Com. v. Green, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEROD ALAN GREEN, :
:
Appellant : No. 219 WDA 2014
Appeal from the Judgment of Sentence entered on February 25, 2013
in the Court of Common Pleas of Greene County,
Criminal Division, No. CP-30-CR-0000127-2012
BEFORE: PANELLA, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 11, 2014
entered following his conviction of two counts of driving under the influence
-degree
murder, fleeing or attempting to elude a police officer, homicide by vehicle
(DUI),1 homicide by vehicle2 (while committing the offense(s) of (a) fleeing
or attempting to elude police officer; (b) driving at safe speed, 75 Pa.C.S.A.
§ 3761; (c) driving on roadways laned for traffic, see id. § 3309; and/or
(d) duty of driver in emergency response areas, see id. § 3327), and
1
See 75 Pa.C.S.A. § 3802(a)(1), (c); 18 Pa.C.S.A. § 2502(c); 75 Pa.C.S.A.
§§ 3733 and (c), 3735.
2
75 Pa.C.S.A. § 3732.
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related summary offenses.3 We affirm.
In the early morning hours of February 18, 2012, on Easton Hill near
Toyota Corolla, but did not stop. An ambulance responded to the scene, but
Johnson declined treatment.
While driving through Morgantown at approximately 1:00 a.m., Kyle
-sized truck, with extensive damage,
a high rate of speed and appeared erratic. Crace closed the distance
Upon arriving home, Crace telephoned this information to police.
responded to the Johnson accident scene. Upon the arrival of a West
Virginia State Trooper, Sergeant Burks drove off in search of the truck that
dispatch describing a truck, with a possibly intoxicated driver, near Granville,
West Virginia. A Granville police officer effectuated a stop of that truck.
advised that he also would report to the location of the stopped truck.4
3
75 Pa.C.S.A. §§ 101 et seq.
4
nt has county-wide jurisdiction.
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Sergeant Burks arrived at the scene of the traffic stop and observed that the
truck, operated by Green, had damage to the front end and passenger side.
he traveled to Easton Hill, where, he claimed, his truck was struck by
another vehicle. Green explained that he did not stay at the accident scene
because he had four prior DUIs. As Sergeant Burks walked away to speak
of the truck window, Green drove away. The officers at the scene pursued
intention to pull in front of the Granville police units, as his department had
primary jurisdiction. Subsequently, a Granville police officer was directed to
60 miles per hour. After avoiding rolling and stationary police road blocks,
-
Green entered Mt. Morris in Greene County, Pennsylvania. Sergeant Burks
testified regarding what next transpired:
I observed a police vehicle, it appeared to be a[n] SUV. The
emergency light bar on top of the car was working. It had wig-
wag headlights. It was evident it was a police vehicle, and
based on the radio traffic[,] I knew it to be Sergeant [Michael]
(
rumble strips along the left-hand side of the northbound lanes
basically turning into the median, and then coming across the
[and Green] made a straight line --- he c[a]me diagonally from
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the right-hand side of the road to the left-hand side of the road
which cau
N.T., 12/10-13/12, at 151-54. Sergeant May died as a result of brain
injuries sustained in the crash.
at 1:40 a.m. Because Green
appeared intoxicated, he was taken to the hospital to obtain a blood sample.
The hospital drew the blood sample at 3:03 a.m.5 Green was placed under
arrest in Greene County, Pennsylvania.
Green filed a pre-trial suppression Motion, which the trial court denied.
After a trial, the jury found Green guilty of the above-described charges.
Thereafter, the trial court sentenced Green to an aggregate prison term of
25-50 years. Green filed a post-sentence Motion, which the trial court
denied. Thereafter, Green filed the instant timely appeal.
Green presents the following claims for our review:
I. Whether the Commonwealth produced sufficient evidence
to prove beyond a reasonable doubt [that Green] is guilty
of third[-]degree murder, homicide by vehi[cl]e, [and]
homicide by vehi[cl]e, while driving under the influence,
and duty of drivers in an emergency zone?
II. Whether the trial court erred in allowing evid[en]ce to be
int[r]oduced where the prejudicial value greatly
outweighed the relevant value, specifically[,] the
testimony of Franklin May, a picture of the victim with his
father, and two autopsy photo[]s?
5
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III.
use of deadly force?
IV.
to Suppress based on Sergeant May being outside his
jurisdiction and not in hot pursuit, thereby illegal[ly]
seizing [Green]?
V. Whether the trial court erred in not suppressing a
recording of [Green] conducted in violation of
VI.
blood alcohol results that were obtained in violation of
Miranda[6] rights?
VII. Whether the trial court erred in not suppressing search
warrants that sought electronically stored data as
overbroad?
VIII. Whether the trial court erred in allowing the introduction of
IX. Whether the trial court erred in rendering its opinion that
Sergeant May was in an emergency response area?
Brief for Appellant at 14 (footnote added).
Green first challenges the sufficiency of the evidence underlying his
convictions of third-degree murder, homicide by vehicle, homicide by vehicle
(DUI) and duty to emergency vehicles. Id. at 22. As to his conviction of
third-degree murder, Green argues that the Commonwealth failed to prove
causation and that he had the requisite mens rea. Id. According to Green,
the Commonwealth failed to prove that he acted with malice, as there was
6
Miranda v. Arizona, 384 U.S. 436 (1966).
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no traffic on the roadway, and when the police left him with an avenue of
escape, he took it. Id. at 27. Green contends that he accelerated his
vehicle to a speed of 98 miles per hour on a straight and unoccupied portion
of I-79 for only 2.5 seconds. Id.
Green also contends that the Commonwealth failed to prove that he
of police training and procedure, as well as his violations of Pennsylvania and
West Virginia law, caused his death. Id. at 25. Green claims that the
evidence demonstrated that Sergeant May drove his vehicle into the path of
Id. Green contends that Sergeant May should have
stopped in the median, and that his failure to do so violated 75 Pa.C.S.A.
§ 3105(e), which states that a driver of an emergency vehicle is not relieved
of his duty of safety and care to all persons. Brief for Appellant at 26. Had
Sergeant May followed proper police procedures, Green argues, the accident
would not have occurred. Id. Finally, Green claims that the Commonwealth
necessary to establish his violation of 75 Pa.C.S.A. § 3327(a)(1). Brief for
Appellant at 22, 27-28.
In reviewing a challenge to the sufficiency of the evidence, we
the prosecution the benefit of all reasonable inferences to be drawn from the
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Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.
2009) (citation omitted).
Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Id.weak and inconclusive that, as a matter of law, no probability of fact can be
Commonwealth v. Scott, 967
A.2d 995, 998 (Pa. Super. 2009).
Regarding third-degree murder, the Crime Code provides as follows:
§ 2502(c). Our Pennsylvania Supreme Court has explained that,
[t]o convict a defendant of the offense of third-degree murder,
the Commonwealth need only prove that the defendant killed
another person with malice aforethought. This Court has long
held that malice comprehends not only a particular ill-will, but
[also a] wickedness of disposition, hardness of heart,
recklessness of consequences, and a mind regardless of
social duty, although a particular person may not be intended to
be injured.
Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (emphasis
added, citation omitted).
Commonwealth v. Gardner, 490
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Pa. 421, 416 A.2d 1007, 1008 (Pa. 1
to exist not only in an intentional killing, but also in an
disregarded an unjustified and extremely high risk that his
Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230, 232
(Pa. 1981) (quoting Commonwealth v. Hare, 486 Pa. 123, 404
A.2d 388, 391 (Pa. 1979)).
Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005) (emphasis
omitted).
In Commonwealth v. Spotti, 2014 PA LEXIS 114, this Court
explained the two-part test for determining criminal causation:
death cannot be entirely attributable to other factors; rather,
there must exist a causal connection between the conduct and
the result of conduct; and causal connection requires something
more than mere coincidence as to time and place. Second, the
extraordinarily
remote or attenuated that it would be unfair to hold the
defendant criminally responsible.
Id. at *48 (citations and quotation marks omitted).
At trial, the Commonwealth presented the testimony of Sergeant
-had side of
the road into oncoming into the oncoming lane, on to the berm
of the left-hand side of the road, and back and forth. It was he
was very erratic.
N.T., 12/10-13/12, at 145. Sergeant Burks further testified that,
[a]t one point[,] it got to the point where I determined that it
was no longer safe for me or the units behind me, so I pulled to
the right as close to the right side of the road as possible, and
[] Green passed me again on the left side. As he passed me,
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the rear of his vehicle got to the front of my cruiser, he
slammed on his breaks and cut his wheel hard to the
right, which caused me to have to slam on my brakes and
go off the road to keep from being struck
Id.
Id. at 146.
As he pursued Green on Route 19, Sergeant Burks testified, Green
approached a bridge that, because of construction, was reduced to one lane.
Id. at 150. Sergeant Burks stated that,
[p]rior to getting to [the bridge,] []Green slammed on his brakes
again, as he was moving over to go through the single lane[,]
slammed on his brakes and cut his wheel hard again[,] almost
striking my vehicle to a point where I had to go off the road a
Id.
After entering Pennsylvania, Green proceeded to the entrance ramp of
the southbound lanes of I-79. Id. at 151. Sergeant Burks observed that
Sergeant May had parked his vehicle, with emergency lights activated, in the
median. Id.
Id.
short of being in any lane of traffic. Id.
testified that he observed Green enter southbound I-79. Id. at 193. As
Green turned onto I-
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Id. Lieutenant Varndell
described what next transpired as follows:
off in the distance a set of emergency lights coming northbound
on I- sic] the emergency vehicle going
into the median. Then start to turn to a 90-degree angle in the
median. Then I observed the [truck] went from the entrance
ramp to the slow lane and then with another maneuver went to
the fast lane.
Id. at 194. Similarly, Sergeant Burks testified that when Green entered the
southbound lanes of I-79, he drove diagonally from the right-hand side of
the road to the left-hand side of the road, across both travel lanes. Id. at
vehicle. Id. at 152-53. Green did not atte
vehicle. Id. at 154.
circumstances where a defendant did not have an intent to kill, but
nevertheless displayed a conscious disregard for an unjustified and
extremely high risk that his actions might cause death or serious bodily
Commonwealth v. Santos, 876 A.2d 360, 364 (Pa. 2005) (internal
quotation marks and citation omitted). Upon our review, the above-stated
evidence is sufficient to demonstrate that Green consciously disregarded an
unjustified and extremely high risk that his actions might cause death or
serious bodily injury. See id. As such, we conclude that the evidence is
-degree murder.
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We fu
demonstrated a causal connection between Gre
police officers, while intoxicated, at high speeds and in violation of multiple
e
Although Green argues that Sergeant May drove his vehicle into the path of
police procedures, the jury, by its verdict, did not credit the defense theory
and evidence. We cannot substitute our judgment for that of the jury, as
the trier of fact. Commonwealth v. Manley, 985 A.2d 256, 262 (Pa.
Super. 2009); see also Commonwealth v. Toland, 995 A.2d 1242, 1245
(Pa. Super. 2010) (stating that the trier of fact, while passing upon the
credibility of witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence).
homicide by vehicle. The Motor Vehicle Code defines homicide by vehicle as
follows:
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Any person who recklessly or with gross negligence causes the
death of another person while engaged in the violation of any
law of this Commonwealth or municipal ordinance applying to
the operation or use of a vehicle or to the regulation of traffic
except section 3802 (relating to driving under influence of
alcohol or controlled substance) is guilty of homicide by vehicle,
a felony of the third degree, when the violation is the cause of
death.
above, while committing multiple violations of the Motor Vehicle Code, 7 is
sufficient to sustain his conviction.
homicide by vehicle while violating section 3327(a) of the Motor Vehicle
Code. Section 3327(a) provides that,
[w]hen approaching or passing an emergency response area, a
person, unless otherwise directed by an emergency service
responder, shall:
(1) pass in a lane not adjacent to that of the emergency
response area, if possible; or
(2) if passing in a nonadjacent lane is impossible, illegal or
unsafe, pass the emergency response area at a careful and
prudent reduced speed reasonable for safely passing the
emergency response area.
statute as
the area in which emergency service responders render
emergency assistance to individuals on or near a roadway or a
7
See, e.g., 75 Pa.C.S.A. §§ 3733 (fleeing or attempting to elude police
officer), 3761 (driving at safe speed), 3309 (driving on roadways laned for
traffic).
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police officer is conducting a traffic stop or systematic check of
vehicles or controlling or directing traffic as long as the
emergency vehicle is making use of visual signals meeting the
requirements of Subchapter D of Chapter 45.
Id. § 3327(f) (footnote omitted).8 The statute provides that
[a]n emergency response area shall be clearly marked with road
flares, caution signs or any other traffic-control device which law
enforcement officials may have at their immediate disposal or
visual signals on vehicles meeting the requirements of
subchapter D of Chapter 45 (relating to equipment of authorized
emergency vehicles).
Id. § 3327(c) (emphasis added).
Sergeant Burks testified at trial that as Green approached the entrance
ramps to I-79,
[Green] turned right and [] onto the I-79 southbound entrance
ramp, and as soon as he turned right[,] he sped up. That was
evident, you could hear the roar of his engine, visually see him
speeding up, at which time I did the same. As we went up the
entrance ramp, I would estimate I was two to three car lengths
behind him.
As you progress up the entrance ramp closer to the top, then
northbound lanes coming from West Virginia in to Pennsylvania.
I observed a police vehicle, it appeared to be a[n] SUV. The
emergency light bar on the top of the car was working. It had
8
Chapter 45 outlines the appropriate visual signals for police as one or more
flashing or revolving red lights or a combination of red and blue lights. 75
Pa.C.S.A. § 4571(a)-(b). Green did not contest that the lights on Sergeant
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wig-wag headlights. It was evident it was a police vehicle, and
based on the radio traffic I knew it to be Sergeant May.
N.T., 12/10-13/12, at 151-52. Sergeant Burks testified that that Sergeant
-
headlights, all of which were activated. Id. at 152-53. Even though there
were no vehicles in the right lane, upon entering I-
crossed from the slow lane to the fast lane, and then drove straight into
Id. at 153.
Lieutenant Varndell testified regarding the events immediately
preceding the collision:
As I was cresting the entrance ramp, it has a slight incline, and
as I was cresting the peak of the incline[,] I could see off in the
distance a set of emergency lights coming northbound on I-79.
At the time that the
department vehicle from Mon[ongalia] County. At that time[,] I
seen [sic] the emergency vehicle going into the median. Then
start to turn to a 90-degree angle in the median. Then I
observed the [truck] went from the entrance ramp to the slow
lane and then with another maneuver went to the fast lane.
Id. at 194. On cross-examination, Lieutenant Varndell stated that, when he
Id.
vehicle while violating
section 3327(a) of the Motor Vehicle Code.
In his second claim of error, Green asserts that the trial court
of Sergeant May. Brief for Appellant at 28. Green also argues that the trial
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court erred in allowing the Commonwealth to introduce a photo of the victim
and his father, as well as autopsy photos. Id.
Admission of evidence is a matter within the sound discretion of the
trial court, and will not be reversed absent a showing that the trial court
clearly abused its Commonwealth v. Cooper, 941 A.2d 655,
667 (Pa. 2007). Not merely an error in judgment, an abuse of discretion
is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-
Id. (quoting Commonwealth v.
McAleer, 748 A.2d 670, 673 (Pa. 2000) (citation omitted)).
In its February 26, 2014 Opinion, the trial court explained its ruling
regarding the testimony of Mr. May as follows:
[The trial court] believe[s] this evidence was admissible, first of
and in fact the cause of his own death; and second, to establish
some background.
Trial Court Opinion, 2/26/14, at 2 (citation omitted). The record supports
testimony to counter the suggestion that Sergeant May intentionally rammed
-13/12, at 30-31. Further,
the testimony was not inflammatory or prejudicial, nor was the family
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photograph of Sergeant May and his father. Thus, we discern no basis upon
which to grant Green relief on these arguments.
Green also contends that the trial court improperly admitted autopsy
photographs at trial. Brief for Appellant at 31. Green asserts that any
impact, in
light of testimony presented by the medical examiner. Id.Green does not identify where, in the record, he preserved this claim
for appellate review. Our review of the record discloses that Green did not
object to the introduction of the photographs. N.T., 12/10-13/12, at 320-21
(wherein the photographs were admitted without objection by defense
counsel). Because Green failed to preserve this claim, we cannot grant him
relief.9 See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal).
In his third claim, Green argues that the trial court erred in dismissing
through the use of his police vehicle improperly used excessive force. Brief
for Appellant at 32-33. In support, Green asserts that Sergeant May, who
was outside of his jurisdiction, was not part of the pursuit and drove his
Id. at 33. Green contends
9
Even if Green had preserved his claim, we would conclude that it lacks
See Trial Court Opinion, 2/26/14, at 2.
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that he was not afforded the opportunity to develop a record, because the
trial court improperly dismissed his Motion without a hearing. Id.
The appellate standard of review of suppression rulings is well-
findings which find support in the record, but we are not bound by the
Commonwealth v. Millner, 888 A.2d 680, 685
(Pa. 2005); see also Commonwealth v. Booze, 953 A.2d 1263, 1269 (Pa.
Super. 2008) (stating that here the record supports findings of the
suppression court, we are bound by those facts and may reverse only if the
In his Motion to Suppress, Green argued that the collision constituted
an illegal vehicle stop by Sergeant May. Motion to Suppress, 6/26/12, at
¶¶ 3-7. In the brief accompanying his Motion, Green offered no supporting
argument. Although the suppression court did not conduct a hearing on
ion or error of law.
implicated a question of fact, which required the weighing of the evidence as
to an ultimate issue in the case. It is the exclusive province of the jury, as
fact-finder, to determine the weight of relevant evidence. Commonwealth
v. Mitchell, 883 A.2d 1096, 1110-11 (Pa. Super. 2005). Here, the jury, as
fact-finder, was required to resolve conflicts in the evidence and determine
or whether Sergeant May
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judgment for that of the jury. See Cooper, 941 A.2d at 662 (stating that
[w]e may not substitute our judgment for the
province to weigh the evidence, determine the credibility of witnesses, and
believe all, part, or none
claim fails.
In his Statement of Questions Involved, Green lists a fourth claim,
which asserts that Sergeant May was outside of his jurisdiction and not in
hot pursuit at the time, when he illegally seized Green. Brief for Appellant at
14. However, this issue is not addressed in the Argument section of his
brief. Accordingly, Green has abandoned this claim. See Commonwealth
v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating that an appellate
court is required to deem abandoned those issues which have been identified
on appeal but are unsupported by argument in the brief).
In his fifth claim, Green argues that the trial court improperly applied
West Virginia law in determining whether to suppress an audio recording
made by Deputy Wilfong. Brief for Appellant at 30-31. Green asserts that
of both parties to a recording, see 18 Pa.C.S.A. § 5704(2)(ii), while West
see W. Va. Code § 62-
1d-3(e). Brief for Appellant at 34. Green claims that Pennsylvania law
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should apply because Pennsylvania has the most interest in the outcome of
the proceeding. Id.purpose in introducing the recording was to prove motive and intent as to
the Pennsylvania charges. Id. at 35.
The Pennsylvania approach to conflict of law issues varies depending
upon whether the laws are procedural or substantive in nature.
Commonwealth v. Houseman, 986 A.2d 822, 841 (Pa. 2009).
[W]here a conflict of law arises regarding procedural matters,
Pennsylvania will apply its procedural laws when it is the forum
state. However, where a conflict exists regarding substantive
laws, such as here, Pennsylvania courts take a flexible approach
which permits analysis of the policies and interests underlying
the particular issue before the court. This approach gives the
state having the most interest in the question paramount control
over the legal issues arising from a particular factual context,
thereby allowing the forum to apply the policy of the jurisdiction
most intimately concerned with the outcome.
Id. at 841-42 (citations and internal quotation marks omitted).
Motion to Suppress the recorded evidence and concluded that it lacks merit.
Memorandum, 6/5/12, at 1-
See id. We
additionally note the following.
Monongalia County, West Virginia, obtained the recording after West Virginia
-and-run
accident in West Virginia. N.T., 12/10-13/12, at 176-78. The evidence of
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Virginia has the most interest in the recording of a vehicle stop on its
highways, by its public officials, in the course of investigating an accident
that occurred in West Virginia. Accordingly, we discern no abuse of
the audio recording.
secured by handcuffs and placed in a police car, and not having been
apprised of his Miranda warnings, Trooper Popielarcheck asked whether
Green had been drinking and/or felt drunk. Id. at 36. Green states that
, and
sample for analysis. Id. at 37. According to Green, because the blood
alcohol test results were the fruit of the poisonous tree, the trial court erred
in not suppressing the results. Id.
In its Memorandum filed on September 4, 2012, the trial court
Memorandum, 9/4/12, at 5-7. We agree with the sound reasoning of the
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trial court, as set forth in its Memorandum, and affirm on this basis with
regard to this claim. See id.
In his seventh claim, Green asserts that three search warrants
obtained by police were overbroad and failed to offer any link between the
crime charged and the evidence sought to be obtained. Brief for Appellant
at 37-38. Green argues that although an affidavit prepared by Pennsylvania
State Police Corporal John Weaver stated that a traffic crash had occurred
and that a vehicle operated by Green was actively fleeing from police, the
affidavit failed to establish probable cause that a criminal homicide had
occurred. Id.
seeking electronic data devices and other evidence relevant to the collision
investigation. Id. at 39. According to Green, the second warrant is nearly
identical, and the third warrant did not indicate the relationship between the
crimes and the items to be searched. Id. at 40.
Article I, Section 8 of the Pennsylvania Constitution provides, in
pertinent
or things shall issue without describing them as nearly as may be, nor
It is a fundamental rule of law that a warrant must name or
describe with particularity the property to be seized and the
prohibits a warrant that is not particular enough and a warrant
that is overbroad. These are two separate, though related,
issues. A warrant unconstitutional for its lack of particularity
authorizes a search in terms so ambiguous as to allow the
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possessions to find which items to seize. This will result in the
warrant unconstitutional for its overbreadth authorizes in clear or
specific terms the seizure of an entire set of items, or
documents, many of which will prove unrelated to the crime
because it authorizes a general search and seizure.
The language of the Pennsylvania Constitution requires that a
warrant describe the items to be seized
describe the items as specifically as is reasonably possible. This
requirement is more stringent than that of the Fourth
Amendment, which merely requires particularity in the
description. The Pennsylvania Constitution further requires the
Consequently, in any assessment of the validity of the
description contained in a warrant, a court must initially
determine for what items probable cause existed. The
sufficiency of the description must then be measured against
those items for which there was probable
Commonwealth v. Orie, 88 A.3d 983, 1003 (Pa. Super. 2014) (quoting
Commonwealth v. Rivera, 816 A.2d 282, 290-91 (Pa. Super. 2003)).
In its September 4, 2012 Memorandum, the trial court addressed this
claim and concluded that it lacks merit. Trial Court Memorandum, 9/4/12,
at 7-8. We agree with the reasoning of the trial court, and affirm on the
basis of its Memorandum with regard to this claim. See id.In his eighth claim, Green argues that the trial court erred in allowing
the Commonwealth to introduce his prior DUI convictions. Brief for
Appellant at 40. Green contends that the prejudicial impact of such
evidence outweighed any relevant value. Id. According to Green, the
Commonwealth sought to introduce his DUI convictions as his motive for
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fleeing the scene of the first accident. Id. at 41. Green asserts that such
introducing the prior convictions is to present Green as a habitual drunk.
Id.
Admission of evidence is a matter within the sound discretion of the
trial court, and will not be reversed absent a showing that the trial court
clearly abused its Cooper, 941 A.2d at 667.
Generally, evidence of prior bad acts or unrelated criminal activity is
inadmissible to show that a defendant acted in conformity with those past
of prior bad acts may be admissible when offered to prove some other
relevant fact, such as motive, opportunity, intent, preparation, plan,
Commonwealth
v. Sherwood
determining whether evidence of other prior bad acts is admissible, the trial
court is obliged to balance the probative value of such evidence against its
Sherwood
other crimes may be admitted where such evidence is part of the history of
the case and forms part of t
Commonwealth v. Watkins, 843 A.2d 1203, 1215 (Pa. 2003).
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police officers in West Virginia. See N.T., 12/10-13/12, at 180 (admission of
Exhibit 45); Exhibit 45 at page 6 (where, in a recording of the vehicle stop,
Green explains that he failed to stop after an accident because he had four
prior DUI convictions), 9 (wherein Deputy Wilfong asks Green to step out of
his vehicle for a field sobriety test, and Green flees from the scene). The
Finally, the relevance of this evidence is not outweighed by its prejudicial
impact. Under these circumstances, we discern no error by the trial court in
admitting this evidence at trial.
Finally, Green argues that the trial court erred in rendering an opinion,
in its jury instructions, that Sergeant May was in an emergency response
area. Brief for Appellant at 42. However, our review of the record discloses
that Green offered no objection to the jury charge. Accordingly, this claim is
waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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