Com. v. Bowens, T. ( 2020 )

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2020 PA Super 9COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY BOWENS :
:
Appellant : No. 341 MDA 2018
Appeal from the Judgment of Sentence Entered October 23, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007390-2016
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY DUBOW, J.: FILED JANUARY 17, 2020
Appellant, Terry Bowens, appeals from the Judgment of Sentence of
15¾ to 31½ years’ incarceration entered after a jury found him guilty of two
counts of Possession With Intent to Deliver (“PWID”), and one count each of
Conspiracy to PWID, Receiving Stolen Property, Firearms Not to be Carried
without a License, and Possession of Drug Paraphernalia.1 He challenges, inter
alia, the denial of his suppression motion and the sufficiency of the evidence
supporting the possession element of his convictions. After careful review, we
conclude the trial court erred in failing to suppress the evidence obtained from
Appellant’s cell phone after the search warrant had expired. In addition, we
conclude as a matter of law that the Commonwealth failed to prove that
Appellant constructively possessed the items found in the locked glove box.
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135 P.S. § 780-113(a)(16) and (30); 18 Pa.C.S. § 903; 18 Pa.C.S. § 3925(a);
18 Pa.C.S. § 6106(a)(1), and 35 P.S. § 780-113 (a)(32), respectively.
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* Former Justice specially assigned to the Superior Court.
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We, thus, reverse the denial of the motion to suppress and convictions of
PWID, Receiving Stolen Property, Firearms Not to be Carried without License,
and Possession Drug Paraphernalia.
We glean the following relevant facts from the certified record. On
October 12, 2016, Pennsylvania State Police Trooper Wesley Johnson
observed a vehicle abruptly change lanes from the passing lane to the right
lane, nearly hitting another vehicle. After activating the emergency lights on
his vehicle, Trooper Johnson observed Maxi Echevarria, the driver of the
vehicle, reaching over towards the glove box as he pulled the car onto the
shoulder of the road. Appellant was sitting in the front passenger seat. While
speaking with the men in the car, Trooper Johnson noticed that they were
acting nervously. Mr. Echevarria informed the officer that the car belonged to
his girlfriend in New Jersey. He also stated that he and Appellant were
travelling from York City to Lancaster, and then on to Chester or Philadelphia.
While Trooper Johnson was speaking to Appellant and Mr. Echevarria on
the side of the road, another officer learned of arrest warrants outstanding for
both men. Trooper Johnson then took the men into custody and took
possession of their cell phones. Trooper Johnson set Appellant’s phone to
airplane mode and placed it inside an aluminum foil-lined pouch for
safekeeping.
Trooper Johnson then impounded the vehicle and conducted an
inventory search. The glove box was locked; both Appellant and Mr.
Echevarria denied having the key to open the glove box and denied knowing
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its contents.2 Trooper Johnson contacted Mr. Echevarria’s girlfriend, located in
New Jersey, who gave him permission to search the glove box, stating that
Mr. Echevarria had the key.
Trooper Johnson nonetheless obtained a search warrant for the glove
box on October 13, 2016, and discovered, inter alia, heroin, drug
paraphernalia, and two firearms. Consequently, on October 14, 2016, Trooper
Johnson obtained a search warrant for the cell phones and provided it that
day to Detective Mark Baker of the Northern York County Regional Police
Department, a forensic expert in the field of cell phone data extraction. The
search warrant expired on October 16, 2016, at 10:45 AM.
On October 20, 2016, Detective Baker notified Trooper Johnson that he
had completed the cell phone extraction, which revealed text messages
between Mr. Echevarria and Appellant using language common to the illicit
drug trade. Appellant’s phone also contained photographs of cash, and of a
handgun similar to that found in the glove box.
The Commonwealth charged Appellant with the above offenses.
Appellant and co-defendant Mr. Echevarria filed a pre-trial Omnibus Motion in
which Appellant sought, inter alia, suppression of the evidence seized from his
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2 Trooper Johnson particularly noticed that Mr. Echevarria became very
nervous when the glove box came up in their conversation. See N.T. Trial,
4/6/17, at 15. Police officers later discovered the key to the glove box
“secreted in” Mr. Echevarria’s sweatshirt. N.T. Suppression, 2/28/17, at 14-
15, 81.
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cell phone because the search warrant expired before the police searched his
phone.
After the hearing, the suppression court denied the Motion in part and
granted it in part. The court found that Detective Baker had conducted the
cell phone search on October 20, 2016, four days after the warrant had
expired. However, the court concluded that because the phone had been in
police custody since its seizure on October 12, 2016, and frozen in airplane
mode, there were no “staleness concerns that would be present in other
factual scenarios where the probable cause determination would have
expired.” Suppression Ct. Op., dated 6/6/17, at 10. The court also found that
the delay in searching the phone “was a product[] of coordination delays
between the police possessing the software and [the] expertise to do the job.”
Id. at 11. The court directed, however, that any information that was sent to
the phone after 10:45 AM on October 16, 2016, i.e., after the warrant expired,
would be inadmissible at trial. Id.
Appellant’s trial commenced.3 The Commonwealth presented testimony
from Trooper Johnson, Detective Baker, and Detective Craig Fenstermacher,
an investigator with the York County District Attorney’s Office and an expert
in the field of drug interdiction. Trooper Johnson testified regarding the
circumstances leading up to and including the traffic stop. The Commonwealth
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3Mr. Echevarria entered a guilty plea immediately before the start of the trial.
He did not testify at Appellant’s trial.
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introduced the cell phone extraction report through Detective Baker’s
testimony regarding the method of extraction utilized. The report contained a
packet of printouts showing, inter alia, approximately 4000 images extracted
from Appellant’s cell phone, including text messages and photos.
Following Officer Baker’s testimony, the court ruled on the
authentication and admissibility of 44 text messages. Detective Fenstermaker
then testified regarding the admitted messages and the drug language used
therein. Trooper Johnson testified regarding the synchronicity of the text
messages between Mr. Echevarria’s and Appellant’s cellphones. N.T. Trial at
234-35.
The jury found Appellant guilty of all of the above charges. The court
ordered a pre-sentence report and subsequently sentenced Appellant to an
aggregate term of 15 years 9 months’ to 31 years 6 months’ incarceration.
Appellant filed a timely Post-Sentence Motion challenging the
discretionary aspects of his sentence, which the trial court denied. He then
filed this timely appeal.4
In his Brief, Appellant raises the following issues for our review:
1. Did the trial court err in failing to suppress the fruits of a search
of a cell phone backed with a warrant that had expired by the time
the search was executed?
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4 Appellant submitted a timely Pa.R.A.P. 1925(b) Statement; the trial court
filed a Rule 1925(a) Opinion.
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2. Did the court err in finding incriminating text messages had
been authenticated for use against [Appellant] where the
messages did not reveal their author and evidence showed others
used the phone in question?
3. Was there insufficient evidence that [Appellant] possessed the
guns, drugs, and paraphernalia found in the locked glove
compartment of the car he was riding in where all indicia of ability
and intent to exercise dominion and control over these items
related to the driver?
4. Was there insufficient evidence that [Appellant] knew or
believed the Ruger handgun was probably stolen where there was
no evidence of when, where, or how the gun was stolen and its
serial number was intact?
5. Did the sentencing court abuse its discretion in imposing three
times the recommended incarceration, including multiple
consecutive terms, based in part on convictions that were already
included in [Appellant’s] prior record score and the unsupported
notion that [Appellant] was the leader in a criminal enterprise?
Appellant’s Brief at 5.
Warrantless Search
Appellant first challenges the denial of his Motion to Suppress the
information obtained from his cell phone, contending that because the search
warrant expired four days before Officer Baker extracted the data on October
20, 2016, the search was “functionally warrantless” and the court should have
suppressed the evidence. See Appellant’s Brief at 28-30. We agree.
In reviewing the trial court’s decision to deny a motion to suppress, we
must determine “whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct.” Commonwealth v. Freeman, 150 A.3d 32, 34 (Pa. Super.
2016). See also Commonwealth v. Batista, __ A.3d ___, ___ , 2019 WL
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4727297 at *6 (Pa. Super. filed Sept. 27, 2019) (observing that “our standard
of review is highly deferential with respect to the suppression court’s factual
findings and credibility determinations”) (citation omitted)). The conclusions
of law of the court below are subject to plenary review on appeal.
Commonwealth v. Hopkins, 164 A.3d 1133, 1136 (Pa. 2017).
Further, “[b]ecause the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole.” Freeman, supra at 34. We
may not consider evidence outside the suppression hearing record. In Re
L.J., 79 A.3d 1073, 1085 (Pa. 2013).
Our rules of criminal procedure provide numerous rules pertaining to
search warrants to protect our constitutional right to be free from
unreasonable government intrusions into our private affairs. See Pa.R.Crim.P.
200-212; U.S. Const. amend. IV; PA Const. Art.1 §8. As the Pennsylvania
Supreme Court recently noted in Commonwealth v. Fulton, 179 A.3d 475(Pa. 2018), “[s]tate rules often implicate constitutional values, and the
violation of a state rule may rise to the level of a federal constitutional
violation,” and “a more relaxed harmless error standard for errors perceived
as violations of state rules, but which might also be violations of the federal
Constitution, would leave constitutional values inadequately protected.” Id.
at 493 (quoting Commonwealth v. Story, 383 A.2d 155, 163 (Pa. 1978)).
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Relevant to this appeal, Pa.R.Crim.P. 205(A)(4) provides that the
authority issuing the search warrant must direct that the search be conducted
“within a specified period of time, not to exceed 2 days from the time of
issuance.” Our judicially created rules do not provide any exceptions to the
requirement that the search be conducted within the mandated period of time
contained within a search warrant. Thus, because Rule 205 specifically
“implicate[s] constitutional values,” the failure to adhere to that time-
limitation in conducting the search “rises to the level of a federal constitutional
violation.” Fulton, supra at 493.
In Fulton, the Court held that accessing any information from a cell
phone without a warrant violates the Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. at
479, 489. Relying on the United States Supreme Court's decision in Riley v.
California and United States v. Wurie, 573 U.S. 373 (2014), our Supreme
Court observed, “that in the absence of an applicable exception, any search
of a cell phone requires a warrant. This is because, like one’s home, an
individual's expectation of privacy is in the cell phone itself, not in each and
every piece of information stored therein.” Fulton, supra at 487 (emphasis
in original).
“[P]robable cause alone will not support a warrantless search.”
Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa. Super. 2013). Thus,
“absent consent or exigent circumstances,” police officers may not conduct a
search without a warrant “even where probable cause exists.” Id. (citation
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omitted). “Evidence of any kind obtained by police through an unlawful search
may not be used in any respect, including as evidence at trial against the
subject of the search.” Fulton, supra at 489 (citing Wong Sun v. United
States, 371 U.S. 471, 484-85 (1963)).
Here, the search warrant expired on October 16, 2016, at 10:45 AM.
The trial court found, as a matter of fact, that the search occurred on October
20, 2016, four days after the warrant had expired. Accordingly, Detective
Baker conducted the cell phone search without a valid warrant.
Where a search occurs without a warrant, the evidence obtained
therefrom must be excluded, unless the evidence was obtained under one of
the exceptions to warrant requirements. See, e.g., Commonwealth v.
Roland, 637 A.2d 269 (Pa. 1994) (exigent circumstances: where the loss of
evidence before warrant can be obtained is likely); Commonwealth v. Gary,
91 A.3d 102 (Pa. 2014) (adopting the federal rule where exigent circumstance
exists based solely on the mobility of the vehicle); Commonwealth v.
McCree, 924 A.2d 621 (Pa. 2007) (plain view exception); See also
Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa. 1991) (holding that
the good-faith exception to the exclusionary rule does not exist in
Pennsylvania).
In the instant case, there are no applicable exceptions to the
exclusionary rule. The cell phone data was not in plain view, and because the
cell phone was in PSP custody and set in airplane mode, exigency and mobility
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of the evidence were not a concern. The trial court, thus, correctly determined
that the police officer improperly conducted the search without a warrant.
Notwithstanding that determination, the suppression court concluded
that the error was harmless because there were no staleness concerns with
respect to the probable cause determination. See Tr. Ct. Order and Supporting
Memorandum, 6/6/17 at 9; Rule 1925(a) Opinion, 3/27/19, at 11-12.
However, as noted above, “probable cause alone will not support a warrantless
search.” Johnson, 68 A.3d at 935.
Moreover, “an error cannot be held harmless unless the appellate court
determines that the error could not have contributed to the verdict. Whenever
there is a ‘reasonable possibility’ that an error ‘might have contributed to the
conviction,’ the error is not harmless.” Fulton, supra at 493 (citations
omitted). In considering whether an error is harmless, the Fulton court
emphasized the following factors courts must consider:
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.
Id. at 493 (emphasis in original; citations omitted) (relying on Story, 383
A.2d at 164-167).
In the instant case, the suppression court did not consider the above
analysis in reaching its conclusion that the error was harmless. The evidence
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from the cell phone extraction was the only evidence the Commonwealth
presented to support its conspiracy charge. Accordingly, applying the first
factor of the harmless error analysis to the facts of this case, there is no doubt
that the error of admitting the evidence prejudiced Appellant and the prejudice
was not de minimus.
The Commonwealth raises, for the first time in its Brief, that the error
was a mere “technical violation of the rules of criminal procedure,” relying on
a factually distinguishable case. Commonwealth’s Brief at 25 (citing
Commonwealth v. Knoble, 188 A.3d 1189 (Pa. Super. 2018), appeal
denied, 198 A.3d 332 (Pa. 2018)).5 We disagree with the Commonwealth’s
characterization: the violation here was the failure to follow a court’s order to
conduct the search by October 16, 2016, at 10:45 AM. The failure to abide by
a search warrant’s requirements—requirements that are judicially-mandated
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5 In Commonwealth v. Knoble, 188 A.3d 1199 (Pa. Super. 2018), appeal
denied, 198 A.3d 332 (Pa. 2018), police officers conducted their extraction of
cell phone data pursuant to a valid warrant within the time indicated on the
warrant. Nine months later, the appellant requested another copy of the data,
even though the data had already been provided to him. Due to the loss of
the stored data from the forensic police officer’s hard drive, the officer
conducted another extraction in order to fulfill the appellant’s request.
Because the extraction software had been automatically updated during the
nine-month period, the second extraction recovered incriminating video that
had not been recovered in the first extraction. The appellant unsuccessfully
sought to exclude that video, raising a claim of unreasonable governmental
intrusion. Because the second extraction occurred at the behest of the
appellant, Knoble is not dispositive here.
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so as to ensure protection of constitutional rights—are not “technical violations
of the rules of criminal procedure.”
Accordingly, because the police officers here conducted a warrantless
search of the cell phone, and the facts present no exception to the
exclusionary rule, we conclude the court erred in admitting the evidence
extracted from the cell phone.6
Constructive Possession
Appellant next asserts that the Commonwealth failed to provide
sufficient evidence of possession to support his convictions of the drug and
firearms offenses. He contends that, because police officers recovered no
drugs, drug paraphernalia, or firearms from his person, and he did not have
access to the contents of the locked glove box because he did not have the
key, the Commonwealth failed to prove the “essential element of possession”
and, therefore, each of his convictions in which possession is an element
should be vacated. Appellant’s Br. at 43. Based on our review and application
of precedential case law, we agree.
Evidentiary sufficiency is a question of law; thus, our standard of review
is de novo, and our scope of review is plenary. Commonwealth v. Diamond,
83 A.3d 119, 126 (Pa. 2013). In determining whether the evidence was
sufficient to support a verdict, we view the evidence and all reasonable
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6Because the trial court erred in admitting the evidence extracted from the
cell phone, we need not review Appellant’s second issue challenging the trial
court’s authentication of the admitted text messages and photos.
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inferences to be drawn therefrom in the light most favorable to the verdict
winner, the Commonwealth herein. Commonwealth v. Watley, 81 A.3d
108, 113 (Pa. Super. 2013) (en banc). “Evidence will be deemed sufficient to
support the verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a reasonable
doubt.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)
(citations and internal quotations omitted).
Appellant challenges the possession element of each of the crimes
charged. To convict a person of PWID, the Commonwealth must prove beyond
a reasonable doubt that the person possessed a controlled substance with the
intent to deliver it and without legal authorization to do so. 35 P.S. § 780-
113(a)(30). See Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa.
Super. 2005). A person will be guilty of the offense of Firearms Not to be
Carried Without a License if the individual carries a firearm “concealed on or
about his person” without a valid license. 18 Pa.C.S. § 6106(a). With respect
to the drug paraphernalia conviction, 35 P.S. § 780-113(32) prohibits one
from, inter alia, possessing drug paraphernalia for the purpose of “ packing, .
. . storing, containing, concealing . . . a controlled substance.” Drug
paraphernalia includes bags used to package and store illegal drugs.
Commonwealth v. Torres, 617 A.2d 812, 815-16 (Pa. Super. 1992).
It is well-settled that when an individual is found guilty of possessing
contraband which was not found on his person, as in the case now before us,
the Commonwealth is required to prove that he had constructive possession
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or joint constructive possession of the contraband. Bricker, 882 A.2d at 1014.
Constructive possession is a legal fiction; it is an inference from a set of facts
that the defendant more likely than not had control of contraband that was
not found on his person. Commonwealth v. Mudrick, 507 A.2d 1212, 1213
(Pa. 1986). The Pennsylvania Supreme Court defines constructive possession
as “conscious dominion,” which is “the power to control the [contraband] and
the intent to exercise that control.” Commonwealth v. Johnson, 26 A.3d
1078, 1093 (Pa. 2011) (citation and quotation omitted).
However, a person’s presence in a place where the drugs are found,
standing alone, will not establish constructive possession. Commonwealth
v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001). See Commonwealth
v. Valette, 613 A.2d 548, 550 (Pa. 1992) (noting that “[i]t is well settled that
facts giving rise to mere ‘association,’ ‘suspicion’ or ‘conjecture’ will not make
out a case of constructive possession.” (citations omitted)). The
Commonwealth must prove some additional factor linking the defendant to
the drugs, such as finding the contraband in plain view, finding the contraband
within the defendant’s personal effects or in a place where only the defendant
had access, and observing the defendant acting suspiciously before or during
the arrest. See, e.g., Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.
Super. 2003) (concluding that the appellant had constructive possession of
drugs which were found in plain view in the back seat of a vehicle);
Thompson, supra at 1199-1200 (concluding that the appellant’s furtive
movements, along with his proximity to the cocaine and his admission that
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other drugs could be found in the location where the cocaine was found,
evidenced joint constructive possession); Commonwealth v. Micking, 17
A.3d 924, 926 (Pa. Super. 2011) (concluding that testimony regarding a
defendant’s display of extreme nervousness is admissible as evidence of
consciousness of guilt in a constructive possession determination).
This Court has reversed convictions after concluding, as a matter of law,
that the Commonwealth did not present sufficient evidence to prove
constructive possession. For instance, in Commonwealth v. Boatwright,
453 A.2d 1058 (Pa. Super. 1982), police responded to a tip about three
suspicious men in an automobile. When they arrived on the scene, they
observed the defendant in the front passenger seat, one individual in the
driver's seat, and one in the back seat. Police observed the defendant's body
moving to the left-rear of the vehicle, where soon thereafter, they discovered
a firearm. The defendant was convicted of a firearm offense based on his
constructive possession of that firearm. This Court reversed, reasoning:
Because the firearm was not found on [Boatwright's] person, he
could properly be convicted only if the Commonwealth proved
joint constructive possession with the other occupants of the
vehicle. To do this, the Commonwealth must present evidence to
show that [Boatwright] had both the power to control the firearm
and the intent to exercise that control. Mere presence at the scene
where the gun was found is not sufficient. The only evidence other
than mere presence was [an officer's] testimony that [Boatwright]
made a movement toward the left rear of the vehicle. This
evidence cannot provide proof beyond a reasonable doubt that
[Boatwright constructively] possessed the firearm in question.
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Id. at 1059 (citations omitted).
In Commonwealth v. Davis, 280 A.2d 119 (Pa. 1971), our Supreme
Court concluded that the defendant was a “mere visitor” to the building in
which stolen dresses were seized. Id. at 121. The Court found that the
Commonwealth failed to present sufficient evidence that the appellant had
ever “received” the stolen goods because his paramour, who was not a co-
defendant, had the only key to the locked cupboard where the stolen goods
were discovered. The Commonwealth had presented no evidence that the
appellant had access to the key or control over the stolen goods. Id.7
In the case now before us, the trial court addressed Appellant’s
constructive possession challenge by explaining, inter alia, that Appellant had
exhibited an “unusual level of nervousness” during the traffic stop, and “the
items were accessible to Appellant by getting the key from his alleged co-
conspirator, Mr. Echevarria, who was sitting next to him in the car.” Trial Ct.
Op., 3/27/19, at 13-14.
As a matter of law, the trial court’s speculation and conjecture that
Appellant could have asked Mr. Echevarria for the key is not proof that
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7 Cf. Commonwealth v. Peters, 218 A.3d 1206 (Pa. 2019) (discussing
constructive possession generally and rejecting constructive possession as a
theory upon which to find criminal liability under 18 Pa.C.S. § 6106, carrying
a concealed firearm on one’s person, where only the unidentified assailant,
and not the defendant, carried and used a gun during an attempted murder
and robbery).
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Appellant had dominion and control over the contraband. Further, we do not
agree that the Commonwealth proved that Appellant had constructive
possession of the contraband at the time of the traffic stop. The
Commonwealth was required to provide evidence that Appellant had dominion
and control over the contraband in the locked glove box. However, as Trooper
Johnson testified, the key to the locked glove box was “secreted” in Mr.
Echevarria’s sweatshirt. N.T. Suppression at 14-15, 81. The Commonwealth
did not provide any evidence that Appellant had access to that key. Moreover,
the Commonwealth presented no evidence to demonstrate that Appellant had
control over that contraband. Rather, the Commonwealth proved only
Appellant’s mere presence in the vehicle at the time of the traffic stop.
Accordingly, we reverse Appellant’s convictions for PWID, Possession of
Drug Paraphernalia, Receiving Stolen Property, and Possession of Firearms,
and direct the trial court to enter a Judgment of Acquittal on those offenses.8
Judgment of Sentence vacated. Denial of Suppression Motion Reversed.
Case remanded for a new trial on the Conspiracy offense. Convictions for
PWID, Possession of Drug Paraphernalia, Receiving Stolen Property, and
Possession of Firearms reversed and Judgment of Acquittal on those offenses
to be entered by trial court. Jurisdiction relinquished.
President Judge Emeritus Gantman joins the opinion.
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8 In light of our disposition, we need not address Appellant’s remaining issues.
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President Judge Emeritus Stevens files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/17/2020
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