Com. v. Samuels, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY SAMUELS :
:
Appellant : No. 627 EDA 2020
Appeal from the Judgment of Sentence Entered June 5, 2018
In the Court of Common Pleas of Montgomery County Criminal
Division at No(s): CP-46-CR-0006041-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY SAMUELS :
:
Appellant : No. 628 EDA 2020
Appeal from the Judgment of Sentence Entered June 5, 2018
In the Court of Common Pleas of Montgomery County Criminal
Division at No(s): CP-46-CR-0005275-2016
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED: MAY 7, 2021
Appellant, Larry Samuels, appeals from the judgments of sentence
imposed following a stipulated bench trial in two underlying court of common
pleas matters. Each appeal has been given a separate Superior Court docket
number: 627 EDA 2020, corresponding to CP-46-CR-0006041-2015, and 628
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* Retired Senior Judge assigned to the Superior Court.
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EDA 2020, corresponding to CP-46-CR-0005275-2016. The appeals include
identical issues and briefs, and a single trial court opinion disposed of both
matters. As such, we sua sponte consolidate these matters pursuant to
Pa.R.A.P. 513 and address them concurrently.
The trial court summarized the factual and procedural history, as
follows:
Appellant . . . appeals nunc pro tunc from the judgment of
sentence imposed on June 5, 2018, following a stipulated bench
trial, at the conclusion of which he was convicted of numerous
counts of burglary–overnight accommodation, person present and
theft by unlawful taking or disposition, one count of criminal
attempt and multiple counts of criminal mischief.[1] These
convictions arose from [Appellant’s] commission of a string of
overnight residential burglaries spanning Montgomery, Bucks, . . .
Chester, Delaware, and Philadelphia Counties. On appeal,
[Appellant] challenges the denial of his motion to suppress, and
raises challenges to trial counsel’s stewardship.
A two-day suppression hearing was held on February 12,
2018 and on February 27, 2018. Subsequently, this [c]ourt issued
its Findings of Facts and Conclusions of Law and a Supplemental
Findings of Facts and Conclusions of Law on March 20, 2018 and
on April 3, 2018, respectively. Suppression was denied.
On June 1, 2018, [Appellant] proceeded to a stipulated non-
jury trial where [Appellant] stipulated to the facts as set forth by
the Commonwealth[:]
Since July of 2014, there was a joint task force
investigation involving multiple police departments in
Montgomery, Bucks, Delaware, and Chester
[C]ounties . . . and the City of Philadelphia,
Pennsylvania.
The affiant, Jim McClelland, is a member of that task
force and was involved in the investigation of over 100
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1 18 Pa.C.S. §§ 3502(a)(ii), 3921(a), 901(a), and 3304, respectively.
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residential burglaries with similar modus operandi,
which were identified spanning through Montgomery,
Philadelphia, Bucks, Delaware and Chester
[C]ounties. The investigation was focused on an
unusual and very specific style of crime patter[n] of
overnight, occupied residential burglaries that all
occurred within walking distance of SEPTA Regional
Rail Line stations. Typically, several houses were
burglarized each night in a close proximity in the same
time frame. Typically, the homes were entered by
either unlocked windows or doors; sometimes screens
were cut, that being the only sign of any forced entry.
The items that were typically taken were cash, Apple
electronic devices, laptops, cell phones[,] and purses.
The actor would frequently eat [or] take food from the
homes’ refrigerators and discard the drink containers
outside. The purses were usually rummaged through
and discarded in neighboring yards and driveways
after being emptied of cash and other non-traceable
valuables. Credit cards were not taken from the
homes or from the purses that were recovered in the
yards. Car keys were taken from the homes, and cars
stolen in several cases.
One of the main targets of the burglar in this series of
burglaries appeared to be Apple products, such as
iPhones, iPads and laptops.
Apple has [an] application available for its devices
which allows the owner of a device to search for its
current location through the Internet. A common
location was developed from several Apple items
taken during these burglaries, which would be the
1800 block of Hart Lane in Philadelphia, Pennsylvania.
On June 11, 2015, a surveillance camera was installed
on a telephone pole at Jasper Street and Hart Lane to
provide[] recorded video surveillance.
(Stipulated Bench Trial, 6/1/18 pp. 18-22) [Appellant] was
developed as a suspect, which led police to search 1840 Hart Lane
pursuant to a warrant. The homeowner and sole occupant of that
address, Tony Nguyen, consented to a search of his cell phone.
[Appellant] was arrested at his residence located at 2715 West
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Glenwood Avenue in Philadelphia. A search warrant was obtained
for that location. Additional search warrants were obtained for
cellular call records and cell tower details for [Appellant’s] cell
phones and for the physical contents of the cell phone found in his
residence. The results of these searches revealed a pattern for
[Appellant’s] phone being in the immediate vicinity during the
overnight hours of the residential burglaries. The Commonwealth
went on to detail about 80 attempted and completed burglaries
committed by [Appellant]. At the conclusion of the stipulated
bench trial, [Appellant] was found guilty of the aforementioned
charges.
On June 5, 2018, [Appellant] was sentenced to an aggregate
term of 15 to 30 years’ imprisonment. A timely appeal was filed.
The Pennsylvania Superior Court quashed the direct appeal
pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).
Subsequently, [Appellant] filed a pro se PCRA petition on
July 1, 2019. Counsel was appointed and filed an Amended PCRA
petition seeking the restoration of [Appellant’s] direct appeal
rights. On February 10, 2020, by agreement of the
Commonwealth, an order was entered restoring [Appellant’s]
direct appeal rights.
Trial Court Opinion, 5/19/20, at 1–4 (some record references omitted).
Appellant raises the following issues for appellate review:
1. Was the Judge’s decision that [Appellant] did not have
an expectation of privacy at 1840 Hart Lane, Philadelphia,
Pennsylvania in error?
2. Was the Judge’s decision that the search warrant for
1840 Hart Lane was sufficient, despite relying on stale information
and lacked probable cause, in error?
3. Was it an error for the Judge not to suppress the
evidence from both 1840 Hart Lane, Philadelphia, Pennsylvania
and 2715 West Glenwood Avenue, Philadelphia, Pennsylvania,
despite deliberately or recklessly including false information?
4. Did the Judge improperly allow testimony outside of the
four corners of the warrant for 1840 Hart Lane by accepting
testimony from Detective [Steven] Fink regarding Robert Green
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and the subject of a July 19, 2015 security camera from the 1800
Hart Lane pole?
5. Did the Judge improperly allow testimony outside of the
four corners of the warrant for 2715 West Glenwood Avenue by
accepting the affiant’s explanation that writing “[Appellant] was
arrested outside of 2715 Glenwood Avenue” was a mistake, when
in fact [Appellant] was arrested inside 2715 Glenwood Avenue and
the affiant failed to inform this to the issuing authority?
6. Was [Appellant] denied effective assistance of counsel in
that Trial Counsel failed to properly impeach Detectives [Ronald]
Cupo and [James] McClelland’s credibility, testimony, false
statements omissions and information they asserted and provided
in the search warrants for 1840 Hart Lane and 2715 West
Glenwood Avenue, as well as, the July 23, 2015 arrest warrant for
[Appellant] by missing impeachment opportunities and such
actions prejudiced [Appellant]?
7. Was [Appellant] denied effective assistance of counsel in
that Trial Counsel failed to file an omnibus pretrial motion to
suppress the arrest warrant for [Appellant] and the evidence
resulting from the arrest warrant because it contained materially
false statements and it was made with reckless disregard for the
truth and therefore it was legally insufficient to allow police to
seize [Appellant] and his property and such actions prejudiced
[Appellant]?
8. Was [Appellant] denied effective assistance of Counsel
in that Trial Counsel failed to request sequestration of the
Commonwealth witnesses at the Suppression Hearing and any
subsequent contested hearing, when witnesses testified regarding
information they either provided or supplied in the search
warrants for 1840 Hart Lane and/or 2715 Glenwood Avenue
because they contained numerous material falsehoods and
information from law enforcement that was changed by another
officer and all were made with at least reckless disregard for the
truth and such actions prejudiced [Appellant]?
9. Was [Appellant] denied effective assistance of counsel in
that Trial counsel failed to properly investigate the case and call
potential witnesses that will show that Detective Cupo and
McClelland acted with reckless disregard and perjuri[ous] conduct
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and that [Appellant] had a reasonable expectation of privacy in
the premises at 1840 Hart Lane?
Appellant’s Brief at 4–7.
We observe at the outset that Appellant’s issues six through nine,
alleging ineffectiveness of trial counsel, are not reviewable on direct appeal.
See Commonwealth v. Britt, 83 A.3d 198, 203–204 (Pa. Super. 2013)
(“absent either good cause or exceptional circumstances and a waiver of PCRA
review, ineffective assistance of counsel claims must await collateral review”).
The facts of this case do not fall within either category of issues, nor has
Appellant waived PCRA review. See Appellant’s Brief at 32 (“Appellant
reserves his right to raise these [ineffectiveness] issues upon collateral
review.”). Therefore, we will not review Appellant’s issues related to trial
counsel’s stewardship and turn to his remaining arguments.
Appellant first challenges the trial court’s conclusion that he did not have
a reasonable expectation of privacy in the premises located at 1840 Hart Lane.
The principles governing our review are as follows:
Our analysis begins with the presumption that where a motion to
suppress has been filed, the burden is on the Commonwealth to
establish by a preponderance of the evidence that the challenged
evidence is admissible. If the trial court denies the motion, we
must determine whether the record supports the trial court’s
factual findings and whether the legal conclusions drawn
therefrom are free from error. In so doing, 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 findings
of the suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal conclusions
based upon the facts.
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Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa. Super. 2014)
(citation omitted). Furthermore, “[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) (citation omitted). The suppression court is also entitled
“to believe all, part or none of the evidence presented.” Commonwealth v.
Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) (quotation omitted).
A defendant moving to suppress evidence has the
preliminary burden of establishing standing and a legitimate
expectation of privacy. Standing requires a defendant to
demonstrate one of the following: (1) his presence on the
premises at the time of the search and seizure; (2) a possessory
interest in the evidence improperly seized; (3) that the offense
charged includes as an essential element the element of
possession; or (4) a proprietary or possessory interest in the
searched premises. A defendant must separately establish a
legitimate expectation of privacy in the area searched or thing
seized. Whether [a] defendant has a legitimate expectation of
privacy is a component of the merits analysis of the suppression
motion.
Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc).
The determination of whether defendant has met this burden is made upon
evaluation of the evidence presented by the Commonwealth and the
defendant. Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa. Super.
2011).
Instantly, the Commonwealth charged Appellant with the possessory
offense of receiving stolen property. Thus, Appellant had “automatic
standing” to bring a suppression motion before the court. See
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Commonwealth v. Enimpah, 106 A.3d 695, 698 (Pa. 2014) (quotation
omitted) (“[I]t is well settled that a defendant charged with a possessory
offense in this Commonwealth has ‘automatic standing’ because the charge
itself alleges an interest sufficient to support a claim under Article I, § 8.”).
In order to prevail on a suppression motion, however, a defendant is required
to separately demonstrate a personal privacy interest in the area searched or
effects seized, and support that such interest was “actual, societally
sanctioned as reasonable, and justifiable.” Commonwealth v. Bostick, 958
A.2d 543, 551 (Pa. Super. 2008) (quoting Commonwealth v. Peterson, 636
A.2d 615, 617 (Pa. 2008)). “[I]f the evidence of the Commonwealth, the
party with the burden of production, shows the defendant lacked such a
privacy interest,” the Commonwealth “need prove no more.” Enimpah, 106
A.3d at 701–702.
The trial court concluded that Appellant did not have a reasonable
expectation of privacy in 1840 Hart Lane, reasoning:
At that time of the [suppression] hearing Mr. [Anthony] Nguyen
resided in the state prison system. He had previously resided at
1840 Hart Lane. Mr. Nguyen testified that [Appellant] resided
there, and he knew [Appellant] had another residence. He
testified that he did not consent to the police looking at his phone.
This testimony was not accurate and not worthy of belief on these
points.
Mr. Nguyen testified on cross-examination that at the time
of the warrant he knew that [Appellant] had a second apartment.
He remembered giving the police a statement on September 18,
2015, which he signed.
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Detective McClelland testified as a rebuttal witness on behalf
of the Commonwealth. Detective McClelland had been the one who
spoke with Mr. Nguyen in July of 2015. Mr. Nguyen told him that
[Appellant] did live with him for a period of time, earlier in the
year. He indicated that Mr. Nguyen didn’t remember the exact
date.
* * *
The Superior Court of Pennsylvania outlined the following
factors when determining whether a defendant has a legitimate
expectation of privacy in another person’s home:
(1) Possession of a key to the premises;
(2) Having unlimited access to the premises;
(3) Storing of clothing or other possessions on the
premises;
(4) Involvement in illegal activities conducted on the
premises;
(5) Ability to exclude other persons from the
premises;
and
(6) Expression of a subjective expectation of privacy
in the premises.
Bostick at 553 (quoting Commonwealth v. Govens, 632 A.2d
1316, 1319 (Pa. Super. 1993) (citations omitted)).
Specifically, a defendant who is more than a “casual visitor”
to another’s residence “must demonstrate a significant and
current interest in the searched premises in order to establish an
expectation of privacy.” Id. at 552-553.
In this case, this [c]ourt initially determined that [Appellant]
had standing to bring this motion to suppress. However,
[Appellant] lacked a privacy interest in the residence at 1840
[H]art Lane. He did not have a reasonable expectation of privacy
in these premises. This [c]ourt based this on the fact that
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[Appellant] did not live at 1840 Hart Lane. In fact, he had another
residence at 2715 West Glenwood Avenue in Philadelphia. There
was no evidence he actually possessed the key; although there
was some evidence that he did have access to entry. There was
no evidence that he stored clothing or any possessions there. It
may be inferred that he was involved in illegal activity with
Mr. Nguyen, who did live there. There was no evidence
whatsoever that he had any ability to exclude any person from
that premises, and he did not demonstrate any subject
expectation of privacy in the premises. Based on these factors,
this [c]ourt concluded that [Appellant] did not have a reasonable
expectation of privacy in the search in the premises of 1840 Hart
Lane. Accordingly, [Appellant] lacked the authority to challenge
search warrant for 1840 Hart Lane.
The only evidence presented by [Appellant] that he lived at
1840 Hart Lane, was through the testimony of Mr. Nguyen, which
was not credited by this [c]ourt. Rather, the credible testimony
of Detective McClelland who testified that when he spoke to
Mr. Nguyen around the time of the search warrant, Mr. Nguyen
told him that [Appellant] had not been living there, and that it was
for some time. Accordingly, [Appellant] was unable to show that
he had a reasonable expectation of privacy in the 1840 Hart Lane
premises.
Trial Court Opinion, 5/19/20, at 17–22 (record references omitted).
Appellant contends, however, that he did have a privacy interest in 1840
Hart Lane:
[I]t was not disputed that at some point, [Appellant] had
resided at 1840 Hart Lane. The owner Anthony Nguyen testified
that [Appellant] paid rent and stayed in a room in the back of the
house. Mr. Nguyen testified that [Appellant] lived there, but had
moved out when Nguyen’s parents complained about [Appellant’s]
use of marijuana. Nguyen further testified that even after being
asked to leave, [Appellant] lived at least part-time at 1840 Hart
Lane because Nguyen was on house arrest and [Appellant] was
able to help him with errands.
The Commonwealth witnesses never dispute that
[Appellant] resided at 1840 Hart Lane at some point in time.
Detective James McClelland testified that Nguyen told him that
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[Appellant] had been living with him at 1840 Hart Lane at a time
earlier in the year 2015. McClelland also testified that Nguyen
said [Appellant] had moved out earlier that year. While
McClelland’s testimony is contradictory to Nguyen’s testimony, it
is noteworthy that McClelland remembers this conversation from
approximately 30 months prior to Trial and this specific
information is never recorded on any notes or reports prior to
Trial. This information also does not appear in the written
statement taken from Nguyen contemporaneously.
[T]he evidence used to obtain search warrants for 1840 Hart
Lane see [Appellant] using the property like a true owner.
Detective Fink testifie[d] that [Appellant] was seen resting on the
steps in front of 1840 Hart Lane and that [Appellant] was seen
walking down the sidewalk and turning as if to enter 1840 Hart
Lane. [Appellant] was seen riding a bike to 1840 Hart Lane,
opening the door and entering on his own and taking the bike in
with him. It was testified to that [Appellant] did not have to wait
for someone to let him in.
[Finally], keys for 1840 Hart Lane were never found, but the
same can be said about keys for 2715 West Glenwood Avenue,
which were never found either.
Appellant’s Brief at 21–22.
We agree with the trial court that Appellant did not have a reasonable
expectation of privacy in the search of 1840 Hart Lane. First, Appellant places
undue emphasis on the fact that he earlier resided at that residence. It is
undisputed that Appellant lived at a different address when the search warrant
was executed at 1840 Hart Lane. See N.T. (Suppression), 2/12/18, at 19 (the
address attached to Appellant’s driver’s license was “in the City of
Philadelphia . . . Glenwood”); Id. at 57–58 (Detective Fink’s research
disclosed that Appellant’s name was not associated with 1840 Hart Lane); N.T.
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(Suppression), 2/27/18, at 4 (Mr. Nyugen confirmed that Appellant had
another residence).
Second, the trial court appropriately placed greater weight on the
testimony of Detective McClelland, and discredited Mr. Nguyen’s testimony
regarding Appellant’s comings and goings at 1840 Hart Lane.
Detective McClelland stated that Mr. Nguyen told him in July 2015 that
Appellant lived with him for a period of time, but had moved out prior to the
execution of the search warrant. N.T. (Suppression), 2/27/18, at 16.
Mr. Nguyen’s testimony was extremely vague as to dates and other specifics
regarding Appellant’s residency at 1840 Hart Lane, however Mr. Nyugen
admitted that his parents banished Appellant from the premises because they
disapproved of Appellant’s lifestyle. Id. at 4–5. “The suppression court has
sole authority to assess the credibility of the witnesses and is entitled to
believe all, part or none of the evidence presented.” Commonwealth v.
Simmen, 58 A.3d 811, 817 (Pa. Super. 2012) (quotation omitted). We will
not disturb the trial court’s credibility findings on appeal. Id.Third, Appellant asserts that the camera pole footage showing him
sitting on the steps on 1840 Hart Lane and, on one occasion, entering the
premises with his bicycle without assistance, indicates that he had unfettered
access to the property. On this point the trial court conceded that the camera
footage demonstrated that Appellant appeared to have some access to the
property and also allowed for an inference that Appellant and Mr. Nguyen may
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have conducted illegal activity on the premises. Nonetheless, by weighing the
other Bostick factors, i.e., Appellant did not have a key to the premises,2 did
not store clothing or any possessions there, had no ability to exclude any
person from that premises, and did not establish any subject expectation of
privacy in the premises, the trial court determined that Appellant did not
demonstrate any reasonable expectation of privacy in the premises. We
conclude that the trial court correctly balanced the Bostick factors in
assessing Appellant’s authority to challenge the search warrant for 1840 Hart
Lane. Accordingly, there was no error in its legal conclusion that Appellant
lacked a reasonable expectation of privacy for that property.
Appellant’s next three issues concern the legality of the search warrant
for 1840 Hart Lane. In addition to alleging that the warrants relied on stale
information and included false statements, Appellant contends that the trial
court improperly allowed testimony outside the four corners of the warrants
during the suppression hearing. Appellant’s Brief at 4–5. The trial court did
not address the merits of these arguments because Appellant “did not possess
an expectation of privacy in that residence and lacked legal authority to
challenge the search warrant[s].” Trial Court Opinion, 5/19/20, at 23–25.
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2 Appellant’s contention that the evidence that he did not have a key to 1840
Hart Lane was not significant because a key also was not discovered for 2715
West Glenwood Avenue does not merit further scrutiny. Appellant’s
expectation of privacy in 1840 Hart Lane is unrelated to his expectation of
privacy in 2715 West Glenwood Avenue.
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The trial court correctly declined review of these issues. See Enimpah, 106
A.3d 701-702 (“[I]f the evidence of the Commonwealth, the party with the
burden of production, shows the defendant lacked such a privacy interest,”
the Commonwealth “need prove no more.”).
Appellant’s final reviewable issue concerns the search warrant for 2715
West Glenwood Avenue. Appellant avers that the trial court erred when it
accepted testimony outside the four corners of the warrant that Detective
Cupo arrested Appellant outside of 2715 West Glenwood Avenue when, in fact,
Appellant was arrested inside the premises. Appellant’s Brief at 30. Appellant
asserts that Detective Cupo’s inability to explain the discrepancy indicates that
the detective “either intentionally misled the issuing authority or acted in
reckless disregard of the truth when completing the affidavit of probable
cause.” Id. at 31.
The trial court resolved this issue, as follows:
In Pennsylvania . . . at a suppression hearing, a defendant
can go beyond the four corners of the search warrant and attack
the affiant’s veracity. “Where a police officer makes a knowing
misstatement of material fact in [an affidavit in support of an
application for a search warrant], the warrant is invalid and any
evidence obtained pursuant to that warrant is inadmissible.”
Commonwealth v. Minoske, 441 A.2d 414, 418 (Pa. 1982).
Misstatements of fact will invalidate a search and require
suppression only if they are deliberate and material.
Commonwealth v. Tucker, 384 A.2d 938, 944 (Pa. Super. 1978).
“A material fact is one without which probable cause [forJ search
would not exist.” Commonwealth v. Clark, 602 A.2d 1323, 1326
(Pa. Super. 1992). “In deciding whether a misstatement is
material, the test is not whether the statement strengthens the
application for the search warrant, but rather whether it is essential
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to it.” Commonwealth v. Cameron, 445 Pa. Super. 165, 171, 664
A.2d 1364, 1367 (1995).
In this case, [Appellant] challenged the 2715 West Glenwood
Avenue search warrant, arguing that it lacked probable cause at
the time the issuing authority signed the warrant, and now argues
that this [c]ourt should have not considered the detective’s
suppression testimony to supplement the warrant in determining
whether probable cause existed.
In this case, based upon the credible testimony of Detective
Cupo, this [c]ourt did not reweigh the probable cause
determination made by the issuing authority; rather, this [c]ourt
was weighing whether Detective Cupo made an intentional
material misstatement of fact which could invalidate the warrant.
This [c]ourt ultimately determined that there was no intentional
material misstatement of fact. The mistake was unintentional;
therefore, this [c]ourt determined that the warrant would be
upheld.
Trial Court Opinion, 5/19/20, at 26–27 (record references omitted).
Based on the evidence presented to it, the trial court concluded that
Detective Cupo did not deliberately misstate the fact in question, and it is not
our province to disturb that finding. See Simmen, 58 A.3d at 817 (“The
suppression court has sole authority to assess the credibility of the witnesses
and is entitled to believe all, part or none of the evidence presented.”). As
such, we affirm the trial court’s denial of Appellant’s request to suppress the
evidence seized as the result of the execution of the search warrant at
2715 West Glenwood Avenue.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/21
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