Commonwealth v. Fulton, I., Aplt. , 179 A.3d 475 ( 2018 )

[J-55-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 3 EAP 2017
:
Appellee : Appeal from the Judgement of Superior
: Court entered on 04/27/2016 at No.
: 1729 EDA 2014 (reargument denied
v. : 06/09/2016) affirming the Judgement of
: Sentence entered on 01/17/2014 in the
: Court of Common Pleas, Philadelphia
I. DEAN FULTON, : County, Criminal Division at No. CP-51-
: CR-0012441-2010
Appellant :
: ARGUED: September 12, 2017
OPINION
JUSTICE DONOHUE DECIDED: February 21, 2018
In this discretionary appeal, we consider the permissible scope of a warrantless
search of a cell phone by police and the confines of the harmless error doctrine.
Specifically, we must determine whether powering on a cell phone to gather evidence,
without a warrant, violates the Fourth Amendment to the United States Constitution1
and Article I, Section 8 of the Pennsylvania Constitution,2 and, if so, whether the
1 “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.
2 “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
(continued…)
decision to allow the Commonwealth to present evidence obtained as a result of the
warrantless search was harmless beyond a reasonable doubt. For the reasons that
follow, we hold that accessing any information from a cell phone without a warrant
contravenes the United States Supreme Court’s decision in Riley v. California and
United States v. Wurie, 134 S. Ct. 2473 (2014) (hereinafter, “Riley/Wurie”).3 We further
conclude that the error of admitting the evidence obtained as a result of the warrantless
search of the cell phone in this case was not harmless. See Commonwealth v. Story,
383 A.2d 155 (Pa. 1978). We therefore reverse the decision of the Superior Court and
remand the matter to the Philadelphia County Court of Common Pleas for further
proceedings consistent with this Opinion.
I. Facts
In the early morning hours of June 15, 2010, Michael Toll called 9-1-1 and
reported that he had been shot. Police responded, locating Toll in a vehicle on the
sidewalk between a legally parked car and a house at 56th Street and Florence Avenue
in Philadelphia. Toll informed police that “Jeff” had reached in through the passenger-
side window of Toll’s vehicle, shot him and then fled on foot in an unknown direction.
The shooting occurred in the 5400 block of Florence Avenue. Toll described Jeff as a
slim black male wearing white shorts and a white t-shirt. Toll had multiple close-range
(…continued)
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.
3 Because of the manner by which we decide this case, we need not address Fulton’s
claim under Article I, Section 8.
[J-55-2017] - 2
gunshot wounds on the right side of his body. He was taken to the hospital for
treatment.
Police photographed and searched Toll’s vehicle. There was a wadded twenty
dollar bill on the floor between the driver’s seat and the doorframe and a personal
organizer containing a calendar, money and other papers located on the front
passenger seat. Police recovered two fired cartridge casings — one Winchester brand
and one Corbon brand — from the floor of the car, and a latent palm print from the roof
on the passenger side of the vehicle.
The cell phone in Toll’s hand when police arrived at the scene was also
recovered from the vehicle. The call log in Toll’s cell phone revealed that in the hour
preceding the shooting, Toll exchanged several brief calls with an individual listed as
“Jeff” with a phone number ending in 7343 (hereinafter, the “Target Number”).4 Police
attempted to discern the person associated with that number, but discovered it was
linked to a prepaid phone with no subscriber information. Also within the hour before
the shooting, Toll placed a lengthier call to an individual referred to in the call log as
“Red” with the phone number ending in 8932. Police learned that this phone number
belonged to a woman named Rosetta Woods.
Toll ultimately succumbed to his injuries on June 17, 2010. That same morning,
police received a call concerning drug activity and a man with a gun behind 6032
Lindbergh Boulevard in Philadelphia. Police responded and found several individuals in
and around a 2002 green Mercury Marquis. After observing a gun, holster and cell
4 The phone numbers involved in this case are not reproduced in this Opinion because
we do not know whether the phone numbers are still in use.
[J-55-2017] - 3
phones in the vehicle, police took four individuals into custody: Randolph Bell, Anthony
Byrd, Eric Adams, and I. Dean Fulton. Fulton had been sitting inside the vehicle. Police
seized a smartphone5 from Fulton’s person at the time of his arrest. Police
subsequently obtained a search warrant for the vehicle as part of the investigation into
violations of the Uniform Firearms Act6 and recovered the firearm, holster, three cell
phones and the owner’s card for the vehicle, which indicated that the car belonged to
Bell. The gun and the holster were placed on property receipts.
The phones were not placed on property receipts, but were transferred to the
Homicide Division of the Philadelphia Police on June 18, 2010, along with Bell, Byrd
and Adams, as part of what was now a murder investigation regarding Toll’s death.7
Upon receipt of the phones, Detective John Harkins, the lead detective assigned to the
case, opened each phone, powered them on and searched each phone’s menu to
discern its assigned phone number. It was determined that the number for one of the
recovered cell phones, a Samsung flip top cell phone,8 was the Target Number, the
5 A “smartphone” is “a cell phone with a broad range of other functions based on
advanced computing capability, large storage capacity, and Internet connectivity.”
Riley/Wurie, 134 S. Ct. at 2480.
6 18 Pa.C.S. §§ 6101-6127.
7 Fulton, who was fifteen years old at the time, was not brought to Homicide because,
according to Detective Harkins, “juveniles are restricted from being removed.” N.T.,
8/21/2013 (motion), at 44-45. Instead, Fulton was transported to the Youth Study
Center following his processing at Southwest Detectives.
8 A flip-top cell phone, also commonly known as a “flip phone,” is a hinged cell phone
that folds closed to hide the screen and keypad when it is not in use and “generally has
a smaller range of features than a smart phone.” Riley/Wurie, 134 S. Ct. at 2481.
[J-55-2017] - 4
same number that was assigned to “Jeff” in Toll’s cell phone. Detective Harkins did not
secure a warrant prior to accessing the information from the seized cell phones.
Detective Harkins left the Samsung flip phone powered on and monitored the
phone’s incoming calls and texts by viewing either its internal or external display
screen.9 The following day, Detective Harkins answered a call on that cell phone,
identifying himself as a member of the police department investigating a homicide. At
the detective’s request, the caller, Heather Warrington, agreed to meet with him in a
convenience store parking lot in Folsom. When Warrington did not arrive at the
appointed time, Detective Harkins used the flip phone to call her, and she said she was
on her way there. During her interview, she identified the owner of the phone number in
question as “Lil Jeff” and told the detective that she purchased heroin from him on a
regular basis. Detective Harkins showed her a picture of Fulton, whom she identified by
writing “Jeff” on the photograph. Commonwealth’s Exhibit C-38. She confirmed that
she regularly purchased heroin from Lil Jeff and Bell (who she also identified in a
photograph as “J.R.”), meeting them either at 54th and Beaumont or at a house at 55th
and Beaumont. Id.
Adams and Byrd were also interviewed by police. The transcription of the
interview reflects that Byrd referred to Fulton as “Red Fox.” Adams called him “Red.”
They each identified Fulton in a photograph using their respective nicknames for him
and told police that Fulton had confessed to shooting someone. According to the
9 Detective Harkins’ testimony was unclear as to whether he viewed the flip phone’s
incoming calls and text messages on its internal or external viewing screen. See N.T.,
8/21/2013, at 48. Based on our decision in this matter, however, the distinction is
immaterial.
[J-55-2017] - 5
written version of Byrd’s interview, Fulton reported he was sitting in the passenger seat
of a vehicle executing a heroin sale to a “fiend at 54 th & Beaumont” when the shooting
occurred. Commonwealth’s Exhibit C-41. The buyer would not let Fulton out of the car,
and because he was afraid he was going to be robbed, Fulton shot the buyer. Id. Byrd
said that Fulton told him about this shortly before their arrest on June 17, and indicated
that the shooting had happened “the other night.” Id. Byrd did not have a cell phone
number for Fulton.
As reflected in the transcribed version of Adams’ interview, he also told police
that Fulton said he was sitting in the passenger seat of a vehicle executing a heroin sale
to a “fiend” at the time of the shooting. Commonwealth’s Exhibit C-42. According to
Adams, however, Fulton said he shot the buyer because he began reaching down next
to the driver’s seat and Fulton was concerned he “was about to pull something out.” Id.
Adams told police that Fulton stated he climbed out of the car through the passenger-
side window because the door would not open after he shot the buyer. Id. Adams did
not provide police with a time, date or address where the shooting was alleged to have
occurred. The transcribed statement indicated that Adams had a number stored in his
cell phone under “RedMan,” which corresponded to the number saved in Toll’s phone
as “Jeff.” Id.
On June 20, 2010, police requested and executed a warrant to search a
residence located at 5513 Beaumont Avenue where Bell lived with another individual,
Sidi Cameras, and where Fulton “sometimes” slept. N.T., 8/26/2013, at 10-12.
Cameras occupied the back bedroom of the house, Bell occupied the front bedroom,
and when he was there, Fulton occupied the middle bedroom. Police recovered, in
[J-55-2017] - 6
relevant part, a box of Corbon-brand nine-millimeter ammunition from Bell’s bedroom.
These bullets were the same brand and caliber as one of the fired cartridge casings
recovered from Toll’s vehicle.
Police arrested Cameras and interviewed him the following day. He explained to
police the layout of the house and identified Fulton in a photograph as “Fox.” Id. at 16.
Police submitted the latent palm print recovered from Toll’s vehicle for evaluation
and comparison. The palm print did not belong to either Fulton or Toll, nor did it match
any palm prints contained in the police database. Id. at 179-80, 182. No other
comparisons were conducted.
II. Procedural History
On October 19, 2010, the Commonwealth charged Fulton with murder,
possessing an instrument of crime, and several violations of the Uniform Firearms Act.10
He filed a counseled suppression motion challenging the lawfulness of the seizure of his
flip phone from Bell’s vehicle and the permissibility of the search of the phone without a
warrant.11 The trial court denied both motions. Regarding the search of the cell
phone,12 the trial court reached the following legal conclusions:
10 18 Pa.C.S. §§ 2502, 905(a). The particular violations of the Uniform Firearms Act
alleged were possession of a firearm without a license, carrying a firearm on the public
street in Philadelphia, and possession of a firearm by a minor. 18 Pa.C.S. §§
6106(a)(1), 6108, 6110.1(c). All of the firearms violations were nolle prossed.
11 Notably, on August 8, 2013, the Commonwealth filed a motion before the trial court
seeking permission to access “call logs [and] contact information[] in order to determine
if any of [the phones recovered from Bell’s vehicle] are in fact the phone assigned the
[target] number [], the number that had 6 contacts with the victim’s phone within the
hour prior to his death, the same number that was identified as belonging to ‘Jeff’ by an
independent witness [Warrington].” Commonwealth Application to Search Contents of
Cell Phones in Constructive Possession of Defendant, 8/8/2013, at 4. The prosecutor
(continued…)
[J-55-2017] - 7
[P]owering up of the cell phones to determine what cell
phone number had been assigned to each phone by the
carrier did not require a search warrant as this inquiry
represented a minimally invasive search. No further efforts
were made to recover information from the subject phones at
that time[, and Fulton] had no reasonable expectation of
privacy in incoming phone calls received on the subject
phone. Therefore, his rights were not violated when the
detective answered the incoming phone call.
N.T., 8/21/2013 (trial), at 5 (emphasis added). The trial court further explained its
reasoning for denying suppression in its Pa.R.A.P. 1925(a) opinion. Relying on Smith v.
Maryland, 442 U.S. 735 (1979) (holding that no warrant was required to use a pen
register at a phone company to identify phone numbers dialed by a particular caller),13
and United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012) (holding that the
warrantless search of a cell phone to identify its phone number is a valid search incident
to arrest), the trial court found that the warrantless search in question was permissible
because the search was limited to obtaining the assigned number to the phone. Trial
Court Opinion, 12/30/2014, at 8. According to the trial court, “There was no intrusion
into [Fulton]’s personal life, nor any investigation of personal information accessible
(…continued)
candidly admitted that he filed the motion without knowing that police had already
searched the flip phone without a warrant and obtained the information sought. See
N.T., 8/20/2013, at 22-25.
12 The trial court’s denial of suppression based on the lawfulness of the seizure of the
cell phones was not challenged in Fulton’s petition for allowance of appeal before this
Court, and we therefore did not grant review of this issue. As such, we do not discuss
this aspect of the trial court’s decision further.
13 But see Commonwealth v. Melilli, 555 A.2d 1254, 1258 (Pa. 1989) (rejecting the
holding of Smith based on the greater protections of individual privacy provided under
Article I, Section 8 of the Pennsylvania Constitution, and instead holding that “a pen
register cannot be utilized by law enforcement authorities without an order based on
probable cause”).
[J-55-2017] - 8
through the phone.” Id. at 9. The trial court also concluded that the warrantless
acquisition of Fulton’s cell phone number “had no impact on the overall investigation of
the case, because Philadelphia Police already knew about the interaction between
[Fulton]’s cell phone and the decedent from Michael Toll’s cell phone call log.” Id. at 9.
Regarding the discovery of Warrington, the trial court found that Fulton “had no
reasonable expectation of privacy in the incoming calls to his phone … and did not rise
to the level of a search.” Id.
Warrington’s trial testimony was, in relevant part, consistent with the interview
she gave to police.14 She identified Fulton as “Lil Jeff” and confirmed that the phone
number she used to contact him was the Target Number. N.T., 8/21/2013 (trial), at 51,
58. Warrington estimated that she called that number 1000 times to make
arrangements to purchase heroin from either Fulton or Bell, both of whom used that
phone number, meeting them on either 54th or 56th Street in Philadelphia on a daily
basis over a six-month period. Id. at 52-53, 60-61. On cross-examination, Warrington
acknowledged that she knew Fulton as “Lil Jeff,” and never referred to him simply as
“Jeff.” Id. at 84-85. When asked why, then, she labeled the photograph of Fulton with
the name “Jeff,” and not “Lil Jeff,” Warrington stated, “I didn’t put it because I wanted to
get the hell out of [the detective’s] car.” Id. at 85-86.
Cameras also testified at trial and his testimony was consistent with the interview
he gave to police regarding the makeup of the house at 5513 Beaumont Avenue. See
14 Warrington revealed that she lied to police about how long it had been since she had
seen Fulton prior to her interview. During her interview she said she had not seen him
since she went to rehab on May 27, 2010. Commonwealth’s Exhibit C-38. At trial she
admitted that she had seen him approximately a week prior to her police interview.
N.T., 8/21/2013 (trial), at 63-63.
[J-55-2017] - 9
N.T., 8/26/2013, at 10-13. He confirmed that Fulton, who he knew as “Fox,” never
occupied the front room when he slept there, and that Fulton was not living there at the
time Cameras spoke to police. Id. at 12-13, 22-24.
Byrd and Adams, however, recanted their statements entirely. They denied that
they knew anything about Toll’s murder, that they implicated Fulton as the perpetrator of
a shooting or that they referred to Fulton by any nicknames in their conversations with
police. Adams further denied that he had Fulton’s cell phone number saved in his
phone’s contacts. Although Adams admitted to signing the interview transcribed by
police, he stated that he only did so because police threatened that he would go to jail if
he did not sign the statement and that he was under the influence of marijuana and
Xanax at the time of his interview. Byrd denied that the signatures appearing on the
transcribed version of his interview and its accompanying photographs were his and
further denied that he answered any of the questions posed to him by police about the
shooting.
Following a week-long trial, a jury convicted Fulton of third-degree murder and
possessing an instrument of crime. On January 17, 2014, the court sentenced Fulton to
fifteen to thirty years of incarceration. Fulton filed a timely appeal to the Superior Court,
raising seven claims for its review. Of relevance to the issues presented before this
Court, Fulton challenged the trial court’s decision to deny suppression of the fruits of the
warrantless search of his flip phone, asserting that the phone’s number and information
obtained from Warrington should have been suppressed. Relying on Riley/Wurie,
Fulton argued that the search violated his rights under both the United States and
Pennsylvania Constitutions.
[J-55-2017] - 10
In an unpublished memorandum decision authored by former Judge Fitzgerald,
the Superior Court agreed that police had searched the flip phone, but found that “the
extent of the specific intrusion complained of was minimal” compared to the facts of
Riley/Wurie (discussed below) and the Superior Court’s earlier decision interpreting
Riley, Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014).15 Commonwealth v.
Fulton, 1729 EDA 2014, *19 (Pa. Super. April 27, 2016) (unpublished memorandum)
(emphasis added).
The detective powered up the phone and although he
“searched” the phone’s data for the number associated with
it, he accessed no additional information or data on the
phone. In contrast to Wurie, the discovery of Warrington’s
existence was not the product of a search of the call logs or
other information contained on the phone. Rather, the
detective answered the phone, which had been on his desk.
Id.
Although not raised by the Commonwealth, the Superior Court alternatively held
that even if the warrantless search of Fulton’s flip phone was unlawful, and that all of the
fruits of the search, including Warrington’s testimony, should have been suppressed,
any error by the trial court in permitting the admission of the tainted evidence was
harmless. It based its conclusion on its assessment of the evidence presented at trial,
in particular:
[Fulton] did not deny ownership of the phone identified as
[the Target Number], and that number was listed in [Toll]’s
phone under “Jeff.” In a dying declaration, [Toll] identified
“Jeff” as his assailant. Additionally, two witnesses submitted
statements detailing [Fulton]’s confession to a shooting that
15 In Stem, the Superior Court applied the holding in Riley/Wurie to affirm the
suppression of photographs accessed by police on the defendant’s cell phone without a
warrant. Stem, 96 A.3d at 414.
[J-55-2017] - 11
was substantially similar to that described by [Toll]. Both
witnesses identified [Fulton] by his picture.
Id. The Superior Court thus concluded that “in light of the other properly admitted
evidence … the admission of Warrington’s testimony was harmless and not a basis for
reversal.” Id. at *19-20.
Fulton filed a timely petition for allowance of appeal, which this Court granted to
review two claims:
a. The Superior Court's opinion is contrary to Riley/Wurie[,]
which held that the warrantless search of a flip top cell
phone is prohibited without any expectation for minimal
intrusion.
b. The Superior Court's opinion is contrary to this Court's
opinion[s] in Story and [Commonwealth v. LaRosa, 626 A.2d
103 (Pa. 1993),] which held that a constitutional error cannot
be harmless unless there is independent evidence that is
untainted, uncontradicted and overwhelming.
Commonwealth v. Fulton, 165 A.3d 888 (Pa. 2017) (per curiam).
III. Discussion
A. The Search of Fulton’s Cell Phone
1. Riley/Wurie
In 2014, the United States Supreme Court granted certiorari in two cases
involving the warrantless search of a cell phone – one involving a smartphone and one
involving a flip phone – to determine “whether the police may, without a warrant, search
digital information on a cell phone seized from an individual who has been arrested.”
Riley/Wurie, 134 S. Ct. at 2480. In Riley, police arrested the defendant for possessing
concealed, loaded firearms. Police seized a smartphone from the defendant incident to
his arrest and accessed the phone without a warrant. Observing notations in his
[J-55-2017] - 12
contact list that signified gang involvement, the arresting officer turned the phone over
to a detective specializing in gangs, who further examined the contents of the phone.
The videos and photographs observed on the phone resulted in Riley being charged in
connection with an earlier shooting, for which he was ultimately convicted and given an
enhanced sentence because the crimes were committed for the benefit of a gang.
In Wurie, police seized a flip phone from the defendant incident to his arrest for
drug delivery. The phone, which was already powered on, received repeated calls from
a number identified in the phone as “my house” on the phone’s external viewing screen.
Id. at 2481. Without first obtaining a warrant, police opened the phone and observed
that the wallpaper of the phone was a photograph of a woman and a baby. Police then
accessed the phone’s call log with the press of a button, and pressed another to discern
the phone number assigned to “my house.” Id. Police then used the phone number to
search a web-based phone directory to identify the address associated with that
number. The police went to that address and observed a woman through the window
who resembled the woman in the photograph on the wallpaper of Wurie’s phone. The
police then obtained and executed a warrant to search the residence, which resulted in
the discovery and seizure of a large amount of drugs, paraphernalia, a firearm,
ammunition and money.
The United States Supreme Court held that although the warrantless seizure of
the cell phones from Riley and Wurie was permissible as the result of a search incident
to arrest, the subsequent searches of their phones was not. Instead, the Court held that
to lawfully search a cell phone, police must first obtain a warrant. Id. at 2485, 2493.
The Court explained that although cell phones contain information that is, in substance,
[J-55-2017] - 13
the same as physical items that are permissibly searched incident to an individual’s
arrest pursuant to Fourth Amendment jurisprudence (e.g., an address book, a wallet or
a purse), the quantity and quality of data that can be stored on cell phones place them
in an entirely different class for purposes of a search. Id. at 2488 (“That is like saying a
ride on horseback is materially indistinguishable from a flight to the moon. Both are
ways of getting from point A to point B, but little else justifies lumping them together.”)
The Riley/Wurie Court reasoned that the privacy concerns related to the search of a cell
phone far exceed any such concerns related to the search of these other physical items,
as cell phones “place vast quantities of personal information literally in the hands of
individuals,” all in one place. Id. at 2485, 2489 (referring to the name “cell phones” as a
“misleading shorthand,” as they “could just as easily be called cameras, video players,
rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or
newspapers”). The variety of information that can be stored, the details about a
person’s life that the information can convey, and the length of time the information can
remain catalogued in a cell phone, which are carried by the great majority of people, led
the Court to conclude that data stored on a cell phone is entirely distinguishable from
any physical evidence counterpart. Id. at 2489-90.
Notably, the high Court rejected the government’s reliance on Smith and Flores-
Lopez, the very cases upon which the trial court in the case at bar relied to explain its
authorization of the warrantless search of Fulton’s phone. The Riley/Wurie Court
explained that unlike the use of a pen register (which the Court in Smith held was not a
search and thus did not require a warrant), accessing the call logs on a cell phone was
unquestionably a search – one that yields not only phone numbers, but whatever other
[J-55-2017] - 14
identifying information the cell phone owner attaches to that number (e.g., names,
nicknames, photographs, addresses, etc.). Id. at 2492-93.
Further, the Court disagreed with the government’s argument that the search of a
cell phone for information that police could have obtained from a pre-digital counterpart
was permitted without a warrant. Id. at 2493. The Riley/Wurie Court noted the holding
of Flores-Lopez as stating, “[i]f police are entitled to open a pocket diary to copy the
owner’s address, they should be entitled to turn on a cell phone to learn its number,” id.
(citing Flores-Lopez, 670 F.3d at 807), but found that decision to be in error:
[T]he fact that a search in the pre-digital era could have
turned up a photograph or two in a wallet does not justify a
search of thousands of photos in a digital gallery. The fact
that someone could have tucked a paper bank statement in
a pocket does not justify a search of every bank statement
from the last five years. And to make matters worse, such an
analogue test would allow law enforcement to search a
range of items contained on a phone, even though people
would be unlikely to carry such a variety of information in
physical form. In Riley's case, for example, it is implausible
that he would have strolled around with video tapes, photo
albums, and an address book all crammed into his pockets.
But because each of those items has a pre-digital analogue,
police under California's proposal would be able to search a
phone for all of those items – a significant diminution of
privacy.
Id.
Concerned that “an analogue test would launch courts on a difficult line-drawing
expedition to determine which digital files are comparable to physical records,” the
Court precluded a case-by-case approach to determining whether the search of a cell
phone required a warrant. Id. Instead, the Court held that in all cases, “even when a
cell phone is seized incident to arrest,” the search of a cell phone requires a warrant.
Id. In short, the high Court summarized its holding with a simple rule: when police want
[J-55-2017] - 15
to search a cell phone, “get a warrant.” Id. at 2495. The Court was unanimous on this
point. In the lone minority opinion authored in the case, Justice Alito stated, “The Court
strikes [the balance between law enforcement and privacy interests] in favor of privacy
interests with respect to all cell phones and all information found in them,” and
agreed that there is no “workable alternative” to this blanket holding. Id. at 2467 (Alito,
J., concurring) (emphasis added).
2. The Search
Fulton argues that pursuant to Riley/Wurie, police were not permitted to access
the flip phone at all without a warrant and that the act of opening and turning on his
phone constituted a search. Fulton’s Brief at 19. The Commonwealth, attempting to
distinguish this case from Riley/Wurie, counters that no search of the phone occurred
because police navigated the menus of the phone only to obtain the phone’s assigned
number, which is “public information” in which Fulton had no expectation of privacy.16
16 Instead of constituting a search, the Commonwealth asserts, without explication or
discussion, that police powered on and obtained the flip phone’s assigned number as
part of the “police caretaking function.” Commonwealth’s Brief at 16 n.2. The
Commonwealth suggests, through citation Colorado v. Bertine, 479 U.S. 367, 372
(1987) (addressing the lawfulness of an inventory search of a vehicle), that Detective
Harkins powered on the cell phone to “secure and protect” the phone. Commonwealth’s
Brief at 16 n.2. The Commonwealth fails to cite any evidence of record that would
support this finding.
It further fails to discuss the community caretaking doctrine at all or how it would be
applicable under the circumstances of this case. In particular, the Commonwealth
makes no attempt to reconcile the requirement that a caretaking inventory search must
be conducted pursuant to a standard police procedure with the absence of any
testimony that any such procedure existed, let alone that the search was conducted
pursuant thereto. See Bertine, 479 U.S. at 372-74; Commonwealth v. Lagenella, 83
A.3d 94, 103 (Pa. 2013). Indeed, the record reflects that the police in the case at bar
did not follow another established procedure as they failed to place the seized phones
on a property receipt. N.T., 8/21/2013 (motion), at 57 (Detective Harkins testifying, that
(continued…)
[J-55-2017] - 16
Commonwealth’s Brief at 16-28. Emphasizing the factual differences between the case
at bar and Riley/Wurie, the Commonwealth argues that the type of information
accessed here “did not come close to violating the central concern in Riley/Wurie: that
cell phone data that could be used to discern ‘[t]he sum of an individual’s private life,’ be
protected.” Id. at 28-29 (quoting Riley/Wurie, 134 S. Ct. at 2489).17
When reviewing a ruling on a motion to suppress, this Court is bound by the
factual findings made by the suppression court that are supported by the record but
review its legal conclusions de novo. Commonwealth v. Cooley, 118 A.3d 370, 373 (Pa.
2015). Our scope of review is limited to the record developed at the suppression
hearing, considering the evidence presented by the Commonwealth as the prevailing
party and any uncontradicted evidence presented by Fulton. Commonwealth v.
Johnson, 160 A.3d 127, 138, 139 n.12 (Pa. 2017), cert. denied sub nom. Johnson v.
Pennsylvania, __ U.S. __, 2017 WL 4285216 (U.S. Dec. 4, 2017).
(…continued)
“[d]epartmental policy indicates that property taken into custody should be properly
receipted,” and that this procedure was not followed for the seized cell phones). As this
contention is undeveloped and entirely untethered to both the facts and the law, it
warrants no further consideration.
17 The Commonwealth also contends Fulton failed to establish that he had a privacy
interest in the Samsung flip phone because the phone was unmarked, unlocked and
seized from Bell’s vehicle, and that he lacked standing to bring his motion to suppress.
Commonwealth’s Brief at 12-15. Neither argument was ever raised at the hearing on
Fulton’s suppression motion. See generally N.T., 8/21/2013 (motion), at 81-93
(Commonwealth’s argument at the suppression hearing). In fact, the Commonwealth
court not have advanced either argument before the trial court because its case against
Fulton hinged upon him being “Jeff,” the owner of the Samsung flip phone. As such, the
Commonwealth is estopped from now raising the argument that Fulton lacked a
possessory interest in the Samsung flip phone or standing to challenge its seizure and
subsequent search. See In re S.A.J., 838 A.2d 616, 620 (Pa. 2003) (“As a general rule,
a party to an action is estopped from assuming a position inconsistent with his or her
assertion in a previous action, if his or her contention was successfully maintained.”).
[J-55-2017] - 17
Riley/Wurie does not support the decisions of the lower courts (nor the
Commonwealth’s arguments in support thereof). Riley/Wurie could not be clearer: in
order to access any information on a cell phone, police must first obtain a warrant.18
The high Court created no exception for what police or courts may deem a “minimally
invasive” search, as the trial court in the case at bar found, or a “minimal intrusion,” as
found by the Superior Court. As the above discussion of the case reveals, the United
States Supreme Court expressly rejected a case-by-case approach to determining
whether a warrant was required prior to accessing certain information contained in a cell
phone, opting instead to adopt a categorical rule prohibiting police from looking for any
information on a cell phone without a warrant.
The Riley/Wurie Court held that in the absence of an applicable exception, any
search of a cell phone requires a warrant. This is because, like one’s home, an
individual’s expectation of privacy is in the cell phone itself, not in each and every piece
of information stored therein. Consequently, a warrant is generally required for law
enforcement to search a cell phone. See Riley/Wurie, 134 S. Ct. at 2491 (“[A] cell
phone search would typically expose to the government far more than the most
exhaustive search of a house: A phone not only contains in digital form many sensitive
records previously found in the home; it also contains a broad array of private
information never found in a home in any form – unless the phone is [in the house].”)
(emphasis original).
18 The Riley/Wurie Court left open the possibility that “case-specific exceptions” (e.g.,
consent or exigent circumstances) could justify the search of a particular cell phone.
Riley/Wurie, 134 S. Ct. at 2494.
[J-55-2017] - 18
A search occurs when police intrude upon a constitutionally protected area
without the individual’s explicit or implicit permission. Florida v. Jardines, 569 U.S. 1, 6
(2013) (citing United States v. Jones, 565 U.S. 400, 406 n.3 (2012)); Commonwealth v.
Shabezz, 166 A.3d 278, 288 (Pa. 2017). To constitute such an intrusion, the action
need not uncover something “of great personal value”; even a small, seemingly
insignificant act of information gathering by police in a constitutionally protected area is
a search. See Arizona v. Hicks, 480 U.S. 321, 325 (1987). In Hicks, for example, the
high Court held that the act by police of moving stereo equipment to view its serial
number was a search under the Fourth Amendment: “A search is a search, even if it
happens to disclose nothing but the bottom of a turntable.” Id. Any actions taken
unrelated to an otherwise authorized intrusion that result in exposing “concealed
portions” of an area in which a person has a protected privacy interest is, for
constitutional purposes, a search. Id.
Our review of the record in this case reveals that Detective Harkins conducted
three distinct searches of Fulton’s cell phone without a warrant. The first occurred when
the detective powered on the phone. The record reflects that Fulton’s flip phone was
one of three phones recovered by detectives investigating a separate crime unrelated to
Toll’s murder. N.T., 8/21/2013 (motion), at 30, 45. The phones were transferred to the
homicide detectives investigating Toll’s murder because the phones were believed to
have possible evidentiary value based on Toll’s call log, which indicated that he
communicated several times with “Jeff” at the Target Number within a short period of
time prior to the shooting. Id. at 26, 46-47. Fulton’s flip phone was off when it was
[J-55-2017] - 19
received by Detective Harkins. Therefore, in order to discern the assigned number of
the phone, Detective Harkins powered on the phone. Id. at 47.
The act of powering on Fulton’s flip phone constituted a search, i.e., an intrusion
upon a constitutionally protected area (Fulton’s cell phone) without Fulton’s explicit or
implicit permission. See Jardines, 569 U.S. at 6. Turning on the phone exposed to
view portions of the phone that were previously concealed and not otherwise authorized
by a warrant or an exception to the warrant requirement. See Hicks, 480 U.S. at 325.
Powering on the phone is akin to opening the door to a home. It permitted police to
obtain and review a host of information on the cell phone, including viewing its
wallpaper, reviewing incoming text messages and calls, and accessing all of the data
contained in the phone.
Detective Harkins engaged in a second warrantless search when he obtained the
phone’s assigned number. After powering on the phone, Detective Harkins navigated
through the menus of the flip phone to obtain its number. N.T., 8/21/2013 (motion), at
47. By virtue of this search, Detective Harkins learned that the number assigned to
Fulton’s flip phone was the same number labeled as “Jeff” in Toll’s phone. Id. at 47-48.
As stated above, the Riley/Wurie Court rejected the Flores-Lopez decision and its
conclusion that accessing a cell phone to obtain its phone number was permissible
without a warrant. See Riley/Wurie, 134 S. Ct. at 2493. The act of navigating the
menus of a cell phone to obtain the phone’s number is unquestionably a search that
required a warrant.
Detective Harkins conducted a third warrantless search of the phone when he
monitored incoming calls and text messages. To aid in his investigation of Toll’s
[J-55-2017] - 20
murder, he kept the phone powered on, monitoring the calls and text messages that
came through by viewing the number and/or assigned name of the individual calling or
texting on the flip phone’s internal or external display. N.T., 8/21/2013 (motion), at 48.
The day after the phone was delivered to homicide, Detective Harkins reviewed “a
number of calls and texts that were incoming during the course [of time] that the phone
was in the homicide unit,” and then answered a phone call from Warrington. Id. As
stated by Detective Harkins at the suppression hearing, his decision to answer
Warrington’s phone call “wasn’t by chance”; his testimony reflects that he made an
informed decision, through his review of the calls and texts coming in, to take her call.
Id. at 48, 58.
Contrary to the finding of the trial court and the argument advanced by the
Commonwealth before this Court, there is little difference between monitoring the
internal and external viewing screens on a cell phone and searching the phone’s call
logs. Both result in accessing “more than just phone numbers,” but also “any identifying
information that an individual might add” to his or her contacts, including the caller’s
photograph, the name assigned to the caller or sender of the text message. See
Riley/Wurie, 134 S. Ct. at 2492-93. Further, and unlike a call log, monitoring a phone’s
incoming text messages allows the viewer to see the content of a text message, which
indisputably constitutes private data. This is all information that, pursuant to
Riley/Wurie, cannot be accessed by police without a warrant.
The rule created by Riley/Wurie is exceedingly simple: if a member of law
enforcement wishes to obtain information from a cell phone, get a warrant. The failure
[J-55-2017] - 21
to do so here violated Fulton’s rights under the Fourth Amendment to the United States
Constitution.
3. Fruits of the Poisonous Tree
It remains, then, for this Court to determine what evidence, if any, must be
suppressed as a result of the unlawful warrantless searches of the flip phone. Fulton
argues that all of the information obtained must be suppressed as fruits of the
poisonous tree, including: the phone’s telephone number; the existence of Warrington;
and Warrington’s statement to police and her trial testimony. Fulton’s Brief at 20 (citing
Wong Sun v. United States, 371 U.S. 471, 485-86 (1963)). Conversely, the
Commonwealth argues (assuming there was a search) that the only search that
occurred was the navigation of the phone’s menus to discern the flip phone’s assigned
number. Commonwealth’s Brief at 29-31. Regarding Warrington’s communication with
police and her eventual identification of Fulton as “Jeff” with the Target Number, the
Commonwealth asserts that it was attenuated from the search because obtaining the
assigned number to the flip phone “did not cause Ms. Warrington to call it or to agree to
testify at trial,” and her decision to testify was voluntary and “not in any manner caused
by police conduct.” Id. at 31, 32.
Evidence of any kind obtained by police through an unlawful search may not be
used in any respect, including as evidence at trial against the subject of the search.
Wong Sun, 371 U.S. at 484-85; Silverthorne Lumber Co. v. United States, 251 U.S.
385, 392 (1920). Such evidence may only be used against the defendant “[i]f
knowledge of [the evidence] is gained from an independent source,” Silverthorne
Lumber Co., 251 U.S. at 392, or “the evidence in question would inevitably have been
[J-55-2017] - 22
discovered without reference to the police error or misconduct,” Nix v. Williams, 467
U.S. 431, 448 (1984). The burden of proof is on the prosecution to establish by a
preponderance of the evidence that the evidence illegally obtained would have
ultimately or inevitably been discovered by legal means. Id. at 444.
“The exclusionary remedy for illegal searches and seizures extends not only to
the direct product of the illegality, the primary evidence, but also to the indirect product
of the search or seizure, the secondary or derivative evidence.” Tainted evidence
subject to exclusion – Secondary or derivative evidence: Fruit of poisonous tree,
Searches and Seizures, Arrests and Confessions § 3:4 (2d ed.). The test to determine
whether derivative evidence constitutes the fruit of an illegal search is not simply
whether police would not have discovered the information but for the search, as
derivative evidence may nonetheless be usable and admissible if the connection
between the information obtained was sufficiently attenuated from the illegal search,
thus removing the taint of the original illegality. Wong Sun, 371 U.S. at 487-88; United
States v. Crews, 445 U.S. 463, 471 (1980). To determine whether evidence must be
excluded as the fruit of an unlawful search, courts must consider “whether, granting
establishment of the primary illegality, the evidence to which instant objection is made
has been come at by exploitation of that illegality.” Wong Sun, 371 U.S. at 488 (quoting
Maguire, Evidence of Guilt, 221 (1959)); Shabezz, 166 A.3d at 289 (“The inquiry simply
is whether the evidence was obtained via exploitation of the initial illegality.”); see also
Nix, 467 U.S. at 443 (“the prosecution is not to be put in a better position than it would
have been in if no illegality had transpired” but “the derivative evidence analysis ensures
that the prosecution is not put in a worse position simply because of some earlier police
[J-55-2017] - 23
error or misconduct”). “In applying this test, a court must evaluate whether the illegal
search or any leads gained from the search tended to significantly direct the
government toward discovery of the specific evidence being challenged.” Searches and
Seizures, Arrests and Confessions § 3:4.
In the case at bar, evidence that the assigned number to Fulton’s flip phone was
the Target Number was primary evidence, obtained directly from the illegal warrantless
search of the phone. There is nothing in the record that supports a conclusion that
police had an independent source to identify the phone number of that particular phone
(i.e., no witness identified the Samsung flip phone as being the phone with that
assigned number) or that the discovery of the assigned number to that phone was
inevitable.
The existence of Warrington was likewise primary evidence that Detective
Harkins obtained from his illegal search of Fulton’s cell phone. There is no evidence of
record that Detective Harkins had any knowledge of Warrington’s existence or of her
relationship with Fulton outside of his conversation with her on Fulton’s flip phone.
There was no testimony presented to support a finding that her discovery was inevitable
or that police would have otherwise learned of her existence from a source independent
of the illegal search. Warrington was not a witness to the crime in question, but rather
was calling Fulton to purchase heroin. Detective Harkins learned of her existence solely
as a result of his illegal searches, i.e., powering on the flip phone, monitoring its
incoming calls and answering Warrington’s call.
The discovery of Warrington through the illegal searches of the phone led to
Detective Harkins arranging to interview Warrington and ultimately to her connecting
[J-55-2017] - 24
Fulton to the number assigned to “Jeff” in Toll’s phone and identifying Fulton as “Lil Jeff”
both in her interview with police and at trial. See N.T., 8/21/2013 (motion), at 57-58;
N.T., 8/21/2013 (trial), at 51, 58. This evidence was derivative of the initial unlawful
searches (i.e., powering on the phone and monitoring its incoming calls). Whether to
exclude her testimony and the information she provided to police in her interview
requires additional considerations, as the United States Supreme Court has cautioned
that courts must not “mechanically equate[]” live witness testimony with “inanimate
evidentiary objects illegally seized.” U.S. v. Ceccolini, 435 U.S. 268, 277 (1978). In
addition to the question of whether the connection between the challenged evidence
and the illegal search was sufficiently attenuated to remove the taint from the
testimonial evidence, courts must consider two additional factors before excluding live
testimony as a fruit of the unlawful search. The first factor is the witness’ willingness to
testify. According to the Ceccolini Court,
The greater the willingness of the witness to freely testify,
the greater the likelihood that he or she will be discovered by
legal means and, concomitantly, the smaller the incentive to
conduct an illegal search to discover the witness. Witnesses
are not like guns or documents which remain hidden from
view until one turns over a sofa or opens a filing cabinet.
Witnesses can, and often do, come forward and offer
evidence entirely of their own volition.
Id. at 276-77 (footnote omitted). The Court noted, however, that analysis of this factor
differs “where the search was conducted by the police for the specific purpose of
discovering potential witnesses.” Id. at 277 n.4.
The second factor is the extent to which the witness can offer testimony about
material and relevant facts that are wholly unrelated to the illegal search. Id. at 277.
[J-55-2017] - 25
“[S]ince the cost of excluding live-witness testimony often will be greater, a closer, more
direct link between the illegality and that kind of testimony is required.” Id. at 278.
With respect to the first factor, the suppression record in the case at bar does not
establish that Warrington was a likely volunteer to willingly testify. As stated above,
Warrington, who was a heroin addict at the time, did not contact police on her own
accord, thinking instead that she was contacting Fulton to purchase heroin. N.T.,
8/21/2013 (motion), at 48-50. There is no reason to believe that she would have come
forward to speak to police about Fulton on her own volition. Although she agreed to
meet Detective Harkins when he asked for her cooperation, she would not give him her
home address. Id. at 49. Instead, she agreed to meet the detective in a convenience
store parking lot, she arrived more than a half an hour late for the interview, and came
only after Detective Harkins called her (using Fulton’s flip phone) to ensure she would
appear. Id. at 49-50.
Moreover, the circumstances surrounding the warrantless searches of Fulton’s
cell phone strongly suggest that this is a case where police conducted the illegal search
for the purpose of discovering potential witnesses. See Ceccolini, 435 U.S. at 277 n.4.
Detective Harkins monitored the calls and texts received on Fulton’s flip phone for more
than a day before deciding to answer Warrington’s call, and his decision to answer the
call from Warrington “wasn’t by chance.” N.T., 8/21/2013 (motion), at 48, 58. Upon
answering the phone, he immediately identified himself as a detective investigating a
murder and asked for her cooperation. Id. at 49. Thus, even if Warrington was a willing
witness, this factor would not carry significant weight in favor of allowing her testimony
at trial.
[J-55-2017] - 26
Turning to the second factor, the suppression record reflects that Warrington did
not provide police with relevant information that was unrelated to the illegal search. She
was not a witness to the crime and did not have any information about the events at the
scene of the murder. The purpose of the illegal warrantless searches of the phone was
to determine whether the Samsung flip phone was the same phone assigned to “Jeff” in
Toll’s cell phone and to identify the owner of the phone. Warrington’s only value as a
witness was connecting Fulton to the phone number in question and to the name “Jeff.”
See Commonwealth’s Exhibit C-38.
The record also reflects no attenuation between the powering on and monitoring
of the phone calls and the statement Warrington gave to police. As a matter of timing,
the events happened on the same day, June 19, 2010, and there was no intervening
event that would “break the chain flowing directly from” the illegal searches that resulted
in the interview given to police by Warrington. See Shabezz, 166 A.3d at 290
(observing that the brief lapse of time between the illegal seizure and the subsequent
search left “no viable argument that the search was sufficiently attenuated from the
seizure so as to purge the taint of the initial illegality”).
The illegal warrantless searches of the flip phone did not just lead the
government to obtain the statement and testimony from Warrington, it was the only
basis for her discovery. See Searches and Seizures, Arrests and Confessions § 3:4.
Here, “the witness’ identity was discovered or her cooperation secured only as a result
of an unlawful search.” See Crews, 445 U.S. at 471-72. We therefore conclude that
Detective Harkins obtained Warrington’s statement and her testimony at trial by his
[J-55-2017] - 27
exploitation of the original illegal searches. See Wong Sun, 371 U.S. at 488; Shabezz,
166 A.3d at 289.
Based on our evaluation of the evidence obtained as a result of the illegal
searches of Fulton’s flip phone, we agree with Fulton that all of this evidence should
have been suppressed. This includes the number assigned to the flip phone, the
existence of Heather Warrington, and all aspects of her statement to police and trial
testimony, including her identification of Fulton’s number as the Target Number and her
identification of him as “Lil Jeff” or “Jeff.”
B. Harmless Error
In his second issue, Fulton asserts that the Superior Court’s alternative
conclusion – that even if the evidence obtained as a result of Detective Harkins’ illegal
search of the phone was subject to suppression, the failure to do so was harmless – is
contrary to the harmless error doctrine announced by this Court in Story and reiterated
in LaRosa. Fulton’s Brief at 21-23.19
Story constitutes the first decision from this Court to set forth a clear definition of
both the standard of proof for determining whether an error is harmless and the
definition of harmlessness. Story, 383 A.2d at 162 (noting that prior decisions “have not
articulated a consistent standard for determining whether error is harmless”). In Story,
we adopted the standard of proof for harmlessness announced by the United States
Supreme Court for federal constitutional errors in Chapman v. California, 386 U.S. 18
(1967): “an error can be harmless only if the appellate court is convinced beyond a
19 Fulton did not raise a claim, and does not argue now, that the Superior Court erred
by finding harmless error sua sponte. We therefore do not consider this unsettled
question here.
[J-55-2017] - 28
reasonable doubt that the error is harmless.” Story, 383 A.2d at 162; see also LaRosa,
626 A.2d at 107-08. The Commonwealth bears the burden of proving that the error was
harmless beyond a reasonable doubt. Story, 383 A.2d at 162 n.9.
In support of the beyond-a-reasonable-doubt standard, the Story Court observed
that it is “commensurate with the standard of proof in criminal trials that an accused
cannot be convicted unless the trier of fact is convinced beyond a reasonable doubt that
the accused is guilty as charged,” noting “the danger that a lenient harmless error rule
may denigrate the interests and policies which both constitutional and non-constitutional
rules promote.” Id. (citing In re Winship, 397 U.S. 358 (1970)). Further, the Court found
“sound reasons for applying the same standard for determining harmless error whether
the error violates state or federal law.” Id. at 163. “State rules often implicate
constitutional values, and the violation of a state rule may rise to the level of a federal
constitutional violation,” and “a more relaxed harmless error standard for errors
perceived as violations of state rules, but which might also be violations of the federal
Constitution, would leave constitutional values inadequately protected.” Id.
In defining the standard for harmlessness, the Story Court held, “[A]n error
cannot be held harmless unless the appellate court determines that the error could not
have contributed to the verdict. Whenever there is a ‘reasonable possibility’ that an
error ‘might have contributed to the conviction,’ the error is not harmless.” Id. at 164
(quoting Commonwealth v. Davis, 305 A.2d 715, 719 (Pa. 1973); Chapman, 386 U.S. at
24).
The Court set forth the circumstances in which an error can in fact be deemed
harmless based on the holdings of numerous of our prior cases. See Story, 383 A.2d at
[J-55-2017] - 29
164-67. This lengthy discussion has been abbreviated and repeatedly articulated in
subsequent cases as follows:
Harmless error exists if the state proves either: (1) the error
did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or
(3) the properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect of the
error was so insignificant by comparison that the error could
not have contributed to the verdict.
See, e.g., Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017) (quoting
Commonwealth v. Simmons, 662 A.2d 621, 633 (Pa. 1995)) (emphasis added;
italicization omitted).
It was the third scenario of harmlessness that was at issue in Story and found to
be applicable in the case at bar by the Superior Court. As explained by this Court in
Story, “The requirement that the ‘overwhelming’ evidence relied upon be uncontradicted
follows from the principle that an error cannot be harmless if ‘honest, fair minded jurors
might very well have brought in not guilty verdicts.’” Story, 383 A.2d at 167 (quoting
Davis, 305 A.2d at 721; Chapman, 386 U.S. at 18). This conclusion is premised on the
long understood limitation of an appellate court: “[a]n appellate court is ill equipped to
resolve conflicts in the evidence or make findings of fact.” Id. at 168.
We recognize that a guilty verdict indicates that conflicts in
the evidence were resolved in favor of the Commonwealth.
However, the jury may have relied on the tainted evidence,
while unsure of the verity of the untainted evidence.
Similarly, the corroboration provided by the tainted evidence
may have led the jury to accept the untainted evidence.
Unless the evidence claimed to be overwhelming is
uncontradicted we cannot conclude, beyond a reasonable
doubt, that a jury would have resolved the conflicts in the
same manner absent the improperly admitted evidence.
[J-55-2017] - 30
Thus, we hold that, in applying the overwhelming evidence
test to determine if an error is harmless, a court may rely
only on uncontradicted evidence. The uncontradicted
evidence of guilt must be so overwhelming, and the
prejudicial effect of the improperly admitted evidence so
insignificant by comparison, that it is clear beyond a
reasonable doubt that the error could not have contributed to
the verdict.
Id.; see also LaRosa, 626 A.2d at 108. Applying this standard to the facts before it, the
Story Court concluded that because the evidence of the defendant’s guilt was disputed,
the erroneous admission of other, irrelevant evidence could not be harmless.20 Story,
383 A.2d at 168-69.
In the case before us, the Superior Court found that the trial court’s admission of
the evidence obtained as a result of the illegal search of Fulton’s phone (including the
cell phone’s number and Warrington’s testimony) was harmless “in light of the other,
properly admitted evidence … and not a basis for reversal.” Fulton, 1729 EDA 2014, at
**19-20. It based this conclusion on the interviews given by Byrd and Adams wherein
they told police that Fulton confessed to a “substantially similar” shooting; Fulton’s
failure to deny that he owned the cell phone with the Target Number as its assigned
number; that number was assigned to “Jeff” in Toll’s cell phone; and Toll told police that
he was shot by Jeff. Id. at *19.
At the outset, we observe that the Superior Court failed entirely to discuss
whether the evidence that it relied on to find harmless error was contradicted by other
20 The erroneously admitted evidence at issue in Story was testimony from the widow
of the murder victim regarding “her husband’s family status and personal life” and
details about a photograph of the victim with his child. Story, 383 A.2d at 159. This
Court found that “this evidence injected extraneous considerations into the case and
prejudiced appellant by creating sympathy for the victim and his family.” Id.
[J-55-2017] - 31
evidence of record. This omission from its determination of harmlessness is fatal to its
conclusion. As our discussion of Story makes clear, overwhelming evidence of a
defendant’s guilt is never harmless unless that evidence is uncontradicted. See Story,
383 A.2d at 167-69.
This is particularly problematic because the statements by Byrd and Adams,
relied upon by the Superior Court in its harmless error analysis, were not uncontradicted
evidence of Fulton’s guilt. In fact, Byrd and Adams themselves contradicted these
statements by disclaiming at trial that they provided police with any of the relevant and
pertinent information contained therein. The transcribed interviews were therefore
admitted into evidence as prior inconsistent statements. See Commonwealth v. Lively,
610 A.2d 7, 10 (Pa. 1992); Pa.R.E. 803.1(1).
The written interviews recounting Fulton’s confession to Byrd and Adams were
also contradicted by Toll’s description to police as to how the shooting occurred and the
physical appearance of the car after the shooting. Byrd and Adams placed Fulton
inside the vehicle when he allegedly shot Toll; Toll reported that Jeff shot him from
outside of the vehicle, through the passenger-side window, and photographs of the
vehicle showed a personal organizer occupying a portion of the front passenger seat
where Fulton was allegedly sitting. Compare Commonwealth’s Exhibits C-41 & 42 with
N.T., 8/21/2013 (trial), at 94 and Commonwealth’s Exhibit C-9. The details of the
written interviews with Byrd and Adams also did not align with each other, as each
provided a different explanation as to why Fulton shot the victim. Compare
Commonwealth’s Exhibit C-41 with Commonwealth’s Exhibit C-42. Further, Byrd and
Adams stated that they knew Fulton to go by Red or Red Fox, but the name “Red” was
[J-55-2017] - 32
assigned to a number in Toll’s cell phone belonging to Rosetta Woods. Compare
Commonwealth’s Exhibits C-41 & 42 with N.T., 8/27/2013, at 65-66.
Moreover, the evidence that the assigned number of the Samsung flip phone was
the Target Number was, as stated above, the product of the illegal search of the cell
phone by police and thus not properly considered by the Superior Court as part of the
harmless error analysis. The only evidence presented at trial that was both untainted
and uncontradicted was that Toll was shot by a person named Jeff; Toll communicated
several times prior to the shooting with an individual identified in his phone as “Jeff” with
the Target Number; that phone number was assigned to a prepaid cell phone that had
no subscriber information; a latent palm print was recovered from Toll’s vehicle that did
not belong to Fulton or Toll; and bullets of the same brand and caliber as a shell casing
found in Toll’s vehicle were recovered from a home where Fulton sometimes slept, but
in a bedroom belonging to someone other than Fulton.
In other words, in the absence of the evidence obtained from the illegal searches
of Fulton’s flip phone, there was no uncontradicted evidence, let alone overwhelming
evidence, to support Fulton’s guilt for Toll’s murder. No one other than Warrington
identified Fulton as “Jeff,” no uncontradicted testimony identified Fulton as the individual
with the phone number assigned to “Jeff” in Toll’s cell phone, and there was no physical
or forensic evidence to identify Fulton as the shooter.
In its brief filed in this Court, the Commonwealth now contends that any error
committed by admitting the evidence of the Samsung flip phone’s assigned number was
harmless because it was both cumulative of other properly admitted evidence and
Fulton was not prejudiced by its admission. Commonwealth’s Brief at 33-36. For all of
[J-55-2017] - 33
the aforementioned reasons, we find no merit to these contentions. The only other
evidence presented by the Commonwealth connecting Fulton to the number assigned to
“Jeff” in Toll’s cell phone was Adams’ prior inconsistent statement, which he disclaimed
in his testimony at trial. See N.T., 8/22/2013, at 55-57, 144. Thus, the jury was faced
with a question of credibility: whether to believe Adams’ testimony or the prior
inconsistent statement he allegedly gave to police. Given this, there is certainly a
“reasonable possibility” that the evidence confirming that Fulton’s flip phone was in fact
assigned the number in question caused the jury to credit Adams’ prior inconsistent
statement over his trial testimony, and as a result, this evidence “might have contributed
to the conviction.” Story, 383 A.2d at 164. Further, as stated hereinabove, Warrington’s
testimony and interview with police was not properly admitted evidence. It also was not
cumulative, as no witness other than Warrington identified Fulton as using the name
Jeff – the name of the person who Toll identified as his killer. There is little doubt that
this evidence was highly prejudicial and may have contributed to Fulton’s conviction. Id.
The admission of the evidence obtained from the illegal searches of Fulton’s
phone – its assigned number, Warrington’s testimony and Warrington’s police interview
– was not harmless beyond a reasonable doubt. We therefore reverse the Superior
Court’s finding of harmless error.
IV. Conclusion
The Superior Court erred by finding the warrantless searches of Fulton’s flip
phone were permissible because they only minimally intruded on his privacy interests,
removing this case from the protection provided to cell phones by the United States
Supreme Court in Riley/Wurie. All evidence obtained from the warrantless searches of
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Fulton’s flip phone, including the phone’s assigned number, the existence of Warrington
and all of the information obtained through her meeting with police, were subject to
suppression as fruits of the illegal searches. The Superior Court further erred by finding
that the admission of the evidence obtained from the illegal searches of Fulton’s flip
phone was harmless based on its inaccurate statement of the test for harmless error as
well as its consideration of tainted evidence in support of its finding of harmlessness.
Judgment of sentence vacated; case remanded to the Court of Common Pleas of
Philadelphia County for further proceedings consistent with this Opinion.
Chief Justice Saylor and Justices Baer, Todd, Dougherty and Wecht join the
opinion.
Justice Mundy did not participate in the consideration or decision of this case.
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