement was access
strieted ously rejected Ap defense prove evidence to cient the element pellant no interest basement to for necessary his conviction Persons space essentially within the do in a most light to Possess. Viewed Not father, to Appellant asks us minion of his to the Commonwealth as verdict favorable do, ie., may not disturb do what we winner, beyond went show- such credibility of the finder of determinations merely ing he a home where a rеsided Williams, Beasley, supra; su fact. See gun’s and knew gun was stored pra. reason, no discern For that would we established, instead, location; it both his court’s abuse the trial of discretion with exercise control control and his intent to claim raised Appellant’s weight denial of , gun. post-trial Appellant his motion even if Common-, assails properly our review. raised proffer regard by alluding in' this wealth’s Here, comprising totality evidence offered show that defensе analysis gun- Appellant’s basement, Appellant had no interest in of his gun in common access to the a1 area approved argument home. his Such grandmother’s finding supported home evidence, sufficiency of goes constructively that he fact evidence, weight but to Discerning no the court’s error with gun. in nei a claim raised point, on this conclude determination 1925(b) his ther nor Pa.R.A.P. statement sufficiency him Appellant’s claim affords presented. Ac his statement of questions no relief. cordingly, weight he has waived Next, whether the we consider evidence claim. in denying lower court erred motion to obtained suppress evidence dur preserved
Even he had resi ing parole agents’ of his claim, it afford him relief. of a motion to review denial dence. We court, sitting of fact Appel as finder suppress as follows: trial, testimony of lant’s bench found the An, (“Father”) of review Appellant’s father standard court’s apрellate incredible addressing challenge to the denial extent he attempted disassociate suppression from the motion limited de- son basement where completely termining Father whether Specifically, recovered. findings supported by control of everything claimed court’s are exclusive factual except legal gun, conclu- the basement record and whether ' cor- cousin, incarcerated Man facts are attributed siоns those drawn *7 pre- the Commonwealth at 170-72. He did rect. Because uel McClellan. N.T. court, testifying “my suppression the by that the basement vailed before was' area,” only in of though longer may consider the the even he no resided home, ,and of so the evi- person the because he stored Commonwealth much some dence for remains asked the defense as uncon- Id. specifically al items there. When futon, of context the, under which tradicted read about hidden, sup- handgun only Father that as a whole. Where record' said findings sup- pression his factual his cousin there court’s are slept Manuel until record, arrest, ported appellate court implication being by obvious findings may re- -the be is bound those found futon underneath legal if only the court’s conclusions longed Manuel. verse appeal are Where the not erroneous. search does mean either of suppression court parolе determination conduct can a search at officer allegations error, legal on turns of any any time and or that reason suppression court’s legal are conclusions parolee his relinquishes Amend Fourth binding court, an appellate whose right to free ment from unreasonable duty it is to determine searches.” Id. at 1036. properly applied court law Coleman, v. Commonwealth Thus, the of facts. conclusions law (Pa. Super. subject plenary courts below are re-
. However, § 42 Pa.C.S. under “Su- view. relationship offenders,” pervisory Jones, v. Commonwealth 121 A.3d Agent of Pennsylvania of Board Proba- (Pa. 2015) (citation, Super. 526-27 altera- tion and Parole a warrantless tions, conduct omitted). ellipsis property “if there search is reasonable á to suppress filed motion evi- suspicion to believe that real or other dence search obtained of his property possession or under the home, whiсh, maintained, he unsup- of control the offender contains contraband ported by suspicion reasonable that he or other of of the condi- violations or contraband was otherwise tions of supervision[,]” subsection parole violation During of his conditions. 6153(d)(2), where, in the absence nine parole, Appellant argued, months on exigent circumstances, prior approval a appointment, kept every committed ' supervisor obtained, subsection violations, drug and never a test. He failed 6153(d)(3). 6153(d)(6) Subsection ad- also stressed that there was no evidence as dresses the formulation reasonable sus- phone possession whether either his picion support search property with- texts, emails, sug- messages contained out a warrant: gesting activity. illegal (6) The suspi- existence reasonable parole Appellant’s officer testified n cion to search shall be determined bar, Appellant’s presence accordance with constitutional search large of a amount cash and provisions applied and seizure by ju- working phones, underly cell accordance, dicial decision. In with such ing involving criminal record violations law, factors, following case where reasonable, the Drug suspicion Act created applicable, may be taken into account: bar, dealing drugs that he ' justified of his search residencе (i)- The observations officers. for drug-related The suppres contraband. (ii) provided by Information others. sion agreed agents that parole activities, (iii) The of the offender. reasonable support home, hence, mo denied (iv) provided Information by the of- suppress. tion to fender. parolee A Fourth Amend limited (v) experience of the- officers rights
ment because ex diminished with the offender: pectation privacy. *8 (vi) experience Thе in officers Williams, Pa. similar circumstances. (1997). A “parolee’s signing of a parole agreement (vii) giving parole prior, his offi supervi- The criminal and permission cer to sory history warrantless conduct offender.
(viii) compliance presented apparent to without founda- verify to The need tion. supervision. with the conditions 6153(d)(6). §
42 Pa.C.S.A. probation parole or offi- Cognizant that suspicion still to cers reasonable need Here, they as to subsec- facts relate area, I not convinced that search am (viii) (iii), 9912(d)(6)(i), (vii), cre- and tions the search of McClellan’s basement was Appel- to reasonable believe ated Nonetheless, I necessary proper.1 be- his in home. lant contraband to is secondary lieve that consideration in a present bar Specifically, Appellant ratio, concerning the issue likelihood con- night parole in late at violation ostensibly gun, linked McClellan Agent аppeared to Notably, ditions. thereby providing support to con- been Dominick not weapon. structive How- bar, drinking and he was while at ever, on cannot issue be resolved di- working to have cell otherwise found appeal, all of the evidence rect because phones large amount .cash regarding likelihood admit- ratio was drug with the person, items associated objection by Appellant’s ted without coun- Appel- conjunction with trаde. in Viewed Therefore, any investigation into this sel. offender, drug prior history as lant’s place must context of a issue take Agent Dominick’s observations and petition. Post Conviction Relief Act provided reason person dealing drugs suspect Appellant Testimony suppression at hear- bar, the warrantless search justifying thus ing/bench trial demonstrated the DNA According- illicit residence. drugs for ques- from samples gun were taken challenge ly, reject Appellant’s frоm tion four areas were most as question order in meritless. by any person: to have been touched slide, trigger, grip, maga- is AFFIRMED. Judgment of sentence testing, DNA
zine. Traditional where a Judge Opinion. joins Stabile comparison sample is drawn between defendant, positively and the could not link Judge Concurring Opinion. Ott files a weapon. analy- DNA McClellan to OTT, BY CONCURRING OPINION J.: showed sis McClellan could be exclud- majority having I concur in the result touched the with the ed those positive is four I notе that of this There areas.2 when a matter. accepted suffi- presented using trial was link demonstrated DNA the evidence analysis, I related in support cient the convictions. write the result is often my concern over millions or billions to separately express terms odds in the e.g. comparison re- likelihood that the defendant use method one— ratio,” DNA, provided opposed ferred to “likelihood as trial else, agreement anyone counsel’s allow such evidence is stated as a factor of a officer, Walsh, parole Agent biologist Thomas 1. McClellan’s Scott forensic NMS Laboratories, Dominick he was aware of the base- testified testified there were similarities once, ment and had been there first between McClellan’s DNA the DNA ob- However, surveyed the he had never house. However, gun. tained from those similari- spoken ormet with McClellan in the base- provide positive were ties insufficient рrior meetings ment. All the two took between Hearing/Bench Suppression match. See N.T. place living either or in McClel- room Trial, 11/20/2015, 138. Suppression lan’s See N.T. Hear- room. Trial, 11/30/15, ing/Bench at
883 one, to thereby supporting billion a reason- ratio was used on DNA to canine establish such dog able doubt No number what breed of supplied standard. DNA sam- generated linking Supreme could to Our upon McClellan Court did ple, rule gun. analysis Initial DNA the methodology showed there beсause was other- overwhelming three contributors of DNA in each the wise circumstantial evidence samples. Instead, four supporting the Commonwealth the defendant’s conviction. In Lyons, something mentioned, presented only evidence of referred was method indicating to as the “likelihood ratio.” to be there needed certain calcu- lations done to possibility account Likelihood appears provide ratio co-ancestry in DNA sаmple.4 Final- that, analysis statistical likelihood Foley, ly, panel our Court stated instance, among this McClellan was challenged likelihood ratio had been people provided three who the DNA sam- subjected Frye as novel science and to a analyzed opposed ple three unrelated test, it passed. have The cal- having weapon.3 persons touched the Fur- Lyons by culations were made a Dr. analysis by statistical ther was done Pеrlin, who developed proprietary unnamed source determine likeli- software that had been use in Europe ratio of hood McClellan versus a relative of helped and had Britain develop its DNA weapon. I having McClellan touched I base. note that proprietary nature of significant it find that no DNA impossible the software made for the any of McClellan’s who relatives shared specific methodology be examined. provided analysis. residence was for actual it is impressive While that Dr. Perlin’s expressed The likelihood ratio is in terms propriety software been in use in likely, of tens thousands of times more Britain, Great I would be rely hesitant to than or billions of rather millions times upon methodology a secret for conviction. likely. more event, any no In is there indication that There is no in the explanation clear tes- proprietary Dr. Perlin or his software was timony or exhibits from the instantly. used hearing of gen- how ratio is the likelihood In summary, regarding I have concerns samples erated that otherwise cannot the use of ratio In evidence. likelihood person sample. link This more matter, entity that made the calcula- concerning considering that the unnamed was not there tions identified and entity that conducted the likelihood ratio testimony as to how relevant statistical to explain calculations unavailable ei- analysis I prudence was achieved. believe its methodology ther scientific/sta- that if is to dictates such evidence be used principles supporting tistical ratio. future, must be a record de- there A Westlaw of the term “likeli demonstrating veloped methodology and referring ratio” hood found cases three techniques to arrive at the conclu- used are, They of analysis. this method Com sion. Treiber, monwealth v. 632 Pa. (2015); A.3d 435 v. Commonwealth (2013),
Lyons, 622 Pa. (Pa. Foley, 38 A.3d Treiber, In
Super. likelihood per- analysis type I Initial three contribu- believe this of-calculation showed entity formed the unnamed instant samples. tors DNA in the four each of matter.