Com. v. Murray, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
RONELL MICHAEL MURRAY,
Appellant No. 1666 WDA 2018
Appeal from the Judgment of Sentence Entered October 24, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009537-2017
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 16, 2019
Appellant, Ronell Michael Murray, appeals from the judgment of
sentence of 3-12 years’ incarceration, imposed following his conviction for
possession with intent to deliver (“PWID”) and possession of a controlled
substance.1 Appellant challenges the trial court’s denial of his motion to
suppress, as well as the admission of hearsay evidence during the suppression
hearing. After careful review, we affirm.
At the suppression hearing, Pittsburgh Police Detective John
Henson testified that on April 10, 2017, he received a telephone
call from Allegheny County Detective Romano and three FBI
special agents requesting that Detective Henson go to Magee
Hospital to pick up Appellant. [N.T. Suppression, 8/2/18, at 4-5.]
Detective Henson testified that Detective Romano told him
Appellant “had an active state parole violation warrant for his
arrest.” [Id. at 5.] Detective Romano informed Detective Henson
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1 35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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that [he] had searched NCIC, an electronic database widely used
by law enforcement personnel, and [that] the database confirmed
that Appellant had a state parole violation warrant. [Id. at 5-6.]
Detective Henson arrested Appellant and found heroin, cash and
a cell phone on a search incident to arrest. [Id. at 7.] Next, the
Commonwealth produced Exhibit One, which Detective Henson
identified as the active warrant for Appellant’s arrest filed through
the Pennsylvania State Correctional Institution and submitted to
NCIC. [Id. at 7-8.] Detective Henson testified that NCIC would
not show a probation violation that did not include an arrest
warrant. [Id. at 10.]
Trial Court Opinion (“TCO”), 4/15/19, at 3.
The Commonwealth charged Appellant with PWID-heroin and
possession of heroin on October 2, 2017. He filed a timely suppression motion
on May 16, 2018. Following a hearing held on August 2, 2018, the trial court
denied Appellant’s motion to suppress. The parties proceeded to a stipulated,
non-jury trial that began on October 22, 2018. On October 24, 2018, the trial
court convicted Appellant on both counts. The court sentenced him to 36-144
months’ incarceration for PWID-heroin, and to no further penalty for the
possession offense.
Appellant filed a timely notice of appeal, and a timely, court-ordered
Pa.R.A.P. 1925(b) statement. On April 15, 2019, the trial court issued its Rule
1925(a) opinion. Appellant now presents the following questions for our
review:
I. Under the Federal and Pennsylvania Constitutions, police must
have a valid warrant at the time they arrest an individual. The
Commonwealth did not present any physical evidence that a
warrant existed before [Appellant]’s arrest, and there was no
evidence to support an exception to the warrant requirement.
Accordingly:
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Did the Commonwealth’s testimony that a non-testifying detective
heard that a warrant existed fail to establish probable cause to
arrest [Appellant]?
II. The Commonwealth presented a detective’s testimony
concerning a statement by another, non-testifying detective about
information received by phone about the existence of an arrest
warrant for [Appellant] prior to his arrest. Accordingly:
Did the trial court abuse its discretion since such testimony was
inadmissible hearsay as it exceeded the scopes of course of
conduct and present sense impression testimony?
Appellant’s Brief at 5.
Essentially, Appellant argues that the Commonwealth failed to establish
at the suppression hearing that a warrant to arrest Appellant existed prior to
his arrest by Detective Henson. Because Pennsylvania does not recognize a
good faith exception to the warrant requirement,2 Appellant contends that the
fruit of that ostensibly illegal arrest, i.e., the seized heroin, should have been
suppressed, even if Detective Henson had reasonably relied on the information
he received from Detective Romano. Alternatively, Appellant contends that
the only evidence of the existence of the warrant—Detective Henson’s
testimony regarding the information he received from Detective Romano—was
inadmissible hearsay.
We begin by noting:
Our standard of review in addressing a challenge to a trial court’s
denial of a motion to suppress is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Because the
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2 “Article I, Section 8 of the Pennsylvania Constitution does not incorporate a
‘good faith’ exception to the exclusionary rule.” Commonwealth v.
Edmunds, 586 A.2d 887, 905–06 (Pa. 1991).
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prosecution prevailed in the suppression court, we may consider
only the evidence of the prosecution and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole. Where the record supports the
factual findings of the suppression court, we are bound by those
facts and may reverse only if the legal conclusions drawn from
them are in error.
Commonwealth v. Bell, 871 A.2d 267, 271 (Pa. Super. 2005) (citations
omitted).
In addition, “[i]t is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to
be given their testimony.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003). The suppression court is also
entitled “to believe all, part or none of the evidence presented.”
Commonwealth v. Benton, … 655 A.2d 1030, 1032 ([Pa.
Super.] 1995). Finally, at a suppression hearing, the
Commonwealth has the burden of “establish[ing] by a
preponderance of the evidence that the evidence was properly
obtained.” Commonwealth v. Culp, … 548 A.2d 578, 581 ([Pa.
Super.] 1988).
Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011).
Instantly, Appellant argues:
[Detective] Henson lacked personal knowledge about state parole
warrants and relied on the statement of a non-testifying witness
who had received information over the phone that a warrant
existed. This testimony amounts to nothing more than a good
faith belief that a warrant existed prior to arrest. As such, the
Commonwealth failed to establish that police had an arrest
warrant or an applicable exception to detain [Appellant], and the
trial court’s order denying suppression must be reversed.
Appellant’s Brief at 11.
The trial court determined that a valid warrant existed prior to
Appellant’s arrest:
This [c]ourt found the Detective’s testimony credible that
Appellant had an active warrant. The undisputed evidence
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indicates that Appellant had an active warrant but the officer who
looked at NCIC personally was not called as a witness. Appellant’s
argument that this testimony is required is incorrect. The officer’s
testimony was more than sufficient to support a finding that the
officer knew that a warrant was outstanding for Appellant’s arrest.
TCO at 4. The Commonwealth agrees with the trial court, adding that “the
prosecution not only offered testimony from Detective John Henson, the
arresting officer, that established that he had knowledge of the outstanding
warrant at the time of arrest, but it also produced a copy of the warrant itself.”
Commonwealth’s Brief at 7.
At the suppression hearing, the Commonwealth’s burden was to
establish that the arrest was lawful by a preponderance of the evidence. See
Culp, 548 A.2d at 581. A copy of the warrant issued by the Commonwealth
of Pennsylvania Board of Probation and Parole was entered into evidence at
the suppression hearing as Commonwealth Exhibit 1. N.T., 8/2/18, at 7-8.3
The warrant is dated April 10, 2017, the date of Appellant’s arrest. The
document is time-stamped 8:10 p.m., which was when it was faxed to
Detective Henson. However, the document does not specifically indicate a
time when it was issued. Thus, Appellant argues that it is possible that the
warrant could have been issued after he was arrested.
Detective Henson testified, however, that the only way Appellant would
show up in the NCIC system is if a warrant had, in fact, already been issued.
Id. at 9-10. The trial court found this evidence credible based on its own
experience with the NCIC system. Id. at 14. Moreover, the trial court
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3 Appellant provides a copy of the warrant as Appendix D to his brief.
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necessarily found Detective Henson’s testimony credible that he only
effectuated the arrest warrant after learning of its existence in the NCIC
system from Detective Romano.
We agree with the trial court that this evidence was sufficient to satisfy
the Commonwealth’s burden of proof. A warrant was issued on the day of
Appellant’s arrest, and Detective Henson received word that Appellant was in
the NCIC system, therefore demonstrating that a warrant had already been
issued. While it is possible that Detective Henson was mistaken or lying, the
trial court was free to find instead that his testimony was credible. See
Elmobdy, 823 A.2d at 183. Furthermore, while the Commonwealth failed to
produce absolute proof of the warrant’s existence prior to Appellant’s arrest,
we ascertain no abuse of discretion in the trial court’s determination that it
was more probable than not that it had been, in the circumstances of this
case. See Commonwealth v. $6,425.00 Seized From Esquilin, 880 A.2d
523, 529 (Pa. 2005) (“A preponderance of the evidence [standard] is
tantamount to a ‘more likely than not’ standard.”). Accordingly, we conclude
that Appellant’s first claim lacks merit.4
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4 Appellant asserts that our decision to affirm under the facts of this case
“would all but eviscerate the warrant requirement under the Pennsylvania and
Federal Constitutions as the Commonwealth, in lieu of producing the warrant,
could merely present a witness who heard another claim to know of … a
warrant for the defendant’s arrest at some unspecified time prior to a search
or arrest.” Appellant’s Reply Brief at 4 (footnote omitted). We disagree.
Here, the Commonwealth produced an arrest warrant issued on the same day
of Appellant’s arrest. Thus, the trial court did not solely rely on Detective
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Next, Appellant contends that the trial court erred when it overruled his
hearsay objection to Detective Henson’s testimony regarding the
communication he received from Detective Romano.
In reviewing a trial court’s ruling on the admissibility of evidence,
our standard of review is one of deference. Questions concerning
the admissibility of evidence are within the sound discretion of the
trial court, and its discretion will not be reversed absent a clear
abuse of discretion. An abuse of discretion is not merely an error
of judgment, but is rather the overriding or misapplication of the
law, or the exercise of judgment that is manifestly unreasonable,
or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record. Furthermore, if in reaching a conclusion
the trial court overrides or misapplies the law, discretion is then
abused and it is the duty of the appellate court to correct the error.
Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014)
(cleaned up).
“Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted in the statement.” Commonwealth v. Laich, 777 A.2d
1057, 1060 (Pa. 2001). Hearsay is inadmissible, see Pa.R.E. 802, unless an
exception applies, see e.g., Pa.R.E. 803, 803.1, 804.
The trial court admitted Detective Henson’s testimony as non-hearsay
and/or under the presence-sense-impression exception to the hearsay
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Henson’s testimony or the hearsay elements contained therein in determining
that the warrant existed. Instead, the court relied on Henson’s testimony in
conjunction with the warrant to establish the additional fact that it was more
likely than not that the warrant was issued prior to Appellant’s arrest. We do
not suggest by our decision today that we would reach the same conclusion
had the Commonwealth failed to produce a warrant at the suppression
hearing, or if the warrant clearly evidenced that it had been issued after the
arrest.
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requirement. See TCO at 4; Pa.R.E. 803(1) (“A statement describing or
explaining an event or condition, made while or immediately after the
declarant perceived it.”). However, we find it unnecessary to address the
admissibility of Detective Henson’s testimony regarding his conversation with
Detective Romano in the circumstances of this case, as it is clear that, even if
inadmissible to prove the existence of the warrant, we agree with the
Commonwealth that any error was harmless because the warrant itself was
introduced at the suppression hearing.
Harmless error exists if the state proves either: (1) the error did
not prejudice the defendant or the prejudice was de minimis; or
(2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence;
or (3) the properly admitted and uncontradicted evidence of guilt
was so overwhelming and the prejudicial effect of the error was
so insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017) (cleaned up)
(emphasis added).
The Commonwealth argues:
[I]t should be noted that where the result at a suppression hearing
would have been the same with or without the inadmissible
evidence, the error in admitting the evidence is deemed to be
harmless. Here, Judge Rangos, immediately upon announcing her
decision that she was denying suppression, indicated that she
found significant “the fact that the warrant is dated on the day
that [Appellant] was arrested” [N.T. Suppression at 19]. The
Commonwealth would submit that, even absent Detective
Romano’s statement made prior to [Appellant]’s arrest that there
was an active warrant for him, there was sufficient proof of the
warrant’s existence-namely, the warrant itself dated April 10,
2017, which, as established previously, the prosecution entered
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into evidence at the hearing. Thus, because suppression would
not have been proper even without the at-issue statement, any
error in admitting it would have been harmless.
Commonwealth’s Brief at 16-17.
We agree with the Commonwealth. The at-issue hearsay testimony
about the warrant was largely duplicative of the evidence of the warrant itself.
Moreover, hearsay testimony is generally admissible to prove that an officer
had probable cause to arrest, because
[t]here is a vast difference between the sufficiency of hearsay
information necessary to show probable cause for an arrest and
the factors relating to admissibility of hearsay evidence to prove
an accused’s guilt at trial. The test for probable cause to arrest is
not one of certainties, but rather of probabilities dealing with the
considerations of everyday life.
Commonwealth v. Jenkins, 431 A.2d 1023, 1025 (Pa. Super. 1981)
(quotation marks omitted).
This reasoning applied in Jenkins regarding hearsay evidence tending
to support a showing of probable cause also applies to the evidence of the
existence of a warrant in the context of the Commonwealth’s burden of proof
at a suppression hearing. Thus, the Commonwealth was only required to
prove that it was more likely than not that the warrant existed prior to
Appellant’s arrest. To the extent that the at-issue testimony was admitted for
the truth of the matter asserted as Appellant contends, any such error was
harmless where, here, the actual warrant for Appellant’s arrest was also
admitted at the suppression hearing and was “substantially similar to the
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erroneously admitted evidence.”5 Burno, 154 A.3d at 787. Accordingly, we
deem any error in the admission of the hearsay testimony regarding the
warrant to be harmless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2019
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5 We acknowledge that the admitted warrant did not specify the time when it
was issued. However, Appellant has failed to provide any case law suggesting
that such specificity is required beyond a date of issuance, the presence of
which is undisputed in this case. Moreover, the warrant did not contain a time
or date of issuance that was at odds with Detective Henson’s testimony, as
the 8:10 p.m. transmission time was not inconsistent with the warrant itself
having been issued prior to Appellant’s arrest. Accordingly, the physical
evidence—the warrant—was substantially similar to the evidence of the same
provided by Detective Henson’s testimony.
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