J-A03030-16

2016 PA Super 58

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TARIK JAHAD DAVIS

Appellant No. 3432 EDA 2014

Appeal from the Judgment of Sentence November 7, 2014

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0001490-2014

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

OPINION BY MUNDY, J.: FILED MARCH 04, 2016

Appellant, Tarik Jahad Davis, appeals from the November 7, 2014 

aggregate judgment of sentence of four years less a day to eight years less 

two days, imposed after a jury convicted him of two counts of possession 

with intent to deliver (heroin and marijuana) and one count of possession of 

drug paraphernalia.1 After careful review, we affirm.

The trial court recited the pertinent background of this case as follows.

[Appellant] was unanimously found guilty by a 

jury on September 9, 2014, of [two counts of 

possession with intent to deliver and one count of 

possession of drug paraphernalia]. At the time of 

trial, the jury made a specific unanimous 

____________________________________________

1 35 P.S. §§ 780-113(a)(30) and (32), respectively.
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determination that the aggregate weight of the 

heroin possessed by [Appellant] with the intent to 

deliver exceeded five (5) grams. Further, the jury 

unanimously found that at the time of the 

commission of the underlying offenses, [Appellant] 

was in possession of a Maverick Model 88 twelvegauge shotgun that was in close proximity to the 

heroin.

...

The verdict was returned on September 9, 

2014, and [Appellant] was found guilty on all 

charges. The verdict slip included two 

interrogatories which required that the jury 

determine the weight of the heroin possessed, if the 

jury found [Appellant] guilty of Possession of Heroin 

with Intent to Deliver. The verdict slip indicates the 

jury found the weight of the heroin to be between 

five (5) and less than ten (10) grams. Further, the 

jury verdict slip included an interrogatory requiring 

the jury to deliberate as to whether or not 

[Appellant] possessed or controlled a firearm, the 12 

gauge shot gun. The jury rendered a verdict in the 

affirmative.

Trial Court Opinion, 5/6/15, at 1, 4. Further, the trial court summarized the 

subsequent procedural history as follows.

On November 7, 2014, [the trial court] 

sentenced [Appellant] to an aggregate sentence of 

48 months less a day (27 months for Possession of 

Heroin with Intent to Deliver, 15 months less one 

day for Possession of Marijuana with Intent to 

Deliver, and 6 months for Possession of Drug 

Paraphernalia) to 96 months less two days, which 

was within the sentencing guidelines in the 

aggravated range, with each sentence running 

consecutive to the others.

...

No post-trial motion was filed by [Appellant]. 

However, a timely Notice of Appeal was filed. [The 
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trial court] required [Appellant] to submit a Concise 

Statement of Matters Complained of on Appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 

1925.

Id. at 2, 4.

On appeal, Appellant presents two issues for our review as follows.

1. Whether the trial court erred when it denied 

[Appellant’s] motion to suppress after police secured and 

searched [Appellant’s] residence without consent, without 

a warrant and without a valid exception to the requirement 

for a warrant.

2. Whether the trial court erred with its use of a special 

verdict slip with questions on the weight of the drugs and 

presence of a firearm?

Appellant’s Brief at 4.

In his first issue, Appellant contends that police searched his residence 

“without a warrant, without consent and without an exception to justify a 

warrantless search.” Id. at 6. Appellant specifically maintains the police 

“conducted an illegal entry into [Appellant’s] residence while waiting for [a] 

search warrant to be considered.” Id. at 6-8.

Our standard of review from an order denying a suppression motion is 

as follows.

[W]e may consider only the Commonwealth’s 

evidence 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 record 

supports the factual findings of the trial court, we are 

bound by those facts and may reverse only if the 

legal conclusions drawn therefrom are in error.
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Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citation 

omitted). 

Here, our independent review of the record reveals that Appellant did 

not call any witnesses at the suppression hearing,2 while the Commonwealth 

presented uncontradicted testimony from three law enforcement officers. 

Bethlehem Police Detective Patrick Maczko testified to being a seven-year 

member of the Northampton County Drug Task Force and conducting an 

ongoing investigation of drug dealing by Appellant. N.T., 9/8/14, at 21-22. 

On February 24, 2014, Detective Maczko worked with a confidential 

informant, who went to Appellant’s residence at 2263 Rodgers Street, 

Apartment 14, to purchase heroin. Id. at 22-27. This was one of Detective 

Maczko’s five controlled purchases from Appellant using a confidential 

informant. Id. at 32. The fifth controlled purchase occurred on March 3, 

2014, after which Detective Maczko “went into headquarters to try to obtain 

a search warrant.” Id. at 32-33. While Detective Maczko was pursuing the 

search warrant, Appellant exited his residence and was taken into police 

custody. Id. at 34.

____________________________________________

2 Appellant’s counsel stated that he “discussed this matter with [Appellant] 

and [his girlfriend] and it’s my client’s direction at this time that we do not 

offer any testimony including specifically the testimony of [Appellant’s 

girlfriend] here today. Is that correct, [Appellant]?” N.T., 9/8/14, at 89. 

Appellant replied, “Correct.” Id. 
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Detective Maczko attempted to procure the warrant at 3:20 p.m., but 

it took him almost two hours.3 He explained the delay as follows.

I was attempting to procure the search warrant at 

approximately 3:20. Between 3:20 and 3:30, I 

called Judge Narlesky’s office. I was advised by the 

staff that Judge Narlesky had left for the day, he had 

gone to the racquetball club. They said I could get a 

search warrant from any of the other magistrates.

At that point, I called Judge Manwaring’s 

office, he was gone for the day. After that, I called 

Judge Matos-Gonzalez’s office. She said she would 

sign the search warrant, so I sent it right over. I

advised her that I had guys watching the house and 

that we were in a rush to try to get the search 

warrant.

I sent her the search warrant, she called me 

back and said she didn’t know why she was signing a 

search warrant for Judge Narlesky’s office since he 

was supposed to be in court at that time it being 

prior to 4 o’clock. I said that it was not my issue, I 

could not find the Judge, I needed a search warrant, 

I had men sitting on the house, we had [Appellant] 

in custody for prior deliveries, and we were trying to 

get the search warrant so we could execute it as 

quickly as possible. She refused to sign it at that 

point saying it was Judge Narlesky’s problem to find 

someone to cover his office.

She called over to Judge Narlesky’s office and 

made [his staff] aware of that[.] A short time later, 

approximately 4 o’clock, I got a call from Judge 

Narlesky from his cell phone indicating that he was 

at the racquetball club, [and] that he would not be 

back at his office. It would take him approximately 

____________________________________________

3 The warrant was time-stamped by the magistrate at 17:05 and Detective 

Maczko received the fax at 17:19. Id. at 41, 53.
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30 minutes to get back to the office, and, in that 

case, I might as well just wait until 4:30 and get the 

search warrant signed by the on-call judge.

At that point I indicated – throughout this 

whole time I’m calling Detectives Hammer, Schaedel 

and Benton, via radio, indicating to them what the 

situation was, the runaround I was getting for the 

search warrant. They, at one point, said they were 

going to try to knock on the door and make contact 

with [Appellant’s girlfriend] that we knew to be in 

the residence from prior surveillance. We saw her 

and the child go into the residence prior to the last 

buy. 

... Judge Yetter, the on-call judge, signed the search 

warrant at 17:05 or 5:05 hours PM. 

Id. at 35-37. Detective Maczko testified that as soon as the signed warrant 

was faxed to him, he “immediately got in [his] car and drove as fast as [he] 

could to [Appellant’s] house.” Id. at 40.

While Detective Maczko was attempting to procure the warrant, other 

officers went to Appellant’s residence. Id. at 52. Detective Maczko testified 

as follows.

We had constant communication back and forth. We 

were having discussion as a vice unit, per se, on 

what the best route was to go because of the 

problem I was having with the judges. At that point, 

someone suggested, I don’t know which detective, 

suggested knock on the door and try to make 

contact with [Appellant’s girlfriend] and ask for 

consent. That’s what actually occurred.

Id. at 52-53.

Next, Bethlehem Police Officer Erik Kaintz testified to being assigned to 

the Bethlehem Housing Authority on March 3, 2014, and assisting with the 
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investigation of Appellant. Id. at 56. Officer Kaintz stopped Appellant after 

he left his residence and placed him under arrest. Id. at 58.

Finally, Bethlehem Police Detective Jason Hammer testified to working 

with special operations and the Northampton County Drug Task Force on 

March 3, 2014. Detective Hammer testified as follows.

[Appellant] had already left the residence and was 

stopped and was in custody. At that point, Detective 

Maczko was working on getting the search warrant 

for the residence. At that point we went to the 

residence to see if we could make contact with any 

occupants to obtain consent to search.

Id. at 62. Detective Hammer explained that he and his partner knocked on 

the door and Appellant’s girlfriend “answered the door and we identified 

ourselves and we asked if we could step inside and she permitted us to 

come inside.” Id. at 66-67, 72 (emphasis added). Detective Hammer and 

his partner entered the residence and advised Appellant’s girlfriend that 

Appellant was in custody and police “were obtaining a search warrant for the 

residence for drugs.” Id. at 67. The officers asked Appellant’s girlfriend for 

permission to search the residence and she declined. Id. at 68, 73. 

Detective Hammer testified “at that point there was no further searching of 

the residence.” Id. at 74. However, Detective Hammer’s partner remained 

with Appellant’s girlfriend while Detective Hammer “went upstairs and 

checked the remainder of the rooms to make sure nobody else was in there, 

checked beside the doors, the bed, opened up the closet doors.” Id. 

Detective Hammer said “the sweep” lasted “maybe 20 seconds, 30 seconds” 
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to “make sure nobody else was inside the residence.” Id. Detective 

Hammer testified that during the sweep, he was not looking for narcotics or 

any evidence, and did not observe, search for or seize anything of 

evidentiary value. Id. at 68-70. He said the purpose of the sweep was “for 

officer safety, to make sure they’re not going to injure us or hurt us.” Id. at 

81. When he was finished, Detective Hammer returned downstairs and 

stayed with his partner and Appellant’s girlfriend until Detective Maczko 

radioed that he had secured the search warrant. Id. at 69-70. 

Based on the foregoing testimony, the trial court denied Appellant’s 

suppression motion and summarized its reasoning as follows.

Here, [Appellant] was validly arrested, the 

police were invited into the home, the police 

conducted a protective sweep only to rule out the 

presence of other persons, no illegal activity was 

observed inside the home, and then they awaited the 

approval of the search warrant, which was based on 

information gathered lawfully, prior to their entry 

into the home.

Trial Court Opinion, 5/6/15, at 22.

Our review of the facts of record and legal authority comports with the 

trial court’s determination. Appellant cites Commonwealth v. Melendez, 

676 A.2d 226 (Pa. 1995) to support his contention that “police conducted an 

illegal entry into [Appellant’s] residence while waiting for [the] search 

warrant to be considered.” Appellant’s Brief at 7. Like the trial court, we 

find Melendez distinguishable. Unlike Appellant in this case, Ms. Melendez 

was stopped improperly by police because she “was not engaged in any 
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activity at the time she was stopped which would cause a person of 

reasonable caution to believe that she was then engaged in criminal 

conduct.” Melendez, supra at 228. Moreover, when the police returned 

with Ms. Melendez to her home, “she certainly did not freely and voluntarily 

consent to the police entry into her house.” Id. at 230 (emphasis in 

original).

Instantly, Appellant does not challenge his stop by police, nor did he 

present any evidence at the suppression hearing to contradict Detective 

Hammer’s testimony that his girlfriend permitted police to enter the 

residence, although she subsequently denied police permission to search the 

residence. As it is undisputed that Appellant’s girlfriend was a co-occupant 

of the residence, she was permitted under the Fourth Amendment to consent 

to the warrantless entry, since Appellant was not present to object to the 

entry. See Fernandez v. California, 134 S. Ct. 1126, 1133-1135 (2014) 

(concluding that a girlfriend who occupied an apartment with Fernandez may 

validly give consent to search their apartment when the defendant was not 

present to object to the same). As a result, Appellant’s Fourth Amendment 

rights were not violated by the police’s warrantless entry. 

In addition, Appellant disregards that no contraband was recovered as 

a result of the police action in securing – not searching – Appellant’s 

residence. Detective Hammer testified that there was no search prior to 

receipt of the warrant. N.T., 9/8/14, at 68-70 (stating he did not “observe” 
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“seize” “collect” or “convey to Detective Maczko” anything of evidentiary 

value during the sweep). Accordingly, we discern no error by the trial court 

in denying Appellant’s suppression motion.

In his next issue, Appellant asserts that the trial court acted 

improperly by providing the jury with a verdict slip that included questions 

regarding the weight of the drugs and the presence of a firearm recovered 

from Appellant’s residence. Appellant cites our Supreme Court’s recent 

decision in Commonwealth v. Hopkins, 117 A.3d 247, 260 (Pa. 2015) 

(rejecting the Commonwealth’s assertion that special verdicts—“or, as 

expressed at oral argument, the finding of a general verdict with special 

interrogatories”—may cure the constitutional deficiencies of a statute). 

Appellant adds that the special verdict slip in this case “was not done for 

[Appellant’s] benefit. It was done so that his sentence could be increased.” 

Appellant’s Brief at 10. Appellant further maintains that the verdict slip was 

“contrary to law and an abuse of discretion” and Appellant “was prejudiced 

by the presence of the special verdicts.” Id. Significantly, Appellant does 

not explain how he was prejudiced.

The Commonwealth concedes “it was improper for the trial court to 

include questions on the verdict slip related to possible mandatory minimum 

sentences.” Commonwealth’s Brief at 14. The Commonwealth notes “at the 

time the verdict slip was used, mandatory minimum sentences based on the 

weight of a drug had not yet explicitly been declared unconstitutional,” and 
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“at the time of Appellant’s trial [prior to the Hopkins decision] the trial court 

and the parties were still trying to rectify the various appellate decisions and 

the constitutional mandate of Alleyne.”4 Id. at 13, 14 n.8. The 

Commonwealth explains the “uncertainty led to the positioning of this 

matter, in which the trial court included questions on the verdict slip asking 

the jury to determine the weight of the heroin and whether Appellant 

possessed a firearm.” Id. at 13. Nonetheless, the Commonwealth counters 

that the trial court’s special verdict slip in this case was “harmless” because 

although it asked the jury two questions relating to the drug weight and 

firearm mandatory minimums, the trial court did not impose any mandatory 

minimums when sentencing Appellant. Id. at 11-15.

At the conclusion of trial, the trial court expressed its awareness of the 

implications with sentencing Appellant to mandatory minimums, stating as 

follows.

If the mandatories are described [sic] 

unconstitutional and I choose to sentence [Appellant] 

based on the mandatories, then my sentence is 

exposed for being found to be unconstitutional.

N.T., 9/9/14, at 187.

Two months later, at sentencing, the trial court further discussed the 

issue with the parties as follows.

____________________________________________

4 Alleyne v. United States, 133 S. Ct. 2151 (2013). 
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[Appellant] pled not guilty and the jury 

returned a verdict of guilty on all of the charges. I 

believe they also, on the verdict form, found that 

[Appellant] possessed a gun, but we’re not applying 

the mandatory for that or the enhancement, as [the 

Commonwealth] has opted not to pursue that even 

though there was proof beyond a reasonable doubt 

finding by the jury with regard to the weapon 

because there is a question as to whether or not the 

statute applies to the enhancement and the 

mandatory will be found to be unconstitutional once 

the Supreme Court weighs in on that, is that correct?

[COMMONWEALTH:] Your Honor, that is correct as 

far as the enhancement.

N.T., 11/7/14, at 3-4.

The trial court subsequently sentenced Appellant without applying the 

mandatory minimums. As the Commonwealth observes, “[t]here is no 

evidence that the questions on the verdict slip affected the jury’s 

deliberation as to guilt or innocence on the underlying charges in any 

way[.]” Commonwealth’s Brief at 4. Upon review, we agree. Accordingly, 

we find no merit to Appellant’s second issue regarding the verdict slip, and 

affirm the judgment of sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/4/2016