J-S14013-23

2023 PA Super 148

COMMONWEALTH OF PENNSYLVANIA

v.

WILFREDO T. SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1278 WDA 2022

Appeal from the Judgment of Sentence Entered September 13, 2022

In the Court of Common Pleas of Fayette County 

Criminal Division at No(s): CP-26-CR-0001516-2021

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*

OPINION BY PANELLA, P.J.: FILED: AUGUST 7, 2023

Wilfredo Smith appeals from the judgment of sentence imposed by the 

Fayette County Court of Common Pleas after a jury found him guilty of 

possession of a controlled substance and possession with intent to 

manufacture or deliver (“PWID”), 35 P.S. §780.113(a)(16)&(30). Smith 

argues on appeal that the warrantless search of his residence while he was on 

parole was illegal and the suppression court therefore erred by refusing to 

suppress the contraband found and statements made as a result of that 

search. He also argues the trial court erred by finding he was not eligible for 

the Recidivism Risk Reduction Incentive (“RRRI”) program when sentencing 

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* Retired Senior Judge assigned to the Superior Court.
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him. As we find neither of these issues have merit, we affirm the judgment of 

sentence.

The facts underlying this appeal are largely undisputed. Smith was 

released on parole in December 2019 from a judgment of sentence for PWID. 

At the time of his release, Smith signed a PBPP-11 Form listing the conditions 

of his release from incarceration. Those conditions included the right of parole 

officers to perform warrantless searches of Smith’s residence. The conditions 

also prohibited Smith from possessing alcohol or possessing or selling 

controlled substances.

After learning information which indicated Smith was selling drugs out 

of his residence, Smith’s supervising parole agent, Parole Agent Trent Sellers, 

conducted a warrantless search of Smith’s residence on June 11, 2021. At that 

time, Smith tested positive for marijuana and Agent Sellers observed beer in 

the kitchen in plain view. Agent Sellers then had a canine from the parole K9 unit search the house and the canine alerted positive for drugs in Smith’s 

bedroom and several other locations. Parole Agent Justin DePalma, who had 

accompanied Agent Sellers to the search, searched a box in the bedroom 

which had produced a positive alert from the canine. He discovered a large 

bundle of U.S. currency and baggies of white and tan powder suspected to be 

narcotics in the box.

Based on what Agent DePalma found, Agent Sellers contacted Detective 

Alexis Metros of the Fayette County Bureau of Investigation. The detective 
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went to Smith’s residence, and after seeing the suspected contraband found 

by Agent DePalma, she filed for, and then received, a warrant to search 

Smith’s residence. 

Detective Metros read Smith his Miranda rights, and also had him sign 

a written form waiving those rights. Smith admitted that the drugs found in 

the residence belonged to him and further admitted he was selling the drugs. 

During the search pursuant to the search warrant, a large baggie containing 

several smaller baggies of suspected cocaine was discovered in a backpack in 

Smith’s bedroom.

Smith was charged with two counts of possession of a controlled 

substance and two counts of PWID. He filed a motion to suppress, essentially 

arguing that there was no legal basis for the parole agents to conduct a search 

of his residence before Detective Metros secured the search warrant. The court 

held a hearing on the motion on December 3, 2021. 

Agent Sellers testified first at the hearing. He confirmed Smith had 

signed a PBPP-11 Form, in which Smith expressly consented to a search of his 

person, property and residence without a warrant by parole officers. See N.T. 

Suppression Hearing, 12/3/2021, at 8. The Form also notified Smith that he 

could not possess alcohol, or possess or sell controlled substances. See id. at 

7-8. Agent Sellers reported Smith had failed a drug screening in May 2021, 

when he testified positive for cocaine and marijuana. See id. at 9
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Agent Sellers stated he became concerned that Smith was selling drugs 

from his residence in violation of his parole conditions. See id. at 11. 

According to Agent Sellers, this concern stemmed from the fact that Smith 

had tested positive for marijuana and cocaine, that Smith’s GPS bracelet 

showed Smith routinely traveling to known high drug-trafficking areas as well 

as from the tips law enforcement had received from members of the 

community that there was a large number of vehicles coming and going from 

Smith’s residence. See id. at 10-11. 

Based on these circumstances, Agent Sellers sought and received 

approval from his supervisor to conduct an approved search of Smith’s house. 

See id. at 11. On cross-examination, Agent Sellers reiterated the factors that 

created “the existence of reasonable suspicion” that Smith was violating the 

conditions of his parole and prompted the warrantless search of Smith’s 

house. See id. at 24-25. 

Detective Metros also testified. She stated she was contacted by Agent 

Sellers on the day of the search because of the suspected narcotics found in 

Smith’s residence. Detective Metros recounted that she went to Smith’s 

residence, viewed the baggies uncovered in the box in the bedroom and, 

based on her experience, also suspected the baggies contained narcotics. See 

id. at 43-44. The detective stated she obtained a warrant to search the house, 

and pursuant to that search, officers found a backpack containing 162 grams

of cocaine. See id. at 45, 47. 
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Following the hearing, the court directed the parties to submit “legal 

authority” in support of their positions by December 17, 2022. Smith filed a 

memorandum of law, primarily arguing that the parole agents did not have 

the statutorily-required reasonable suspicion to conduct the warrantless 

search of his house. The suppression court denied Smith’s motion to suppress 

in an order entered on January 27, 2022, and filed an accompanying opinion 

in support of that order. 

Smith proceeded to a jury trial before a different trial judge than the 

judge who had ruled on Smith’s suppression motion. The jury found Smith 

guilty of one count of possession of a controlled substance and one count of 

PWID; the trial court sentenced him to 72 to 144 months’ incarceration. The 

trial court specifically found that Smith was not eligible for the RRRI program 

because of a previous terroristic threats conviction but stated that the 

Department of Corrections could, within its discretion, place Smith in the 

program. Smith filed a post-sentence motion, which the court denied.

Smith then filed a notice of appeal. He complied with the trial court’s 

order to file a Pa.R.A.P. 1925(b) statement of matters complained of on 

appeal, claiming that the suppression court erred by denying his suppression 

motion and the trial court erred in failing to deem him eligible for the RRRI 

program. In its responsive Rule 1925(a) opinion, the trial court noted that, as 

for the first issue, the suppression court had filed its own Statement in Lieu of 

Opinion, relying on its opinion issued on January 27, 2022 to support its 
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reasons for the denial of the suppression motion.1 The trial court also found it 

had not erred by finding Smith ineligible for the RRRI program. Smith now 

raises these two issues on appeal: 

1. Whether the Honorable President Judge Wagner, Jr. erred 

in denying [Smith’s] Post-Sentence Motion requesting his 

sentencing order be amended to recommend [his] eligibility 

for participation in the [RRRI Program] found at 61 P. C.S.A. 

§ 4501 et seq.

2. Whether the Honorable Judge Linda Cordaro erred factually 

and legally in denying [Smith’s] Omnibus Pretrial Motion on 

January 27, 2022 in that the Commonwealth failed to 

sustain its burden of proof by a preponderance of the 

evidence that the initial search performed by the parole 

agents and the subsequent search conducted after 

[Detective] Metros obtained a search warrant was 

unconstitutional, illegal and unlawful thereby warranting 

suppression of all of the inculpatory evidence seized 

therefrom.

Appellant’s Brief at 4 (Answers omitted). 

We first address Smith’s challenge to the denial of his suppression 

motion. When this Court reviews a trial court’s denial of a suppression motion, 

we are limited to reviewing only the evidence presented at the suppression 

hearing. See Commonwealth v. Carey, 249 A.3d 1217, 1223 (Pa. Super. 

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1 We note that while Smith attached the Statement in Lieu of Opinion to his 

brief, he did not attach the January 27, 2022 opinion upon which the 

suppression court relied to his brief as required by Pa.R.A.P. 2111 (b) 

(providing there “shall be appended to the brief a copy of any opinions 

delivered by any trial court ... relating to the order or other determination 

under review, if pertinent to the questions involved.”). Although the January 

27, 2022 opinion is in the certified record, we remind counsel of their 

obligation to comply with the Rules of Appellate Procedure. 
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2021). We look to see whether the suppression court’s factual findings are 

supported by the record and whether the legal conclusions drawn from those 

facts are correct. See id. While we are bound by the suppression court’s 

factual findings if those findings are supported by the record, we are not bound 

by the suppression court’s legal conclusions. See id. To the contrary, it is our 

duty to determine if the suppression court properly applied the law to the 

facts. See id.

Here, in denying Smith’s motion to suppress, the suppression court first 

pointed out that Smith specifically consented to a warrantless search of his 

residence by parole officers when he signed the PBPP-11 Form. The court then 

noted that 42 Pa. C.S.A. § 9912(d) enumerates the grounds for a valid search 

of a parolee's property. To that end, Section 9912(d) provides that a search 

of a parolee’s property may be conducted by an officer if there is reasonable 

suspicion to believe the real property contains contraband or other evidence 

of violations of the conditions of supervision. See id. 

Section 9912(d)(6) then lists the factors to be taken into account when 

determining whether such reasonable suspicion exists. Those factors include: 

the observations of officers, information provided by others, the activities of 

the parolee, the experience of the officers with the parolee, and the prior 

criminal and supervisory history of the parolee. See 42 Pa. C.S.A. § 

9912(d)(6). 
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In finding that Agent Sellers had reasonable suspicion here, the 

suppression court noted that Smith had failed a drug test the month prior to 

the search, Smith’s GPS bracelet showed him regularly visiting known high 

drug-trafficking areas and that there had been community reports of possible 

drug transactions at Smith’s residence. The court concluded that “[b]ased on 

the facts available to Agent Sellers, as well as his own experience, and Smith’s 

prior criminal history, there was at least reasonable suspicion to support a 

search of [his] property.” Trial Court Opinion, 1/27/2022, at 4. 

The suppression court also noted that Agent Sellers had obtained the 

prior approval of his supervisor, as mandated by 42 Pa. C.S.A. § 9912(d)(3) 

(providing that “[p]rior approval of a supervisor shall be obtained for a 

property search absent exigent circumstances”).

We see no error with the suppression court’s conclusion that Agent 

Sellers had reasonable suspicion to search Smith’s residence, and that 

therefore, both the initial search, as well as the subsequent search pursuant 

to the search warrant obtained using evidence of the contraband found during 

the initial search, were lawful. 

Smith does not focus on disputing the existence of reasonable suspicion 

for the initial search in his appellate brief. Instead, he argues for the first time 

that the “stalking horse doctrine” warrants suppression of all the evidence 

obtained from the searches of his residence. He specifically claims three times 

that Agent Sellers and the other parole officers had “‘switched hats,’ ‘ceased 
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acting as an administrator of the parole system,’ and were instead ‘acting as 

[ ] police officers, involving [Detective Metros and other police officers] in a 

coordinated plan to ensnare [Smith] in a drug trafficking crime without a 

scintilla of probable cause or reasonable suspicion.” Appellant’s Brief at 7, 13, 

21. 

In the first instance, Smith did not present this argument in either his 

motion to suppress or his memorandum of law in support of his suppression 

motion. In fact, Smith’s memorandum of law did not mention the “stalking 

horse doctrine” or even cite to the case he now extensively relies upon in 

support of that argument in his appellate brief. Moreover, this argument was 

not delineated in Smith’s Rule 1925(b) statement. As such, neither the 

suppression court nor the trial court ever addressed this argument. Smith’s 

argument invoking the “stalking horse doctrine” is therefore waived. See 

Pa.R.A.P. 302(a); Commonwealth v. Jefferson, 256 A.3d 1242, 1252 (Pa. 

Super. 2021) (providing that new and different theories of relief to support 

the suppression of evidence may not be raised for the first time on appeal); 

Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (providing 

that when a defendant “raises a suppression claim to the trial court and 

supports that claim with a particular argument or arguments, the defendant 

cannot then raise for the first time on appeal different arguments supporting 

suppression”); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) 
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(holding that issues that are not sufficiently raised in the Rule 1925(b) 

statement are waived). 

In any event, we find no merit to the argument in support of the 

“stalking horse doctrine” nor do we find any factual basis for it in the certified 

record. Based on all of the above, Smith has failed to convince us that his 

claim that the suppression court erred by denying his motion to suppress 

warrants any relief.

In his other claim, Smith contends the trial court erred by failing to deem 

him to be an “eligible person” for the RRRI Program. This claim also fails. 61 

Pa.C.S.A. § 4503 defines who is an “eligible person” for purposes of the RRRI 

Program. It specifies that an “eligible person” is: 

A defendant or inmate convicted of a criminal offense who will be 

committed to the custody of the department and who meets all of 

the following eligibility requirements:

(1) Does not demonstrate a history of present or past violent 

behavior.

...

(3) Has not been found guilty of or previously convicted of or 

adjudicated delinquent for ... a personal injury crime as defined 

under section 103 of the act of November 24, 1998 (P.L. 882, No. 

111), known as the Crime Victims Act[.]

61 Pa.C.S.A. § 4503 (footnote omitted). The Crime Victims Act, in turn, 

defines personal injury crimes to include “[a]n act, attempt, solicitation or 

conspiracy to commit an act” under Chapter 27 of the Crimes Code. See 18 

P.S. § 11.103. 
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Applying those definitions here, the trial court stated:

Smith was previously found guilty of Terroristic Threats, 18 Pa. 

C.S.[A.] § 2706 in Case No. 1588 of 2002 which makes him 

ineligible for participation in the RRRI Program. As he had been 

convicted of a crime under Chapter 27 of the Pennsylvania Crimes 

Code, he is ineligible for participation in the program.

Trial Court Opinion, 11/21/2022, at 3-4 (unpaginated). 

Smith does not dispute he was previously convicted of terroristic threats 

or that the offense of terroristic threats is a personal injury crime under the 

Crime Victims Act disqualifying him from eligibility. Instead, Smith argues his 

single previous conviction for terroristic threats does not establish a “history 

of present or past violent behavior.” He maintains that his “criminal history, 

which reflects several previous convictions, only one of which demonstrates 

violent behavior, does not render him ineligible for a sentence under the RRRI 

Act” because a single prior conviction demonstrating violent behavior does not 

amount to having a pattern or history of such behavior. Appellant’s Brief at 

12. 

Smith’s argument fails, most notably because it fails to take into account 

the explicit language of Section 4503’s definition of “eligible person.” As noted 

above, in order to be eligible for the RRRI program, an individual must meet 

all of the eligibility requirements listed. Those requirements include being an 

individual who has not demonstrated a history of violent behavior. However, 

in addition, the eligibility requirements also include being an individual who 

has not been previously convicted of any of the disqualifying offenses 
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enumerated in Section 4503. Here, Smith was convicted of terroristic threats, 

a crime under Chapter 27, which is one of the disqualifying offenses. As such, 

under the explicit definition of “eligible person,” Smith was ineligible for the 

program, irrespective of whether or not he has demonstrated a history of 

violent behavior. See Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 

1243 (Pa. 2017) (stating that Section 4503 prescribes that individuals who 

have been convicted of certain enumerated offenses, such as the use of a 

deadly weapon, personal injury crimes as set forth in the Crimes Victims Act, 

and crimes requiring registration as a sex offender, are ineligible for 

participation in the RRRI program). 

Accordingly, like his first claim, Smith’s claim that the trial court erred 

by finding him ineligible for the RRRI program does not offer him any basis 

for relief.

Judgment of Sentence Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2023