Com. v. Price, N. ( 2020 )

J-S30025-20
2020 PA Super 273COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NATHANIAL RAY PRICE : No. 1734 WDA 2019
Appeal from the Order Entered October 15, 2019
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0001267-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
OPINION BY McLAUGHLIN, J.: FILED NOVEMBER 20, 2020
The Commonwealth appeals from the order granting in part Nathanial
Ray Price’s motion to suppress. It maintains that the trial court erred in
suppressing Price’s cell phone records. We reverse.
Price was arrested and charged in October 2016 in connection with a
double homicide. State police seized Price’s cell phone, which he had with him
at the time of his arrest, and they applied for a warrant for Price’s phone
records. The warrant application included an affidavit from an officer involved
in the investigation. The affidavit stated in its entirety:
I, Tpr. John D. McCombie III, the affiant in this
investigation, have been a sworn member of the
Pennsylvania State Police for over 13 years and am
currently assigned to the Troop A Indiana Station, Criminal
Investigation unit as a criminal investigator. I was assigned
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* Former Justice specially assigned to the Superior Court.
J-S30025-20
to investigate a Criminal Homicide Incident, on the morning
of 10/27/16.
On 10/27/16 at approx. 0040hrs the PA State Police Patrol
Unit from the Indiana Barracks was dispatched to report a
disturbance at 903 Hillside Drive in Cherry Hill Twp. Indiana
Co. Upon arrival, Patrol Troopers immediately saw a male
laying in the downstairs area. It was obvious that he was
deceased. Upon clearing the residence for any further
threats or suspect(s) Troopers found a female laying in an
upstairs bedroom. She was obviously deceased. The scene
was secured and a supervisor and Criminal Investigators
were called to the scene per PSP regulations.
During the course of the investigation, 3 suspects were
identified and taken into custody. Isaiah Treyvon RUSSELL-
SCOTT, Nathaniel Ray PRICE and Justin Tyler STEVENSON
were those individuals. Isaiah Treyvon RUSSELL-SCOTT,
and Nathaniel Ray PRICE were both found to be in
possession of cellular phones. Through the course of the
investigation, specifically suspect interviews, investigators
learned PRICE’s phone number to be 724-762-3803 and he
used a cellular phone to communicate with Isaiah Treyvon
RUSSELL-SCOTT prior to the Criminal Homicides.
Nathaniel Ray PRICE was found to be in possession of a
Samsung Galaxy cellular phone, which he declared as his
own. Said phone is logged into evidence under A03-23981K.
A search warrant pertaining to phone number 724-762-
3803 was served on Cellco Partnership d/b/a Verizon
Wireless on 10/28/16. This search warrant confirmed that
cellular communication devices were used prior to and after
the Criminal Homicides.
Based on my training and experience, I believe there is
valuable information to be obtained in Samsung Galaxy
cellular phone which Nathanial Ray PRICE possessed. This
information will aid in this Criminal Homicide Investigation,
specifically, text messaging data, instant messaging data,
contact information, image files, video files, location
services data, GPS data, transactional and administrative
information, settings, subscriber information, application
(“app”) data, IMEI data and any other data relating to
suspect location information, call lists, networks joined, list
of networks joined.
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Based upon the information above I request that a search
warrant be issued for the date from the aforementioned
phone.
Application for Search Warrant and Application, dated 5/19/17 at 2 (Affidavit
of Probable Cause). The court granted the warrant.
Price filed a motion to suppress various items of evidence, which the
trial court granted in part and denied in part. Relevant here, the court
suppressed the phone records on the ground that the affidavit of probable
cause did not establish probable cause. See Opinion and Order of the Court,
filed 10/15/19, at 29-30. The suppression court concluded that the affidavit
did not establish a probability that the phone number for which the police
sought records was connected to the phone that was seized, or that the phone
records probably contained evidence of a crime. The judge who granted the
motion was also the judge who granted the warrant. This timely appeal
followed.
The Commonwealth presents the following issues for our review:
I. Did the lower court err in ruling that a warrant for
[Price’s] cell phone service provider records lacked
probable cause, where the same court had previously
found probable cause; it was not necessary to explain
how the police knew the phone number; [Price] had
no expectation of privacy in the number; and he could
have communicated with his accomplices using his cell
phone?
II. Did the lower court err in suppressing cell phone
service records where information possessed at the
time the allegedly-deficient warrant was issued
establishes probable cause, there was no police
misconduct, and recovery of the still-available records
is inevitable?
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Commonwealth’s Br. at 3.
On review of the Commonwealth’s appeal from an order granting
suppression, we 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. Commonwealth v. Vetter, 149
A.3d 71, 75 (Pa.Super. 2016). The suppression court’s findings of fact bind us
if the record supports those findings. Id. However, its conclusions of law are
not binding, and we conduct de novo review to determine if the suppression
court properly applied the law to the facts. Id.The Commonwealth first argues that the trial court’s granting of Price’s
suppression motion violated the law of the case doctrine. This claim is
meritless. See Commonwealth’s Br. at 13-14.
The law of the case doctrine “refers to a family of rules which embody
the concept that a court involved in the later phases of a litigated matter
should not reopen questions decided by another judge of that same court or
by a higher court in the earlier phases of the matter[.]” Commonwealth v.
Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013) (quoting Commonwealth v.
McCandless, 880 A.2d 1262, 1267 (Pa.Super. 2005)). However, a trial judge
may always revisit the judge’s own pre-trial rulings. The law of the case
doctrine by its terms only prevents a second judge from revisiting in the same
case the decision of an appellate court or another judge of coordinate
jurisdiction. Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995).
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Here, the judge who granted suppression was the same judge who
initially issued the search warrant. This is not a case in which a second judge
revisited a decision of an appellate court or another judge of coordinate
jurisdiction. See id. The court did not err in ruling on the motion to suppress.
The Commonwealth next argues that the search warrant was supported
by probable cause, and even if it was not, the trial court should have denied
suppression based on the doctrine of inevitable discovery.1 See
Commonwealth’s Br. at 17-18. The Commonwealth maintains that it had
information in its possession when it applied for the warrant for the cell phone
records, but that it omitted from the affidavit, that would have enabled it to
obtain his cell phone records through a subsequent warrant application. The
information included that Price “had used his cell phone to communicate with
Scott before the homicides, and that the police learned his cell phone number
by interviewing the suspects.” Id. at 19.
Here, even if the warrant application did not establish probable cause,
the evidence was nonetheless admissible under the doctrine of inevitable
discovery. The doctrine allows into evidence materials the police obtained
improperly if they would have inevitably discovered the evidence by lawful
means. See Commonwealth v. Fulton, 179 A.3d 475, 489-90 (Pa. 2018).
If police misconduct enabled the police to obtain evidence improperly, the
doctrine permits the admission of the evidence only if the police who would
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1 We disagree with Price that the Commonwealth waived this issue. It is a
subsidiary issue of its probable cause issue. See Pa.R.A.P. 1925(b)(4)(v).
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have inevitably discovered the evidence were “truly independent” of the
officers who committed the misconduct. Commonwealth v. Perel, 107 A.3d
185, 195 (Pa.Super. 2014).
In this case, there is no evidence that the omission of the additional
information establishing probable cause from the warrant application resulted
from police misconduct. The only question is whether the police would have
inevitably discovered the evidence by lawful means. We conclude the
Commonwealth has carried its burden to establish that they would have done
so. Police here left out of the affidavit of probable cause information that they
had in their possession at the time, and that would have enabled them to
obtain a proper, second warrant. See Commonwealth v. Henderson, 47
A.3d 797, 799 (Pa. 2012). We therefore reverse the suppression order.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2020
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