J-S44026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD DAVIS,

Appellant No. 2264 EDA 2016

Appeal from the Judgment of Sentence June 21, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0006550-2015

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 11, 2017

Appellant, Richard Davis, appeals from the judgment of sentence of 

thirteen to twenty-six months of imprisonment entered in the Court of 

Common Pleas of Delaware County on June 21, 2016, following Appellant’s 

conviction by a jury of possession of marijuana and possession of marijuana 

with intent to deliver (PWID”),1the two charged offenses. We affirm.

The salient facts of this case are as follows: On July 13, 2015, at 

approximately 3:50 p.m., Jeffrey Theobald, then a parole agent with the 

____________________________________________

1

 35 P.S. §§ 780-113(a)(16) and (30), respectively.
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Pennsylvania Board of Probation and Parole,2entered Taylor Terrace, a 

street in the City of Chester, Delaware County, and encountered Appellant, 

whom he recognized as one of the parolees he supervised. Agent Theobald 

had supervised Appellant for a year and knew that Appellant was on parole 

for PWID and a firearm violation. Agent Theobald watched as Appellant 

covered something in the trunk of his vehicle, which was stopped in the 

middle of the road. N.T., 2/23/16, at 5–8.

When Appellant entered his car and drove away, Agent Theobald 

followed him about one-half block, whereupon Appellant turned right, and 

Agent Theobald proceeded on to the house of the parolee he was scheduled 

to visit. Agent Theobald parked his car, waited to see if Appellant would 

circle around, and when he did not, the agent exited his vehicle. At that 

point, Agent Theobald again observed Appellant, who was now walking 

through a vacant lot holding a white plastic bag. Agent Theobald proceeded 

to the house of his parolee while he watched Appellant walk through the 

empty lot. N.T., 2/23/16, at 8–10.

Agent Theobald observed Appellant carry the white bag, walk to an 

overgrown bush, and then reappear without the bag. Agent Theobald 

decided to approach Appellant and called out to him. Agent Theobald 

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2

 Agent Theobald currently is a criminal investigator with the Pennsylvania 

Department of Corrections Office of Special Investigations and Intelligence. 

N.T., 6/14/16, at 63.
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approached Appellant, asked him what he was doing, and Appellant 

responded he was going to visit his cousin. Agent Theobald patted him 

down, asked Appellant about the bag, and placed Appellant in handcuffs. 

The agent went to the bush and retrieved the white bag, which contained a 

large “freezer style” Ziploc bag containing suspected, and ultimately 

confirmed, marijuana. Agent Theobald contacted City of Chester police, who 

arrived within ten to fifteen minutes. While waiting for police, Appellant 

asked Agent Theobald if he could “get rid of that for me.” N.T., 2/23/16, at 

13–16, 18.

Appellant was arrested on July 13, 2015, and charged as indicated. 

On December 21, 2015, Appellant filed a motion to suppress his statements 

to Agent Theobald and the marijuana. Suppression Motion, 12/21/15. On 

February 23, 2016, the court held a suppression hearing, at which Agent 

Theobald was the sole witness. On April 6, 2016, the suppression court 

granted the motion in part, suppressing statements made to Agent 

Theobald,3and denied the motion to suppress the physical evidence the 

agent seized from the abandoned white bag. Order, 4/6/16, at 1. The 

suppression court issued detailed findings of fact and conclusions of law. Id. 

at 1–7.

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3

 The Commonwealth has not appealed suppression of the statements made 

to Agent Theobald; thus, that issue is not before us.
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A jury trial commenced on May 10, 2016. The jury indicated that it 

was deadlocked on May 12, 2016, and the trial court declared a mistrial. 

Appellant was retried on June 14, 2016, and on June 15, 2016, the jury 

found Appellant guilty of both charges. The trial court sentenced Appellant 

on June 21, 2016, to thirteen to twenty-six months of imprisonment for 

PWID; the court held that the possession-of-marijuana conviction merged 

for purposes of sentencing. Appellant filed a timely notice of appeal. Trial 

counsel withdrew his representation, and present counsel entered his 

appearance on Appellant’s behalf. Both Appellant, by present counsel, and 

the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

Whether there was no reasonable suspicion for the parole 

officer’s warrantless search of Appellant therefore Article I, 

Section 8 of the Pennsylvania Constitution requires exclusion of 

the tainted evidence. Commonwealth v. Arter, 63 MAP 2015, 

2016 WL 7449357 (Pa. Dec. 28, 2016)[.]

Whether the Trial Court’s suppression of [Appellant’s] 

statements based on Miranda calls for the controlled substances 

to be suppressed because the same seizure giving rise to the 

custodial finding began when [Appellant’s] P.O., whom he 

recognized, started after him.

Appellant’s Brief at 5. We address the issues in tandem.

Appellant assails the suppression court’s refusal to suppress the 

marijuana found in the white bag that Appellant secreted in the bush. In his 

first claim, Appellant contends the record lacks evidence of reasonable 

suspicion supporting Agent Theobald’s stop and search of Appellant. 
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Referring to the statute detailing the supervisory authority of probation and 

parole officers, Appellant inarticulately suggests the statute can be ignored 

because the pat-down search was for weapons, not suspicion of a violation. 

Appellant’s Brief at 10–12. In his second claim, Appellant maintains that the 

court’s suppression of statements pursuant to Miranda v. Arizona, 384 

U.S. 436 (1966), required suppression of the physical evidence as well 

“because the same seizure giving rise to the custodial” interrogation tainted 

the seizure of the abandoned bag of marijuana. Appellant’s Brief at 16–18.

The Commonwealth responds that Agent Theobald maintained his 

supervisory relationship with Appellant, authorized by statute,4and had 

reasonable suspicion to believe that Appellant possessed contraband or 

other evidence of violations of the conditions of his supervision. 

Commonwealth’s Brief at 14. It further maintains that Appellant freely 

abandoned the white bag and “could not have retained ‘a reasonable 

expectation of privacy’ when he left the bag in the bush.” Id. at 22.

____________________________________________

4

 The Commonwealth has inexplicably referenced a nonexistent citation in 

its brief; its reproduction of the content of the statute, however, reflects the 

correct and relevant law at 61 Pa.C.S. § 6153. Commonwealth’s Brief at 14. 

We note that Appellant’s reference to 42 Pa.C.S. § 9912 also is incorrect 

because that statute details the supervisory authority of county probation 

officers. Here, Agent Theobald testified that he was an agent for the 

Pennsylvania Board of Probation and Parole at that time, and Appellant was 

on parole for possession with intent to deliver a controlled substance and a 

firearms violation. N.T., 2/23/16, at 8. Therefore, Agent Theobald derived 

his supervisory authority from Section 6153. Nevertheless, the statutes 

contain substantially similar provisions with regard to the issues raised 

herein.
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When this Court addresses a challenge to the denial of a suppression 

motion:

we are 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 supported by the record, 

the appellate court is bound by those 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 the courts below are 

subject to plenary review. Commonwealth v. Jones, 121 A.3d 

524, 526–27 (Pa. Super. 2015) (citation omitted). When 

reviewing the suppression court’s rulings, we consider only the 

suppression record. In re L.J., 622 Pa. 126, 79 A.3d 1073, 

1085 (2013) (“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”).

Commonwealth v. Parker, 161 A.3d 357, 361–362 (Pa. Super. 2017) 

(footnote omitted).

“The Fourth Amendment of the Federal Constitution and Article I, 

Section 8 of the Pennsylvania Constitution protect individuals from 

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d 

889, 892 (Pa. Super. 2012).

In Fourth Amendment jurisprudence, there are three categories 

of interactions between citizens and the police:
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The first category is a “mere encounter” (or request 

for information) which need not be supported by any 

level of suspicions, but carries no official compulsion 

to stop or respond. The second, an “investigative 

detention,” must be supported by a reasonable 

suspicion; it subjects a suspect to a stop and a 

period of detention, but does not involve such 

coercive conditions as to constitute the functional 

equivalent of an arrest. Finally, an arrest or 

“custodial detention” must be supported by probable 

cause.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 

2012) (citation omitted).

Reasonable suspicion is a less stringent standard than probable 

cause necessary to effectuate a warrantless arrest, and depends 

on the information possessed by police and its degree of 

reliability in the totality of the circumstances. In order to justify 

the seizure, a police officer must be able to point to specific and 

articulable facts leading him to suspect criminal activity is afoot. 

In assessing the totality of the circumstances, courts must also 

afford due weight to the specific, reasonable inferences drawn 

from the facts in light of the officer’s experience and 

acknowledge that innocent facts, when considered collectively, 

may permit the investigative detention.

Commonwealth v. Parker, 161 A.3d 357, 362 (Pa. Super. 2017) (citing 

Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013) (citation 

omitted)).

The suppression court determined that because Appellant freely 

abandoned the marijuana in the overgrown bush before any contact with 

Agent Theobald, “[t]he objective facts show that [Appellant] could not have 

retained ‘a reasonable expectation of privacy’ when he left the bag in the 
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bush.” Suppression Court Opinion, 4/6/16, at 6 (citing Commonwealth v. 

Shoatz, 366 A.2d 1216 (Pa. 1976)). We agree.5

Proper disposition of this case necessarily involves the authority of 

parole officers, in pertinent part, as follows:

(a) General rule.--Agents are in a supervisory relationship with 

their offenders. The purpose of this supervision is to assist the 

offenders in their rehabilitation and reassimilation into the 

community and to protect the public. . . .

(b) Searches and seizures authorized.--

(1) Agents may search the person and property of 

offenders in accordance with the provisions of this section.

(2) Nothing in this section shall be construed to permit 

searches or seizures in violation of the Constitution of the 

United States or section 8 of Article I of the Constitution of 

Pennsylvania.

(c) Effect of violation.--No violation of this section shall 

constitute an independent ground for suppression of evidence in 

any probation and parole or criminal proceeding.

(d) Grounds for personal search.--

(1) A personal search of an offender may be conducted by 

an agent:

(i) if there is a reasonable suspicion to believe that 

the offender possesses contraband or other evidence 

of violations of the conditions of supervision;

(ii) when an offender is transported or taken into 

custody; or

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5

 We note as well that Appellant concedes that the marijuana properly was 

suppressed if “abandonment controls.” Appellant’s Brief at 16.
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(iii) upon an offender entering or leaving the 

securing enclosure of a correctional institution, jail or 

detention facility.

(2) A property search may be conducted by an agent if 

there is reasonable suspicion to believe that the real or 

other property in the possession of or under the control 

of the offender contains contraband or other evidence 

of violations of the conditions of supervision.

(3) Prior approval of a supervisor shall be obtained for a 

property search absent exigent circumstances. No prior 

approval shall be required for a personal search.

* * *

(6) The existence of reasonable suspicion to search shall 

be determined in accordance with constitutional search 

and seizure provisions as applied by judicial decision. In 

accordance with such case law, the following factors, 

where applicable, may be taken into account:

(i) The observations of agents.

(ii) Information provided by others.

(iii) The activities of the offender.

iv) Information provided by the offender.

(v) The experience of agents with the offender.

(vi) The experience of agents in similar 

circumstances.

(vii) The prior criminal and supervisory history of 

the offender.

(viii) The need to verify compliance with the 

conditions of supervision.

61 Pa.C.S. § 6153.
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In the instant case, Agent Theobald, while in the course of his duties, 

was going to visit a parolee, not Appellant. While en route, he observed 

Appellant, who he recognized as another parolee he supervised, stopped in 

the middle of the road, appearing to search for something in the trunk of his 

car. Appellant drove off without intervention by Agent Theobald, who 

continued to his intended destination. As the agent exited his vehicle and 

approached his destination, he saw Appellant again, now walking through an 

empty lot, carrying a bag. As Agent Theobald watched, Appellant walked 

behind an overgrown bush and left the bag in the bush. Agent Theobald’s 

view of Appellant was a mere chance encounter that initially arose on a 

public street. The agent did not need any level of suspicion to observe 

Appellant’s behavior in public. By the time Agent Theobald called out to 

Appellant, approached him, patted him down, and handcuffed him, Appellant 

had previously discarded the bag.

As the trial court noted, abandoned property that is not coerced by 

illegal police action, “may be obtained by police and used for evidentiary 

purposes.” Suppression Opinion, 4/6/16, at 6; see also Commonwealth 

v. Ibrahim, 127 A.3d 819, 825 (Pa. Super. 2015) (“As a general rule, when 

a person abandons property, the police may recover that property and use it 

as evidence against a defendant. However, the abandonment cannot be the 

result of illegal police conduct”), appeal denied, 138 A.3d 3 (Pa. 2016). 

Indeed, in Commonwealth v. Tillman, 621 A.2d 148 (Pa. Super. 1993), 
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police officers on routine patrol observed the defendant drop a container 

later found to contain fifteen vials of cocaine. This Court determined that 

evidence abandoned before police officers “showed any interest” in the 

defendant was improperly suppressed as fruit of the poisonous tree. Id. at 

150.

When analyzing the principles of abandonment of property, this Court 

has reasoned as follows:

In Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 

(1976), our Supreme Court delineated the test employed to 

determine whether an abandonment has occurred:

Abandonment is primarily a question of intent, and 

intent may be inferred from words spoken, acts 

done, and other objective facts. All relevant 

circumstances existing at the time of the alleged 

abandonment should be considered. The issue is not 

abandonment in the strict property-right sense, but 

whether the person prejudiced by the search had 

voluntarily discarded, left behind, or otherwise 

relinquished his interest in the property in question 

so that he could no longer retain a reasonable 

expectation of privacy with regard to it at the time of 

the search.

Id., 469 Pa. at 553, 366 A.2d at 1220 (emphasis added).

Commonwealth v. Johnson, 431 Pa. Super. 291, 294-96, 636 

A.2d 656, 658 (1994) (quotation marks and some internal 

citations omitted). In other words, “[a]bandonment can be 

established where an individual’s surrender of possession of the 

property constitutes such a relinquishment of interest in the 

property that a reasonable expectation of privacy may no longer 

be asserted.” Johnson, 636 A.2d at 658-659.

Commonwealth v. Clark, 746 A.2d 1128, 1134 (Pa. Super. 2000). We 

agree with the suppression court that Appellant could not have retained a 
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reasonable expectation of privacy in the white bag once he secreted and 

abandoned the marijuana in the bush. Suppression Court Opinion, 4/6/16, 

at 6 (citing Shoatz, 366 A.2d at 1219).

Additionally, there is no merit to Appellant’s suggestion that Agent 

Theobald’s observation of Appellant’s actions sparked a “forced 

abandonment” by Appellant. Appellant’s Brief at 17. While it may be true 

that Appellant indeed recognized that Agent Theobald was aware of 

Appellant’s presence, and Appellant “dropped the bag to avoid the parole 

violation of actual possession of a controlled substance,” Appellant’s Brief at 

18, that scenario does not describe a forced abandonment under the law. 

Commonwealth v. Pizarro, 723 A.2d 675, 680 (Pa. Super. 1998) (“mere 

approach by a law enforcement official does not amount to police coercion 

requiring suppression of evidence abandoned by defendant”). Indeed, we 

have stated that fear of detection and “sensitivity to the risk of police 

detection does not establish that [an] abandonment was forced.” Id. at 

680.

In Commonwealth v. Taylor, 33 A.3d 1263 (Pa. Super. 2011), 

undercover police officers were patrolling an area in an unmarked car and 

observed the appellant and another man sitting on a wall. The appellant 

was holding a potato chip bag. As the officers approached, the appellant 

crumpled the bag and put it down to his side, and then tossed the bag to the 

ground. At that point, the officers exited their vehicle and identified 
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themselves as police officers. In addressing the appellant’s issue on appeal 

that he had been forced to abandon the physical evidence and was illegally 

detained, this Court stated: “While appellant may have felt uncomfortable 

being watched by three people in a car that he knew to be a police vehicle, 

we cannot find such amounted to police coercion. . . . Appellant discarded 

the potato chip bag at his own volition.” Id. at 1286.

Similarly, in the instant case, we conclude that the record is devoid of 

any evidence that Agent Theobald’s conduct forced Appellant to abandon the 

marijuana. Moreover, the abandonment, which occurred substantially before 

the agent approached and detained Appellant, was not fruit of the poisonous 

tree. Agent Theobald’s subsequent detention, pat down, and custodial 

detention without Miranda warnings had no impact on Appellant’s prior 

voluntary abandonment of the marijuana. Despite the trial court’s 

suppression of Appellant’s statements because they resulted from a custodial 

interrogation absent Miranda warnings, the marijuana was seized 

independently of that custodial conduct in that it had been abandoned prior 

to Agent Theobald’s approach of Appellant. As stated by the suppression 

court:

Here, the physical evidence of the white plastic bag did not come 

to light by exploitation of illegality of statements obtained from 

[Appellant]. Agent Theobald did not retrieve the bag from the 

bush because of any statements made by [Appellant]. On the 

contrary, the Agent observed the bag prior to any statements 

made by [Appellant]. Therefore, the suppression of [Appellant’s] 

statements is a complete and sufficient remedy for the Miranda

violation.
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Suppression Court Opinion, 4/6/16, at 7. Appellant’s abandonment was not 

caused by any unlawful or coercive action by Agent Theobald. Thus, we 

conclude Appellant’s issues lack merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/11/2017