J-A04032-15 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v. 

ZACHARY HOSSEIN AFSHAR, 

 Appellant 

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 No. 812 WDA 2014 

 

Appeal from the Judgment of Sentence Entered December 20, 2013 

in the Court of Common Pleas of Indiana County, 

Criminal Division, at No(s): CP-32-CR-0001111-2012 

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ. 

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 14, 2015 

 Zachary Hossein Afshar (Appellant) appeals from the judgment of 

sentence imposed on December 20, 2013 following his convictions for 

various drug offenses. We affirm Appellant’s conviction, vacate Appellant’s 

judgment of sentence, and remand with instructions.

The trial court summarized the relevant facts of this case as follows. 

 On January 11, 2012, State Probation Officer James

Cutshall [was conducting a routine visit with a probationer when 

he] reported the odor of marijuana in the apartment building at 

919 Water Street, Indiana, Pennsylvania. Patrol Officer Cory 

Williams of the Indiana Borough Police Department was 

dispatched to investigate. [Officer] Williams noted a strong odor 

of marijuana coming from apartment 1, just inside the entrance 

of the building. [Appellant] answered the door at apartment 1 

when [Officer] Williams knocked. [Officer] Williams noted that 

the odor of marijuana was stronger when the door was opened. 

[Appellant] was instructed to sit in the living room while [Officer] 

Williams and other officers secured and cleared the area. A 

search warrant was then obtained. Pursuant to the search 
J-A04032-15 

- 2 - 

warrant, officers recovered illegal drugs and paraphernalia from 

[Appellant’s] apartment, including from a safe within his 

bedroom that had to be pried open. [Appellant] was then placed 

under arrest. 

Trial Court Opinion, 5/17/2013, at 1-2. 

 Appellant filed an omnibus pre-trial motion seeking to suppress the 

narcotics and paraphernalia seized during the search. A hearing on 

Appellant’s motion was held on February 14, 2013. Following the hearing, 

both parties submitted briefs to the trial court. On May 17, 2013, the trial 

court issued an order denying Appellant’s motion to suppress. 

 On June 7, 2013, Appellant filed a motion to reconsider the 

suppression ruling. The trial court granted this request. On July 23, 2013, 

the Commonwealth requested to reopen the suppression record. This 

request was also granted, and on July 29, 2013, the Commonwealth 

supplemented the suppression record with the affidavit of probable cause 

and warrant obtained prior to the search of Appellant’s home.1 

 This matter proceeded to a non-jury trial. On October 4, 2013, 

Appellant was found guilty of possession of cocaine with the intent to 

deliver, possession of marijuana, possession of methylenedioxypyrovalerone 

(commonly known as “bath salts”), possession of cocaine, and possession of 

drug paraphernalia. On December 20, 2013, Appellant was sentenced at 

count one, possession of cocaine with the intent to deliver, to a mandatory 

 

1

 The record does not indicate that there was a new ruling on Appellant’s 

suppression motion after reconsideration was granted. 
J-A04032-15 

- 3 - 

term of three to six years’ incarceration. He received no further penalty on 

the other charges. Appellant was also ordered to pay a fine of $15,000 and 

the costs of prosecution. 

 On December 30, 2013, Appellant timely filed a post-sentence motion, 

which was denied by the trial court on April 17, 2014. This timely filed 

appeal followed. The trial court directed Appellant to file a concise 

statement of errors complained of on appeal pursuant to Rule of Appellate 

Procedure 1925(b), and one was filed. 

 Appellant raises the following issues on appeal. 

1. Did the trial court err in ruling that Pennsylvania law allows 

for the mere odor of marijuana to be the only basis for a search 

warrant of one’s home when Pennsylvania law requires odor plus 

another circumstance indicating criminal activity? 

2. Did the trial court abuse its discretion when it allowed the 

[Commonwealth] to reopen the suppression record after the 

suppression ruling was made and after new case law favorable to 

the [Appellant’s] position was brought to the court’s attention? 

[3.] Did the trial court err when it ordered costs of prosecution 

to be paid without honoring a pertinent statute and precedent 

requiring certain due process protections? 

[4.] Did the trial court err when it allowed the Department of 

Corrections to calculate a [Appellant’s] credit for time served? 

[5.] When drug weight was used to trigger a mandatory 

minimum without that fact being proven beyond a reasonable 

doubt is the sentence illegal under [Alleyne v. United States, 

133 S.Ct. 2151 (2013)]? 

Appellant’s Brief at 7 (questions reordered for ease of disposition; trial court 

answers omitted). 
J-A04032-15 

- 4 - 

 Appellant’s first two issues challenge the trial court’s denial of his 

motion to suppress. 

When reviewing the denial of a motion to suppress, we must 

consider only the evidence of the prosecution and so much of the 

evidence for the defense as remains uncontradicted when read in 

the context of the record as a whole. We are bound by the 

suppression court’s findings if they are supported by the record. 

Factual findings wholly lacking in evidence, however, may be 

rejected. We may only reverse the suppression court if the legal 

conclusions drawn from the findings are in error. 

Commonwealth v. Gatlos, 76 A.2d 44, 52 (Pa. Super. 2013) (internal 

quotations and citations omitted).2 

 Instantly, Appellant contends that Officer Williams needed something 

more than the odor of marijuana, what he refers to throughout his brief as 

“odor + plus,” to establish the probable cause necessary to obtain a search 

warrant for his apartment. Appellant’s Brief at 20. We disagree. 

 “Both the Fourth Amendment of the United States 

Constitution and Article 1 Section 8 of the Pennsylvania 

Constitution protect citizens from unreasonable searches and 

seizures.” Commonwealth v. Cook, [] 735 A.2d 673, 674 

([Pa.] 1999). The Fourth Amendment to the United States 

Constitution provides that: 

 

2

 We are mindful that our Supreme Court has held that, when reviewing a 

challenge to the trial court’s suppression ruling, “it is inappropriate to 

consider trial evidence as a matter of course, because it is simply not part of 

the suppression record, absent a finding that such evidence was unavailable 

during the suppression hearing.” In re L.J., 79 A.3d 1073, 1085 (Pa. 2013). 

The Court in L.J. determined that this rule applies prospectively. Id. at 

1089. As the suppression hearing in the case at bar occurred prior to the 

decision in L.J., it is inapplicable, and we adhere to the scope of review as 

stated above. 
J-A04032-15 

- 5 - 

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no 

warrants shall issue, but upon probable cause, 

supported by oath or affirmation, and particularly 

describing the place to be searched, and the persons 

or things to be seized. 

U.S. Const.Amend. IV. The Pennsylvania Constitution provides: 

The people shall be secure in their persons, houses, 

papers and possessions from unreasonable searches 

and seizures, and no warrant to search any place or

to seize any person or things shall issue without 

describing them as nearly as may be, nor without 

probable cause, supported by oath or affirmation 

subscribed to by the affiant. 

Pa. Const. Art. I, § 8. 

Commonwealth v. Ayala, 791 A.2d 1202, 1207 (Pa. Super. 2002). 

The standard for evaluating whether probable cause 

exists for the issuance of a search warrant is the 

totality of the circumstances test as set forth in 

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 

L.Ed.2d 527 (1983) and adopted by the 

[Pennsylvania] Supreme Court in Commonwealth 

v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 

(1985). A magistrate is to make a practical commonsense decision whether, given all the circumstances

set forth in the affidavit before him, including the 

veracity and basis of knowledge of persons supplying 

hearsay information, there is a fair probability that 

contraband or evidence of a crime will be found in a 

particular place. 

In reviewing the validity of a search warrant, the reviewing court 

is limited to determining whether there is substantial evidence 

supporting the issuing authority’s decision to approve the 

warrant. 
J-A04032-15 

- 6 - 

Commonwealth v. Hawkins, 45 A.3d 1123, 1127 (Pa. Super. 2012) (some 

citations and quotations omitted). 

 Contrary to Appellant’s assertions, while more than the odor of 

marijuana is necessary for a warrantless search, odor alone may form the 

basis for the issuance of a search warrant. As this Court acknowledged in 

Commonwealth v. Stoner, 344 A.2d 633 (Pa. Super. 1975), where an 

officer is lawfully in a particular location, his detection of the odor of 

marijuana is sufficient to establish probable cause. See also

Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984); 

Commonwealth v. Trenge, 451 A.2d 701 (Pa. Super. 1982). 

 As the trial court aptly noted, 

[...] only that odors alone do not authorize a search

without a warrant. If the presence of odors is 

testified to before a magistrate and he finds the 

affiant qualified to know the odor, and it is one 

sufficiently distinctive to identify a forbidden 

substance, this Court has never held such a basis 

insufficient to justify issuance of a search warrant. 

Indeed, it might very well be found to be evidence of 

the most persuasive character. 

[] Trenge, 451 A.2d at 706 (quoting Johnson v. United 

States, 333 U.S. at 13)). The reasoning behind permitting a 

warrant to be issued for odor alone when it would be 

inappropriate to conduct a warrantless search involves the 

following: 

The point of the Fourth Amendment is not that it 

denies law enforcement the support of the usual 

inferences which reasonable men draw from 

evidence. Its protection consists in requiring that

those inferences be drawn by a neutral and detached
J-A04032-15 

- 7 - 

magistrate instead of being- judged by the officer 

engaged in the often competitive enterprise of 

ferreting out crime. 

Johnson v. United States, 333 U.S. at 13-14. 

Trial Court Opinion, 5/17/2013, at 4. 

 Instantly, there is no dispute that Officer Williams detected the odor of 

marijuana in a public area of Appellant’s apartment building, and that the 

odor grew stronger once Appellant opened the door to his apartment. 

Officer Williams’ familiarity with the smell of burning marijuana, coupled with 

the probation officer’s detection of the same in a location where both officers 

were authorized to be, provided the issuing authority with a substantial basis 

upon which he could issue a warrant.3 See Commonwealth v. Johnson, 

68 A.3d 930, 936 (Pa. Super. 2013) quoting Commonwealth v. Waddell,

61 A.3d 198 (Pa. Super. 2012) (“[O]nce the odor of marijuana was detected 

emanating from the residence, the threshold necessary to establish probable 

cause to obtain a search warrant was met”). Accordingly, because the 

warrant issued herein was supported by sufficient probable cause, we 

conclude the trial court did not err in denying Appellant’s motion to 

suppress. 

 

3

 The affidavit of probable cause authored by Officer Williams only included 

these facts. We agree with the trial court that the warrant is not tainted by 

any observations made during the officer’s illegal warrantless entry into 

Appellant’s apartment. See Trial Court Opinion, 5/17/2013, at 3 (“Indeed, in 

seeking the warrant, the only basis was the odor of burnt marijuana. Thus 

the search warrant was obtained from the magistrate without utilizing fruit 

of the warrantless entry.”). 
J-A04032-15 

- 8 - 

 Next, Appellant takes issue with the trial court’s decision to permit the 

Commonwealth to present the testimony of Officer Williams at the 

suppression hearing as a substitute for the actual warrant and affidavit of 

probable cause. Appellant’s Brief at 23-39. Appellant contends that, 

because the Commonwealth failed to enter the warrant and attached 

affidavit into evidence at the time of the suppression hearing, the trial court 

erred in denying suppression, particularly in light of our Supreme Court’s 

recent decision in Commonwealth v. James, 69 A.3d 180 (Pa. 2013). 

Appellant’s Brief at 31-33. 

 In James, our Supreme Court outlined the parties’ respective burdens 

during a suppression hearing. The Court concluded that, pursuant to Rule of 

Criminal Procedure 203(D), a suppression court reviewing a defendant’s 

“generic, global challenge” to the sufficiency of an affidavit of probable cause 

is limited to consideration of information contained within the four-corners of 

the affidavit. James, 69 A.3d at 187-90. By contrast, where a defendant 

challenges specific omissions and ambiguities within the affidavit, extrinsic 

evidence and witness testimony is permitted to resolve such deficiencies. Id. 

Herein, Appellant argues that, because he presented a global challenge to 

the sufficiency of the affidavit, the trial court erred in permitting Officer 

Wilson’s testimony and the Commonwealth, which did not admit the affidavit 

itself as evidence at the suppression hearing, failed to meet its burden of 

proof. We disagree. 
J-A04032-15 

- 9 - 

 Contrary to Appellant’s assertion that any testimony is precluded 

where a challenge to a warrant is “global,” in James, our Supreme Court 

recognized the value of cross-examination as a safeguard to “test the 

truthfulness of the recitals of the warrant.” Id. at 187-88. 

The burden is on the Commonwealth to establish the 

validity of the search warrant and the burden is not 

carried by merely introducing the search warrant and 

affidavit with no supporting testimony because then 

the only way for the defendant to challenge the 

veracity of the information is to call witnesses 

himself and this effectively shifts onto him the 

burden of disproving the veracity of the information, 

an almost impossible burden. If the procedure 

followed by the Commonwealth in this case were 

upheld then policemen could recite in an affidavit as 

probable cause for the issuance of a search warrant

any and all statements which they felt were of help

in obtaining the warrant, irrespective of the truth or 

veracity of those statements, their legality or 

illegality, or constitutionality or unconstitutionality, 

realizing that such statements would be insulated 

from defendant’s right of cross-examination since 

the Commonwealth did not have to call witnesses 

who would be subject to cross-examination to 

establish the facts necessary to support the issuance 

of the search warrant. Therefore, we must hold that

the Commonwealth failed to carry its burden of proof 

at the suppression hearing. To rule otherwise would

permit police in every case to exaggerate or to 

expand on the facts given to the issuing authority 

merely for the purpose of meeting the probable 

cause requirement, thus precluding an objective 

determination of whether probable cause for the 

warrant existed. 

[Commonwealth v.] (William) Ryan, [407 A.2d 1345, 1348 

(Pa. Super. 1979)] (citations omitted) (emphasis added). 

Significantly, the [Superior C]ourt rejected the Commonwealth’s 

assertion that Pa.R.Crim.P. 2003(b), the predecessor to Rule 
J-A04032-15 

- 10 - 

203, only required submission of the affidavit to meet the 

burden of proof at the hearing: 

The rule stands for the proposition that only 

evidence as set forth in the affidavit can be 

considered in determining whether or not the issuing 

authority had probable cause to issue the warrant. It 

does not mean that only the affidavit, i.e. the 

physical document itself, can be admitted into 

evidence. As discussed above the mere introduction 

of the physical document is not sufficient to sustain 

the Commonwealth’s burden of proof because the 

document does not lend itself to cross-examination 

which is the defendant’s right. Commonwealth v. 

Hall, [302 A.2d 342 (Pa. 1973)]. While the court 

could not venture outside the four corners of the 

affidavit in deciding whether probable cause existed, 

it is still the Commonwealth’s burden to prove the 

validity of the statements contained in the affidavit 

and this can only be done by real, live witnesses who 

are subject to cross-examination by the defendant. 

Id. (emphasis added). 

James, 69 A.3d at 188-89 (emphasis in original). 

 Instantly, Officer Williams’ testimony was limited to the four-corners of 

the affidavit and afforded Appellant the opportunity to cross-examine the 

veracity of the statements contained within the affidavit. Accordingly, we 

find no error in the trial court permitting Officer Williams’ testimony. 

 Moreover, as it is permissible for the suppression court to reopen the 

record to receive omitted evidence, we find no error in the trial court’s 

decision to reopen the record herein to allow the Commonwealth to admit a 

search warrant and affidavit it failed to move into evidence at the 

suppression hearing. Appellant’s argument to the contrary is unavailing. 
J-A04032-15 

- 11 - 

The Commonwealth admitted that its failure to move the affidavit and 

accompanying search warrant into evidence was inadvertent. The documents 

were attached to Appellant’s pre-trial motion, were referenced at the 

suppression hearing by defense counsel, and formed the basis of the 

Commonwealth’s evidence presented during the hearing. Based on the 

foregoing, Appellant is not entitled to relief. See Commonwealth v. 

Ferguson, 231 A.2d 327 (Pa. Super. 1974) (holding, inter alia, that where a 

warrant was relied upon by the Commonwealth during the suppression 

hearing and made available to the court and defense counsel, but 

inadvertently excluded from the record, the interests of justice permit the 

record to be reopened to admit the missing document). 

 Appellant’s final three issues pose various challenges to the legality of 

his sentence. We address those claims mindful of the following. “Issues 

relating to the legality of sentence are questions of law, and thus, our 

standard of review is de novo and our scope of review is plenary.” 

Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013) (citation 

omitted). 

 In his third issue, Appellant claims that his sentence is illegal because 

the court ordered Appellant to pay court costs without requiring the 

Commonwealth to provide an accounting of those costs. Appellant’s Brief at 

45-50. 
J-A04032-15 

- 12 - 

All necessary expenses incurred by the district attorney or his 

assistants or any office directed by him in the investigation of 

crime and the apprehension and prosecution of persons charged 

with or suspected of the commission of crime, upon approval 

thereof by the district attorney and the court, shall be paid by 

the county from the general funds of the county. In any case 

where a defendant is convicted and sentenced to pay the costs 

of prosecution and trial, the expenses of the district attorney in 

connection with such prosecution shall be considered a part of 

the costs of the case and be paid by the defendant.

16 Pa.C.S. § 1403. 

 Specifically, Appellant takes issue with two entries on the itemized list 

of court costs entitled “District Attorney Costs (Indiana)” which total 

$233.55. Appellant’s Brief at 49. The certified record does not contain any 

invoices associated with these entries; however, in its brief, the 

Commonwealth avers that the charges correspond to fees incurred following 

transcript requests by Appellant’s first attorney. Commonwealth’s Brief at 17 

n. 7. Indeed, two entries, dated December 20, 2012 and February 20, 

2013, entitled “Reimbursement District Attorney” appear in the certified 

docket prior to trial in this matter. Nonetheless, we are constrained to agree 

with Appellant that these notations, without more, are insufficient to carry 

the Commonwealth’s burden. Accordingly, we remand for a new hearing on 

the bill of costs attributable to the Commonwealth.4

 

4

 Because Appellant takes issue only with the costs payable to the 

Commonwealth, we direct that the hearing should be limited to testimony 

regarding those charges. 
J-A04032-15 

- 13 - 

 In his fourth issue, Appellant argues that the trial court “abrogated its 

judicial function” by allowing the Department of Corrections (DOC) to 

calculate Appellant’s credit time. Appellant’s Brief at 50. We disagree with 

Appellant’s characterization of the error herein, but nonetheless remand for 

a proper calculation of Appellant’s credit time in light of the following. 

 Section 9760 of the Sentencing Code provides, in relevant part, as 

follows. 

[T]he court shall give credit as follows: 

(1) Credit against the maximum term and any minimum term 

shall be given to the defendant for all time spent in custody as a 

result of the criminal charge for which a prison sentence is 

imposed or as a result of the conduct on which such a charge is 

based. Credit shall include credit for time spent in custody prior 

to trial, during trial, pending sentence, and pending the 

resolution of an appeal. 

42 Pa.C.S. § 9760(1). 

 It is undisputed that Appellant is entitled to credit for time served. 

Specifically, he requests eight days of credit time, from January 11, 2012 to 

January 18, 2012, accrued between when he was arrested for this incident 

until his first preliminary hearing. Trial Court Opinion, 4/17/2014, at 6. At 

sentencing, the trial court indicated it agreed with Appellant’s calculation of 

applicable credit time. N.T., 12/20/2013, at 10-11. To this end, in its 

sentencing order, the trial court granted Appellant “[c]redit for time served 

as allowed by law.” Sentencing Order, 12/20/2013. However, the DC300(B) court commitment form submitted to the DOC after Appellant’s 
J-A04032-15 

- 14 - 

sentencing indicates that Appellant has no applicable credit time. “[T]he 

Department of Corrections, an executive agency, has no power to change 

sentences, or to add or remove sentencing conditions, including credit for 

time served; this power is vested with the sentencing court.” 

Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014) 

(citation omitted). 

42 Pa.C.S. § 5505, provides for modification of 

orders as follows: 

Except as otherwise provided or prescribed by law, a 

court upon notice to the parties may modify or 

rescind any order within 30 days after its entry, 

notwithstanding the prior termination of any term of 

court, if no appeal from such order has been taken 

or allowed. 

However, “patent or obvious mistakes” in an order may be 

modified beyond the thirty-day modification period. An alleged 

error must qualify as a clear clerical error or a patent and 

obvious mistake in order to be amenable to correction. 

Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014) 

(citations omitted). 

 Based on our review of the record, we conclude that the omission of 

eight days of credit time from the DC-300(B) court commitment form 

constituted a patent and obvious error that was amenable to correction by 

the trial court. Accordingly, we vacate Appellant’s sentencing order and 

remand for modification of the applicable credit time. 
J-A04032-15 

- 15 - 

 Finally, the parties and the trial court agree that the mandatory 

minimum sentence imposed pursuant to 18 Pa.C.S. § 7508(a)(3) is illegal 

and must be vacated. Appellant’s Brief at 41-45; Commonwealth’s Brief at 

16; Trial Court Opinion, 7/8/2014, at 3. We agree. See Commonwealth v. 

Fennell, 105 A.3d 13 (Pa. Super. 2014) (holding that section 7508 was 

facially unconstitutional in its entirety in light of the United States Supreme 

Court’s holding in Alleyne). Accordingly, we vacate Appellant’s sentence and 

remand for resentencing without consideration of the mandatory minimum 

sentence provided in section 7508. 

Convictions affirmed. Judgment of sentence vacated. Case remanded 

with instructions. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/14/2015