Com. v. Borrajo, J. ( 2020 )


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  • J-S71027-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JOSEPH D. BORRAJO,                         :
    :
    Appellant               :   No. 1331 EDA 2019
    Appeal from the Judgment of Sentence Entered November 20, 2018
    In the Court of Common Pleas of Bucks County Criminal Division at
    No(s): CP-09-CR-0008420-2017
    BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
    MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 12, 2020
    Joseph D. Borrajo (Appellant) appeals from the judgment of sentence
    imposed after a jury convicted him of theft by unlawful taking, receiving stolen
    property, and criminal conspiracy.1 We affirm.
    We adopt without repeating the trial court’s comprehensive recitation of
    the underlying facts and procedural history. See Trial Court Opinion, 7/10/19,
    at 1-8. In this timely appeal, Appellant presents the following issues for our
    review:
    A. Whether Appellant’s cell site location records should have been
    suppressed pursuant to the Fourth Amendment to the United
    States Constitution and Article I, Section 8 of the Pennsylvania
    Constitution?
    B. Whether the Honorable Trial Court erred when it imposed an
    illegal sentence of restitution in the amount of $2,199.99 when
    ____________________________________________
    1   18 Pa.C.S.A. §§ 3921(a), 3925(a), 903(a).
    J-S71027-19
    the jury found Appellant guilty of theft, receiving stolen
    property, and conspiracy to commit receiving stolen property
    in the amount of less than $2,000?
    C. Whether the Honorable Trial Court erred when it imposed a
    sentence of $2,199.99 in restitution when said amount was not
    supported by the record?
    Appellant’s Brief at 4.
    Appellant first argues that the trial court erred in denying his motion to
    suppress the evidence of his historical cell phone site location information (the
    cell site evidence), because the evidence was unlawfully obtained without a
    search warrant, in contravention of the decision of the United States Supreme
    Court in Carpenter v. United States, 
    138 S. Ct. 2206
    (2018).                See
    Appellant’s Brief at 12-22. 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 2221. According to Appellant, suppression of the cell site evidence was
    necessary where:
    (1) Detective John Burke initially obtained the cell site evidence,
    on July 12, 2017, pursuant to the Wiretapping and Electronic
    Surveillance Control Act, see 18 Pa.C.S.A. § 5743(c), and the
    Stored Communications Act, see 18 U.S.C.A. § 2703
    (collectively referred to as “the Wiretap Acts”), which permit
    a government entity to obtain disclosure of the records of a
    an electronic communications service provider based on a
    showing that there are specific and articulable facts that
    demonstrated reasonable grounds for believing that the
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    records are material to an ongoing investigation, which is a
    lesser standard than that mandated by Carpenter;2 and
    (2) The fact that Detective Burke later obtained a search warrant
    for the cell site evidence following Carpenter is unavailing,
    as the Commonwealth cannot cure a prior illegality to obtain
    evidence in this manner.
    See Appellant’s Brief at 12-19, 22. Additionally, Appellant contends:
    By the time[] [that] the Commonwealth sought the search
    warrant, it had information from the cell[] [site evidence, i.e.,
    which the police had previously obtained via the Wiretap Acts
    Order,] contradicting the complainant’s statements as to
    Appellant’s contact with her the day of the burglary.       The
    complainant’s assertions that Appellant was contacting her [on]
    the day of the burglary to ascertain her location were used to
    establish probable cause for the warrant.
    
    Id. at 19.
    We review Appellant’s claim 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
    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
    ____________________________________________
    2 We note that both the Commonwealth and trial court concede that Detective
    Burke’s initial acquisition of the cell site evidence, i.e., pursuant to a court
    order issued on July 12, 2017, prior to the Carpenter decision and under the
    standards articulated in the Wiretap Acts (the Wiretap Acts Order), was
    unlawful in the wake of Carpenter, because it did not require a probable
    cause determination. Thus, the issue becomes whether Detective Burke’s
    subsequent acquisition of the cell site evidence, pursuant to the search
    warrant issued on June 27, 2018, should have been suppressed.
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    rulings includes only the suppression hearing record and excludes
    evidence elicited at trial.
    Commonwealth v. Yandamuri, 
    159 A.3d 503
    , 516 (Pa. 2017) (citations
    omitted).
    Appellant additionally contends that the affidavit of probable cause that
    Detective Burke submitted in support of the search warrant (probable cause
    affidavit) was defective, rendering the warrant invalid. See Appellant’s Brief
    at 19-21. According to Appellant, the probable cause affidavit contained a
    material misstatement of fact; namely, that Appellant had “repeatedly”
    contacted the complainant by cell phone on the day of the burglary in an
    attempt to ascertain the complainant’s whereabouts. See 
    id. Where a
    defendant files a motion seeking to suppress evidence, “[t]he
    Commonwealth shall have the burden of going forward with the evidence and
    of establishing that the challenged evidence was not obtained in violation of
    the defendant’s rights.” Pa.R.Crim.P. 581(H); see also 
    id., Comment (stating
    that the standard of proof is a preponderance of the evidence). Moreover, “a
    defendant at a suppression hearing has the right to test the veracity of the
    facts recited in the affidavit in support of probable cause.” Commonwealth
    v. James, 
    69 A.3d 180
    , 187 (Pa. 2013) (citation omitted). When testing the
    veracity of facts recited in an affidavit, a defendant must make “a substantial
    preliminary showing [that] the affiant knowingly and intentionally, or with
    reckless disregard for the truth, included a false statement in the affidavit.”
    
    Id. at 188
    (citation omitted). Additionally, our Pennsylvania Supreme Court
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    has cautioned that 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.” Commonwealth v. Jones, 
    988 A.2d 649
    , 655-
    56 (Pa. 2010) (citation and ellipses omitted).
    In its opinion, the trial court thoroughly addressed Appellant’s claims
    and determined that although Carpenter indisputably rendered the initial
    receipt of the cell site evidence unlawful, suppression of this evidence was not
    necessary because:
    (1)   Detective Burke lawfully obtained the cell site evidence after
    submitting the probable cause affidavit, which contained
    only information that the police had obtained prior to their
    initial acquisition of the cell site evidence via the Wiretap
    Acts Order. See Trial Court Opinion, 7/10/19, at 9-10;
    (2)   Pursuant to the “independent source doctrine,”3 the
    Commonwealth lawfully obtained the cell site evidence via
    ____________________________________________
    3   This Court has explained the doctrine:
    [W]here the Commonwealth can demonstrate that the allegedly
    tainted evidence was procured from an independent origin – a means
    other than the tainted source – the evidence will be admissible. The
    test for whether there is an independent source is as follows: (1)
    whether the decision to seek a warrant was prompted by what was
    seen during the initial [warrantless acquisition of evidence]; and (2)
    whether the magistrate was informed at all of the information.
    Commonwealth v. Beck, 
    34 A.3d 111
    , 114 (Pa. Super. 2011) (citations and
    quotation marks omitted); see also Commonwealth v. Wiley, 
    904 A.2d 905
    , 908 (Pa. 2006) (stating that “under the independent source doctrine,
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    J-S71027-19
    the search warrant, which was supported by probable cause
    and bore no taint of the prior illegality. See id.; and
    (3)    The probable     cause affidavit did not contain a material
    misstatement      of fact; rather, the record reveals that
    Appellant, in    fact, had repeatedly inquired as to the
    complainant’s    whereabouts on the day of the robbery. See
    
    id. at 12-15.
    The trial court’s rationale is supported by the record and prevailing law, and
    we agree with its determination. Thus, we affirm on this basis in rejecting
    Appellant’s first issue, see 
    id., with the
    following addendum.
    Contrary to Appellant’s claim, the record reflects that Detective Burke,
    when submitting the probable cause affidavit, did not improperly rely upon
    facts discovered via the Wiretap Acts Order. Rather, Detective Burke testified
    at the suppression hearing that he “include[d] the exact same information” in
    the probable cause affidavit that he had previously “included [when he]
    applied for the [Wiretap Acts] Order in July of 2017[.]” N.T., 9/6/18, at 51
    (emphasis added); see also 
    id. at 52
    (Detective Burke explaining that he did
    not “retype the Search Warrant application”; rather, he “cut and pasted” the
    exact same information that he had previously submitted in applying for the
    ____________________________________________
    evidence that was in fact discovered lawfully, and not as a direct or indirect
    result of illegal activity, is admissible.” (citation omitted)). The independent
    source doctrine is intended to “put[] the police in the same, not a worse,
    position [than] they would have been in if no police error or misconduct had
    occurred.” Nix v. Williams, 
    467 U.S. 431
    , 434 (1984) (emphasis in original).
    -6-
    J-S71027-19
    Wiretap Acts Order).4 Nor did Detective Burke engage in any misconduct.
    See 
    James, 69 A.3d at 188
    . Rather, he initially obtained the Wiretap Acts
    Order under the then-lawful standards under the Wiretap Act. Thereafter, he
    submitted the probable cause affidavit in response to an intervening change
    in the law; the affidavit did not contain any false statements and was not
    tainted by evidence discovered via the prior Wiretap Acts Order. Accordingly,
    Appellant’s first issue is without merit.
    We next address Appellant’s second and third issues together, as they
    are related.     Appellant contends that the trial court imposed an illegal
    restitution order, in the amount of $2,199.99, as part of his sentence, where
    the amount was unsupported by the record and contravened the findings of
    the jury. See Brief for Appellant at 23-29. Specifically, Appellant argues that
    the jury found that (1) the value of the property he stole was $200 or more,
    but did not exceed $2,000; and (2) Appellant was only responsible for $200,
    the value of the stolen items that he and his codefendant sold to Gold Rush,
    LLC, which the owner of eventually returned to the complainant.5 See id. at
    ____________________________________________
    4 Further, if Detective Burke had the benefit of the Carpenter decision at the
    time he applied for the Wiretap Acts Order in July 2017, he likely would have
    (1) applied for a search warrant, rather than a court order, to obtain the cell
    site evidence; and (2) submitted the same information available to him when
    he subsequently submitted the probable cause affidavit, which a neutral
    magistrate found established probable cause.
    5The remaining items that Appellant stole from the complainant’s home were
    never returned to her.
    -7-
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    23, 26; see also 
    id. (pointing out
    that the jury acquitted Appellant of the
    charges of burglary and criminal trespass). Thus, Appellant asserts, “[s]ince
    the items Appellant was convicted of stealing were returned, the amount of
    restitution should be limited to $200[,] payable to Gold Rush[,] LLC[.]” 
    Id. at 23.
    We disagree.
    Initially, we agree with Appellant that his claim is a challenge to the
    legality, and not the discretionary aspects, of his sentence.       See In the
    Interest of M.W., 
    725 A.2d 729
    , 731 n.4 (Pa. 1999) (distinguishing the
    respective claims and explaining that “there has been some confusion as to
    whether an appeal of an order of restitution implicates the legality or the
    discretionary aspects of a particular sentence in a criminal proceeding.”). In
    interpreting the M.W. Court’s instruction, this Court has stated:
    According to the High Court, when a challenge is directed to
    the trial court’s statutory authority to impose restitution, it
    concerns the legality of the sentence. 
    Id. at 731.
    A sentencing
    court has statutory authority to impose restitution under [18
    Pa.C.S.A.] § 1106(a) when the defendant committed a crime, the
    victim suffered damage to person or property, and there exists a
    direct causal nexus between the crime of which defendant was
    convicted and the loss or damage suffered by the victim. See 18
    Pa.C.S. § 1106(a). Thus, a challenge to the legality of sentence
    is presented when the defendant claims that the trial court lacked
    statutory authority to impose restitution because the
    Commonwealth failed to establish one or more of the
    requirements of section 1106(a). See e.g., In re M.W., supra
    at 731 (holding that a claim that the juvenile court lacked
    statutory authority to impose restitution in light of the
    Commonwealth’s failure to prove that M.W. caused any property
    damage implicated the legality of sentence); … Commonwealth
    v. Poplawski, 
    2017 Pa. Super. 78
    , 
    158 A.3d 671
    , 674-75 (Pa.
    Super. 2017) (treating defendant’s claim of no causal nexus
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    J-S71027-19
    between the offense for which he was convicted and the restitution
    award as a legality of sentence claim)….
    Commonwealth v. Weir, 
    201 A.3d 163
    , 172-73 (Pa. Super. 2018); cf. 
    id. at 174
    (holding that the appellant’s challenge to the restitution component of
    his sentence as being “unsupported by the record” implicated the discretionary
    aspects of the sentence, not its legality, where “[a]ppellant does not claim
    that there is no direct causal connection between his conviction of criminal
    mischief and the costs” to repair the damage appellant inflicted upon the
    victim’s property).
    Here, Appellant’s claim implicates the legality of his sentence,6 since he
    argues that the sentencing court imposed an amount of restitution that does
    not bear a causal connection to the actual damages caused by Appellant’s
    criminal conduct. See Brief for Appellant at 24. Additionally, Appellant relies
    upon this Court’s decision in Commonwealth v. Reed, 
    543 A.2d 587
    (Pa.
    Super. 1988), where we stated, “In a case of theft by receiving stolen
    property, a reviewing court will not countenance a sentence provision which
    requires restitution for property which the Commonwealth has not proven was
    either stolen or received by the defendant.” 
    Id. at 589
    (citation, quotations
    and brackets omitted).
    ____________________________________________
    6Where such a question of law is raised, our standard of review is plenary.
    Commonwealth v. Rotola, 
    173 A.3d 831
    , 834-35 (Pa. Super. 2017).
    -9-
    J-S71027-19
    Upon review, we find no record support for Appellant’s general
    speculation that the jury determined he was only responsible for $200 worth
    of stolen items sold to Gold Rush, LLC, particularly where the remaining items
    that Appellant stole from the complainant’s home were never recovered.7
    Additionally, the trial court properly concluded that Appellant’s “interpretation
    of the jury’s finding with regard to the value of the property stolen cannot
    form the basis for a restitution order.            The amount of restitution is to be
    determined by the record, not speculation as to what the jury believed.” Trial
    Court Opinion, 7/10/19, at 15-16.
    Further, Appellant’s reliance upon 
    Reed, supra
    , is unavailing.            The
    appellant in Reed was convicted of theft by receiving stolen property worth
    approximately $400, but he was not charged with committing the burglaries
    in which the stolen items, worth a total of approximately $12,000, had been
    taken. 
    Reed, 543 A.2d at 588
    . The sentencing court ordered the appellant
    to pay restitution for the total value of all of the items stolen during the
    burglaries.    
    Id. This Court
    held that the restitution award was improper,
    because there was no causal connection between the victim’s total losses and
    the small amount of stolen property the appellant had received. 
    Id. at 589
    .
    By contrast, in the instant appeal, Appellant was convicted of the underlying
    ____________________________________________
    7 Indeed, the jury convicted Appellant for theft of the items stolen from the
    complainant’s residence, and Appellant does not challenge the sufficiency of
    the evidence supporting his convictions.
    - 10 -
    J-S71027-19
    theft of the complainant’s property (as well as theft by receiving stolen
    property and criminal conspiracy).     Cf. 
    id. at 588.
      Moreover, the record
    contains ample evidence for the trial court to find a causal connection between
    Appellant’s actions and the losses sustained by the complainant and Gold
    Rush, LLC. Accordingly, Appellant’s second and third issues lack merit.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/12/20
    - 11 -
    

Document Info

Docket Number: 1331 EDA 2019

Filed Date: 2/12/2020

Precedential Status: Precedential

Modified Date: 2/12/2020