Com. v. Romero, A. , 2016 Pa. Super. 87 ( 2016 )

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2016 PA Super 87COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ANGEL ROMERO
Appellee No. 1480 EDA 2015
Appeal from the Order Entered April 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001465-2012
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
WENDY CASTRO
Appellee No. 1479 EDA 2015
Appeal from the Order Entered April 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001464-2012
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
OPINION BY LAZARUS, J.: FILED APRIL 19, 2016
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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The Commonwealth of Pennsylvania appeals1 from the order, entered
in the Court of Common Pleas of Philadelphia County, granting Angel
Romero’s and Wendy Castro’s (h/w) (Appellees) motions to suppress
evidence uncovered as a result of a search of Appellees’ residence located at
4745 North 2nd Street, Philadelphia. After careful review, we reverse and
remand for trial.2
In June 2011, Romero’s brother/Castro’s brother-in-law, Earnest
Moreno, was declared delinquent after absconding from the Diagnostic
Rehabilitation Center (DRC), a Philadelphia halfway house, while he was on
state parole. A warrant was issued for Moreno’s arrest; the warrant listed
Appellees’ address as Moreno’s most likely place of residence. In August
2011, Parole Agent Sean Finnegan executed the arrest warrant at Appellees’
residence. Agent Finnegan, along with other members of the United States
Marshals Violent Crime Task Force, knocked on Appellees’ door and
announced their presence. One of the Appellees answered the door and
permitted the authorities to enter the premises. Agent Finnegan told
Appellees that he was looking for Moreno, at which point Romero told
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1
The Commonwealth has certified in its notice of appeal that the trial court’s
order suppressing physical evidence substantially handicaps the prosecution
of this case. See Pa.R.A.P. 311(d).
2
We have sua sponte consolidated these appeals as they are both taken
from the same suppression order and the same question is involved. See
Pa.R.A.P. 513.
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Finnegan that Moreno was not on the property.3 Agent Finnegan and the
U.S. Marshals conducted a search of the property for Moreno. As the
authorities approached the basement, Appellees began objecting to the
search. Disregarding their objections, Finnegan proceeded to the basement.
In the process of searching for Moreno, Agent Finnegan uncovered 61
marijuana plants growing in the basement of Appellees’ house. Agent
Finnegan contacted the Narcotics Strike Force where a search warrant was
secured for Appellees’ residence. The search uncovered a baggie of
marijuana, high-intensity heat lamps, a scale, Romero’s driver’s license, mail
addressed to Appellees, a food saver heat sealer, an illegally registered
silver Smith & Wesson 9 mm handgun, one silver magazine loaded with 9
mm bullets, and a box of bullets. Romero and Castro were subsequently
charged with various drug offenses and possession of an instrument of
crime.4
On November 21, 2012, Appellees filed identical pre-trial motions to
suppress. In those motions, Appellees claimed that: (1) they made
statements while in police custody without receiving a Miranda5 warning
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3
Agent Finnegan testified that the Appellees did not say either “yes” or “no”
to the authorities’ request to search the premises of Moreno.
4
18 Pa.C.S. § 907(a).
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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and that the statements were the product of an illegal arrest; (2) post-arrest
they were illegally searched without a warrant; (3) their prior criminal
records should not be admissible as the prior arrests did not involve
convictions of crimes of such nature relevant to the instant charges; (4)
suggestive identification evidence was the product of an illegal arrest; (5)
evidence is insufficient as matter of law to sustain the case; (6) their arrests
were illegal as officers lacked probable cause; (7) Pa.R.Crim.P. 600 rule
speedy trial rights were violated; and (8) wiretap evidence was unlawfully
obtained where the application lacked probable cause. See Angel Romero’s
Omnibus Pre-Trial Motion to Suppress, 11/21/12; Wendy Castro’s Omnibus
Pre-Trial Motion to Suppress, 11/21/12.
On February 20, 2015, the court held a suppression hearing at which
Agent Finnegan and Romero testified. The court found both witnesses
credible. At the conclusion of the hearing, the court issued findings of fact
on the record. N.T. Suppression Hearing, 2/20/15, at 53. In its final
statement at the hearing, the court noted:
The issue before the court is whether or not the administrative
search can be conducted under the circumstances set forth
herein under the court’s findings and facts, specifically that
the investigators had information that Mr. Romero – I mean Mr.
Moreno used the property address of 4745 North 2nd Street on
past occasions. Under these circumstances, this court finds
that – the findings of fact both individuals are, in fact,
credible, that the police officer did not have the expressed
permission to search the property from the defendants, and that
the defendants objected to the search of the actual basement of
the property.
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N.T. Suppression Hearing, 2/20/15, at 53 (emphasis added). The court
asked the parties to brief the issue regarding “the extent of the allowable
search under the facts and circumstances contained herein.” Id. On April
17, 2015, following further briefing by defense counsel on the stated search
issue, as well as the court’s own independent research, the court granted
Appellees’ motion to suppress. N.T. Suppression Motion, 4/17/15, at 4. The
Commonwealth filed a timely notice of appeal from the suppression order, as
well as a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.6
On July 10, 2015, the trial court issued its Rule 1925(a) opinion.
On appeal, the Commonwealth raises the following issue for our
consideration: Did not the lower court err in granting the motion to
suppress where officers with an arrest warrant had reasonable grounds to
believe that the residence searched was that of the suspect named on the
warrant?
When the Commonwealth appeals from a suppression order:
we follow a clearly defined standard of review and consider only
the evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports
those findings. The suppression court’s conclusions of law,
however, are not binding on an appellate court, whose duty is to
determine if the suppression court properly applied the law to
the facts.
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6
However, the trial court did not order the Commonwealth to file a Rule
1925(b) statement of errors complained of on appeal.
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Commonwealth v. Miller, 56 A.3d 1276, 1278-79 (Pa. Super. 2012)
(citations omitted). While “[o]ur standard of review is restricted to
establishing whether the record supports the suppression court’s factual
findings[,] we maintain de novo review over the suppression court’s legal
conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010)
(citation omitted).7
The Commonwealth asserts that the court erred in granting Appellees’
suppression motion where police officers, who had an arrest warrant for
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7
We recognize that in their written suppression motions Appellees did not
specifically challenge the validity of Agent Finnegan’s initial entry and search
of their residence pursuant to the arrest warrant secured for Moreno. See
Pa.R.Crim.P. 581(D) (a suppression motion “shall state specifically and with
particularity the evidence sought to be suppressed, the grounds for
suppression, and the facts and events in support thereof.”). It is this search
that ultimately led to their challenged arrest and subsequent search of their
residence. However, at the beginning of the suppression hearing defense
counsel clearly indicated that the agent’s original entry into Appellees’
residence, based upon the arrest warrant for Moreno, was illegal.
Accordingly, we decline to find that this issue is waived. Compare
Commonwealth v. Quaid, 871 A.2d 246 (Pa. Super. 2005) (even though
defendant’s suppression motion should have been more specific, where
Commonwealth did not object to its content or form at hearing, where
Commonwealth was apparently on notice as to issue to be litigated, and
where it fully participated in suppression proceeding, no waiver will be
found) with Commonwealth v. Bradshaw, 471 A.2d 558, 560 (Pa. Super.
1984) (where defendant’s suppression motion did not specifically challenge
search and seizure which occurred incident to defendant’s arrest by police,
averment was lacking in specificity or particularity under Rule 581(D));
Commonwealth v. Ryan, 442 A.2d 739 (Pa. Super. 1982) (bald
statements or boilerplate allegations of illegally obtained evidence are
insufficient to trigger Commonwealth’s burden of going forward and proving
that search was legal). See generally Commonwealth v. Dixon, 997
A.2d 368 (Pa. Super. 2010) (en banc).
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Romero’s fugitive brother-in-law, had reasonable grounds to believe that the
fugitive resided at Appellees’ house.
Where authorities have a reasonable belief that the subject of an
arrest warrant lives within a given premises, they can enter the home and
arrest the suspect without a search warrant. Commonwealth v. Muniz, 5
A.3d 345 (Pa. Super. 2010). Compare Commonwealth v. Conception,
657 A.2d 1298 (Pa. Super. 1995) (where police listed address on arrest
warrant as possible residence of one of two fugitives, no search warrant
needed to enter third-party defendant’s apartment) with Staegald v.
United States, 451 U.S. 204, 214 (1981) (where authorities conclude
fugitive may be inside premises, but is not believed to be resident of
premises, arrest warrant for fugitive inadequate to justify search of third-
party owner’s residence). The validity of an arrest warrant must be
assessed on the basis of the information that the officers disclosed, or had a
duty to discover and to disclose, to the issuing magistrate. Maryland v.
Garrison, 480 U.S. 79, 85 (1987).
In Muniz, supra, our Court was faced with an issue similar to the one
raised in this appeal. In that case the trial court denied the defendant’s
motion to suppress drugs discovered during a search of his apartment
building for fugitives. On appeal, the defendant argued that the authorities’
belief that the fugitives resided at defendant’s Lancaster City apartment was
unreasonable because the fugitive’s approved parole address was in
Philadelphia and because the defendant’s mother testified that only she and
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the defendant lived in defendant’s apartment. Our Court found that the
defendant’s mother’s testimony was “irrelevant to what authorities believed
on the morning of the incident.” Id. at 351. Moreover, where testimony
from a female at the fugitive’s previous residence, a Lexis/Nexis search
listing, and a statement from a co-resident in defendant’s building “all
corroborated the reasonable belief that [the fugitive] lived in (and could be
found in) the [defendant’s] apartment,” id., our Court affirmed the denial of
suppression.
Instantly, Agent Finnegan testified that he believed Moreno’s residence
was 4745 North 2nd Street based upon: (1) the address listed on Moreno’s
most recent, but expired, driver’s license; (2) the address Moreno had given
to the police department when he was arrested in 2009; (3) the address
Moreno had given to the DRC in 2011 as a point of contact after being
paroled; (4) the address Moreno listed while signing out of the DRC when he
absconded in 2011; and (5) the fact that Moreno still had family living at
that address. N.T. Suppression Hearing, 2/20/15, at 11-12. Agent Finnegan
also testified that, based upon his investigation, while there may have been
other possible addresses that could be linked to Moreno, the 4745 North 2 nd
Street address seemed to be the most likely residence due to the familial
connection. Id. at 12.
At the suppression hearing the court not only found Agent Finnegan
credible, but it also made the following findings of fact regarding his
testimony in securing Moreno’s arrest warrant:
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 According to Agent Finnegan he conducted an independent
investigation reflecting that Moreno had absconded from the DHC;
 At the time Moreno absconded, he was on parole;
 Moreno had allegedly provided information to parole agents on the
Parole Board that his last known address was that of Appellees’
residence;
 Agent Finnegan’s independent research of PennDOT records show
Moreno’s last validly issue driver’s license listing Appellees’ residence
as last known address; and
 Moreno used Appellees’ address on DRC records and sign-out sheet on
day he absconded.
N.T. Suppression Hearing, 2/20/15, at 48-50, 53.
Despite the above-stated findings of fact and its credibility
determination, the court gave the following rationale,8 in its Rule 1925(a)
opinion, to support its decision to grant Appellees’ motion to suppress:
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8
We note that, pursuant to Pa.R.Crim.P. 581(I):
At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law as
to whether the evidence was obtained in violation of the
defendant's rights, or in violation of these rules or any statute,
and shall make an order granting or denying the relief sought.
Here, the trial court made findings of fact at the conclusion of the first day of
the suppression hearing, reserving the ultimate legal question of the validity
of Moreno’s arrest warrant for another day. However, even at the later
suppression hearing, the court did not state its conclusions of law on the
record, save for stating “Motion granted.” N.T. Suppression Hearing,
4/17/15, at 40. It was not until the trial court issued its Rule 1925(a)
opinion, however, that its legal conclusions were placed on the record in
contravention of Rule 581(I).
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Agent Finnegan, who had earlier obtained an arrest warrant for
Moreno, believed that Moreno might be found at the North 2 nd
Street address because Moreno provided that address to police
when he was arrested in 2009 and to a rehabilitation center after
being paroled. . . . The address also appeared on Moreno’s most
recent driver’s license, which expired in 2007. . . . Agent
Finnegan also claimed that Moreno used the 4745 North 2 nd
Street address while signing out of his halfway house in 2011.
However, documentation supporting this assertion was
not produced and was not presented in evidence. . . .
Although Agent Finnegan discovered other possible addresses for
Moreno, he deemed the North 2nd Street address to be the most
likely one for Moreno.
It is suggested that this Court did not err in denying this
motion to suppress because officers lacked reasonable
grounds and exigent circumstances to believe that Moreno
was present inside the residence.
Agent Finnegan’s sole basis for entering the [Appellees’]
residence was the address listed on Moreno’s expired
driver’s license and because Moreno had given that
address to authorities in 2009. The license expired in
2007, almost five years before the search was conducted
and Moreno last gave that address two years previously.
No evidence was produced to show that the address was
still valid for Moreno or that he used that address as his
own at any time subsequent to 2009. Further, no
evidence was produced to show a relative of Moreno’s
lived at the address or that Moreno had been seen in or
about the residence . . . near the date the authorities
entered the premises.
N.T. Trial Court Opinion, at 7/10/15, 3-4, 6-7 (emphasis added).
The trial court granted Appellees’ suppression motion based on its
opinion that evidence to support Agent Finnegan’s arrest warrant for Moreno
at Appellees’ residence was stale and also because the Commonwealth failed
to produce DRC records and any documented evidence showing a family
relationship between Moreno and Romero. The court essentially concluded
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that Agent Finnegan’s belief that Moreno’s last known address was
Appellees’ residence was not reasonable. Therefore, anything that flowed
from the authorities’ initial illegal entry and search of Appellees’ residence
was, also, unlawful. We find the suppression court’s legal conclusions
erroneous.
None of the facts listed above from the suppression hearing, which
contributed to securing the arrest warrant for Moreno, were contradicted by
Romero at the suppression hearing. Miller, supra. Accordingly, we must
consider those facts on appeal and are bound by them because they are
supported in the record. Id. Our de novo review of the trial court’s legal
conclusions, based upon these supported facts, lead us to conclude that
suppression was improper. Brown, supra.
This is not a case where the Commonwealth simply sat on its hands at
the suppression hearing. Cf. Commonwealth v. Enimpah, 62 A.3d 1028(Pa. Super. 2013), aff’d, 106 A.3d 695 (Pa. 2014) (where Commonwealth’s
attorney refused to call defendant’s arresting officer or present any
evidence, arguing that defendant had initial burden of proof to show
reasonable expectation of privacy in seized contraband or searched car,
suppression was proper). The Commonwealth offered Agent Finnegan as a
witness to testify about his investigation into and the evidence found to
support his belief that 4745 North 2nd Street was Moreno’s last known
address. He presented documented evidence of Moreno’s expired 2007
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license listing Appellees’ address, as well as proof that Moreno furnished
Appellees’ address to the Philadelphia Police Department in 2009 when he
was arrested in the instant matter for which he was on parole. The agent
also testified, and the court found as facts at the suppression hearing, that
Moreno had listed Appellees’ residence on his 2011 DRC sign-out sheet and
also listed it as his address in DRC records.
Agent Finnegan’s testimony, supporting his belief that 4745 North 2 nd
Street was Moreno’s most likely last place of residence, is as strong as the
evidence that the police had in Muniz to believe that the fugitive in that
case lived at the defendant’s residence. Moreover, Romero’s suppression
hearing testimony that Moreno had not spoken to him in over 15 years, did
not receive mail at Romero’s address, and did not associate with Romero, is
irrelevant to what Agent Finnegan’s good faith belief was at the time he
prepared and executed the arrest warrant for Moreno at Appellees’
residence. Muniz, 5 A.3d at 351-52.
Accordingly, we find the Commonwealth established, by a
preponderance of the evidence, that Agent Finnegan reasonably believed
that Moreno’s last place of address was Appellees’ home. Commonwealth
v. Bonasorte, 486 A.2d 1361 (Pa. Super. 1984) (Commonwealth’s burden
of proof at suppression hearing is “by a preponderance of the evidence.”);
see also Commonwealth v. Jury, 636 A.2d 164, 169 n.5 (Pa. Super.
1993) (Commonwealth’s burden of proof at suppression hearing has been
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defined as “the burden of producing satisfactory evidence of a particular fact
in issue; and . . . the burden of persuading the trier of fact that the fact
alleged is indeed true.”).
Because the arrest warrant for Moreno was valid, the authorities had
the legal basis to enter Appellees’ residence without a search warrant,
despite the fact that Moreno was not inside the home. Muniz, supra;
Conception, supra. Therefore, the entry of the residence did not violate
Appellees’ Fourth Amendment rights and the court improperly suppressed
the evidence uncovered during the search of Appellees’ residence. 9
Order reversed. Case remanded for trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2016
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9
We note that the validity of the subsequent search warrant secured by the
Narcotic’s Strike Force for Appellees’ home is not argued on appeal.
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