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*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 conviction s 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 Wet zel and Oliver visited 20 Best R oad in Rimersburg, Pennsylvania to conduct a home plan investigation of the property for a future parolee. Prior to visiting the property, the Agen ts 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 wasJ

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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 p roperty. 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 tr ailers, 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 sou nd 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 leav e 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,
repea tedly dropping his phone, and appearing somewhat off

balance. 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
p a role agent, Agents Wetzel and Oliver handcuffed McIntyre to take him into custody.J

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- 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 n ot 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 wit h 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 whit e 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 the ir 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 ab le 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 a n d a “bladder” from a cold compress on the floor. While approaching the roomJ

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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 ha d 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 T homas, 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 search ed the entire property, including [Appellant’s] van. [Appellant] w as passed out in the van at the time. Through the search of the property, state p olice uncovered many other items common to the

one

- pot methamphetamine lab and took statements from others on the property implicating [Appellant] in the ma nufacture 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 manufa cture 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,

201 6, 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

Fe bruary 21, 2017, arguing that Appe llant had a reasonable expectation of

privacy in the green and white trailer. The trial court again held a suppressionJ

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

March 14, 2017, finding that although Appellant had a reasona ble 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 eviden c e collected as fruit of the poi sonous tree?

II. Did the trial court err in failing to merge [Appellant’s] manufacture of met h amphetamine 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

a nd 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 uncontradict ed 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 e ach count, to run concurrently with each other, and consecutively to the period of incarceration imposed for manufacture of methamphetamine.J

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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 i n finding that Justin McIntyre

consented, or even had a uthority 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 i nto [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

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argued that the underlying facts were more appropriately considered under

the holdings of Commonweal th 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 conse nt 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. Nevert heless, 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 defe ndant/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 i nadequate to justify th e 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
cur iam 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 t hird party owner/possessor (and not the subject of the arrestJ

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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 si tuation, 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 apartm ent, entered the residence and apprehended the fugitive. The fugitive chal lenged 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 t he 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 cou ld 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

m atter. In Conception the po lice 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 pl ain 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 theJ

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apartment to be the r esidence 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 pr emises. 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 loc ated, Officer Kerle observed several items

that were immediately apparent as elem ents of a one

- pot methamphetamine

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

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

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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 bel ief and the arrest

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

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

Fourth Amendment rights. Consequently, Officer Kerle observed the

methamphetamine la b 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 moti on 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. “ Wh ether

Appellant’ s convictions merge for sentencing is a question implica ting 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

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We be gin 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 offens e are included in the statutory el ements 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, co nsistent with our Supreme Court’ s jurisprudence, “We mu st 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

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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 di stinct 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, no t 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 [Appella nt]. 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 trai ler 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 lit tle 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 takeJ

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place in her car, in the gray handica pped 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 m eth 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 tha t 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 reason ably 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 O pinion, 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[,]” Amen ded Criminal

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

with a child present “on numerous occasions[,]” i d. , at co unts 3 and 4. Based

upon the language of the amended criminal information and the evidence

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

conclusion that Appellant committed multiple, distinct, crimes ofJ

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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