Com. v. Davis, B. ( 2020 )

J-A26032-20
2020 PA Super 255COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON EUGENE DAVIS :
:
Appellant : No. 3193 EDA 2019
Appeal from the Judgment of Sentence Entered May 23, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0000830-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED OCTOBER 23, 2020
Appellant, Brandon Eugene Davis, appeals from the judgment of
sentence entered in the Court of Common Pleas of Bucks County following his
conviction by a jury on, inter alia, robbery, burglary, and conspiracy.1 After a
careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Specifically, Appellant was convicted of five counts of robbery, 18 Pa.C.S.A.
§ 3701(a)(1)(ii), five counts of robbery, 18 Pa.C.S.A. § 3701(a)(1)(iii),
burglary, 18 Pa.C.S.A. § 3502, two counts of conspiracy, 18 Pa.C.S.A. § 903,
five counts of simple assault, 18 Pa.C.S.A. § 2701, five counts of recklessly
endangering another person, 18 Pa.C.S.A. § 2705, false imprisonment of a
minor, 18 Pa.C.S.A. § 2903(b), four counts of false imprisonment, 18
Pa.C.S.A. § 2903(a), unlawful restraint of a minor, 18 Pa.C.S.A. § 2902(b),
four counts of unlawful restraint, 18 Pa.C.S.A. § 2902(a), theft by unlawful
taking, 18 Pa.C.S.A. § 3921, theft by extortion, 18 Pa.C.S.A. § 3923, and
criminal coercion, 18 Pa.C.S.A. § 2906.
J-A26032-20
The relevant facts and procedural history are as follows: Appellant was
arrested in connection with an armed home invasion occurring on August 21,
2017, at the home of Jonathan and Emily Nadav in Newtown Township, Bucks
County.2 On October 11, 2018, Appellant filed a counseled omnibus pre-trial
motion seeking to suppress the police’s seizure of cell phone records,
specifically the historical cell-site location records for Appellant’s cell phone.3
See Appellant’s Suppression Motion, filed 10/11/18, at 1-2.
Appellant admitted the Commonwealth obtained a court order requiring
Appellant’s cell phone wireless provider, T-Mobile/Metro PCS, to disclose and
furnish the police with the cell-site location records. See id. However,
Appellant contended the police’s acquisition of his cell-site location records
constituted a search for which a warrant supported by probable cause was
required. See id. Accordingly, absent a warrant, Appellant averred the cell-
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2 Appellant’s co-conspirators, Sadeen Jones and Raymond Anthony Daniels,
were also arrested in connection with the home invasion. Jones proceeded to
a jury trial with Appellant, and he was convicted of numerous crimes, including
robbery, burglary, and conspiracy. He received an aggregate sentence of 70
years to 140 years in prison. Jones filed a direct appeal from his judgment of
sentence, and the appeal has been docketed in this Court at 3284 EDA 2019.
Jones’ appeal shall be addressed in a separate decision. Daniels pled guilty
to, inter alia, robbery, burglary, and conspiracy. He received an aggregate
sentence of 40 years to 80 years in prison, and on direct appeal, this Court
affirmed his judgment of sentence. See Commonwealth v. Daniels, No.
1618 EDA 2019 (Pa.Super. filed 4/7/20) (unpublished memorandum).
3Appellant also presented notice of an alibi defense in his omnibus pre-trial
motion.
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site location records were improperly seized by the police and, thus, required
exclusion under the Fourth Amendment of the U.S. Constitution and Article I,
Section 8 of the Pennsylvania Constitution. See id.
On November 5, 2018, the Commonwealth filed a motion in opposition
to Appellant’s omnibus pre-trial suppression motion. Therein, the
Commonwealth admitted that, on November 3, 2017, the Commonwealth
secured a court order directing the wireless carrier to provide the requested
cell phone records, including the historical cell-site location records for
Appellant’s cellular telephone, from August 1, 2017, to October 31, 2017.4
Commonwealth’s Motion In Opposition, filed 11/5/18, at 1-2. The
Commonwealth averred it sought this order on the basis there were
“reasonable grounds to believe that the requested records were relevant and
material to the on-going burglary investigation.” Id. (internal quotations
omitted).
The Commonwealth acknowledged that prior to Appellant’s jury trial the
U.S. Supreme Court issued an opinion on June 22, 2018, in Carpenter v.
United States, ___ U.S. ___, 138 S.Ct. 2206 (2018), in which the High Court
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4 We note that a Bucks County Assistant District Attorney filed a petition in
support of the request for disclosure of the cell phone records pursuant to
Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18
Pa.C.S.A. § 5743, and the federal Stored Communications Act, 18 U.S.C. §
2703(d). In support thereof, the assistant district attorney attached an
affidavit, which was completed by Newtown Township Police Detective Chris
Bush.
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held that the police’s seizure of historical cell-site location records from
wireless carriers constitutes a search for which a warrant supported by
probable cause is generally required. Commonwealth’s Motion In Opposition,
filed 11/5/18, at 2. Accordingly, in the wake of Carpenter, on July 5, 2018,
the police secured a search warrant for the historical cell-site location records
with regard to Appellant’s cell phone.5 Id.The Commonwealth averred the warrant was supported by probable
cause, and the warrant was served upon T-Mobile/Metro PC, which released
to the police the same cell phone records which the Commonwealth previously
secured via the court order. Id. The Commonwealth argued the seizure of
the cell phone records via the execution of the search warrant purged the taint
of any original illegality. Id. at 11. The Commonwealth reasoned that since
the cell phone records would have been (and in fact were) ultimately
discovered by lawful means the evidence should not be excluded pursuant to
the inevitable discovery doctrine. Id. at 11-12.
On November 7, 2018, and December 19, 2018, the trial court held
hearings on Appellant’s suppression motion. Initially, Appellant’s counsel
requested permission to amend the suppression motion to include the
argument that the search warrant secured by the Commonwealth after
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5Specifically, on July 3, 2018, Detective Bush completed an application for a
search warrant for the disclosure of records for cell phone number (***)***-
4478, which was determined to be Appellant’s cell phone number. Detective
Bush attached to the application his affidavit of probable cause.
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Carpenter was not supported by probable cause, and thus, the cell phone
records were fruits of the poisonous tree. N.T., 11/7/18, 6. The assistant
district attorney did not object to the amendment, and accordingly, the trial
court permitted Appellant to amend his suppression motion. Id.
At the hearing, the defense offered no witnesses while the
Commonwealth offered the testimony of Newtown Township Police Detective
Chris Bush.6 Detective Bush relevantly testified he prepared the affidavit for
the police to secure the records for Appellant’s cellular telephone via a court
order, and a trial court judge signed the order. Id. at 36-37. As a result, the
police received Appellant’s cell phone records, including the historical cell-site
location records. Id. at 37.
Thereafter, the Commonwealth contacted Detective Bush and asked him
to secure a search warrant for Appellant’s cell phone records. Id. Accordingly,
Detective Bush prepared an application and affidavit of probable cause for a
search warrant. Id. at 38-39. Detective Bush served the search warrant upon
the wireless carrier, which provided the detective with the exact same records
that the carrier had provided in response to the previous court order. Id. at
39, 47-48.
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6 The Commonwealth also offered the testimony of Detective Daniel Bartle;
however, Detective Bartle’s testimony was limited to an explanation of the
order and search warrant with regard to Daniels’ cell phone records.
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On cross-examination, Detective Bush clarified the Commonwealth
received the court order for Appellant’s cell phone records on November 3,
2017, and he received the search warrant on July 5, 2018. Id. at 68.
On re-direct examination, Detective Bush testified his affidavit for the
court order for Appellant’s cell phone records and his affidavit of probable
cause for the search warrant contained the same information with one
exception. Id. at 73. Specifically, he removed from the affidavit of probable
cause language pertaining to the police’s reviewing of Daniels’ and Jones’ cell
phone records, which revealed that, at the time of the home invasion, cell
device activities were captured on cell phone towers near the Nadav home.7
Id.at 73-74. Detective Bush explained that when he obtained the court order
for Appellant’s cell phone records the law did not require a search warrant;
however, after the law changed, the Commonwealth asked him to secure a
search warrant. Id. at 75.
At the conclusion of the hearing, Appellant’s counsel argued that after
the police seized Appellant’s cell phone records via a court order the
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7Specifically, the following language was included in the affidavit for the court
order, but was omitted from the affidavit of probable cause for the search
warrant:
Daniels’ cell device activities were captured on cell phone towers
in the vicinity of [the Nadav home]….Jones’ cell device activities
were captured on cell phone towers in the vicinity of [the Nadav
home].
Exhibit CS-5, Order for disclosure of cell phone records, affidavit, filed
11/3/17.
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Commonwealth’s subsequent seizure of those same records via a search
warrant did not comply with the U.S. Supreme Court’s mandate under
Carpenter. Id. at 88-89.
Appellant’s counsel also argued that neither the affidavit for the court
order nor the affidavit for the search warrant set forth sufficient grounds for
probable cause. Id. at 89. Appellant’s counsel admitted the affidavits
referenced in detail the events occurring at the Nadav residence, as well as
the evidence identifying Appellant’s co-conspirators. Id. at 90. However,
Appellant’s counsel averred that, as to Appellant’s connection to the case, the
affidavits only referenced a cell phone number, later linked to Appellant, as
having contact with a co-conspirator from 2:00 a.m. to 2:30 a.m. during the
home invasion. Id. at 89-90. Counsel noted that, while both affidavits set
forth Appellant’s cell phone number, the documents did not mention Appellant
by name or identify him in any other manner. Id. at 90.
At the conclusion of the hearing, by order entered on January 14, 2019,
the suppression court denied Appellant’s motion to suppress the cell phone
records, including the historical cell-site location records for Appellant’s cell
phone. Specifically, the suppression court indicated the following:
10. On November 3, 2017, Court Order No. MD-3215-2017 was
signed by the Honorable Wallace H. Bateman, Jr. of the Bucks
County Court of Common Pleas for all certified account phone
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records[8] of (***)***-4478 for the time period between August
1, 2017, through [October] 3[1], 2017.
11. On July 5, 2018, Search Warrant #CA52-6343 was issued
[by] the Honorable Wallace H. Bateman, Jr. of the Bucks County
Court of Common Pleas for the seizure of all certified account
phone records of (***)***-4478.
12. The Affidavits in support of both the Court Order and the
Search Warrant for cell phone number (***)***-4478 are nearly
identical.
13. Detective Chris Bush, a sworn Newtown Township Police
Department Detective, executed Search Warrant #AA52-6343
and obtained all certified account phone records of (***)***-
4478.
14. When Detectives Bartle and Bush sought the aforesaid Court
Orders for the cell-site data, Pennsylvania law, [18 Pa.C.S.A. §
57434(d)], required the application to be supported by specific
and articulable facts showing reasonable grounds to believe
contents of a wire or electronic communication, or the records or
other information sought, are relevant and material to an ongoing
criminal investigation.
15. On June 22, 2018, the Supreme Court of the United States
issued Carpenter v. United States, 138 S.Ct. 2206 (2018),
holding the Government must generally obtain a search warrant
supported by probable cause before acquiring cell-site data.
16. Carpenter v. United States, 138 S.Ct. 2206 (2018) was
decided after the…aforementioned Court Order[] [was] signed.
CONCLUSIONS OF LAW FOR DEFENDANT[’S] MOTION TO
SUPPRESS CELL PHONE RECORDS INCLUDING HISTORICAL
CELL-[S]ITE DATA
1. Probable cause exists where the facts and circumstances within
the affiant’s knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a
man of reasonable caution in the belief that the items sought will
be located in the area to be searched.
2. [The] Court Order[] [was] sought in compliance with the law,
as it existed at the time.
____________________________________________
8 The suppression court indicated that “certified account phone records”
includes “cell-site data.” Suppression Court Order, filed 1/17/19, at 2.
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***
5. Court Order No. MD-3215-2017 to seize the aforementioned
information from cell phone number (***)***-4478 was
supported by probable cause.
6. The subsequent issuance and execution of the aforesaid Search
Warrants cured any defects with the aforesaid Court Orders, in
light of Carpenter v. United States, 138 S.Ct. 2206 (2018).
7. The issuance of the…aforesaid Search Warrant[] [was] not
tainted by illegality and was not fruit of the poisonous tree.
8. The actions of law enforcement associated with the…aforesaid
Search Warrant[] were legal and proper in all respects.
Suppression Court Order, filed 1/17/19, at 3-4 (bold in original) (footnote
omitted) (footnote added).
Thereafter, the matter proceeded to a jury trial at which Appellant was
represented by counsel. At trial, the Commonwealth established that, during
the evening of August 17, 2018, Appellant and several co-conspirators
conducted surveillance of the Nadavs’ home, and at 2:00 a.m. on August 21,
2017, they entered the home carrying firearms, as well as wearing masks,
gloves, and dark clothing. See Trial Court Opinion, filed 2/5/20, at 4-5.
Twenty-five-year-old Elle Nadav and her twelve-year-old sister, C.N.,
were in the home, along with their maternal grandmother, Manya Guravich,
and their parents, Jonathan and Emily Nadav. Id. Their sister, Jade, was
away at college. Id. at 5.
After the men entered the home through a window, two of them
approached Elle, woke her, pointed guns at her, and bound her hands with
shoelaces. Id. After she was restrained, one of the gunmen used his cellular
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telephone to advise someone, “We’re in.” Id. (quoting N.T., 1/28/19, at 48).
The men told Elle they were there for “Yanni,” which is the nickname of her
father, Jonathan. Id. at 4. One of the gunmen remained with Elle and took
her wallet and cell phone. Id. at 5. Meanwhile, a different gunman woke
Manya and took her watch. Id. A third gunman woke C.N., forced her into
her parents’ room, and forced her to wake them. Id. at 6. Thus, the Nadavs
awoke to find their twelve-year-old daughter being held at gunpoint. Id.
The gunmen demanded the Nadavs open their safe, and Jonathan, who
owns several clothing stores in the Philadelphia area, initially denied there was
a safe. Id. In response, a gunman slapped him hard across the face and then
used his cellular telephone to advise someone, “I need help here.” Id.
(quoting N.T., 1/28/19, at 103).
Jonathan then opened the safe at gunpoint. Id. The gunmen removed
jewelry and $50,000.00 from the safe; in total, they stole more than
$300,000.00 in property and cash from the Nadav house. Id. at 7. Jonathan,
Emily, C.N., and Manya were forced into a closet and warned not to call the
police. Id. Before leaving, the gunmen told Elle they knew where Jade went
to college and described Jade’s car. Id. at 5. They told Elle that Jade would
be killed if the family called the police. Id. However, after the gunmen left,
Emily called the police, who were dispatched at 2:32 a.m. Id. at 7.
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With regard to the evidence, including the historical cell-site location
evidence, linking Appellant to the home invasion, the trial court accurately
summarized the evidence offered at trial as follows:
The evidence…established that, at the time of the events on
trial, all three [co-conspirators] resided in Philadelphia.
Information regarding telephone numbers, message content,
photographs[,] and contact information extracted from all three
cellular telephones established that the [co-conspirators] were
using those cellular telephones at the time of the events on trial.
[Co-conspirator Jones] was the individual who used the cellular
telephone identified at trial as the “Jones phone.” [Appellant] was
the individual who used the cellular telephone identified at trial as
the “Davis phone.” [Co-conspirator] Daniels was the individual
who used the cellular telephone identified at trial as the “Daniels
phone.” The [co-conspirators] were also connected to those
cellular telephones through historical cell-site location
information.
Analysis of the call detail records and the historical cell-site
location information obtained from the wireless service providers
for those cellular telephones established that, just days before the
home invasion, all three [co-conspirators] traveled from North
Philadelphia to the victims’ residence, where they remained for at
least thirty minutes before returning to North Philadelphia.
Specifically, the records established that, shortly before midnight
on August 14, 2017[,] all three cellular telephones accessed cell
towers located in North Philadelphia. At midnight on August 15,
2017, all three cellular telephones accessed the cell tower located
closest to the victims’ residence. That cell tower was located less
than a third of a mile from the victims’ residence and is visible
from that location. The cellular telephones continued to be used
in the vicinity of the victims’ residence for at least thirty minutes.
By 1:20 a.m., all three cellular telephones were accessing a cell
tower in North Philadelphia.
Analysis of the cell detail records and the historical cell-site
location information also placed the three [co-conspirators] at the
crime scene at the time of the home invasion. Specifically, the
records established that, shortly before midnight on August 20,
2017, all three cellular telephones accessed a cell tower located in
North Philadelphia. At 1:59 a.m. on August 21, 2017, a call was
placed from [Appellant’s] cellular telephone to Jones’ cellular
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telephone. The connection lasted for fifteen minutes and fifty-
eight seconds. A second call was placed from [Appellant’s] cellular
telephone to Jones’ cellular telephone at 2:15 a.m., approximately
one minute after the first call terminated. The connection lasted
for twelve minutes and fifty-one seconds. Both calls were
processed through the cell tower located in the victims’
neighborhood. Between 1:59 a.m. and 2:29 a.m., all three
cellular telephones were utilized to communicate with each other,
each call again accessing [the cell tower] located less than a third
of a mile from the victims’ residence. GPS location data extracted
from [Appellant’s] cellular telephone place that cellular telephone
[by the Nadavs’ residence] at 12:05:40 a.m. By 2:54 a.m., all
three cellular telephones were accessing a cell tower in North
Philadelphia.
At 2:54:49 a.m. that same date, the following text was sent
from [Appellant’s] cell [sic] cellular telephone, “Nah, I’m with
Juice. We just came back from Yoni crib. Give me a second. We
driving now.” N.T., 1/28/19, at 201[.] Cellular telephone text
message content and other evidence established that Jones goes
by the name “Juice.”
Real time cellular telephone location data (pinging) was
utilized in an attempt to locate the cellular telephone stolen during
the home invasion. The last location data available indicated that
the telephone was in the vicinity of [****] Tacony Street in
Philadelphia. That address is located adjacent to Interstate 95,
between the crime scene and the residences of [Jones] and
[Appellant]. Investigators searched the area but were unable to
recover the cellular telephone.
At approximately 3:30 a.m., [which was] approximately an
hour after the home invasion, Daniels showed his girlfriend,
Marlon Burton, the wallet and credit cards that were taken from
the Nadav residence. Shortly thereafter, Daniels and Burton made
purchases at five separate locations utilizing those credit cards.
Historical cell-site location information confirmed that Daniels and
Burton traveled to the five locations where the credit cards were
used. A blank check that was found in the wallet was made
payable to Burton in the amount of $5,500 and was later
deposited into Burton’s account.
Call detail records also established that shortly after 5[:00]
a.m. on August 21, 2017, within hours of the home invasion, [the
co-conspirators, including Appellant,] exchanged text messages
reveling in the value of the property they were able to obtain
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during the home invasion, referring to a Rolex watch, a firearm,
Euro currency, a Chanel bag, and a Louis Vuitton bag. Jones
started the exchange when he text messaged [Appellant] and
Daniels, “Yo, Boy! You still up???” and accompanied the text with
a money bag emoji and a flexing bicep emoji. During one text
message exchange, [Appellant] advised Jones, “We deserve this
shit, Juice. We been through too much.” N.T., 1/28/19, at 223.
[Appellant] later sent a text message stating, “I’m selling this
Rollie.” N.T., 1/28/19, at 201.
Information extracted from [Appellant’s] cellular telephone
and Daniels’ cellular telephone established that twenty calls were
made between the two cellular telephones on August 20, 2017[,]
through August 21, 2017.
On August 24, 2017, police recovered a cellular telephone
from Jones and $3,579….A photograph of a handgun extracted
from [Appellant’s] cellular telephone was identified as the
handgun that was taken from the victims’ residence. Jones’ DNA
was taken and compared to DNA found on a partially smoked cigar
in a pack of cigarettes found on the street outside the crime scene.
Jones’ DNA matched the DNA found on the cigar.
A search warrant was executed at Daniels’
residence….During that search[,] police recovered Louis Vuitton
luggage belonging to the Nadavs and a 9-millimeter firearm.
In November of 2017, Daniels sent a text message to
[Appellant] advising him that, “They got your number. They just
don’t know who you are.” Daniels further advised [Appellant],
“That’s the only way they can get you and Juice…” During this
exchange, Daniels instructed [Appellant] how to change his cell
[sic] cellular telephone number using an “app.” [Appellant]
advised Daniels, “I’m trying to change it now.”
Trial Court Opinion, filed 2/5/20, at 7-11 (citations to record and footnotes
omitted).
At the conclusion of trial, Appellant was convicted of the offenses
indicated supra, and on May 23, 2019, Appellant proceeded to a sentencing
hearing, at the conclusion of which the trial court sentenced Appellant as
follows: Count 1, robbery (as to Jonathan Nadav), ten years to twenty years
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in prison; Count 35, robbery (as to Emily Nadav), ten years to twenty years
in prison, to run concurrently to Count 1; Count 36, robbery (as to twelve-
year-old C.N.), ten years to twenty years in prison, to run consecutively to
Count 1; Count 37, robbery (as to Elle Nadav), ten years to twenty years in
prison, to run consecutively to Count 1; Count 38, robbery (as to Manya
Guravich), to run consecutively to Count 1; Count 2, conspiracy to commit
robbery, ten years to twenty years in prison, to run concurrently to the other
sentences; Count 10, burglary, ten years to twenty years in prison, to run
concurrently to the other sentences; Count 16, false imprisonment of a minor,
five years to ten years in prison, to run concurrently to the other sentences;
and Counts 25, 45, 46, 47, false imprisonment of adults, one year to two years
on each count to run concurrently to all other sentences. N.T., 5/23/19, at
67-69. The trial court imposed no further penalty on the remaining counts.
Id. at 69. Appellant received an aggregate of forty years to eighty years in
prison.
On May 28, 2019, Appellant filed a timely, counseled post-sentence
motion in which he sought the reconsideration of his sentence, as well as
permission to file a supplemental post-sentence motion upon receipt of the
necessary transcripts. By order entered on June 27, 2019, the trial court
indicated Appellant would have until July 29, 2019, to file all supplemental
post-sentence motions.
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On July 26, 2019, Appellant filed a counseled, supplemental post-
sentence motion averring the suppression court erred in denying his motion
to suppress the historical cell-site location records for his cell phone, and he
challenged the sufficiency of the evidence supporting his convictions. On
September 9, 2019, the Commonwealth filed an answer in opposition to
Appellant’s post-sentence motions. By order entered on September 17, 2019,
the trial court entered an order indicating that, for good cause shown, “the
120 day consideration period pursuant to Pa.R.Crim.P. Rule 720 is hereby
extended 30 days.”9 Trial Court Order, filed 9/17/1. See Pa.R.Crim.P.
720(B)(3)(b) (“Upon motion of the defendant within the 120-day dispositional
period, for good cause shown, the judge may grant one 30-day extension for
decision on the motion.”).
By order entered on October 21, 2019, prior to the expiration of the
extended disposition period, the trial court denied Appellant’s post-sentence
motion, and on November 4, 2019, this timely counseled appeal followed. All
Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Presented” (verbatim):
A. Whether the trial court erred in admitting cell phone data
and site location data, when the search and seizure of Appellant’s
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9 On October 4, 2019, Appellant filed a counseled notice of appeal prior to the
trial court’s order denying his post-sentence motion; however, Appellant
subsequently filed a motion to discontinue the appeal, and on October 21,
2019, this Court marked the appeal “discontinued.”
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cell phone was conducted without a search warrant and the
subsequently issued search warrant failed to state probable
cause?
B. Whether the trial court’s sentence of forty (40) to eight [sic]
(80) years was manifestly unreasonable and excessive and
amounted to an abuse of discretion?
Appellant’s Brief at 5 (suggested answers omitted).
In his first issue, Appellant contends the trial court erred in denying his
motion to suppress the evidence of his historical cell-site location information
since the evidence was unlawfully obtained without a search warrant in
violation of the U.S. Supreme Court’s decision in Carpenter, supra.10 The
Carpenter Court held that law enforcement must first obtain a search warrant
supported by probable cause in order to obtain historical cell-site location
information from wireless service providers, absent a specific exception to the
warrant requirement. Carpenter, 138 S.Ct. at 2216 (applying Fourth
Amendment to a “new phenomenon: the ability to chronicle a person’s past
movements through the record of his cell phone signals”).11
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10 Although Appellant’s “Statement of Questions Presented” broadly refers to
the suppression of “cell phone data and site location data,” Appellant’s
argument section is focused on suppression of his cell phone’s historical cell-
site location data. Accordingly, we shall so limit our analysis.
11The Supreme Court emphasized that its decision was “narrow” and indicated
that it was not expressing a view on real-time cell-site location information or
“tower dumps” (“a download of information on all the devices that connected
to a particular cell site during a particular interval”). Id. at 2220. The Court
added that its decision was not calling into question “conventional surveillance
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Consequently, according to Appellant, suppression of his historical cell-site
location records was necessary under the U.S. and Pennsylvania Constitutions
since (1) law enforcement initially obtained the cell-site location evidence on
November 3, 2017, pursuant to the Wiretapping and Electronic Surveillance
Control Act, 18 Pa.C.S.A. § 5743, and the Stored Communications Act, 18
U.S.C.A. § 2703, which permit a government entity to obtain disclosure of the
records of a wireless service provider based on a showing that there are
specific and articulable facts that demonstrate reasonable grounds for
believing that the records are material to an ongoing investigation, which is a
lesser standard than the probable cause standard mandated by Carpenter,
and, thus, the court order issued in the first instance was not a constitutionally
valid substitute for a proper search warrant; (2) despite the fact the police
later obtained a search warrant for the historical cell-site location records, the
evidence must be excluded since the search warrant did not purge the taint
of illegality from the prior seizure of the records; and (3) in any event, the
police’s affidavit of probable cause for the search warrant did not set forth the
necessary probable cause.
In reviewing Appellant’s suppression claim, we are mindful that:
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
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techniques and tools, such as security cameras…or business records that
might incidentally reveal location information.” Id.- 17 -
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legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
as remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 639 Pa. 100, 159 A.3d 503, 516 (2017)
(citations omitted).
In the case sub judice, there is no dispute the police initially seized the
cell-site location information for Appellant’s cell phone via a court order in
conformity with the law as it existed on November 3, 2017. However, on June
22, 2018, prior to Appellant’s jury trial, the U.S. Supreme Court filed
Carpenter. Consequently, on July 3, 2018, the police filed an application for
a search warrant to seize the same historical cell-site location records in order
to conform with the Supreme Court’s mandate in Carpenter.12
With these facts in mind, as to Appellant’s first specific sub-issue, the
Commonwealth “does not argue that the court order issued in the instant case
was a constitutionally valid substitute for a search warrant.” Commonwealth’s
Brief at 23. In fact, the Commonwealth acknowledges the trial court issued
the court order for Appellant’s cell phone records upon consideration of the
____________________________________________
12We shall assume, arguendo, that Carpenter is applicable to this case since
Appellant’s criminal matter was pending in the trial court when the U.S.
Supreme Court filed the opinion.
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less burdensome “reasonable grounds” standard. Id. Accordingly, the
Commonwealth does not dispute that the initial acquisition of the cell-site
location records was unlawful in the wake of Carpenter.
However, contrary to Appellant’s second specific sub-issue, the
Commonwealth contends its seizure of the historical cell-site location records
pursuant to the post-Carpenter search warrant purged any taint of illegality
resulting from the initial seizure such that there is no need for exclusion of the
evidence. In this vein, the Commonwealth contends the cell-site location
records are admissible under the inevitable discovery doctrine.
Under the inevitable discovery doctrine, “if the prosecution can establish
by a preponderance of the evidence that illegally obtained evidence ultimately
or inevitably would have been discovered by lawful means, the evidence is
admissible.” Commonwealth v. Gatlos, 76 A.3d 44, 60 n.13 (Pa.Super.
2013) (citation omitted).
In Commonwealth v. Berkheimer, 57 A.3d 171 (Pa.Super. 2012) (en
banc), this Court reviewed the development of the inevitable discovery
doctrine and explained that Pennsylvania courts have interpreted the doctrine
more narrowly based on the understanding that the exclusionary rule serves
an essential role in safeguarding the right to privacy under Article I, Section
8. Id. at 181-88. This Court explained that in cases where evidence is
gathered through “a substantially unwitting violation of the warrant
requirement, devoid of any cognizable misconduct,” the inevitable discovery
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doctrine in Pennsylvania is coterminous with its application under the Fourth
Amendment. Id. at 188. This standard requires a finding that the law
enforcement officer’s decision to seek a warrant was prompted by information
independent of what was learned during the unlawful search and the
information illegally obtained did not influence the issuing authority’s decision
to issue the search warrant. Id. at 184.
In the case sub judice, the parties do not dispute that the police did not
commit any “cognizable misconduct” when they initially seized the cell-site
location records in November of 2017 via a court order. See Berkheimer,
supra. Further, when the United States Supreme Court ruled that such
seizures required a valid search warrant, the police secured the same records
with a search warrant.
Moreover, in the affidavit of probable cause for the warrant, the police
did not utilize any information that they had uncovered as a result of their
initial seizure of Appellant’s cell phone records. See id. In fact, the affidavits
for the order and search warrant are nearly identical, and there is no evidence
information illegally obtained influenced the issuance of the search warrant.13
Id.____________________________________________
13 As indicated supra, although Detective Bush included in his affidavit for the
court order information pertaining to Daniels’ and Jones’ cell-site locations
during the home invasion, he did not include this information in the affidavit
of probable cause for the search warrant. In all other respects, the affidavits
are nearly identical.
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Furthermore, Detective Bush testified he initially seized Appellant’s cell
phone records via a court order because that was the law in effect in
Pennsylvania at the time; however, when the law changed, he secured the
records via a search warrant. N.T., 11/7/18, at 75.
Stated simply, the Commonwealth demonstrated by a preponderance of
the evidence that the police committed “a substantially unwitting violation of
the warrant requirement, devoid of any cognizable misconduct” when the
evidence was initially seized, and the evidence would have been ultimately
discovered by lawful means. Berkheimer, 57 A.3d at 188. Therefore, the
evidence was sufficiently purged of any original illegality to allow its admission
under the inevitable discovery doctrine. Commonwealth v. Gonzalez, 979
A.2d 879, 890 (Pa.Super. 2009) (holding this doctrine requires that the
evidence at issue would have been discovered inevitably despite the initial
illegality).
Next, we address Appellant’s third sub-issue in which Appellant
contends the instant search warrant was not supported by probable cause.
“The linch-pin that has been developed to determine
whether it is appropriate to issue a search warrant is the test of
probable cause.” Commonwealth v. Edmunds, 526 Pa. 374,
586 A.2d 887, 899 (1991) (quoting Commonwealth v. Miller,
513 Pa. 118, 518 A.2d 1187, 1191 (1986)). “Probable cause
exists where the facts and circumstances within the affiant’s
knowledge and of which he has reasonably trustworthy
information are sufficient in themselves to warrant a man of
reasonable caution in the belief that a search should be
conducted.” Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d
352, 357 (1972).
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In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983), the United States Supreme Court established
the “totality of the circumstances” test for determining whether a
request for a search warrant under the Fourth Amendment is
supported by probable cause. In Commonwealth v. Gray, 509
Pa. 476, 503 A.2d 921 (1986), [the Pennsylvania Supreme] Court
adopted the totality of the circumstances test for purposes of
making and reviewing probable cause determinations under
Article I, Section 8. In describing this test, [our Supreme Court]
stated:
Pursuant to the “totality of the circumstances” test set
forth by the United States Supreme Court in Gates,
the task of an issuing authority is simply to make a
practical, common-sense decision whether, given all
of the circumstances set forth in the affidavit before
him, including the veracity and basis of knowledge of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will
be found in a particular place....It is the duty of a court
reviewing an issuing authority’s probable cause
determination to ensure that the [issuing authority]
had a substantial basis for concluding that probable
cause existed. In so doing, the reviewing court must
accord deference to the issuing authority’s probable
cause determination, and must view the information
offered to establish probable cause in a common-
sense, non-technical manner.
***
[Further,] a reviewing court [is] not to conduct a de
novo review of the issuing authority’s probable cause
determination, but [is] simply to determine whether
or not there is substantial evidence in the record
supporting the decision to issue the warrant.
Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537–38,
540 (2001).
As our United States Supreme Court stated: “A grudging or
negative attitude by reviewing courts towards warrants…is
inconsistent with the Fourth Amendment’s strong preference for
searches conducted pursuant to a warrant; courts should not
invalidate warrants by interpreting affidavits in a hypertechnical,
rather than a commonsense, manner.” Gates, supra at 236, 103
S.Ct. 2317 (citation and quotation marks omitted); see also
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United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82
L.Ed.2d 677 (1984) (“Reasonable minds frequently may differ on
the question whether a particular affidavit establishes probable
cause, and we have thus concluded that the preference for
warrants is most appropriately effectuated by according ‘great
deference’ to [an issuing authority’s] determination.”).
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 655-56 (2010)
(footnote omitted).
In the case sub judice, the affidavit of probable cause for the search
warrant set forth, in relevant part, the following:
Your Affiant, Detective Chris Bush #23, is a member of the
Newtown Township Police Department…and has been assigned to
the Detective Bureau since 1996 investigating violations of the
Pennsylvania Crimes Code.
On Monday, August 21, 2017 at 0239 hours, the Newtown
Township Police Department received a 911 report of an armed
Robbery at the address of # Wellington Road, Newtown Township,
Bucks County, Pennsylvania 18940.
Newtown Police Officers arrived on scene at 0237 hours and
met with the Nadav family, confirming the Robbery and initiating
the investigation.
Jonathan Nadav informed the Police that while sleeping next
to his wife, they were awakened to a commotion at the door of his
master bedroom, where a black male, 6’1’’, wearing a mask and
dark hoodie was holding his daughter (12) at gun point. The actor
demanded jewelry, cash and the location of his safe. Nadav said
he told the actor to take his wallet and his wife’s diamond earrings
from the night tables. Nadav said that he resisted providing the
safe’s location to the actor and as a result the actor checked the
walk in closet and located the safe. Nadav said he observed the
actor remove the contents of the safe including; a .308 Walther
handgun, his wife’s gold jewelry, and approximately $48,000.00
in US currency. Nadav said the family was forced into the closet
where they remained until after the actors left.
Elle Nadav (25) who was sleeping in the basement at the
time of the Robbery was interviewed and said she awoke to two
black males wearing masks and hoodies with handguns standing
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next to her. The actors told her to shut up and that her father
owed them money. Elle said that one of the actors remained with
her as the other actor left the basement and traveled upstairs.
Elle said that before the second actor left the basement, he
threatened harm and took her cell phone.
The Nadav family related to the Police that they observed
the three actors use their cell devices to communicate and update
each during the commission of the Robbery.
The Nadav family provided the Police with a stolen property
report and documents/photographs and serial numbers of the
stolen property, all of which totaled more than $200,000.
Nadav informed your Affiant that he is the owner of Official
Unlimited, an urban clothing and footwear outlet located in
Philadelphia, Pennsylvania. Nadav said he doesn’t know of anyone
that he owes money to that would have committed the Robbery.
On Monday, August 21, 2017, Nadav informed me that he
received cell phone alerts from his Bank of America credit card
company of suspicious activity, which he confirmed as fraudulent.
The account activity revealed that after the robbery, between
0500-0700 hours, card #3841 was used at three retail outlets
located in the Philadelphia area for the purchase of gift cards
valued at several thousand dollars.
Your Affiant contacted Walmart and CVS Pharmacies where
Nadav’s credit card ending in #3841 was used and collected store
receipts and surveillance video concerning the transactions. Your
Affiant noticed that a black female, thin build, 25-35 years of age
and tattoos, was involved with all the transactions. Nadav said he
didn’t recognize the female captured on video using his credit
card.
On Monday, August 21st, Nadav said TD Bank had informed
him that his checking account was overdrawn from a fund
withdrawal on this date. Nadav said that a blank check taken
during the Robbery was cashed for $5500.00, at an unknown bank
branch. Upon your Affiant’s review of the check copy (254), it
was noted the check was made out to Marlon Burton.
Your Affiant conducted a Pennsylvania Driver’s License
search for Marlon Burton, which produced the following result:
Driver’s License ending in 146, Marlon Jermaiha Burton, B/F, 6’
1’’, D.O.B. */*/1989, ***Grant Street, Philadelphia[.] Burton’s
driver’s license photos are consistent with the female suspect
captured on the CVS and Walmart store surveillance.
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On Friday, September 22, 2017, your Affiant spoke with
Santander Fraud Investigator, Stefanne Yingling, who confirmed
that on August 21st, Nadav’s TD Bank check (254) was deposited
into a Santander checking account ending in 5950 at an ATM
located at East Olney Avenue, Philadelphia[.] The Santander Bank
account ending in 5950 was established by Marlon Burton…in
January 2017. Your Affiant was provided the ATM surveillance of
the check transaction and noticed the female suspect involved
with the check transaction matches the physical description and
clothing description [of] the suspect using Nadav’s credit card for
purchases at CVS and Walmart.
On October 4, 2017, Marlon J. Burton was taken into
custody by the Philadelphia Police Department pursuant to the
Newtown Township arrest warrant in connection to the Access
Device Fraud. Marlon Burton’s description was consistent with the
suspect transacting Nadav’s credit card on August 21, 2017.
Marlon Burton cooperated with the investigation and named
Raymond Daniels as the person who, during the early morning
hours of August 21st, arrived at her residence with Nadav’s credit
card. Burton said that she and Daniels traveled to retail outlets,
and together they used Nadav’s credit card for merchandise
purchases including Vanilla Visa cards.
Marlon Burton identified Raymond Daniels from his
INSTAGRAM Account photo and provided Daniels’ cell number as
(***)***-4717.
Your Affiant conducted a Pennsylvania Driver’s License
search and confirmed Raymond Anthony Daniels B/M with PA
License ending in 054, Address, ## N. Garnet Street,
Philadelphia[.] Raymond Anthony Daniels has arrests and
convictions for numerous offenses including Robbery.
On October 19, 2017, your Affiant received and reviewed
Raymond Daniels’ AT&T Mobility cell phone records (***)***-
4717 and noted that on the morning of the Robbery, August 21,
2017, between 0216-0234 hours, at the time of the robbery, there
were cell exchanges with (***)***-3735.
Your Affiant queried Facebook and Law Enforcement
Network Services and discovered the name associated with cell
phone number (***)***-3735 is Sadeen Jones AKA Jamal Jones.
Your Affiant conducted a Pennsylvania Driver’s License
search and confirmed Sadeen Jones, B/M with PA ending in 1825,
Issued **/**/2017, Address, ** Belmar Terrace, Philadelphia[.]
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Sadeen Jones’ criminal history includes arrests for Robbery and
Murder.
On November 1, 2017, your Affiant received and reviewed
Sadeen/Jamal Jones’ AT&T Mobility cell records and confirmed
Jones as the account holder. It was noted that on the morning of
the Robbery, August 21, 2017, between 0200-0235 hours, there
were cell exchanges with a third cell number, (***)***-4478.
Your Affiant confirmed with T-Mobile/Metro PCS that they
are the cell provider for cell number (***)***-4478 and cell phone
records are available to law enforcement upon request. Your
Affiant believes that the warrant for T-Mobile/Metro PCS cell
(***)***-4478 will provide evidence in the ongoing investigation
to identify participants and recover the Nadav family’s stolen
property.
Your Affiant requests that T-Mobile/Metro PCS be ordered
not to disclose to the user of cell number (***)***-4478 that this
information has been requested and disclosed, as Your Affiant is
concerned that the user of that phone may interfere with the
ongoing investigation.
WHEREFORE, your Affiant submits that there is probable
cause to believe that the requested records are relevant and
material to an ongoing investigation into violation(s) of the
following criminal offenses; (1) Robbery, (2) Forgery, (3) Access
Device Fraud, (4) Identity Theft, (5) Theft By Unlawful Taking, (6)
Receiving Stolen Property, and (7) Criminal Conspiracy.
Exhibit CS-6, Application for Search Warrant, Affidavit, filed 7/3/18.
Based on the totality of the circumstances set forth in the affidavit, we
agree with the trial court that there was a fair probability that evidence of a
crime would be found upon examination of the cell phone records for
(***)***-4478. See Gates, supra (setting forth probable cause standard).
As indicated in the affidavit of probable cause, during the home invasion
the victims observed three perpetrators who used their cell phones to
communicate with each other. After the police determined Marlon Burton had
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used credit cards stolen from the Nadav residence, Burton admitted to the
police that Daniels gave her the credit cards during the early morning hours
shortly after the home invasion had occurred.
An examination of Daniels’ cell phone records revealed that, during the
home invasion, Daniels used his cell phone to communicate with Jones, who
in turn used his cell phone to communicate with (***)***-4478. A common
sense reading of the affidavit reveals there was a fair probability that the
owner of cell phone (***)***-4478 participated in the home invasion and/or
would have information in connection with the identity of the perpetrators or
recovery of the stolen items. Id.To the extent Appellant contends probable cause was lacking because
the police did not identify Appellant by name in the affidavit, we disagree. The
identification of the specific cell phone number, i.e., (***)***-4478, and the
request for the cell phone records from T-Mobile/Metro PCS for a specific time
with regard thereto, sufficiently described with particularity the item to be
seized and searched. See Commonwealth v. Kane, 210 A.3d 324(Pa.Super. 2019) (indicating a warrant must state with sufficient particularity
the property to be seized and the person or place to be searched).
Accordingly, we conclude the search warrant was supported by probable
cause, and therefore, the trial court properly denied Appellant’s motion to
suppress the historical cell-site location information pertaining to his cell
phone.
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In his final claim, Appellant contends his aggregate sentence of forty
years to eighty years in prison is manifestly excessive in that the trial court
abused its discretion in imposing some sentences consecutively, as opposed
to concurrently, without properly considering the need to protect the public,
the gravity of the offense in relation to the impact on the victim and
community, and the rehabilitative needs of Appellant. He avers the trial court
focused primarily on the nature of the offense without adequate consideration
of the mitigating factors.
When an appellant challenges the discretionary aspects of his sentence,
we must consider his brief on this issue as a petition for permission to appeal.
See Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010). Prior to
reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1)
whether [A]ppellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether [A]ppellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
In the case sub judice, Appellant filed a timely notice of appeal,
preserved his issue in his motion for modification of sentence, and included a
Pa.R.A.P. 2119(f) statement in his brief. Turning to the fourth requirement,
we have found that a substantial question exists “when the appellant advances
a colorable argument that the sentencing judge’s actions were either: (1)
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inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.Super. 2008).
Assuming, arguendo, Appellant has presented a substantial question for our
review, we conclude no relief is due.
We are mindful that:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006).
“Although Pennsylvania’s system stands for individualized sentencing,
the court is not required to impose the ‘minimum possible’ confinement.”
Moury, 992 A.2d at 171 (citation omitted). In reviewing the sentence, an
appellate court shall have regard for: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the
opportunity of the sentencing court to observe the defendant, including any
presentence investigation; (3) the findings upon which the sentence was
based; and (4) the guidelines promulgated by the commission. See 42
Pa.C.S.A. § 9781(d)(1)–(4).
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Further, 42 Pa.C.S.A. § 9721(b), pertaining to sentencing generally,
relevantly provides:
(b) General standards.—[T]he court shall follow the general
principle that the sentence imposed should call for confinement
that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the
defendant....In every case in which the court imposes a sentence
for a felony or misdemeanor...the court shall make as a part of
the record, and disclose in open court at the time of sentencing,
a statement of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b) (bold in original).
Nevertheless, “[a] sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the
statute in question[.]” Commonwealth v. Crump, 995 A.2d 1280, 1283
(Pa.Super. 2010). “Rather, the record as a whole must reflect the court’s
reasons and its meaningful consideration of the facts of the crime and the
character of the offender.” Commonwealth v. Malovich, 903 A.2d 1247,
1253 (Pa.Super. 2006) (citation omitted).
In the case sub judice, the trial court was provided with a sentencing
memorandum in which the Commonwealth noted Appellant had two prior
juvenile adjudications of delinquency, as well as a prior conviction in 2011 for
robbery and burglary. N.T., 5/23/19, at 11. Similar to the instant burglary,
the 2011 incident involved a home invasion at gunpoint. Id. After Appellant
declined to exercise his right of allocution, id. at 33, his attorney made the
following statement for the court’s consideration:
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I have known [Appellant] now for at least six months,
perhaps a bit more, and I have had an opportunity to talk to him
on literally dozens of occasions at the Bucks County prison.
He’s a thoughtful man and he was cooperative with me, and
he’s a gentleman, all of which might sound incongruous
considering the facts of this case, but it is true nevertheless.
[Appellant] is a high school graduate. He is only 25 years
of age. His prior robbery, which was alluded to by the district
attorney, occurred when he was 16 years of age.
He has a large nuclear family. His mother, Ruth
Davis…[a]nd his wife, Shavonna Baker, is also here and they were
here during the course of the trial. You may recall that Ruth Davis
testified at the trial.
He has four children by Shavonna Baker. They’re aged nine,
six, three, and one. He has the support of his family. He asks the
Court to consider using the guidelines as a basis for a sentence in
this case.
I don’t make any argument regarding how he falls within
that guideline, but I think it is at least a starting point for the Court
to consider when imposing a sentence on a serious case like this.
I ask for the same thing that co-counsel have asked for.
He’s facing a serious sentence. I ask you not to make it a life
sentence.
It’s clear that based on the sentencing that took place in
[co-conspirator Daniels’ case] that the capacity to impose a life
sentence is here and I ask the Court to consider that the first
offense took place when [Appellant] was 16 and he is 25 years of
age and I sincerely believe that he is not only capable of
rehabilitation, but would be a good father to his children and he
hopes to see them some day after he gets---pays his dues for this
very serious crime.
Id. at 37-38.
In sentencing Appellant, the trial court relevantly stated the following
on the record:
There are a number of people in the courtroom who have
just come to observe. There are a number of people who have
come because they, you know, are victims or are here to support
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victims. There are people who are here to support the individuals
who have been convicted of very serious offenses.
What strikes me in this case more than anything else is the
palpable despair on the one side of the courtroom. The pain and
trauma that [Appellant and his co-conspirators] imposed on their
own families is beyond my ability to articulate. They look to me
to save them from the pain you have caused.
I was emotional when I watched your family members
testify. They are people that didn’t do anything to deserve the
pain they’re going through right now, the—but they’re in that pain
and I can’t—I can’t help them.
And to the extent that I have to sentence you, I am going
to hurt them even more because I can’t stop from putting you in
prison because I can’t allow you to continue to victimize people
over and over and over again.
What strikes me also is that there’s equal pain on the other
side of the courtroom and trauma on the other side of the
courtroom.
The only people who haven’t demonstrated to me that
they’re undergoing any pain and trauma are [Appellant and his
co-conspirators].
***
They’ve had to sit through your arrests and trials and
sentencings and incarcerations, had to raise children on their own,
had to visit you in whatever state facility was housing you at the
time.
They were in the same pain then as they are now; and then,
rather than coming out and saying, “I will never—I don’t care what
you think of other people in the world, but I won’t do it to the
people who love me,” you didn’t. I can’t understand that. I cannot
explain that.
But the pain they are undergoing today—let’s make no
mistake about it—is inflicted by you. It’s not society. It’s not me.
It’s not [the assistant district attorney]. It’s not the victims.
Nobody made you go and buy guns, borrow guns, steal guns,
however you got guns; you are not even supposed to have them;
dress up military style, in military style do a practice run for a time
and efficiency. It was a commando raid into a private residence.
And we heard from very heart—heartfelt statements from
the family that there were three sisters that belonged to that
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household….In the middle of the night, [] two of the youngest
girls, Elle and [C.N.], are awoken with strange men in their
bedrooms. I can’t imagine the confusion, the fear, the nightmare.
***
I wanted to make sure that I understood exactly the nature
of the crime being charged because the price you are going to pay
is going to be very steep because you made, despite the constant
intervention of the criminal justice system, which made available
to you whatever it is you needed, whether you needed drug
treatment or emotional treatment or psychiatric treatment or job
training---whatever it is that you needed was available while you
were in the…system….Whether you took advantage of that or
attempted to take advantage of that, I don’t know, but what I do
know is it had absolutely no impact on your conduct.
You decided to engage in one of the most serious crimes
that you could possibly engage in: The robbery of five separate
individuals, conspiracy to rob five separate individuals, burglary,
[and] unlawful restraint.
Three generations of the same family were victimized. You
were organized, efficient, sophisticated. There is no more
dangerous a situation that I can image than the danger that you
created in that household that morning.
As I said before, the impact of the crimes—that doesn’t—I
can’t even describe it and I don’t have to. It doesn’t take any
depth to understand what you—what impact these offenses would
have on the people that you chose to victimize.
***
You have an education. You have a—you had potential
employment, of actual employment. You are articulate. So
there’s no basis to do these criminal offenses, but greed.
I keep trying to find some mitigating circumstances, if any,
in these cases and I can only find one. Despite the trauma of
your—in your childhood…it doesn’t explain why you want to hold
a gun to a 12-year-old’s head or why you would want to threaten
a college student that she’d be shot down maybe on campus[.] It
doesn’t explain that.
As victims of violence, you should have—you are in the
unique situation to understand the harm that causes.
***
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[Appellant] has a…severe criminal history. He was
adjudicated for burglary in 2005, the same criminal offense that
he has been convicted of yet again.
He was adjudicated of robbery, a Felony 3 in 2008; again,
the same criminal offense that he was convicted of again; and,
finally, he was convicted in 2011 of robbery and burglary, both
felonies of the first degree, which, again, he was convicted.
So [Appellant] has demonstrated to me that although his
crimes may have started at 16 years old, they have continued into
adulthood consistently. He has engaged in the same violent,
felony behavior from 2005 through the incident involved in this
case.
Id. at 49-52, 54-56, 59-60.
Moreover, in its opinion, the trial court indicated the following in urging
this Court to reject Appellant’s sentencing claim:
Contrary to [Appellant’s] assertion, [the trial] court
considered all the factors set forth in Section 9721(b) in imposing
sentence. As to the protection of the public and the gravity of the
offense as it relates to the impact on the victim and the
community, [the trial] court noted that this home invasion robbery
was highly organized, efficient, and sophisticated. The
conspirators first scouted the location and then conducted a
commando-style raid of a private residence occupied by three
generations of one family in the middle of the night. [The trial]
court also noted that the force utilized was extreme. [Appellant
and his co-conspirators], outfitted with dark clothing, gloves, and
masks and brandishing handguns, threatened each of the victims
with the loss of their own life as well as the death of the other
family members, including a member of the family that was away
at college. Finally, [the trial] court considered the apparent and
undeniable impact these vicious and violent offenses had on the
victims. The fact that [Appellant] ha[s] engaged in violent
offenses in the past and chose to once again engage in extremely
violent conduct with other violent offenders, convinced [the trial]
court that the protection of the public required a substantial period
of incarceration[.]
[The trial] court also discussed how the nature of the
offenses reflected on [Appellant’s] character and his amenability
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to rehabilitation. [The trial] court specifically noted that, despite
the extreme violence and apparent raw fear and emotional trauma
inflicted, [Appellant] showed no emotional response and
demonstrated no empathy or remorse. [The trial] court found
that there was no demonstrable economic need, explanation or
justification for these crimes and therefore concluded that
[Appellant] was motivated by greed. [The] court also considered
the character of the individuals with whom [Appellant] chose to
conspire, noting that [Appellant] was aware of their violent
character and still made a conscious decision to participate. Given
the number of conspirators, their violent tendencies, the fact that
they were all armed, and the unpredictability of victims’ responses
to their physical incursion, [Appellant] knew or should have known
that there was a substantial risk that the situation could have
gotten out of control and that someone could have been seriously
injured or killed.
In considering [Appellant’s] history, character, condition,
and rehabilitative needs, [the trial] court also considered
[Appellant’s] prior record. In 2005, [Appellant] was adjudicated
delinquent of Burglary, in 2008 he was adjudicated delinquent of
Robbery and Burglary, and in 2011 he was convicted of Robbery,
the same offenses of which he was convicted in the instant case.
[The trial] court found that the intervention of both the juvenile
and adult criminal justice systems had no deterrent effect on
[Appellant’s] criminally violent behavior. [The trial] court also
found that the support of [Appellant’s] family and friends and the
impact of his criminal behavior has had on them also had no
deterrent effect on his criminally violent behavior. [The trial]
court therefore concluded that the sentence imposed was
necessary to prevent [Appellant] from engaging in further acts of
violence.
[Appellant’s] remaining claims…argue that the sentence
imposed is “tantamount to a life sentence,” is unreasonable and
excessive given the nature and circumstances of the case and the
history and character of [Appellant,] and that therefore the [trial
court] abused its discretion in imposing sentence.
***
As explained above, in imposing sentence, [the trial] court
considered all of the factors set forth in the Sentencing Code
including the protection of the public, the gravity of the offense,
the history, character, condition and rehabilitative needs of
[Appellant] and the sentencing guidelines. The fact that [the trial]
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court did not weigh the factors as [Appellant] might have wished
is not sufficient to support a claim for appellate relief.
***
The fact that the sentences for the Robbery of Elle Nadav,
Manya Guravich[,] and C.N. were run consecutive to one another
and consecutive to the concurrent sentences imposed for the
Robbery of Jonatan [sic] and Emily Nadav does not alter the
conclusion that the sentences imposed were reasonable. In
imposing sentence, a court has discretion to run the sentence
concurrently with or consecutively to other sentences being
imposed. Moreover, separate felony offenses committed against
separate victims appropriately calls for consecutive sentences.
Commonweath v. Swope, 123 A.3d 333, 341 (Pa.Super. 2015)
(citation omitted) (“Appellant is not entitled to a volume discount
for his crimes.”)[.] Where, as here, separate violent felony
offenses were committed against multiple individuals, a separate
sentence is warranted in recognition of the fact that separate and
distinct harms were intended and separate and distinct harms
were caused by the commission of each criminal act committed by
[Appellant] and his accomplices.
Trial Court Opinion, filed 2/5/20, at 17-22 (citations omitted).
We find no abuse of discretion. The record reveals the trial court
imposed four consecutive sentences for the robbery of Jonathan Nadav, C.N.,
Elle, and Manya. The trial court imposed either concurrent sentences or no
further penalty for Appellant’s remaining convictions, including imposing a
concurrent sentence for the robbery of Jonathan’s wife, Emily. In so doing,
the trial court considered the mitigating factors,14 along with the need to
____________________________________________
14 To the extent Appellant suggests the trial court completely disregard the
testimony of his mother, Ruth Davis, who testified Appellant’s paternal
grandmother abused Appellant while he was living with her, we note Mrs.
Davis gave this testimony at the September 13, 2019, post-sentence motion
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protect the public, the gravity of Appellant’s offenses on the victims and
community, and Appellant’s rehabilitative needs. 42 Pa.C.S.A. § 9721(b). We
agree with the trial court that Appellant was not entitled to a “volume
discount” by having all of his sentences run concurrently. See Swope, supra.
For all of the foregoing reason, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/20
____________________________________________
hearing. N.T., 9/13/19, at 17-18. At the conclusion of the hearing, the trial
court noted that, in sentencing Appellant, it took into account Appellant’s
“upbringing[.]” Id. at 31. However, the court further noted that, “at some
point you become responsible and it is no longer because something happened
to you when you are a child. At some point it becomes a conscious decision
to make a decision that this is the life I am going to live.” Id. at 34.
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