Commonwealth v. Wilson

mentally may ill be an indicator one who involve- Appellant’s future behavior. violence, form of in such an extreme

ment factor the is one dispositive, not

while in his evalua- judge may consider

hearing danger- continued appellant’s

tion Id. at 1389-1390.

ousness.”

Thus, adequate provides the MHPA against outdated determinations

protection re- comports process with the due commitment

quirements Foucha. Civil under the MHPA re-

and recommitment of the elements discussed

quire both

Foucha, disability a current mental Accord- dangerousness.

determination with the

ingly, the MHPA is consistent Foucha, Appellant’s consti-

dictates of

tutionality challenge fails.6

Order affirmed. Pennsylvania,

COMMONWEALTH

Appellee WILSON, Appellant.

David A.

Superior Pennsylvania. March 2010.

Argued

Filed Dec. 2010. K.A.P., (conclud- dangerousness; appropriate Similarly, supra, because of safe- see In Re: commitment, ing Appellant’s no merit to claim that Juvenile concerning guards Court deter- by keeping juvenile process violates due Act that the Juvenile Act does not contra- mined in indefinite civil commitment sex offenders Foucha). holding in vene the vague predictions weak of future based on Rauch, appel- for Philadelphia,

Victor lant. Wilcox,

Suzan Assistant District Attor- Commonwealth, ap- ney, Philadelphia, for pellee. ELLIOTT, P.J., and

BEFORE: FORD PANELLA, STEVENS, GANTMAN, DONOHUE, SHOGAN, ALLEN, MUNDY, JJ. LAZARUS sponse to defendants who violate Court OF OPINION IN SUPPORT PANELLA, and who are Orders recidivists.”4 BY J.: AFFIRMANCE years preceding The four the formation an order of the appeal This is an from years were Philadelphia Gun Court Gun which authorized Philadelphia Philadelphia: from of intense violence random, as a condi- warrantless searches city experienced more 2000 to Appellant, tion of per year. See Murders than 300 murders raises a number David A. Wilson. Wilson Philadelphia, Today, rise USA De- condition, imposed by challenges this 12, 2005, http:// available at cember Shulman, I. on Au- the Honorable Susan usatoday.eom/news/nation/2005-12-04- 18, 2008, in gust the Court Common (last visited murders-philadelphia —x.htm. County. After care- Philadelphia Pleas of 2010). Philadelphia’s mur- September review, it ful we affirm condition as 100,000 per rate in of 22.4 resi- der sentence, probationary but applies to dents, highest was “the of the nation’s 10 respect with to the required are to vacate among the largest cities and third rank[ed] parole aspect state of the sentence. Baltimore Detroit.” largest, behind of the murders in Eighty percent Id. background begin We a brief with deaths, Philadelphia shooting were ten Philadelphia January Gun On Court. percent higher average. than the national Philadelphia of Common Court See id. the Gun Pleas instituted Court.1 The Phil- appeared Wilson the Phila- Gun “constituted in adelphia Court was charged Gun with three delphia Court response increasing number of of a possession counts of VUFA5 and of weapons being offenses committed in Phil- Following controlled a bench substance.6 adelphia danger the inherent to the trial, guilty Wilson was found community weapons possessed when the trial court charges. sentencing, At illegally.”2 on the streets A case is trans- a condition of which Philadelphia Gun when ferred Court probation agents authorized to conduct charge the most serious is a violation of random, warrantless searches Wilson’s (“VUFA”). the Uniform Firearms Act weapons, residence for a condition routine- Philadelphia provides The Gun for a Court ly imposed Philadelphia in the Gun Court. prompt disposition of firearm offenses and The trial court also entered an order im- improve works to “the coordination of the posing pa- the same condition for Wilson’s agencies efforts numerous and non- role. profit organizations reducing the num- illegal guns

ber of on the streets of Phila- argues On that such appeal, Wilson first delphia....”3 Importantly, illegal the “infra- probation condition constitutes Philadelphia structure” of the Gun he claims that the Specifically, sentence. him probation subjecting allows for the “direct and immediate re- condition of Sheet, Philadelphia 1. See Gun Court Fact 3. Id. Courts, Philadelphia Judicial First District of Pennsylvania, http://courts.phila. available at 4. Id. gov/pdf/notices/2005/notice-2005-guncourt- (last fact-sheet.pdf September visited §§ 5. 18 Pa. Cons.Stat.Ann. 2010). 6110.2. 1.13(a)(16). Id. § 6. 35 Pa.Stat. 780— random, warrantless searches of Wilson’s was im- residence random searches weapons au- condition of without residence trial court by the posed reasonably condition was probation, this runs afoul of 61 Pa.Stat. it thority, as pub- related to Wilson’s rehabilitation and 331.27b,7 that a § which mandates 331.27b, safety; plain its search lic property conduct tion officer terms, only to searches made applies to believe suspicion only upon “reasonable acting on their own au- in the officers property or other the real sanction; judicial and that thority the control of the without of or under possession not run afoul of the evi- such a condition does contraband or other offender contains States or Constitu- of the conditions United dence of violations 331.27b(d)(2) however, find, that the tions. We further 61 Pa.Stat. supervision.” added). authority have additionally trial court did not (emphasis A impose parole. also consti- a condition on Wilson’s that the claims the trial court full follows. illegal sentence as discussion tutes an parole condi- impose no had succinctly The trial court set forth the imprison- of the maximum term tions when this case. facts of the case years, than two as is ment is more trial, At the Common- [the bench] Commonwealth, on the other here. The testimony the of Lieu- presented wealth hand, sentencing contends Wilson’s Jeffrey Kevin and Officer Wong tenant challenge to the discre- a present claims 1, 2007, September Mastalski. On at which, it ar- sentencing, of tionary aspect a.m., approximately Wong 4:50 Officer by failing to raise has waived gues, Wilson uniform a duty was on full and post-sentence mo- sentencing at them vicinity car in the of the patrol marked tions.8 Street, city of Mellon in the 3900 block argue to goes then on Pennsylva- county Philadelphia, and § controls and that “[w]ithout 331.27b There, nia. he observed [Wilson] im- basis” the “standing by light colored autofmobile] trial court is in violation of posed by the passen- the pointing handgun through of the States and the United Constitutions Officer ger window the driver.” at Pennsylvania. Ap- the Commonwealth car, called for Wong patrol exited his Brief, at 9. pellant’s with backup, approached and [Wilson] gun his drawn. reviewing arguments After ordered Wong immediately Officer sentencing we find that the two parties, Al- put weapon to his down. challenges legality [Wilson] claims raise Furthermore, though partially complied we imposed. [Wilson] the sentence side, no authority placing gun down that the trial court had the hold longer pointing through it vehicle’s Sentencing to authorize under Code 2009, Aug. maintains that repealed 8. The Commonwealth also 7. Section 331.27b was 33, 11(b), § sentencing made effective ripe P.L. No. are not Wilson’s claims county October yet is not on review insofar Wilson probation agents supervise their offenders howevér, note, parole. We that Wil- tion or 42 is now codified at sentence, Pa. Cons.StatAnn the condition of of which son’s it was the 9912. We refer to 331.27b as integral part, and an is a final in effect at the time of Wilson’s sen- statute judgment. immediately appealable There- August newly en- tencing 2008. The on fore, properly are before us. issues codification, however, retains the same acted language previous statute. as the may of a sentence window, drop challenge legality he nonetheless refused Instead, initially right, non- be raised as a matter of weapon. [Wilson] waivable, gun may long with the toward the Officer and be entertained so walked hand, onto the proceeded then reviewing jurisdiction. as the court has residence, nearby Robinson, located porch of a See Wong (en banc). After Officer Mellon Street. (Pa.Super.2007) 19-20 An weapon, drop him to again ordered illegal sentence be reviewed sua placed finally complied, [Wilson] sponte by this Court. See Commonwealth ground compliance on the himself (Pa.Su Muhammed, A.2d with the Officer’s orders. Conversely, the discre per.2010). when arrived on the scene tionary aspects judgment

Officer Mastalski of a of sentence later, and observed only [Wil- moments questioned, appeal guaran an is not laying ground. After Officer right. son] teed as of See Commonwealth (Pa.Su he Wong gun, recovered [Wilson’s] Shugars, weapon to Officer Mastal- handed (explaining appeal per.2006) re- was a loaded .38 caliber [It ski.... discretionary aspects sentencing ap Officer Mastalski then frisked (1) volver.] have such pellant preserved must packets recovered seven 2119(f) [Wilson] provided claims and Rule co- marijuana along packets with five brief, statement in his which raises a sub caine. review). question for our stantial into

Among other exhibits submitted evidence, presented the not claim that the Commonwealth Wilson does Quarter previ- Sessions file from a the trial court imposed by consti case, rather, discretion, establishing ous had of but [Wilson] tuted abuse a for an offense enumer- prior conviction that the trial court ordered a condition of under Section 105 of the ated Uniform probation parole and for which it had Firearms Act. statutory authority. Pennsyl no “Under law, challenge validity vania a to the of a 3/4/08, Opinion, Trial Court Supplemental challenge legality.” sentence is a to its (citations at 2-3 to record and footnotes Arest, 912 Commonwealth 734 omitted). 2 (Pa.Super.1999). n. “If a court does not the above As a result of evidence and statutory impose authorization to a possess testimony, the trial court found Wilson sentence, particular then the sentence is 6105, 6108 and guilty violating sections (citation illegal and must be vacated.” Id. Act, 6110.2 of the Firearms as Uniform omitted). Robinson, See also 931 A.2d intentionally knowingly pos- well as and (an sentencing 21 claim one which illegal is sessing a substance. court controlled The legal “the authori implicates fundamental a of impris- then sentenced to term ty impose of the court to the sentence it 2y¿ years, onment to 5 to be followed Pinko, did.”); Commonwealth above, years As stated this (“The matter (Pa.Super.2002) timely appeal followed. the au possesses whether the trial court We must first determine whether thority particular a sentence is a impose the condition im challenge Wilson’s legality.”). matter of a posed probation parole on his challenge legality recently applied foregoing to the of the sentence or We Meats, is, instead, challenge principles whether it a Meats, a discretionary sentencing. (Pa.Super.2009). A A.2d 1210 aspects imprisonment designed native to and is a sentenc- of this considered panel to rehabilitate a criminal defendant court ordered in which the trial ing order preserving rights while still of law- subjected to random Mears be abiding citizens to be secure in their Force by the Gun Violence Task persons property. conditions parole. On When he was on while placed they on orders are that the trial court argued Mears appeal, formulated to insure or assist a defen- contrary to parole a “condition of imposed leading law-abiding life. federal consti- dant statutory law and state and Id., at 1211. protections....” tutional Hartman, Commonwealth v. issue of wheth- panel “[t]he noted (citation omitted). (Pa.Super.2006) So authority possessed trial court

er the long placed the conditions on a implicates sentence impose particular reasonable, “are it within a trial tioner sentence[,]” and then legality (ci- court’s discretion to order them.” Id. legality implicated found that the claim omitted). tation pre- of the sentence issue 9754(b) of Sentencing Section Code appeal “ultimately concerns the sented trial permits the court to “attach such of statutory authority imposition for the reasonable conditions authorized ” (citing condition of sentence.... Id. (c) of this it subsection section as deems Pinko, supra). necessary to insure or assist the defendant leading law-abiding claims that the trial court life.” As Wilson Pa. Cons. 9754(b). impose One of the conditions statutory lacked the StatAnn. (c) condition, the of subsection is that the defendant possess thus not with forbidden to firearms. See 42 challenge to his sentence lies Pa. 9754(c)(7). legal- but with An additional discretionary aspects, its its Cons.Stat.Ann. (c) ity. See id. condition of subsection is a catchall provision by which the trial court can im- A claim that the trial court erro pose satisfy any a condition other “[t]o neously imposed illegal an sentence is a reasonably conditions related to the reha- and, such, our of question scope of law as unduly bilitation of the defendant and not our of re plenary review is standard liberty incompatible restrictive of his or view is de novo. See Commonwealth with his freedom of conscience.” 42 Pa. (Pa.Su 667, Williams, 980 672 A.2d 9754(c)(13). § Cons.Stat.Ann. denied, 700, Pa. per.2009), appeal 605 990 mentioned, as a of proba- As condition (2010). therefore proceed We tion, the trial court that ordered Wilson whether the trial court address random, subjected to warrantless searches subjected it illegal sentence when Wilson The trial weapons. of his residence random, warrantless searches of his res “[ujnlike court was no doubt aware that idence as a condition of his criminal, ordinary probationers the have primary proba “The concern of even of an conceal their more incentive to tion, the parole, as well as is rehabilitation quickly criminal activities and of dispose ” individual to a useful and restoration of the incriminating evidence.... United Mullins, life.” 591 Pa. Yuknavich, States v. 419 F.3d (2007). haveWe (11th Cir.2005). Further, as the United explained that cautioned, Supreme States has “it very that as- probation unique order is and indi- must be remembered

[a] is sumption vidualized. It is constructed as an alter- institution the trial court’s condition of likely more than find that probationer entirely appropriate. citizen to violate the law.” ordinary Knights, 534 U.S. States United however, argues, that 61 Pa.Stat. (2001). 151 L.Ed.2d S.Ct. statutorily pre- § 331.27b controls and ordering pro- cludes the trial court from Here, was confronted the trial court random, war- permitting bation condition possessed a felon who with a convicted disagree. rantless searches. We law carried in of the handgun violation Philadelphia, handgun on street provided, pertinent Section 331.27b at a motorist. See ultimately pointing it part, following: 8/18/08, N.T., Waiver/Sentencing Hearing, property A search be conducted with a recalcitrant Faced such at 11-13. by any officer there is reasonable if individual, carefully the trial court crafted real suspicion to believe that or random, authorizing warrant- the condition property possession other with compliance to ensure less searches con- under the control of offender support rules and to Wilson’s probationary tains contraband or other evidence effective rehabilitation. supervi- the conditions of violations of sion. condition, given This Wilson’s 331.27b(d)(2) (emphasis 61 PaStat. add- eminently history, criminal reasonable ed). random, warrant- provision because the argue Wilson relies on this statute clearly less searches was tied Wilson’s issue protection public. rehabilitation and of the random, warrantless searches for 9754(b), here — See 42 Pa. Cons.Stat.Ann. it weapons permits unlawful (c)(13).9 especially —is Such a condition is rea without rea- searches of Wilson’s residence light epidemic gun sonable in suspicion. sonable But we read this stat- State courts Philadelphia.10 violence differently. ute deterring are confronted with the task of gun ensuring pro violent crimes and § 331.27b discloses plain reading11 A public. They tection of the must be af by proba- to searches made pertains it every forded available and lawful tool in acting tion on their own officers case, effectively judicial their arsenal to stem this dead In this without sanction. ly many the condition of plaguing tide of violence too of our trial court itself ordered circumstances, random, expressly we cities. Under such dire warrantless 15, 2007, Times, April http:// probation 9. Federal law on N.Y. available at conditions is simi- Pennsylvania lar va- to law as test for www.nytimes.com/2007/04/15/us/l "[t]he 5 conditions, lidity probation of even where (chronicling prevalence pliiladelphia.html of affected, ‘preferred’ rights are is whether the with firearms in Philadel- violence committed designed primarily to meet the conditions 22, 2010). (last phia) June visited protection ends of of the rehabilitation Schoenrock, public.” United States v. 868 Statutory provides Act 11.“The Construction Schoenrock, (8th Cir.1989). F.2d In 291 interpreting that in a statute it is incumbent probation the court held that a reviewing that the court endeavor to ascertain random, subjected probationer that the to Legislature the intent of the and that when warrantless the searches was reasonable as the of a are clear and free of words statute condition was related to rehabilitation and by ambiguity interpret we must those words protection public. Cox, meaning.” plain their 223, 283, (2009). See, Hurdle, 703 e.g., Philadelphia Strug- 10. 603 Pa. 983 Jon Quell Violence, gles Epidemic to an Gun above, property suspi- noted where there is reasonable probation. As a condition by probation the trial court cion the condition officer believe protections juvenile possessed offered that comports with contraband or Pennsylvania States and Con- United was in violation of his conditions. way however, § 331.27b limit In no does Again, distinguish- stitutions. In re J.E. is authority impose, of the trial court to able from this case as the warrantless appropriate, when a condition solely search was conducted on the probationer subjected that the ran- tion officer’s and not on a finding dom, warrantless searches. a trial court that the search was a necessary supervision. condition of There- relies support position, In of his Wilson fore, we conclude that the trial court’s Williams, Williams, however, supra. on probation condition does not run afoul of Williams, readily distinguishable. § 331.27b. agree- found that an Supreme our Court by a prepared parole ment officer Wilson also contends that the parolee, permitted which signed probation condition runs afoul of the searches, only warrantless acted “as Fourth Amendment of the United States acknowledgement officer As the condition is reason Constitution. right to conduct reasonable [had] ably supervision related to the and rehabil ... parolee’s] residence [the probationer, itation of the we find that a Id., Pa. a warrant.” at without warrantless search is constitu The Su- 692 A.2d tionally permissible under the Fourth preme went on to define reason- Amendment of United States Constitu requiring able search as one reasonable alone, “[B]y tion. virtue of their status situation suspicion. Unlike probationers enjoy do not the absolute lib Williams, specifically the trial court-here erty every citizen is entitled.” which random, warrant- found that a condition of 547,U.S. 843, California, 849- Samson necessary to insure Wil- less searches was 165 L.Ed.2d 250 S.Ct. compliance with the court’s directive son’s (2006).13 A limited probationer has Fourth possession gun not have of a rights Amendment because of diminished N.T., See while on Waiver/Sen- expectation privacy. See Common 8/18/04, tencing Hearing, at 62-64. Curry, 394 n. wealth J.E., Pa. Wilson also relies on In re (Pa.Super.2006). (2007), where our Su- Court, Supreme States United juvenile proba- that a preme Court ruled occasions, many recognized has a State’s pro- tion officer’s warrantless search of a obligation protect public proper- supported bationer’s bedroom must be felons, ly supervise convicted and “has re- suspicion juvenile a reasonable acknowledged that a State’s in- peatedly in violation of possessed contraband was reducing thereby terests in recidivism and supervision. The the conditions of his citi- promoting reintegration positive § and holding predicated was 6304 Court’s Act,12 zenship among probationers parolees lan- of the Juvenile which contains intrusions that would not per- privacy §to 331.27b in that it warrant guage similar or otherwise be tolerated under the Fourth juvenile’s person mits a search of the Samson, upheld the Court a California 13. 42 6304. 12. Pa. Cons.Stat.Ann random, parolees requiring to consent to law suspicionless searches. 528 Samson, 853, posed probation 547 as a condition of does not

Amendment.” U.S. In furtherance of this necessarily 126 Fourth S.Ct. violate Amendment as ig states do “not have to responsibility, long grounds” as “reasonable for such a or reality suppress nore the of recidivism finding search exist and such “reasonable protecting potential its interests ‘in victims grounds” probationer where was convicted enterprise’ running of criminal for fear of of DWUI and random searches for alcohol Id.,, at afoul of the Fourth Amendment.” necessary accomplish for the state to 849, (quoting Knights, 126 2193 534 S.Ct. purposes probation). of 587). 121, 122 U.S. at S.Ct. emphasized It must be that indi Numerous courts across the coun not, suspicion vidualized is in all instanc try upheld probation have similar orders.14 es, qua the sine non in analyzing reason Schoenrock, See, e.g., supra; Owens ableness under the Fourth Amendment. (11th 1362, 681 F.2d 1368-69 Kelley, Cir. States Supreme United Court has 1982) (holding provi warrantless search although conceded that quantum “some probation sion in order is valid under suspicion individualized usually pre is without Fourth Amendment reasonable requisite to a constitutional search or suspicion long as search is in further sei zure!,] purposes ance of (cid:127) (cid:127) (cid:127) not Fourth Amendment im harassment); Morgan, State v. 206 Neb. poses no irreducible requirement of such (1980) 818, 827, 285, 295 N.W.2d 289 suspicion.” United States v. Martinez- (holding provision warrantless search in Fuerte, 543, 560-561, 428 U.S. 96 S.Ct. constitutionally order valid (1976). 3074, 49 L.Ed.2d 1116 See also when it contributes to rehabilitation pro Raab, Treasury Employees v. Von cess and search is conducted a reason 656, 1384, 665, U.S. 109 S.Ct. manner); able State v. Zeta Chi Fraterni (1989) (rejecting L.Ed.2d 685 claim that 16, 30-32, 142 N.H. ty, 540- “any suspicion measure individualized (1997) (holding provision search indispensable component ... is an of rea random, authorizing order war- circumstance”); in every sonableness rantless searches is constitutional under Skinner v. Railway Labor Executives’ Fourth Amendment and New Hampshire Assn., 602, 624, 489 U.S. 109 S.Ct. if Constitution related to the rehabilitation (“[A] 103 L.Ed.2d showing of supervision probationer and search suspicion individualized is not constitu time, is reasonable in scope, frequen floor, tional below which a search must Smith, cy); State v. 589 N.W.2d unreasonable.”). Indeed, presumed (N.D.1999) (holding under Fourth noted, Supreme the United States suspicion Amendment reasonable not recently upheld a requiring California law constitutionally required for a warrantless random, parolees to suspicion- consent to probation search when conducted in a rea Samson, less searches. See supra. manner); State, sonable Jones P.3d (random, I, (Wyo.2002) 1257-1258 Wilson further maintains that war- Article probationer’s rantless search of pro- home im- 8 of the Constitution same, course, "recognize holdings 14. We ... that the is true of decisions from our See, federal circuit bind neither courts this Court e.g., sister states. Commonwealth v. Na- court, persua- nor the trial but serve as Pennsylva- tional Bank & Trust Co. Central resolving analogous sive cases.” nia, 188, 194, 469 Pa. Cristi, Montagazzi v. (1976). (citation omitted). (Pa.Super.2010) this will be protection required relinquished than that case and de- greater vides Amendment. recognize stroyed. permitted the Fourth We You’re never to own has held “that Supreme that our Court possess for even firearm the short- I, provides greater Section 8 often Article you est briefest amount of time. When since the of its exclusion- protection core released, you permitted are are not to protection in the ary grounded rule is reside in a household where there ais exclusionary while the federal rule privacy sign firearm. I’m going Order miscon- grounded deterring police is house, your your that will allow for resi- Williams, duct.” Commonwealth dence, you to be when are searched (1997). 577, 591, A.2d Pa. released firearms. However, we find no difference in the stan- before, probation right? You’ve been on under the issues here- applied dards in. Forget probation you’ve ever been Williams, In noted that “the Court gun probation on before. Because court rights parolee constitutional of a [federal] nothing like There no that. is stricter from that of a indistinguishable gun than probation court Id., 547 Pa. at 585 n. tioner.” N.T., 8/18/08, Sentencing, (empha- at 63-64 then at 1035 n. 7. The Court examined added). sis I, Pennsylvania Article 8 of the whether greater provides protection order, Constitution sentencing the trial court by the Fourth Amend- required than that others, imposed, among following con- ment. The concluded that it could ditions on Wilson: parole from the justification “find no Other —GUN COURT PROBATION. ... to discern a reason to search at issue Weapons possess not own or fire- —Do articulate a different standard for the le- possess arms: Do not own or firearms. I, § of the under Article 8 of gality search Firearms: Weapons Sur- —Surrender Pennsylvania Constitution than under render Firearms. of the the Fourth Amendment United DE- Other—RANDOM SEARCHES: Id., 547 Pa. at 593- States Constitution.” TO FENDANT SUBJECT RANDOM Therefore, 594, 692 at 1039. there OF SEARCHES HIS RESIDENCE being no difference in the standard of re- FOR FIREARMS. view under the federal constitution constitutions, argument that state Wilson’s Order, dated 8/18/08. I,

Article 8 of Consti- In another order issued the trial fail. greater protection tution offers must day, is reference to court the same there

We next address Wilson’s claim “probation parole.” The order and/or the trial without au court was following: states the order, thority parole, condition of NOW, day August, AND 18th this random, subject that he be warrantless hereby it is ORDERED that as a residence, and that he not searches of defendant’s a firearm. possess own or charge on the Violation and/or stated, sentencing, (VUFA), At the trial court Firearms Act Sec- Uniform among things, following: other 6105, and for the tion duration parole pe- defendant’s my you When are on and/or —there riod, subject defendant to random community

will be 20 hours of ser- also vice, residence. The drug gun random screens. The his/her 530 a term of incarceration of two space occu- sentenced to will be limited

search years, parole The his “would be under by the or more pied defendant. Pennsylva- by agents supervision of the Gun exclusive of the will be conducted the ... Force. nia Board of Probation and Parole Violence Task Id. not the Pleas.” Common Order, in italics (emphasis dated 8/18/08 § (citing 61 Pa.Stat. 331.17 and Common- added). (Pa.Su- 772 74 Camps, wealth v. A.2d Thus, an un in this case there is found, “Therefore,” panel the per.2001)). the state discrepancy fortunate between “any sentencing pur- the court condition sentencing, at of the trial court ments pa- state ported impose Appellant’s conditions were probation where lawful advisory only.” (citing role is Id. Pa. sentencing the order where imposed, 331.18). Accordingly, panel the Stat. conditions were parole both parole imposing held that the condition of the imposed. It is well-established force, legal random searches “is of no sentencing precedence order takes over trial was without the court where is a sentencing transcript the there Id. a condi- impose the condition.” Such as writ discrepancy between sentence observed, tion, panel would have to be orally pronounced. ten and as See Com imposed by Board of Gordon, 504, 507 n. monwealth v. 897 A.2d Therefore, Probation and Parole. See id. Pennsylva 28 Standard (Pa.Super.2006); panel portion vacated the of the sen- nia Practice 2d 137:25. See also Com condition, that imposed disputed tence Ill, Quinlan, Pa.Super. monwealth v. the balance but otherwise affirmed (1994) (“Oral state judgment of sentence and found no need to judge passing ments made sen re-sentencing. See id. remand tence, incorporated but not the written signed by sentencing judge], [the sentence Here, above, the trial as mentioned part judgment are not of sen court a with a maximum imposed sentence tence.”). years term of more than two and also pa- a special ordered condition Wilson’s Therefore, order, by plain the one its random, role—the warrantless search for terms, imposes pa- conditions on Wilson’s above, weapons. As stated such condi- Mears, role. In Commonwealth v. Mears, nullity. tion is a See mentioned, (Pa.Super.2009), only at 1212. we vacate Accordingly, panel of this Court considered a sentenc- imposes portion Wilson’s sentence ing order in which the trial court ordered random, warrantless condition of subject that Mears be to random searches parole. judgment searches on his The by the Gun Force while he Violence Task proper respects. sentence is all other parole. appeal, was on On sentencing trial Because court’s imposed Mears that the trial court argued disturbed, we need scheme has not been contrary statutory a “condition of re-sentencing. not remand for See id. law and state and federal constitutional Id., protections[.]” at 1211. court Wilson’s final claim that the trial panel improperly imposed noted that the trial that he Mears during possess court did not sentence Mears to “never own or a firearm the rec- parole” and that the trial court sentence is unsubstantiated Brief, at There is Appellant’s with a maximum term of incarceration of ord. id., pa- 1212. It years. simply imposing two or more See no such order such however, court, been role condition. The trial explained then as Mears had part of require suspicion reasonable on Wilson’s such a condition impose did n felon, course, initiating officer before Of as a convicted Affir- Opinion Support The in of a legally possess own or search. Wilson cannot appel- that this condition of finds 18 Pa. Cons.Stat.Ann. mance firearm. See 6105(a). goes legality to the of his lant’s and, concluding that such a condi- sentence conclusion, the trial we find that reasonable, by authorized law and tion is random, warrant- authorization of court’s of sentence as to judgment affirms the of Wilson’s residence less searches appellant’s probation and this condition. weapons as condition result, I reach the same I While would 9754(b) Sentencing of the lawful under by finding would do so this issue waived reasonably was re- Code as it was not raised before the trial because public lated to Wilson’s rehabilitation court. I do not believe that this condition safety. probation implicates legality ap- part affirmed in Judgment of sentence pellant’s sentence. in with this part and vacated in accordance long every This court has held that not relinquished. Opinion. Jurisdiction in in crafting error sentence results by in Affirmance Opinion Support of illegal sentence: PANELLA, STEVENS, J., joined by J. cases, Through these en banc we have SHOGAN, ALLEN, J. and J. the principle established that “the term

Concurring by Statement P.J. FORD ‘illegal sentence’ is a term of art that our in the in concurring ELLIOTT result narrowly, apply relatively Courts support of affirmance. small class of cases.” [Commonwealth (Pa.Su Berry, 877 A.2d v.] [479 Opinion Support by of Reversal .2005) per at 483. This class of cases ] GANTMAN, LAZARUS, J., joined by J. (1) includes: claims that the sentence MUNDY, DONOHUE, J. and J. pre of the legal parameters fell “outside STATEMENT BY CONCURRING (2) statute”; applicable scribed ELLIOTT, FORD P.J.: involving merger/double jeopar claims dy; implicating claims the rule in I concur the result reached Apprendi Jersey, v. New 530 U.S. Opinion Support of Affirmance. I find (2000). 120 S.Ct. 147 L.Ed.2d 435 a challenge to the condition of Jacobs, See [Commonwealth v.] discretionary goes tion at issue to the as- (cita (Pa.Super.2006) at 372-373 [368 ] sentence, and not to pects appellant’s omitted). implicate tions These claims sentence, that, legality of his legal authority the fundamental therefore, appellant waived this issue impose court to the sentence that it did. raising not first it before the court below.1 Id. Opinion Support Affirmance As the

notes, challenges the trial court as a condi- Most other to a sentence discretionary aspects that he appellant’s probation implicate tion of the sentence. Arch subject [Commonwealth v.] to random searches of resi- er, (Pa.Super.1998) weapons, [203 ] dence for and the court did not modify imposed.” "Objections discretionary aspects the sentence Com- lion generally they Moury, waived if are not monwealth sentence (Pa.Super.2010). sentencing hearing in a raised at the mo- though This is true even of the trial court to im- 209-210. legal question, pose probation specifically involve a conditions on is claim error, by or patently obvious mathematical authorized statute: an issue of constitutional dimension. (b) generally. court Conditions —The Id.; Jacobs, A.2d at 373-374.[Foot shall attach such of the reasonable Moreover, note the mere fact that 5] (c) by conditions authorized subsection may govern rule or statute or limit the necessary of this section as it deems trial court’s exercise of discretion sen to insure or assist the defendant tencing necessarily does not convert the leading a life. law-abiding involving legality claim into one (c) Specific conditions. —The court the sentence. Id. at 373-375. For ex may as a condition of its require order ample, recently we held that the denial the defendant: right challenge of allocution awas discretionary aspects of the sen (13) satisfy any To other conditions tence, even both a statute though reasonably related to the rehabili- rule of criminal procedure mandated tation of the defendant and not un- provide that a court allocution before duly restrictive in- liberty of his or Jacobs, 377; sentencing. 900 A.2d at compatible with his freedom of Williams, 900 [Commonwealth v.] conscience. (Pa.Super.2006)

[906 909. ] 9754(b) (c)(13).2 § 42 Pa.C.S.A. Archer, years Even ten before [Footnote 5] This court has also held that the statuto- opinion advising this Court issued an en banc ry authority impose conditions of sentencing improp- that "if a court considers imposing upon er factors in sentence a defen- implicates discretionary tion aspects of dant, discretion, thereby the court abuses its sentence, and not the legality of sentence.3 imposed but the sentence is not rendered Houtz, Commonwealth v. 982 A.2d Otherwise, illegal. every erroneous consider- (Pa.Super.2009); Commonwealth v. by sentencing ation court will render the illegal sentence in a manner which cannot be Fenton, (Pa.Su- 750 A.2d 867 n. 4 waived a defendant. This is not the law. per.2000). my position It is that even if a Indeed, even issues of constitutional dimen- error, condition of probation is it sions can be waived.” Commonwealth v. represents an Krum, abuse of discretion Pa.Super. 533 A.2d (citations banc) omitted). {en trial court for purposes appeal. If Robinson, found to be an abuse of discretion and (additional 21 (Pa.Super.2007) preserved footnote appeal, un- condition is omitted). enforceable. Hall, I believe that this statute authorizes the 3. But see Commonwealth v. condition of banc), here. (Pa.Super.2010) was which {en deter- Moreover, disagree I Opinion Sup- with the probation requiring mined that a condition of port of Reversal’s view that finds that the appellant support the children of the dece- Legislature by probation restricted searches dent was unauthorized restitution and there- they officers to instances where had reason- legality fore went to the of sentence. In dis- suspicion. able See former 61 P.S. 331.27b. sent, Judge Allen would have affirmed the regard, agree Opinion In this I with the trial sup- court’s to order the child Support of Affirmance that 331.27b refers port probation. as a condition of This writer only conducting officers joined Judge Allen in dissent. authorization, on their own and not as direct- ed a court as a condition of or otherwise. appellant raising when the course I would find that an is abused

Discretion issue affects abuse the trial represents trial pursued [by court] court’s in setting exercise discretion merely judgment, an error of but not conditions of Because he did manifestly unrea- judgment where the court, not raise this before the trial it is applied not or where the law is sonable reasons, appeal. waived on For these I where the record shows that the ac- concur in the result. partiality, prejudice, is a result of tion or ill will. bias OPINION IN SUPPORT OF Archer, Commonwealth LAZARUS, BY REVERSAL J.: (Pa.Super.1998), quoting Common A. appeals judg- David Wilson from his Smith, 487, 491, 681 A.2d wealth v. 545 Pa. imposed by ment of sentence Honor- (1996) (emphasis original). August able Susan I. Shulman on of Affirmance in the Court of Common Pleas of Philadel- Opinion Support Mears, review, County. After I phia careful upon relies Commonwealth would reverse. to conclude that (Pa.Super.2009) A.2d 1210 to probation goes the instant condition of trial, Following bench was I to legality of sentence. find Mears guilty violating found of three counts of Mears is another inapposite. be While (“VUFA”)1 Firearms Act and Uniform case where ran- Philadelphia Gun Court possession of a controlled substance.2 imposed searches were as dom assigned Philadelphia Wilson’s case was parole, appellant’s (“Gun and/or Court”), Gun Court which was im- actually pro- not sentenced to Mears was by plemented Philadelphia Court of Moreover, specifically bation. Mears not- in response Common Pleas to an increase that it was not a situation which the ed weapons in the volume of offenses commit- provision random searches was city.3 ted in the The court consolidates all Mears, a condition of charge cases in which the most serious gun Rather, illegality 1212. found in at is VUFA onto one docket an effort that the random searches con- Mears was adjudicate gun promptly streamline and any parole would served apply dition improve Gun Court aims also to offenses. in a where the trial appellant, situation agencies the coordination of the numerous any court was unauthorized to set condi- city’s involved in the effort to reduce the Pennsylva- parole, tions on and where illegal guns number of streets was nia Board of Probation and Parole Philadelphia. Most Gun defendants Court solely authorized to set the conditions of Special a “Release on receive Conditions” Thus, (“ROSC”) alia, not find that parole.4 requires, Mears did which inter (2) (1) they: proceedings; a random searches condition of attend all court imposing (3) court; legality pro- all probation went to the sen- submit to orders of an pretrial up-to-date vide services with tence. 113(a)(16). regard, agreement, 2. 35 In this I am in in both P.S. 780— result, part with that rationale Support Opinion in of Affirmance that finds regarding herein 3. All information referenced application of the random searches condition Gun Court was obtained from the website any parole appellant, an to be served Philadelphia the Court of Common Pleas of illegal sentence. County http://courts.phila.gov/pdf/notices/ at 2005/notice-2005-guncourt-fact-sheet.pdf §§ 1. 18 Pa.C.S.A. 6108 and 6110.2. (4) (5) address; any possess weapons; not tends that the condition of imposed by presents merely challenge the court issue to the obey all conditions (6) services; maintain pretrial discretionary aspect sentencing, which and/or weekly managers; contact with then* case by failing Wilson has to raise in waived (7) gun program. education attend post-sentence motions.

Optional may conditions which be im- challenge legality A of a sentence upon a defendant include posed Gun Court may right, be raised as a matter of is non- agreement, a firearm signing surrender may waivable long be entertained so drug monitoring. detection and electronic reviewing jurisdiction. as the court has Finally, for those Gun offenders who Robinson, probation, receive a sentence that includes (en banc). Indeed, (Pa.Super.2007) 19-20 may certain im- enhanced conditions be illegal sentence reviewed sua posed. These include: reporting sponte this Court. Commonwealth v. permit- directed to officer and (Pa.Su Williams, Anthony 871 A.2d 254 ting the officer to visit the home or place per.2005) (vacating illegal component of (2) needed; employment being sub- though by sentence even issue not raised ject' personal property or searches if appellant). suspicion there is reasonable to believe Conversely, discretionary as when any the offender is in violation of pects judgment ques of a of sentence are (3) probation; maintaining, at a mini- tioned, appeal guaranteed an is not as of mum, weekly contact with probation offi- Moore, right. v. 420 Commonwealth ’ (4) cer; being subject to home visits 484, (1992). 8, Pa.Super. 617 A.2d 11 through targeted patrol (police/probation Rather, criteria be met two must before an partnership). First, taken. appeal appellant be Wilson was sentenced to a term of im- must “set forth in his brief a concise state prisonment 2 years, to 5 followed 3 ment of the reasons relied upon for allow years’ reporting probation, subject to a ance appeal respect with to the discre conditions, series of including that he sub- tionary aspects of the sentence.” Pa. mit to random searches of his residence 2119(f); Mouzon, R.A.P. Commonwealth v. weapons. trial court also (2002). Pa. 571 621-22 the same condition parole. on Wilson’s In Second, appeal only granted an will order, its the trial court did not include when a question” “substantial has been any requirement these searches be 9781(b); presented. 42 Pa.C.S.A. Mouz upon probable based cause or reasonable on, 622; Moore, supra, 617 A.2d at 11. suspicion. question” We will find a “substantial appeal,

On challenges legali- only review the of the trial court decision ty of Specifically, his sentence. he aggrieved party claims where an can articulate that the probation subjecting condition of why imposed by clear reasons the sentence him to random searches of his residence the trial compromises sentencing court imposed by were the trial court without scheme as a whole. Commonwealth Tuladziecki, authority, require as it did not 513 Pa. (1987). showing by Jones, officer of reason- See also Commonwealth v. (1992) suspicion able required the Constitu- 418 Pa.Super. tions of the States (Superior grant only United and the Com- will appeal Court Pennsylvania, monwealth of as well appellant judge’s as 61 when shows that trial (1) P.S. 331.27b. The Commonwealth con- actions were either: inconsistent with Code; to sentence in excess of relevant Sentencing fendant provision specific maximum must —unless (2) statutory which admitted norms contrary to fundamental (1) by jury, found not by defendant —be This Court’s sentencing process). underlie (2) beyond judge; chal established reason- a defendant of review when standard doubt). Id. of his sen able discretionary aspects lenges narrow; only it will reverse very tence is Williams, Court, supra, this Anthony a mani appellant has demonstrated where judgment vacated a of sen sponte, sua sentencing by the abuse of discretion fest requirement tence that included Hermanson, judge. Commonwealth interlock de ignition install defendant (1996). A.2d 281 Pa.Super. over which he vice on all motor vehicles decision, In an earlier Here, had lawful control. asserts Mockaitis, 575 Pa. only the discre- Commonwealth appeal implicates Wilson’s (2003), Supreme our must 834 A.2d 488 tionary aspects of his sentence and (1) unconstitutional the preserve not had declared statute fail because: he did (2) below; of such requiring ignition he failed to installation in the court issue vehicles systems which on motor owned question set forth substantial review; driving serial under the influence offender. grant appellate this Court could had not Although had been the defendant raised this question if a even substantial raised, appeal, exercise issue on this Court concluded that challenge to the court’s statutory “if a court not have authori meritless because the con- does of discretion is act, ty particular to the to order a the order must reasonably related dition at issue is rehabilitation, crime, citing Id. at public be vacated.” Common defendant’s (Pa.Su Randal, v. 837 A.2d 1211 unduly impinge defen- wealth safety, and does not banc). (en Thus, when a court privacy per.2003) liberty dant’s or his diminished (4) statutory authority impose spe challenge lacks rights; and his constitutional is, of part at this cific act or condition as its sentenc yet ripe for review and is not scheme, legality impli the sentence’s ing juncture, purely hypothetical.4 addressed, sponte, be sua cated and term term sentence” is a of “illegal The even if not right, a matter of raised narrowly, to a apply art that our Courts Here, ques because Wilson appellant. an Robinson, relatively small class of cases. impose court to authority of the tions includes; class of cases supra, 21. This and parole, the conditions (1) fell “outside of claims that the sentence legality of his sentence appeal raises by the legal parameters prescribed and we will address it. (2) statute”; involving claims applicable (3) Amendment of Generally, claims the Fourth merger/double jeopardy; and protects v. New citizens and Apprendi the rule in the U.S. Constitution implicating 2348, 147 their from unreasonable search property 120 S.Ct. Jersey, 530 U.S. fact, in the of a warrant (holding any and seizure absence L.Ed.2d 435 conviction, probable cause.5 See also exposing upon de- obtained prior other than Fourth of the U.S. Consti- claim to meritless and will 5. The Amendment 4. We find this be tution, detail, to the via the Four- applicable States any except to note that not it in discuss Amendment, requires that: teenth sentence, which the condition of Wilson's right people to be secure in their integral part, final and is a effects, houses, against persons, papers, and and, thus, immediately appealable judgment seizures, shall unreasonable searches we will review the condition violated, and no Warrants shall is- not Constitution, I, upheld suppression Article Sec- the trial court’s Pennsylvania However, Supreme Court tion 8.6 U.S. evidence because there existed no “statute has, out years, over the carved numerous or which or regulation governs allows requirement.7 exceptions to the warrant performance of warrantless searches based Ohio, notably, in Terry Most U.S. upon suspicion probable reasonable or (1968), 1868, 20 L.Ed.2d 889 88 S.Ct. by probation parole cause” officers. Supreme Court found “reasonable U.S. Thus, Id. at 1097. concluded allowing law enforce- suspicion” exception, pro- that such warrantless were searches agents ment to conduct warrantless hibited the Fourth Amendment “with- of a reasonable possessed search when out the consent of the owner or without a by “specific and ar- suspicion, supportable statutory regulatory govern- framework facts,” activity may criminal ticulable ing the Id. (emphasis search.” at 1098 Additionally, long be afoot. it has been added).8 subject settled individuals decision, response to the Pickron tionary supervision have limited Fourth Legislature 1995 enacted rights Amendment due to diminished 331.27b, 61 P.S. provided just which privacy. expectation “statutory such a framework” for property Williams, Eric 547 Pa. 692 A.2d 1031 by probation Wisconsin, officers. The stat- (1997); 483 U.S. Griffin (1987). authority county ute delineates the pro- 107 S.Ct. 97 L.Ed.2d 709 bation officers9 and authorizes offi- such Pickron, In Commonwealth v. 535 Pa. property cers to conduct searches only (Pa.1993), Supreme 634 A.2d 1093 our Thus, where suspicion reasonable exists. a factual Court addressed scenario similar acknowledging probationers’ while limited us, prior to the one now before but privacy rights by not requiring probable 331.27b, governing enactment of 61 P.S. warrant, cause and a as the Supreme offi- Pickron, in legislature Court held took cers to conduct reasonable ground preserved middle and a level of Pickron, In property parole of offenders. constitutional protection probationers. officers conducted warrantless search of “[njoth- home, legislature provided The also that a parolee’s they drugs where found drug paraphernalia. ing and in reversing [Section shall be construed 331.27b] Court, holding Supreme permit of this to searches or seizures in violation sue, cause, 294, 1642, (1967); upon probable supported by but 87 S.Ct. 18 L.Ed.2d 782 affirmation, particularly Oath or and de- exception the search incident to arrest estab- searched, scribing place to be and the 752, California, lished in v. Chimel 395 U.S. persons things or to be seized. (1969); 89 S.Ct. 23 L.Ed.2d 685 exception” the "automobile first set forth in I, 6. Article Section 8 of the Con- U.S., Carroll v. 267 U.S. 45 S.Ct. provides: stitution L.Ed. 543 people persons, The be shall secure in their houses, papers possessions from unrea- have, not, seizures, The Court could but did add the sonable searches and and no war- possi- words "or without a any court order” to the place any rant to search or to seize person things ble shall issue without circumstances under which a warrantless describ- be, ing nearly may might acceptable. them as as nor without search cause, probable supported by affir- oath or by mation subscribed to the affiant. applies county pa- 9. Section 331.27b also parole role supervis- officers and state officers exceptions 7. Such other to the warrant re- ing county offenders. quirement pursuit” excep- include “hot Hayden, tion carved out in Warden v. 387 U.S. probation officers imposed upon State or straints of the United of the Constitution cases, by apply Section 331.27b do not in Article I of the Constitution 8 of section 331.27b(b). § I judice, P.S. such as the matter sub in which the Pennsylvania.” 61 in dispositive by to be Section 331.27b warrantless search is not initiated believe himself, but per- the instant matter. officer rather pursuant formed to an order of court. penal of a part as a Although imposed Opinion Support of Affirmance asserts sentence, pri- conditions § plain reading 331.27b dis- “[a] furthering, as a construc- marily aimed at pertains closes that it to searches made an of- imprisonment, tive alternative to acting on au- probation officers their own rehabilitation, reassimilation and fender’s judicial thority Opinion without sanction.” society law-abiding as a reintegration into Affirmance, at 526-27. I do Support and, thus, traditionally courts are citizen legisla- into the not read such limitation invested with a broad meas- properly Opinion Support words. The ture’s in fashioning ure of discretion conditions Cox, Affirmance cites to Commonwealth to the circum- probation appropriate (2009), 603 Pa. 983 A.2d 666 discuss- of an individual case. Common- stances Act, Statutory 1 Pa. ing Construction Walton, 483 Pa. wealth for the proposition C.S.A. (1979); see also 61 Pa.C.S.A. “when words of statute are clear and 6153(a) supervision is to as- (purpose we ambiguity interpret free of must those and reassi- offenders in rehabilitation sist Cox, meaning.” their plain words community protec- well as milation into as However, A.2d at 703. nowhere section However, it is axiomatic public). tion of language plainly 331.27b am I able to find authority to order the that a court lacks limiting application its officers contrary act that performance of an authority, acting opposed their own statutory any purport- law and that order authority of a court order. I do not ing require legal nullity. such an act is a imprimatur believe that the of a court can Meats, See illegal legal transform an act into a one (Pa.Super.2009) (holding imposition judicial of a pen. with stroke trial court of condition of to be nullity statutory law vests such reasons, For the I conclude foregoing with Board of Probation solely court, imposed by the condition Parole). Here, the trial court ordered random, subjecting suspicionless to subjected by Depart- that Wilson be residence, in searches of his violation random, of Probation to warrantless ment authority granted by legislature to in of Section contravention probation officers under 61 P.S. 331.27b. 331.27b, requires probationary which legislature Where the has established sus- supported searches be reasonable statutory regulating framework the man- result, I would vacate that picion. As may in which officers func- ner portion requiring of Wilson’s sentence tion, court, it the trial well-intentioned as subjected he to such searches. be, may is not free to authorize those Affirmance to exceed the boundaries Opinion Support officers I that the legislature.10 con- conclude concludes that the constitutional may rights arraignment, where a defendant say that certain con- 10. That is not to right to be free of ran- legislature and even the Consti- choose to waive ferred searches, dom, exchange subject Appro- suspicionless may to waiver. tution not be exist, prior may to him from a the benefits which flow priate circumstances such as matter had no trial court this officer to per- direct Wilson’s random, suspicionless searches of his

form and, the extent that the trial

property so, portion I would vacate that

court did

Wilson’s sentence. challenges legality

Wilson also parole imposed by

condition of the trial issue, I in full agree-

court. As to this am Opinion Support

ment with the of Affir-

mance, pa- which concludes that Wilson’s supervision

role is “under the exclusive Board of Probation and

Parole ... and not the Common Mears, (citations at 1212

Pleas.”

omitted). Thus, “any condition the sen-

tencing purported impose Ap- court and,

pellant’s advisory only” state such, is of no force. Id. Pennsylvania,

COMMONWEALTH of

Appellee MOORE, Appellant.

Richard

Superior Pennsylvania. Court of Oct.

Submitted 2010. Dec.

Filed Baker, Defender,

Karl Public Philadel- phia, appellant. However,

program presently such as Gun Court. issue is not before us.

Case Details

Case Name: Commonwealth v. Wilson

Court Name: Superior Court of Pennsylvania

Date Published: Dec 15, 2010

Citation: 11 A.3d 519

Docket Number: 2724 EDA 2008

Court Abbreviation: Pa. Super. Ct.