Com. v. McCleary, J. ( 2018 )

J-A05005-18
2018 Pa. Super. 201
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOHN MCCLEARY : No. 244 EDA 2017
:
Appellee :
Appeal from the Order Entered December 7, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006625-2016
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
DISSENTING OPINION BY MURRAY, J.: FILED JULY 10, 2018
I would hold that the Commonwealth failed to meet its burden of proving
that the evidence was obtained lawfully from Appellee. Thus, because I would
affirm the order of the trial court granting suppression, I respectfully dissent.
Our Supreme Court has stated:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998) (citations
* Former Justice specially assigned to the Superior Court.
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omitted). “Moreover as factfinder, it is within the suppression court’s sole
province to pass on the credibility of witnesses and the weight to be accorded
their testimony. The factfinder is free to believe all, some, or none of the
evidence presented.” Commonwealth v. Griffin, 785 A.2d 501, 505 (Pa.
Super. 2001) (citation omitted). The voluntariness of a consent to search “is
a question of fact to be determined from the totality of the circumstances and
while knowledge of the right to refuse consent is a factor to consider in
determining whether consent to search was voluntarily and knowingly given,
it is not dispositive.” Commonwealth v. Witman, 750 A.2d 327, 338 (Pa.
Super. 2000).
Here, the trial court concluded that under the totality of the
circumstances, Appellee’s consent to search was coerced.1 The trial court
considered that the two officers asked Appellee multiple times2 whether they
could search the upstairs bedroom, that Officer Grover told Appellee after the
search that he “could have said no,” and the officers did not advise Appellee
before the search that he had a right to withhold consent, that anything found
could be used against him, and that he could consult an attorney or withdraw
consent. Trial Court Opinion, 4/26/17, at 3. The court also found that Officers
1 The Commonwealth states that it does not challenge the suppression of
Appellant’s statements that the suspected marijuana and crack cocaine were
his, based on a violation of Miranda v. Arizona, 384 U.S. 436 (1966).
Commonwealth’s Brief at 7 n.2.
2 Officers Grover and Baynes each asked Appellee twice if they could search
the bedroom. N.T., 12/7/16, at 22, 37, 66.
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Grover and Baynes failed to follow Philadelphia Police Directives (Directives),
which required them to notify a supervisor and obtain signed consent before
conducting a search, and to verify the existence of a protection from abuse
(PFA) order if, during a domestic dispute, one party avers that he has one
against the other.3 The court additionally emphasized that had the officers
properly verified the PFA, they would have known that Shavers should not
have been there and would have immediately removed her from the house,
and it would have been unnecessary to search the upstairs bedroom. Id. at
6-7; N.T. Suppression Hearing, 12/7/16, at 94-95. Finally, the trial court
recognized that “[i]t is not uncommon for someone who has a PFA against
them to have clothing in the place where they were removed from,” and
specifically found, after observing the officers’ testimony firsthand, that their
reason for searching the upstairs bedroom was “illusory.” N.T., 12/7/16, at
94.
Accordingly, I would hold, under the totality of the circumstances, that
the trial court did not err in finding that Appellee’s verbal consent was coerced.
Although the original police radio call was for a burglary in process, Officers
Grover and Baynes both testified that they determined, based on Appellee and
3At the suppression hearing, Officer Grover, a 10-year veteran of the force,
and Officer Baynes, a 9-year veteran, both denied familiarity with the
Directives. Furthermore, while Officer Baynes testified that he called a
supervisor and the supervisor arrived after Officer Baynes searched the
upstairs bedroom, Officer Grover testified that he did not consult a supervisor.
Id. at 39, 69.
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Shavers’ competing statements, that the dispute was whether Shavers had a
right to be at the house. While the officers’ stated reason for their search was
to verify whether Shavers indeed lived there, neither the absence nor
presence of women’s clothing or items in a bedroom, in itself, would verify
whether she had permission or a legal right to live at the house. In any event,
even if Shavers did technically live there, her right to be at the house would
be secondary to, as Appellee told the officers, the existence of a PFA order
against her. It was the trial court’s sole province to pass on the officers’
credibility and the weight to be accorded their testimony, and the court was
free to believe all, some, or none of the evidence presented. See Griffin, 785
A.2d at 505.
Furthermore, while the majority relies on, inter alia, Commonwealth
v. Ruey, 892 A.2d 808 (Pa. 2006) (OAJC), and Witman, supra, I believe
those cases may be distinguished on the facts. In Ruey, there was a defect
in the affidavit of probable for a search warrant — the affiant failed to indicate
the credibility of his source or the reliability of the information received. Ruey,
892 A.2d at 811. A plurality of our Supreme Court held that the defendant
was not prejudiced by these “technical violations,” and thus the evidence was
admissible.4 Id. at 814. In my estimation, the police violations in this case
4 Justice Newman wrote the opinion announcing the judgment of the court,
which was joined by Justice Baer. Justice Castille filed a concurring opinion,
which was joined by Justices Saylor and Eakin. Justice Saylor filed a
concurring opinion, which was joined by Justice Castille. Chief Justice Cappy
issued a dissenting opinion. Former Justice Nigro did not participate.
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— the failure to advise Appellee of any of his rights before obtaining consent
to search his home and the failure to follow the Directive to verify the
existence of a PFA — were not mere technical violations.
Additionally, in Witman, the defendant placed a 911 call for emergency
assistance for his minor brother, who was attacked and killed in their home.
Witman, 750 A.2d at 330. The police established the home as a crime scene,
the parents told police to do what they could to find their son’s killer, and the
police collected evidence from and around the house to investigate the
homicide. Id. at 332-33. After discovering some evidence, the defendant
was charged with killing his brother.5 Id. at 333-34. On appeal, this Court
affirmed the admission of the evidence, holding that “where a defendant has
summoned police and set the tone for the initial investigation,” he has
impliedly consented to a search of his home, and thus a search warrant is not
required. Id. at 335. The defendant in Whitman called the police to report
an attack on his brother and thus a search of the home was necessary to
investigate the homicide. In this case, Appellee requested police assistance
in removing Shavers from his home and then told Officers Grover and Baynes
that he had a PFA order against her. The trial court found, as discussed above,
that had the officers properly followed the Directives and verified that Appellee
5 After the detectives initially discovered some evidence, they obtained a
search warrant and then obtained additional evidence. Witman, 750 A.2d at
334.
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had an active PFA order, a search would not have been necessary. Under the
totality of these circumstances, I agree with the trial court that Appellee did
not provide valid consent to a search of his home. See Witman, 750 A.2d at
338.
For these reasons, I would affirm the order of the trial court granting
Appellee’s motion to suppress. Accordingly, I respectfully dissent.
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