J-A06034-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

TERRY LEE MCINTYRE,

 Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 853 WDA 2017

Appeal from the Judgment of Sentence May 3, 2017

in the Court of Common Pleas of Clarion County

Criminal Division at No(s): CP-16-CR-0000199-2016

BEFORE: BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 11, 2018

Terry Lee McIntyre (Appellant) appeals from the May 3, 2017 judgment 

of sentence of 19 to 38 years of incarceration following his jury convictions for

47 drug charges including, inter alia, manufacture of methamphetamine. 

Specifically, Appellant challenges 1) the denial of his pre-trial suppression 

motion and 2) the trial court’s failure to merge the manufacture of 

methamphetamine with a child present with manufacture of 

methamphetamine. We affirm.

On March 1, 2016, Pennsylvania Board of Probation and 

Parole (PBPP) agents Wetzel and Oliver visited 20 Best Road in 

Rimersburg, Pennsylvania to conduct a home plan investigation of 

the property for a future parolee. Prior to visiting the property, 

the Agents contacted the Clarion County Probation Office for 

background information on the property. At the time, Clarion 

County Probation Officer Blum had an arrest warrant for Natasha 

Anthony, who had absconded from probation. He had obtained 

information from a reliable source indicating that Anthony was 
J-A06034-18

- 2 -

residing at 20 Best Road with Justin McIntyre. Probation Officers 

Blum and Kerle agreed to accompany Agents Wetzel and Oliver to 

the property to serve as back-up and to arrest Anthony if she was 

found at the property. Officers Blum and Kerle parked on the road 

outside of 20 Best Road to observe the property, while Agents 

Wetzel and Oliver would enter the property first and phone 

Officers Blum and Kerle if they saw Anthony.

The property consists of several trailers, including a green 

and white trailer, a camper, a shed, a garage, and several parked 

vehicles. The agents knocked on the door of what appeared to be 

the main trailer, but no one answered. As they proceeded back 

to their vehicle, they heard the sound of children yelling, but could 

not identify where the sound originated. Justin McIntyre emerged 

from the area near the green and white trailer and approached 

the agents. McIntyre immediately acted belligerent toward the 

agents, yelling at them to leave the property. Agent Wetzel, who 

had supervised McIntyre in the past, asked him whether his 

current parole agent knew he was at the property. McIntyre said 

he had permission to be on the property, but after calling his 

parole agent, Agent Wetzel learned that McIntyre did not have 

permission to be there.1 McIntyre’s parole agent requested that 

Agents Wetzel and Oliver take McIntyre into custody for violating 

his parole.

______

1 Later, while discussing the home plan with Mary George, 

the owner of the 20 Best Road property, Agent Wetzel 

learned that Justin McIntyre had been staying at the 

property for several days. McIntyre had also stayed in the 

green and white trailer overnight in the past.

... Agent Oliver observed McIntyre becoming belligerent, 

repeatedly dropping his phone, and appearing somewhat offbalance. McIntyre repeatedly put his hand into his pocket, and 

Agent Oliver asked him to keep his hands in view. When McIntyre 

refused, Agent Oliver patted him down and found three knives in 

one pocket and a vial containing white powder residue in another 

pocket. While the timeline of events is unclear, Agents Wetzel and 

Oliver also testified that McIntyre stated that he would test 

positive for methamphetamine at that time. Based on the items 

they had found on his person, as well as the request of his current 

parole agent, Agents Wetzel and Oliver handcuffed McIntyre to 

take him into custody.
J-A06034-18

- 3 -

At some point during the interaction with Justin McIntyre, 

Agent Wetzel telephoned Officers Blum and Kerle and requested 

that they enter the property to serve as back-up. Upon entering 

the property, Officer Blum observed [Appellant] reclined in the 

driver’s seat of a van, with [a] woman reclined in the passenger’s 

seat. Both appeared to be unconscious, but not in any type of 

distress. [Appellant] remained unconscious during the various 

officers’ interactions with McIntyre and while Officers Blum and 

Kerle later retrieved Anthony from the green and white trailer.2

______

2 [Appellant] testified that he woke up and heard the 

probation officers loudly kicking the door to the trailer and 

breaking the lock to forcibly enter the trailer. He further 

testified that a uniformed police officer prevented him from 

approaching Officers Kerle and Blum, even after he told the 

officer that they would need a search warrant to enter the 

trailer. The [trial] court does not find this testimony 

credible, in light of the testimony of four law enforcement 

officers that [Appellant] was unconscious during the entire 

interaction with McIntyre. Further, the officers testified that 

no uniformed state police troopers arrived on the scene until 

after Officers Blum and Kerle had retrieved Anthony from 

the trailer and called the local state police barracks for a 

search warrant.

When the PBPP agents handcuffed him, McIntyre said 

something to the effect of, “If I’m going to jail, she’s going with 

me.” McIntyre then addressed Officers Blum and Kerle and said, 

“the person you’re looking for is in that trailer,” indicating the 

green and white trailer. Officer Blum pointed at the green and 

white trailer and said “that one?” McIntyre confirmed and further 

stated that “Natasha” was in the first bedroom of the trailer. The 

officers approached the trailer, knocked on the door, and 

announced their presence. When there was no response, the 

officers entered the trailer. While there was a padlock on a hook 

on the door, the hinge was not properly aligned with the door, and 

the lock did not actually function to secure the door. The officers 

were able to push the door open without touching the lock.

Officer Kerle testified that upon entering the trailer, he saw 

three mason jars containing white powder residue and a “bladder” 

from a cold compress on the floor. While approaching the room 
J-A06034-18

- 4 -

where Anthony was located, he observed a gallon jug with 

“sludge” on the bottom sitting on the trailer floor. Officer Kerle 

recognized these items as elements of a one-pot 

methamphetamine lab. The officers then found Anthony in the 

room where McIntyre had indicated she would be located and 

placed her under arrest.

Officers Blum and Kerle reported their observations in the 

trailer by phone to Pennsylvania State Trooper Jared Thomas, who 

applied for a search warrant for the entire 20 Best Road property. 

The search warrant included all trailers, vehicles, residences, and 

other structures on the property. Law enforcement officers 

remained on the property for several hours while waiting for the 

warrant. Once the search warrant was obtained, officers searched 

the entire property, including [Appellant’s] van. [Appellant] was 

passed out in the van at the time. Through the search of the 

property, state police uncovered many other items common to the 

one-pot methamphetamine lab and took statements from others 

on the property implicating [Appellant] in the manufacture of 

methamphetamine. 

Opinion and Order, 3/14/2017, at 1-5 (unnecessary capitalization omitted). 

Appellant was arrested and charged with 48 counts of drug-related crimes 

pertaining to the manufacture of methamphetamine.

Appellant filed a motion to suppress on August 15, 2016, challenging 

the constitutionality of the search at 20 Best Road. Following a suppression 

hearing, the trial court denied the motion by order and opinion on October 25, 

2016, finding that Appellant did not have a reasonable expectation of privacy 

in the property. Pending trial, new counsel was appointed to represent 

Appellant. Thereafter, Appellant filed an amended motion to suppress on 

February 21, 2017, arguing that Appellant had a reasonable expectation of 

privacy in the green and white trailer. The trial court again held a suppression 
J-A06034-18

- 5 -

hearing, and denied Appellant’s motion to suppress by order and opinion on 

March 14, 2017, finding that although Appellant had a reasonable expectation 

of privacy in the trailer, Justin McIntyre consented to the search of the trailer.

Appellant was convicted following a jury trial and sentenced as indicated 

above.1 Appellant timely filed a notice of appeal. Both Appellant and the trial 

court complied with Pa.R.A.P. 1925. Appellant presents the following 

questions for our consideration.

I. Did the trial court err in denying [Appellant’s] amended 

suppression motion and denying suppression of all further 

evidence collected as fruit of the poisonous tree?

II. Did the trial court err in failing to merge [Appellant’s] 

manufacture of methamphetamine charge with the 

manufacture of methamphetamine with a child present 

charge?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

We consider Appellant’s suppression claim mindful of the following.

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

suppression court’s factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court’s factual findings are 

 

1 Relevant to this appeal, Appellant was sentenced at count one, manufacture 

of methamphetamine, to 60 to 120 months of incarceration. At counts three 

and four, manufacture of methamphetamine with a child present, Appellant 

was sentenced to 30 to 60 months of incarceration at each count, to run 

concurrently with each other, and consecutively to the period of incarceration 

imposed for manufacture of methamphetamine.
J-A06034-18

- 6 -

supported by the record, we are bound by these findings and may 

reverse only if the court’s legal conclusions are erroneous. Where 

... the appeal of the determination of the suppression court turns 

on allegations of legal error, the suppression court’s legal 

conclusions are not binding on an appellate court, whose duty it 

is to determine if the suppression court properly applied the law 

to the facts. Thus, the conclusions of law of the court[] below are 

subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting 

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)). 

Appellant argues that the trial court erred in finding that Justin McIntyre

consented, or even had authority to consent, to a search of the trailer. 

Appellant’s Brief at 11-17. We do not reach this argument because we affirm 

the trial court’s order denying the motion to suppress on another basis.2

This Court’s decision in Commonwealth v. Muniz, 5 A.3d 345 (Pa. 

Super. 2010), is instructive here. In that case, the defendant challenged the 

trial court’s denial of his motion to suppress based on the argument that 

“because the police’s initial entry into [Muniz’s] apartment ... was predicated 

solely upon an arrest warrant for Timothy Baldwin, and not upon an arrest 

warrant for him or a search warrant for the premises, the search was illegal.” 

Id. at 349. Muniz relied on Steagald v. United States, 451 U.S. 204 (1981),

and Commonwealth v. Martin, 620 A.2d 1194 (Pa. Super. 1993) (per 

curiam), in support of his argument. The trial court and the Commonwealth 

 

2 This Court may affirm the trial court’s decision on any valid basis. 

Commonwealth v. Janda, 14 A.3d 147, 161 n.8 (Pa. Super. 2011).
J-A06034-18

- 7 -

argued that the underlying facts were more appropriately considered under 

the holdings of Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982), and 

Commonwealth v. Conception, 657 A.2d 1298 (Pa. Super. 1995). This 

Court held that the appropriate analysis “harmonized application of all four 

cases[.]” Muniz, 5 A.3d at 350.

Specifically, in Steagald the United States Supreme Court 

addressed the narrow issue of “whether an arrest warrant—as 

opposed to a search warrant—is adequate to protect the Fourth 

Amendment interests of persons not named in the warrant, when 

their homes are searched without their consent and in the absence 

of exigent circumstances.” Steagald, 451 U.S. at 212[]. In that 

matter, the authorities arrived at a location armed with an arrest 

warrant to arrest a fugitive. Prior to entry into the residence, they 

were confronted by the defendant/owner of the residence. The 

authorities explained that they were looking for a fugitive that 

they believed to be in the residence. The defendant/owner stated 

that she did not know the fugitive and denied the authorities entry 

into the residence. Nevertheless, the authorities entered and 

searched the residence, with the mistaken understanding that the 

arrest warrant provided them authority to search the 

residence. As a result of that search, the authorities found 

cocaine, but not the fugitive. The defendant/owner was arrested.

On appeal, the United States Supreme Court explained the 

difference in the interests protected by arrest warrants and search 

warrants, and held that the arrest warrant naming a person who 

was not the owner of the residence was inadequate to justify the 

search of the defendant/owner’s residence. Absent consent or 

exigent circumstances, the Supreme Court explained that a search 

warrant was required in such a case.

Over ten years later, in [] Martin,[] this Court issued a per 

curiam opinion, reversing a denial of a suppression motion and 

vacating a judgment of sentence, finding the situation in that 

matter indistinguishable from Steagald. Of importance to both 

the Steagald and Martin decisions was the fact that the rights of 

the third party owner/possessor (and not the subject of the arrest 
J-A06034-18

- 8 -

warrant) were being considered. In both cases, the evidence 

against the third party owner/possessor was suppressed.

In the Stanley matter, the Pennsylvania Supreme Court 

considered a similar situation, but that holding focused on the 

rights of the subject of the arrest warrant—not the rights of the 

third party owner/possessor. In Stanley, police received a tip 

that a fugitive was hiding in a woman’s apartment. The police 

proceeded to the apartment, entered the residence and 

apprehended the fugitive. The fugitive challenged the entry into 

the woman’s apartment, but the Court held that based upon the 

information provided in the tip, the police had “reason to believe” 

that the fugitive was within the residence. Stanley relied on the 

United States Supreme Court’s holding in Payton v. New 

York, 445 U.S. 573[] (1980), that police armed with an arrest 

warrant and “reason to believe” that the subject of that warrant 

was within the suspect’s own home could enter the home and 

arrest the suspect without a search warrant. The Stanley Court 

held that an arrestee has even less of a privacy interest in the 

home of another, so he could be arrested there.

Resolution of the combination of situations occurred in []

Conception,[] where we considered the Fourth Amendment 

rights of a third party when her residence was entered under the 

mistaken belief that it was also the residence of someone subject 

to an arrest warrant—a factual scenario nearly identical to this 

matter. In Conception the police showed up at the defendant’s 

apartment with an arrest warrant for Robert Vargas and Martin 

Rivera, and a reasonable belief that they lived at the subject 

apartment. Instead of Vargas or Rivera, the defendant opened 

the door, stated that she did not know either man and refused the 

police entry into the premises. Nevertheless, the police forcibly 

entered the apartment and searched the premises for Vargas and 

Rivera. As a result of that search, the police found marijuana in 

plain view. The defendant was consequently placed under arrest.

On appeal, the defendant in Conception relied on 

Steagald for the position that, notwithstanding the arrest warrant 

for Vargas and Rivera, the police were required to have a valid 

search warrant to search her premises. However, in 

the Conception decision we distinguished Steagald, explaining 

that in Steagald the police understood the premises to belong to 

a third party. In Conception, however, the police believed the 
J-A06034-18

- 9 -

apartment to be the residence of one of the subjects of the arrest 

warrant (i.e. Vargas). Therefore, although the individual asserting 

the Fourth Amendment rights in Conception was the third-party 

(as in Steagald), the person being searched for was believed to 

reside at the premises. Under this analysis, we held 

that Stanley was more applicable. Thus, because the authorities 

had a reason to believe that a subject of the arrest warrant lived 

within the premises, they did not need a search warrant to enter 

the premises to search for the suspects.

Id. at 350-51 (some citations and footnote omitted). Following the above

analysis, this Court held that the officers’ entry into Muniz’s apartment was 

not illegal. 

Here, the officers had an arrest warrant for Natasha Anthony. A reliable 

source informed the officers that she was currently residing at 20 Best Road 

with Justin McIntyre. Two parole agents accompanied the officers to 20 Best 

Road and encountered a belligerent McIntyre. At the request of his parole 

agent, McIntyre was taken into custody. Once handcuffed, McIntyre informed 

the parole agents that Anthony was in the first bedroom of the green and 

white trailer. The officers knocked on the door of the trailer to execute the 

arrest warrant and announced their presence. Receiving no response, the 

officers entered the unlocked trailer to apprehend Anthony. En route to the 

first bedroom where she was located, Officer Kerle observed several items 

that were immediately apparent as elements of a one-pot methamphetamine 

lab. After observing these items, the officers contacted the local state police 

barracks to apply for a search warrant to search the entirety of 20 Best Road. 
J-A06034-18

- 10 -

Applying Muniz to Appellant’s case, we find that the entry into the green 

and white trailer was not illegal. The officers had a valid arrest warrant for 

Anthony, and entered the green and white trailer based on reliable information 

that she was residing within. Based upon this reasonable belief and the arrest 

warrant for Anthony, the officers had a legal basis to enter the trailer to 

execute Anthony’s arrest warrant, and the entry did not violate Appellant’s 

Fourth Amendment rights. Consequently, Officer Kerle observed the 

methamphetamine lab items from a lawful vantage point as they were in plain 

view while he was executing the arrest warrant, and the items could be used 

as the basis for the subsequent search warrant. Accordingly, we find that the 

trial court did not err in denying the motion to suppress, albeit for a different 

reason. See Commonwealth v. Anderson, 40 A.3d 1245, (Pa. Super. 2012) 

(stating that plain view doctrine applies where police observe an item in plain 

view from a lawful vantage point, and the incriminating nature of the item is 

immediately apparent) (citations omitted).

We next consider Appellant’s claim that his two convictions of 

manufacture of methamphetamine with a child present should have merged 

with his single conviction for manufacture of methamphetamine. “Whether 

Appellant’s convictions merge for sentencing is a question implicating the 

legality of Appellant’s sentence. Consequently, our standard of review is de 

novo and the scope of our review is plenary.” Commonwealth v. Baldwin, 

985 A.2d 830, 833 (Pa. 2009).
J-A06034-18

- 11 -

We begin by examining the merger doctrine.

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless 

the crimes arise from a single criminal act and all of 

the statutory elements of one offense are included in 

the statutory elements of the other offense. Where 

crimes merge for sentencing purposes, the court 

may sentence the defendant only on the higher 

graded offense.

42 Pa.C.S. § 9765.

The statute’s mandate is clear. It prohibits merger unless 

two distinct facts are present: 1) the crimes arise from a single 

criminal act; and 2) all of the statutory elements of one of the 

offenses are included in the statutory elements of the other.

Baldwin, 985 A.2d at 833.

When considering whether there is a single 

criminal act or multiple criminal acts, the question is 

not “whether there was a ‘break in the chain’ of 

criminal activity.” The issue is whether “the actor 

commits multiple criminal acts beyond that which is 

necessary to establish the bare elements of the 

additional crime, then the actor will be guilty of 

multiple crimes which do not merge for sentencing 

purposes.”

Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.[ ]Super. 

2012).

In determining whether two or more convictions arose from 

a single criminal act for purposes of sentencing, we must examine 

the charging documents filed by the Commonwealth.

Commonwealth v. Jenkins, 96 A.3d 1055, 1060 (Pa.[ ]Super. 

2014) (holding, consistent with our Supreme Court’s 

jurisprudence, “We must determine whether [defendant’s] actions 

... constituted a single criminal act, with reference to elements of 

the crime as charged by the Commonwealth.”) (internal quotation 

marks and citation omitted).
J-A06034-18

- 12 -

Commonwealth v. Martinez, 153 A.3d 1025, 1030–31 (Pa. Super. 2016). 

Appellant argues that “the Amended Information only offers a vague 

summary of the offense describing ‘numerous occasions.’ There is no basis 

the jury (or the trial court) could find that the allegations, as described in the 

Criminal Information, justify the acts as separate and distinct from one 

another.” Appellant’s Brief at 20. However, Appellant’s argument ignores the 

evidence presented at trial.

Here, the Commonwealth’s witnesses testified to seeing 

[Appellant] make methamphetamine on several occasions over 

several months, not just on the one occasion when the two 

children were present. Natasha Anthony testified that during the 

time she lived at the McIntyre property “Big Terry[,” Appellant], 

would give her methamphetamine. She knew how to make it. 

She learned from [Appellant]. She watched him make it. She 

saw [Appellant] and two others making methamphetamine every 

day, usually at night. Natasha Anthony testified she saw 

[Appellant] and others making it and keeping the materials and 

ingredients in the green and white trailer located on the McIntyre 

property. She also stated she had seen [Appellant] manufacturing 

methamphetamine in front of Tonya Barger’s two kids in the little 

brown and white camper. Because the fumes were burning her 

nose, she put a blanket over the little boy’s head to try to protect 

him. Anthony testified she saw [Appellant] making 

methamphetamine in the gray handicap van, in the brown 

camper[,] and in the green and white trailer. On a couple of 

occasions Tonya Barger was there with the kids.

Next, Melanie Brink testified that on nine occasions she 

purchased pills used for making meth and gave them to 

[Appellant] and she helped him and saw him crushing the pills. 

She saw Tonya Barger’s children around one time when 

[Appellant] was making meth. She crushed pills to make meth in 

her car and she was in the trailer when others were making it. 

[Appellant] was with her in her car. There was a whole lot of 

shaking going on. She saw processes of making the meth take 
J-A06034-18

- 13 -

place in her car, in the gray handicapped van, the green and white 

trailer, and in the brown camper and [Appellant] was present in 

all of those places helping with the making of meth.

Tonya Barger testified that [Appellant] is the grandfather of 

her two children. She was living with Derick Fowler for a couple 

months in a camper at the McIntyre property. Her kids are two 

and four years of age. She bought Sudafed to make meth at 

[Appellant’s] request and with money he gave her five times and 

all five times she gave the pills to [Appellant]. He made meth 

with it. She saw meth being made two to three times per week, 

maybe more, and [Appellant] was involved each time. Her 

children were around and [Appellant] was present. In addition to 

this testimony, law enforcement officials testified that they found 

meth making materials in various locations on the McIntyre 

property. 

Since the testimony clearly establishes that [Appellant] 

participated in making methamphetamine on multiple occasions 

and at multiple locations, the jury could have reasonably believed 

that [Appellant] committed this offense many times when it found 

him guilty. If so, the three offenses would not constitute a “single 

criminal act,” regardless of whether one offense is a lesser 

included offense of the other.

Trial Court Opinion, 7/12/2017, at 2-4 (unnumbered) (citations omitted). 

We agree with the trial court. The charging document states that 

Appellant manufactured methamphetamine “on numerous occasions between 

the dates of March 16, 2015 [,]and March 16, 2016[,]” Amended Criminal 

Information, 2/21/2017, at count 1; and manufactured methamphetamine 

with a child present “on numerous occasions[,]” id., at counts 3 and 4. Based 

upon the language of the amended criminal information and the evidence 

presented at trial, we find that ample evidence existed to support the 

conclusion that Appellant committed multiple, distinct, crimes of 
J-A06034-18

- 14 -

manufacturing methamphetamine, with and without children present. 

Accordingly, we discern no error in the sentences imposed by the trial court.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2018