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J. A21032/10 2010 PA Super 174 COMMONWEALTH OF PENNSYLVANIA, Appellee v. TERRANCE McRAE, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 2925 EDA 2009

Appeal from the Judgment of Sentence August 10, 2009 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CR-0000001-09 CP-09-CR-0001795-2009 BEFORE: STEVENS, GANTMAN, and ALLEN, JJ. Filed: September 17, 2010

OPINION BY STEVENS, J.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Bucks County after a jury convicted Appellant of Possession with Intent to Deliver a Controlled Substance ("PWID"), Possession of a Controlled Substance, and Possession of Drug Paraphernalia. Sentenced to a mandatory sentence of five to ten years of incarceration with a Recidivism Risk Reduction Incentive (RRRI) sentence of fifty months to ten years, Appellant argues that: (1) unlawful police entry into a third party's home required the suppression of evidence obtained from the search of his person incident to his arrest inside that home; and (2) the court's responsive instruction to a deliberating jury's question of what "delivery" entails risked a PWID verdict based not on his intent with respect to the drugs found in his

J. A21032/10 possession but on extraneous drugs found elsewhere in the third party's home. We affirm. The trial court provides an apt recitation of the factual and procedural history of the case as follows: Appellant was charged by Criminal Complaint on January 2, 2009, with Possession with Intent to Deliver a Controlled Substance, Possession of a Controlled Substance, Possession of Drug Paraphernalia, and Criminal Conspiracy. A suppression hearing was held before the [trial court] on May 13, 2009, wherein Appellant moved to compel the production of the arrest warrant for Elaine Carmen, which permitted the police to enter the house where Appellant was arrested. Appellant also moved to disclose the identity of a confidential informant. The defense sought to suppress the entry into the home where Appellant was arrested for lack of probable cause based on Elaine Carmen's warrant. The defense also moved to suppress the statements made by Appellant to police, as involuntary. Following a hearing, we denied all of Appellant's pre-trial motions. Suppression, N.T. 5/13/09 pp. 73-75. Appellant's case proceeded to trial before a jury on May 13, 2009. On May 14, 2009, the jury returned a verdict finding Appellant guilty of Possession with Intent to Deliver a Controlled Substance, Possession of a Controlled Substance, and Possession of Drug Paraphernalia. Count Four, charging Criminal Conspiracy, was nol prossed at the start of trial. Trial, N.T. 5/13/09 p. 3. Viewing the evidence in the light most favorable to the Commonwealth, as the verdict winner, the following relevant testimony was presented at trial: On January 2, 2009, at approximately 10:25 p.m., Morrisville Borough police officers Lee Matthews and Wayne Apice, along with two other officers, arrived at 23 Philadelphia Avenue (hereinafter sometimes referred to as the "residence") in Morrisville Borough, Bucks County, Pennsylvania, for the purpose of serving an arrest warrant on Elaine Carmen, an occupant of that residence. Trial, N.T. 5/13/09, p. 27. Officer Apice, a twenty-four year veteran of the Morrisville Borough Police Department, testified that the residence had been under -2-

J. A21032/10 police surveillance for possible drug trafficking, and on that night, the officers observed Elaine Carmen, a known wanted subject [according to the National Crime Information Center ("NCIC") database which listed an outstanding arrest warrant in her name], enter the residence. N.T. at 43. Officer Apice testified that he knocked on the door and the door was opened by Kenneth Thomas, also a resident of that address. The residence is a small efficiency apartment and, from this location standing in the doorway, Officer Apice could clearly see Elaine Carmen and the three other individuals in the apartment: Kenneth Thomas, Amanda Jenner, and Appellant. At that time, the police officers entered the residence to apprehend Elaine Carmen. N.T. at 44. Officer Matthews testified that after entering the residence to serve the arrest warrant on Elaine Carmen, he noticed Appellant. N.T. at 28. Officer Matthews testified that he was very familiar with the Appellant from a prior incident and had personal information that there was an outstanding warrant in Morrisville Borough for Appellant's arrest. At that time, Officer Matthews handcuffed Appellant and took him into custody. N.T. at 28. When Officer Matthews patted down Appellant for weapons he felt what he believed to be a large bag in Appellant's right pocket. When the officer emptied Appellant's pockets he discovered a large clear plastic bag containing numerous small blue translucent bags. N.T. at 29-30, Exhibit C1. The officer saw that the bags contained a white rocky substance, which he suspected to be crack cocaine. N.T. at 29. Officer Matthews retrieved the bags of suspected drugs and approximately $300.00 from Appellant's pockets. On a table inside the apartment, there was also a small amount, approximately one gram, of a white substance later determined to be cocaine. N.T. at 81. Officer Matthews seized the suspected drugs and money, placed Appellant into a police car and took him to the police station. At the station, Officer Matthews turned over the money and suspected drugs to Officer Apice, who secured the evidence. When Appellant arrived at the Police Station, Officer Apice advised him of his Miranda rights and Appellant signed a Miranda Waiver form. N.T. at 51, Exhibit C-3. Thereafter, Appellant told Officer Apice that he originally purchased the suspected cocaine in Camden. Appellant stated that 60% of the -3-

J. A21032/10 quantity was for distribution and the other 40% was for personal use. N.T. at 53. Appellant, with the help of his girlfriend, Amanda Jenner, who was also in custody at the police station, made a written statement admitting that the drugs found on him were his, that he had sold some of them, and that the drugs were initially purchased to be sold for profit, with 60% of the drugs for sale and 40% for personal use. Exhibit C-4. *** Based on the above testimony, the jury concluded that Appellant was guilty of Possession with Intent to Deliver a Controlled Substance, Possession of a Controlled Substance and Possession of Drug Paraphernalia. On August 10, 2009, this Court sentenced Appellant on Count One, Possession with Intent to Deliver, to incarceration in a State Correctional Institution for not less than five (5) years nor more than ten (10) years with an alternative RRRI sentence of fifty (50) months to ten (10) years, a fine of $30,000.00 and costs. Appellant's sentence reflects the mandatory minimum term pursuant to 18 Pa.C.S.A.

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