Com. v. Wright, J. ( 2014 )

J-A04037-14
2014 PA Super 189COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOSHUA THOMAS WRIGHT,
Appellee No. 825 WDA 2013
Appeal from the Order entered April 16, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0010466-2012
BEFORE: BOWES, WECHT, AND STABILE, JJ.
DISSENTING OPINION BY BOWES, J.: FILED AUGUST 29, 2014
Appellee Joshua Wright was charged with two counts of homicide, burglary
and a violation of the Uniform Firearms Act. He was accused of entering an
apartment located at 552 Princeton Boulevard, Wilkinsburg, and killing
Michael Lee Black and Dashawna Gibson by shooting each victim in the head
apartment. Ms. Gibson was temporarily staying with Ms. Clark because
Ms.
In the early morning hours of July 1, 2012, Ms. Clark fell asleep on the
floor of the living room, which was located on the ground level of the two-
story residence. At approximately 5:30 a.m., she was awakened by
someone moving past her and then she heard a gunshot emanating from the
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upstairs bedroom where the two victims were located. Ms. Clark next
pretended to be asleep. N.T. Preliminary Hearing, 8/10/12, at 14. Ms. Clark
went upstairs, saw that the victims appeared to be dead, and ran back
Id. at 16. Ms. Clark was afraid,
contacted police.
Based upon the information supplied by Ms. Clark, police obtained an
arrest warrant for Appellee. After police were informed that Appellee was at
Police Detectives Anthony Perry and Kenneth Ruckel, who were accompanied
by three Murrysville police officers, executed the arrest warrant at
approximately 2:20 a.m. on July
Stephanie Pollard, answered the door, gave police consent to enter the
home, and led them to Appellee. Appellee awoke when police arrived and
was placed under arrest. Since Appellee was in his underwear, police
dressed him in pants and a T-shirt and then handcuffed him.
When police were in the process of executing the arrest warrant, they
observed a cellular telephone. It was located on a nightstand in the
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bedroom.1 The battery was removed from the cell phone and was lying next
to it.2 Police seized the cell phone and obtained a warrant to search its
contents.
The warrant used to search the telephone is contained in the record.
It indicates the following:
tion
often provides beneficial information that assists with an
telephone provides the following: persons with whom the
perpetrator and victim recently spoke, time lines of the
perpetrator and victim, contacts and identities of persons with
possible information. Information from the telephone of
associates of the perpetrator and victim provides the following:
persons with whom the associate spoke with before, during and
after the commission of a crime and time lines of both the
with possible information. Your affiant feels this information is
extremely crucial and will benefit this investigation. It is also
ce that people who are fugitives from
justice or attempting to evade detection will often turn off their
cellular phones or remove their batteries in furtherance to avoid
detection.
Affidavit of Probable Cause, 7/3/12, at 2 (emphasis added).
Allegheny County Detective Anthony Perry explained at the
1
While the police indicated that the cell phone was in the pocket of the
shorts that they had placed on Appellee, the suppression court credited the
2
at the battery was removed from the cell
4/5/11, at 80.
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evidence for our case [--] to assist our
text messages, any contacts, photographs, videos, anything like that, of
which most of those items are very fragile. They could be deleted or
Id. at 12. When Detective Perry seized the
phone in question, he was aware that Ms. Gibson, one of the victims, had a
Id. at 12.
Detective Perry believed that the phone might contain evidence of contact
between Appellee and the victim before the murder. Id. He took the device
search warrant to get the information or any potential evidence off the
Id. at 12-13.
Detective Ruckel confirmed that police were aware that Appellee and
Ms. Gibson had a relationship. Ms. Clark had told them that Appellee was
past where [Appellee] had been abusive and hit Dashawna Gibson and also
Id. at 27.
In this case, the suppression court concluded that the police
improperly seized the cell phone. It noted that they did not have a search
warrant authorizing the seizure of that object and rejected the
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search incident to arrest on the basis that the cell phone was not within
stand. Finally, the
view doctrine, which was raised in a timely motion for reconsideration. The
suppression court concluded that the plain view doctrine was inapplicable
since the incriminatory nature of the cell phone was not readily apparent.
On appeal, the Commonwealth claims that the plain view doctrine
applied when police took the cell phone. The applicable scope and standard
of review is as follows:
When the Commonwealth appeals from a suppression
order, this Court follows a clearly defined scope and standard of
review. 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. This Court must first determine whether the
record supports the factual findings of the suppression court and
then determine the reasonableness of the inferences and legal
conclusions drawn from those findings.
Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa.Super. 2013)
(citation omitted).
As we observed in Commonwealth v. Anderson, 40 A.3d 1245,
1249 (Pa.Super. 2012) (citations omitted),
the plain view doctrine provides that evidence in plain view of
the police can be seized without a warrant . . . . The plain view
doctrine applies if 1) police did not violate the Fourth
Amendment during the course of their arrival at the location
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where they viewed the item in question; 2) the item was not
obscured and could be seen plainly from that location; 3) the
incriminating nature of the item was readily apparent; and 4)
police had the lawful right to access the item.
In this case, the police did not violate the Fourth Amendment during
the course of their arrival in the bedroom where they saw the seized object
since they had an arrest warrant for Appellee and were granted permission
cell phone was not obscured as it was laying on top of the nightstand. Since
police were lawfully in the bedroom, they had the legal right to obtain the
item. The issue herein is whether the incriminatory nature of the object was
readily apparent to police.
determining whether the incriminating
natur
all of the circumstances attendant to the situation. Commonwealth v.
Williams
an object is incriminating must be supported by probable cause. Id. The
merely requires that the facts
available to the officer would warrant a man of reasonable caution in the
belief, that certain items may be contraband or stolen property or useful as
evidence of a crime; it does not demand any showing that such a belief be
correct or more likely true than false. A practical, non-technical probability
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Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa.Super. 1995)
(citations and quotation marks omitted; emphasis in original).
Our Supreme Court discussed the evidentiary value of cell phones in
Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010). Therein, a search
inter alia,
any phones and pagers located therein. When executing the warrant, police
ed it. We suppressed
the phone after concluding that the warrant was not supported by probable
dormitory room since he was murdered blocks away from that location.
The High Court disagreed. It specifically held that evidence of a crime
provide leads with regard to any individuals who had spoken with or
Id. at 656. The Court also
held that the cell phone was properly seized by police under the plain view
doctrine.
This Court examined whether a cell phone was incriminatory in nature
and subject to seizure under the plain view doctrine in Commonwealth v.
McEnany, supra. In that case, police took possession of a cell phone that
was located in a van. They had obtained a warrant authorizing the search of
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the vehicle but that document did not delineate that a cell phone was an
object subject to seizure. We concluded that the cell phone was validly
taken under the plain view doctrine and that its incriminatory nature was
readily apparent. We observed that police had been told by one of the
rob her.
Applying the logic contained in those two decisions, it is evident herein
be useful as evidence of a crime. In a practical sense, it is probable that the
cell phone would contain useful information. Even though they did not have
specific information that Appellee telephoned either victim on the night of
the murder, as did the police in McEnany, the police in this case had other
facts at their disposal when they removed the cell phone from the house that
gave them probable cause to believe it might be useful as evidence in this
case.
Police were aware of the following when they took the phone. First,
Appellee and Ms. Gibson had previously been involved in an intimate
relationship that produced a child. The majority, in its analysis, overlooks
that Detective Kenneth Ruckel testified that he was aware that Appellee was
the father of
While I would agree that former lovers do not necessarily stay in touch with
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each other, people with a child have frequent contact with each other
regarding the well-being as well as custody arrangements for the child.
They were joint parents and had that extant relationship when the murder
occurred. Thus, in my view, the record supports that the cell phone would
likely reveal contact between the victim and the murderer. Moreover,
Appellee had been abusive toward Ms. Gibson and had threatened the other
victim, which also supported the reasonable supposition that he remained in
contact with the victims.
These facts all justify the belief of the police that the cell phone might
contain a record of Appellee contacting the victims prior to the murder.
Additionally, calls made by Appellee during the timeframe pertinent to the
murder investigation could reveal his location during those calls and provide
evidence that he was in the vicinity of the crime scene.
Also notable is the fact that the battery was removed from the cell
phone. As the search warrant indicates, batteries are removed by
removal from the cell phone gave police more reason to suspect that
Appellee was involved in the murders and that he was using his cell phone
during the relevant period that police were investigating.
The record herein also includes the search warrant and its affidavit
outlining the fact that people fleeing from police will remove batteries from
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their cell phones so police cannot locate them. The warrant with affidavit
was admitted into evidence at the suppression hearing, N.T. Suppression,
4/5/13, at 35, and its contents were not contradicted by any defense
The majority concludes that the Commonwealth waived the right to
rely upon the fact that battery removal is evidence that the owner of the cell
phone wanted to avoid detection by police. An appellant cannot waive facts.
Issues are waived, not record evidence. The legal issue is whether police
articulated a basis for concluding that the cell phone might have contained
useful evidence. The fact that the cell phone was disassembled supports
the legal argument that the cell phone may have contained evidence useful
to this murder prosecution. In my view, on appeal, the Commonwealth is
perfectly entitled to rely upon this fact of record to maintain that the
incriminatory nature of the cell phone was readily apparent to the two
officers in question
The holdings of Jones, supra, and McEnany, supra, simply cannot
logically be distinguished herein. Jones
telephone calls made by the victim of a murder, standing alone, renders the
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telephone calls made by the suspected perpetrator of the crime renders that
device incriminatory in nature. In this case, as in McEnany, there were
Ms. Gibson and
Appellee had an ongoing relationship due to their child, and Appellee was in
contact with both Ms. Gibson and Mr. Black.
The evidentiary value of cell phones cannot be overstated. As
crucial pieces of
Id. at 12. In my
the room where he was arrested with its battery removed when he had been
in ongoing contact with the victims is readily apparent.
As noted by the United States Supreme Co
Riley v. California, 134 S.Ct. 2473, 2485 (2014). The Court further
these devices are in fact minicomputers that also happen to have the
capacity to be used as a telephone. They could just as easily be called
cameras, video players, rolodexes, calendars, tape recorders, libraries,
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diaries, albums, televisions, maps, or ne Id. at 2489. The Court
picture messages, text messages, Internet browsing history, a calendar, a
thousand- Id.; see also id. at 2488-89(
id
on their person a digital record of nearly every aspect of their lives from
Indeed, the holding in Riley is premised upon the explicit
acknowledgement that cell phones contain such a vast amount of personal
data that the phone would undoubtedly contain evidence that is
incriminatory in nature. Id
reasonable to expect that incriminating information will be found on a phone
id
become important tools in facilitating coordination and communication
among members of criminal enterprises, and can provide valuable
incriminating information about dangerous crimi
the fact that so much personal information is contained in a cell phone that
police must obtain a warrant before exploring its contents. Id.- 12 -
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easily could have destroyed the phone if it had been left behind. As the
police actions in this case were above reproach, I would reverse the
suppression order herein, and therefore respectfully dissent.
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