Com. v. Chesney, E. , 196 A.3d 253 ( 2018 )

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2018 PA Super 262COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
EDWARD CHESNEY, : No. 315 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, January 25, 2017,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0004784-2015
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 20, 2018
Appellant, Edward Chesney, appeals from the January 25, 2017
judgment of sentence entered by the Court of Common Pleas of Berks
County. After careful review, we vacate appellant’s judgment of sentence
and reverse the trial court’s order denying suppression.
The trial court provided the following relevant factual and procedural
history:
[L]aw enforcement, pursuant to a warrant, searched
a house where [a]ppellant used to live. Arriving at
this house, Detective [James] Gresh
[(“Detective Gresh”)] observed a Buick parked in the
driveway. Trooper Higdon informed Detective Gresh
that he could see a small glass vial with a black
plastic cap in the vehicle. After seeing the vial,
Detective Gresh opened the vehicle to search, as he
was aware that such vials are commonly used to
transport PCP. In the vehicle, the following evidence
was discovered: jars, which are commonly used to
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store PCP; large vials, which are commonly used to
transport PCP; 92.31 grams of PCP, which was
contained within these jars and vials, though some
of the jars and vials were empty; a very large pair of
sweatpants; a digital scale; three handguns and
ammunition; seven cell phones, including a Maxwest
Cellphone, which contained text messages.
Additionally, discovered in the vehicle, was a bank
statement, prescription bottle, and insurance
documents bearing [a]ppellant’s name.
Tying all this evidence together, Detective
[George] Taveras [(“Detective Taveras”)] testified as
to the relevance of the most important pieces of
evidence. First, the detective explained the
relevance of the cell phones and the messages
contained within. Specifically, he discussed the
messages extracted from the Maxwest Phone. One
message, known to have been sent from a phone
belonging to [Ivan] Meletiche, corroborated that
[a]ppellant and Big Homie were the same person.
Though, most important instantly, is a string of
messages that stated the following:
Will you please answer your phone[?]
Chris said if I don’t come home with a jar
for him he’s gonna put his hands on
me[.]
[W]ill you please answer your phone
[E]d?
Detective Taveras also testified that the quantity of
cell phones indicated that [a]ppellant was a drug
dealer, since keeping such a large quantity of phones
is a common practice in the drug trade. Second, the
detective related that the vials, jars, and a scale,
were all an integral part of the repackaging and
distribution operation needed to sell the PCP found
within the vehicle. Third, the detective testified that
the only purpose of having empty jars was for the
intent of distributing the PCP in sellable quantities.
Fourth, the detective testified that presence of
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firearms clearly indicated that [a]ppellant desired to
protect what was approximately $7,000 worth of PCP
found in the vehicle. From all this evidence,
Detective Taveras was able to come to the expert
opinion that [appellant] intended to distribute the
PCP.
Trial court opinion, 5/23/17 at 4-5 (footnotes omitted).
Appellant filed an amended omnibus pretrial motion in which he,
inter alia, sought to have evidence obtained during a search of his
residence and his 2002 Buick LeSabre suppressed. On October 13, 2016,
the trial court granted appellant’s motion in part, suppressing evidence
obtained during a search of his residence, and denied appellant’s motion in
part with respect to the evidence seized from the 2002 Buick LeSabre.
On January 25, 2017, a jury convicted [a]ppellant[]
of the following offenses: five counts of Criminal Use
of Communication Facility, five counts of Possession
with Intent to Deliver a Controlled Substance – PCP
(“PWID”); and five counts of Possession of a
Controlled Substance.
After being convicted, [a]ppellant was sentenced to
several consecutive sentences. The first period of
incarceration, lasting from 6 to 20 years, was
received for PWID – Count 14. The second period of
incarceration, lasting 2 to 5 years, was received for
PWID – Count 10. The third period of incarceration,
lasting 2 to 5 years, was received for PWID –
Count 11. The fourth period of incarceration, lasting
2 to 5 years, was received for PWID – Count 12.
The fifth period of incarceration, lasting 2 to 5 years,
was received for PWID – Count 13. Additionally,
[a]ppellant was sentenced to 5 years’ probation on
each charge of Criminal Use of Communication
Facility. All probationary sentences are to run
concurrently.
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Following sentencing, by and through counsel,
[a]ppellant filed a post-sentence motion for a new
trial and for the modification of sentence. [The trial
court] denied this motion on February 8, 2017. On
February 21, 2017, [a]ppellant filed a notice of
appeal. Subsequently, [a]ppellant petitioned the
[trial court] for an extension to file a Concise
Statement, which [was] granted. A Concise
Statement was then filed on March 20, 2017.
Id. at 1. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
I. Did the trial court err in denying [a]ppellant’s
pretrial motion to suppress the PCP, firearms,
ammunition, and cellphones found in the 2002
Buick LeSabre as the search warrant was
invalid and the law enforcement officers had no
authority and no good faith reason to enter
onto the property of 133 Pieller Road, Berks
County, Pennsylvania where the 2002 Buick
LeSabre was parked?
II. Did the trial court err by admitting evidence, to
wit, the extracted information from the
Maxwest cell phone found in the 2002 Buick
LeSabre, pursuant to Pennsylvania Rule of
Evidence 404(b)(2) as the probative value of
the text messages extracted and shown to the
jury did not outweigh the potential for unfair
prejudice and should not have been admitted?
III. Did the trial court err in admitting evidence, to
wit, the extracted information from the
Maxwest cellphone found in the 2002 Buick
LeSabre, based upon an ostensible discovery
violation when the appropriate remedy under
the Pennsylvania Rule of Criminal Procedure
573 for this type of late discovery which
resulted from the Commonwealth’s decision to
delay the forensic analysis of the cellphone
contents until the week prior to the trial, and
telling defense counsel of the contents three
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business days prior to the start of trial, was
exclusion of evidence?
IV. Did the [trial court] err in denying a defense
objection to the improper rebuttal testimony of
Detective Haser (who testified that he
witnessed [a]ppellant leave from and return to
133 Pieller Road on April 20, 2015 between
1:11 a.m. and 1:18 a.m.) offered to rebut
testimony of [a]ppellant where [a]ppellant
stated clearly that he did not recall being at
133 Pieller Road on April 20, 2015 around
1:00 a.m. and admitted to being present at
that location occasionally late at night?
V. Was the evidence presented by the
Commonwealth insufficient to prove beyond a
reasonable doubt that a Delivery of PCP
occurred on April 10, 2015 through the use of
cell phone communications (i.e. Counts 5, 6,
10 and 15)[?]
VI. Was the evidence presented by the
Commonwealth insufficient to prove beyond a
reasonable doubt that the two Deliveries of
PCP occurred on April 21 and 22, 2015 through
the use of cell phone communications (i.e.
Counts 7, 11, 16, 8, 12 and 17)[?]
VII. Was the evidence presented by the
Commonwealth insufficient to prove beyond a
reasonable doubt that the Delivery of PCP
occurred on May 3, 2015 through the use of
cell phone communications (i.e. Counts 9, 13
and 18)[?]
Appellant’s brief at 11-14.
Appellant’s first three issues on appeal pertain to evidence that was
seized from the 2002 Buick LeSabre (“LeSabre”) parked in the driveway at
133 Pieller Road, North Heidelberg Township, in Berks County, Pennsylvania.
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On October 13, 2016, the trial court determined that the search warrant
used to search the house did not establish probable cause, and the items
seized from the house were suppressed. (See trial court opinion, 10/13/16
at 3-4.) Appellant also moved to suppress evidence seized from the
LeSabre, which the trial court denied.
On appeal, appellant argues that he had an expectation of privacy in
the LeSabre. (Appellant’s brief at 37-38.) Specifically, he notes that the
LeSabre was parked in a private driveway and that there was no evidence of
record that the LeSabre was visible from the street. (Id. at 38.) Moreover,
appellant contends that the police would not have seen the LeSabre but for
their unlawful presence on the property at the time the vehicle was
searched. (Id.)
The Commonwealth avers that the evidence seized from the LeSabre
was in plain view, and thus not subject to a warrant requirement.
(Commonwealth’s brief at 11-12.) Based upon the observation of a glass
vial lying on the floor of the LeSabre, the police searched both the passenger
compartment and trunk of the LeSabre. (Id. at 12.) Despite the search
warrant for the house having been determined to be invalid, the
Commonwealth contends that the police were nonetheless able to observe
the glass vial inside the LeSabre from a lawful vantage point, as the
driveway was a generally accessible area and the police needed “no greater
authority to be present in the driveway than delivery persons, visitors, or
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those engaged in door-to-door solicitation.” (Id. at 13.) To justify its
search of the LeSabre, the Commonwealth relies on our supreme court’s
decision in Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014), in which
our supreme court adopted the federal automobile exception, holding that
only probable cause must be established in order to search an automobile
without a warrant, as the inherent mobility of the automobile provides
sufficient exigent circumstances.
The trial court notes that appellant’s sole argument in favor of
suppression of the evidence found in the LeSabre was based in the plain
view doctrine. (Trial court opinion, 10/13/16 at 5.) Specifically, the court
states that appellant’s claim is that “because of the hour of the day and the
nature of the windows in the vehicle, [the police] could not have actually
seen the vial lying on the floor without entering the vehicle first.” (Id.) The
trial court upheld the subsequent warrantless search of the LeSabre in
reliance on Gary. (See id. at 7.)
When reviewing the denial of a defendant’s motion to suppress
evidence, we are held to the following standard:
[An appellate court’s] 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
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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
allegation 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 courts below are subject to
[] plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015),
appeal denied, 135 A.3d 584 (Pa. 2016), quoting Commonwealth v.
Jones, 988 A.2d 649, 654 (Pa. 2010), cert. denied, 562 U.S. 832 (2010)
(internal citations and quotation marks omitted). Pennsylvania appellate
courts apply the law in effect at the time of the appellate decision.
Commonwealth v. Tizer, 684 A.2d 597, 601 (Pa.Super. 1996), citing
Commonwealth v. Metts, 669 A.2d 346, 353 (Pa.Super. 1995), order
reversed on other grounds, Commonwealth v. Ardestani, 736 A.2d 552(Pa. 1999). “This means that we adhere to the principle that, ‘a party whose
case is pending on direct appeal is entitled to the benefit of changes in law
which occur[] before the judgment becomes final.’” Blackwell v. State
Ethics Commission, 589 A.2d at 1094, 1099 (Pa. 1999), overruled on
other grounds, Bugosh v. I.U. North America, Inc., 971 A.2d 1228 (Pa.
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2009), quoting Commonwealth v. Brown, 431 A.2d 905, 906-907 (Pa.
1981).1
Both the United States Constitution and the Pennsylvania Constitution
guarantee that individuals shall not be subject to unreasonable searches or
seizures.
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV.
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches
and seizures, and no warrant to search any place or
to seize any person or things shall issue without
describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const., Art. I, § 8.
Evidence obtained as a result of an unlawful search is subject to the
fruit of the poisonous tree doctrine. The United States Supreme Court has
stated that any material, tangible, or verbal evidence “obtained either during
or as a direct result of an unlawful invasion” is inadmissible at trial. Wong
Sun v. United States, 371 U.S. 471, 485 (1963).
1 At the suppression hearing, appellant apparently conceded that the
driveway was not curtilage; however, based on recent decisional law and the
reasoning of the trial court, we do not find waiver.
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Our supreme court further stated:
We need not hold that all evidence is “fruit of the
poisonous tree” simply because it would not have
come to light but for the illegal actions of the police.
Rather, the more apt question in such a case is
“whether, granting establishment of the primary
illegality, the evidence to which instant objection is
made has been come at by exploitation of that
illegality or instead by means sufficiently
distinguishable or to be purged of the primary taint.”
Commonwealth v. Cunningham, 370 A.2d 1172, 1176-1177 (Pa. 1977),
quoting Wong Sun, 371 U.S. at 487-488.
Pennsylvania courts have recognized that the protections afforded to
individuals under both the Fourth Amendment and Article I, Section 8 are
applicable to the curtilage of a person’s home. Commonwealth v.
Bowmaster, 101 A.3d 789, 792 (Pa.Super. 2014) (citations omitted). This
court defined the curtilage of the home as places “where the occupants have
a reasonable expectation of privacy that society is prepared to accept.” Id.citing Commonwealth v. Johnson, 68 A.3d 930, 935 n.3 (Pa.Super. 2013)
(citations omitted).
Subsequent to the trial court’s filing of its Rule 1925(a) opinion, our
supreme court announced its decision in Commonwealth v. Loughnane,
173 A.3d 733 (Pa. 2017). In Loughnane, the court held that the
automobile exception to the warrant requirement recognized by Gary does
not apply to vehicles parked in private driveways. Loughnane, 173 A.3d at
745. The investigative intentions of the police in Loughnane were not
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addressed as a reason to access the property in the first instance; rather,
the case centered on the seizure of the defendant’s vehicle in connection
with a hit and run investigation.
Consistent with Loughnane, in Collins v. Virginia, 138 S.Ct. 1663,
1672 (2018), the Supreme Court of the United States held that the federal
automobile exception “does not afford the necessary lawful right of access to
search a vehicle parked within a home or its curtilage because it does not
justify an intrusion on a person’s separate and substantial Fourth
Amendment interest in his home or curtilage.” The Court went on to warn
that permitting the police to conduct a warrantless search of a vehicle
parked on private property would be tantamount to the automobile
exception swallowing the rule established by Fourth Amendment
jurisprudence.
To allow an officer to rely on the automobile
exception to gain entry into a house or its curtilage
for the purpose of conducting a vehicle search would
unmoor the exception from its justifications, render
hollow the core Fourth Amendment protection the
Constitution extends to the house and its curtilage,
and transform what was meant to be an exception
into a tool with far broader application.
Id. at 1673.
Similar to Loughnane, the Collins Court did not provide any
discussion addressing whether the investigation permitted the police to have
access to the driveway. Those circumstances were addressed in detail by
Commonwealth v. Simmen, 58 A.3d 811 (Pa.Super. 2012), and
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Commonwealth v. Eichler, 133 A.3d 775 (Pa.Super. 2016), both of which
were relied upon by the trial court in the instant appeal.
In Simmen, the police were investigating a hit-and-run resulting in
property damage. Simmen, 58 A.3d at 813. The police followed a trail of
fluid from the scene of the accident to the defendant’s driveway, where the
defendant’s vehicle was parked. Id. As the officer approached the
defendant’s house in an effort to speak to the owner of the vehicle parked in
the driveway, the officer noticed that the car was leaking fluid from its front
end. Id. The officer proceeded to knock on the door of the defendant’s
house and was admitted into the house by the defendant’s wife. Id. at 814.
This court found that the police were permitted to enter the defendant’s
driveway as they were in the course of an investigation. Id. at 816.
Similarly, in Eichler, the police, while in the course of investigating a
hit-and-run, received information about a possible location of the vehicle
involved in the accident. Eichler, 133 A.3d at 781. Upon his arrival at the
defendant’s house, the police officer noted that the truck parked in the
defendant’s driveway matched the description of the vehicle involved in the
accident and the officer observed front-end damage consistent with the
accident. Id. at 782.
This court noted that “when the police come on to private property to
conduct an investigation . . . and restrict their movements to places visitors
could be expected to go (e.g., walkways, driveways, porches), observations
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made from such vantage points are not covered by the Fourth Amendment.”
Id., quoting LaFave, Search And Seizure: A Treatise On The Fourth
Amendment, § 2.3(f) (5th ed.) (database updated October 2015). The
Eichler court further noted that,
Professor LaFave gathers 49 cases in support of this
precept, including Trimble v. State, 842 N.E.2d
798, 802 (Ind. 2006) (police entry onto private
property and their observations do not violate Fourth
Amendment when police have legitimate
investigatory purpose for being on property and
limit their entry to places visitors would be expected
to go; the route which any visitor to residence would
use is not private in Fourth Amendment sense, so if
police take that route for purpose of making
general inquiry or for some other legitimate
reason, they are free to keep their eyes open), and
State v. Lodermeier, 481 N.W.2d 614, 624 (S.D.
1992) (approving officer’s examination of exterior of
garden tractor parked in driveway, because “even
though it is part of the curtilage, an officer with
legitimate business may enter a driveway and, while
there, may inspect objects in open view”). See
LaFave, § 2.3(f) at n. 225 and 229.
Id. at 784 n.7 (emphasis added)
Both Simmen and Eichler are distinguishable from the instant appeal.
In both of those cases, the police entered the curtilage for the purpose of
conducting an investigation and they restricted their movements to areas
where visitors could be expected to go. In the instant appeal, the police
were at appellant’s residence executing a search warrant that the trial court
subsequently found to be lacking in probable cause. Put another way, the
police were not in the course of conducting an investigation when the vial
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was observed lying inside the LeSabre. Moreover, there is no evidence of
record that would indicate that the police had any reason to be at appellant’s
residence, but for the defective search warrant. Accordingly, the police were
in violation of appellant’s Fourth Amendment rights when the vial was
observed in the LeSabre. Because the police did not observe the vial in plain
view from a lawful vantage point, we, therefore, find that the
Commonwealth failed to establish that probable cause existed to search the
LeSabre without a warrant, and that the evidence seized from the LeSabre
should be suppressed.2
We need not address appellant’s remaining six issues, as the issues
are now moot.
2 Even if the search warrant to search appellant’s residence had been valid,
the warrantless search of the LeSabre would have nonetheless been
improper. As the trial court noted, the search of the LeSabre was “in no way
directly tied to the search of the residence.” (Trial court opinion, 5/23/17
at 7.) Accordingly, in light of the Supreme Court of Pennsylvania’s holding
in Loughnane and the Supreme Court of the United States’ holding in
Collins, the warrantless search of the LeSabre was unreasonable.
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Order denying suppression reversed. Judgment of sentence vacated.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2018
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