Com. v. Wallace, C.

J. S36045/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CARL WALLACE, : No. 2353 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, June 17, 2016,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0004619-2015
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 07, 2017
Carl Wallace appeals from the judgment of sentence of June 17, 2016,
following his conviction of one count of persons not to possess firearms.1
We affirm.
The trial court has set forth the facts of this case as follows:
On July 23, 2015, Detective [Phillip] Nordo and
Detective Williams of the Philadelphia Homicide Unit,
Detective [Joseph] Houghton of the Yeadon Borough
Police Department, and Police Officers of the
Philadelphia Police Department and Yeadon Borough
Police Department, arrived with a Search Warrant at
[appellant]’s residence on 115 Norma Road, Yeadon,
Delaware County, PA, to continue their investigation
of a homicide that had occurred earlier that month in
Philadelphia County. The Philadelphia Homicide Unit
Detectives believed that [appellant] had in his
possession crucial information related to the
1
18 Pa.C.S.A. § 6105(a)(1).
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homicide they were investigating and that that
information would be found in [appellant]’s
residence. During their search, [appellant], a
convicted felon, admitted to having a firearm in the
residence and the Police Officers found the firearm.
Earlier in July, 2015, Philadelphia Homicide
Unit Detectives began investigating a shooting which
occurred in Philadelphia County and which resulted in
the death from gunshot wounds of an individual
determined by police officers to be Steven Chestnut.
On July 20, 2015, Detective [Greg] Singleton of the
Philadelphia Homicide Unit spoke with Pamela Goff,
the victim’s wife. She stated to Detective Singleton
that during an in-person conversation with
[appellant] after her husband’s death, [appellant]
showed her a picture on his cellular phone of the
individual who had allegedly arranged for her
husband to be killed. Ms. Goff stated to Detective
Singleton that [appellant] was also a longtime friend
of her husband, the victim.
Detectives Singleton, Nordo and Williams of
the Philadelphia Homicide Unit proceeded to contact
[appellant] at his residence in Yeadon Borough,
Delaware County, and to question him regarding the
picture he had shown the victim’s wife. After letting
the Detectives in, [appellant] admitted that he was a
friend of the victim and had indeed spoken to the
victim’s wife about his murder. [Appellant],
however, refused to answer the Detectives’
questions regarding details he knew about the
victim’s murder and the alleged picture he had on his
cellular phone, and asked the Detectives to leave.
After the unsuccessful attempt to procure from
[appellant] crucial information related to the
homicide and believing that [appellant] indeed
possessed that information in his residence,
Philadelphia Homicide Unit Detectives requested
assistance from the Yeadon Borough Police
Department to secure a Search Warrant for
[appellant]’s residence. The Philadelphia Homicide
Unit Detectives requested to search for any and all
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cellular phones and electronic devices in [appellant]’s
residence that were capable of holding an electronic
photograph or image, or of providing to a user
access to social media, as well as other evidence
related to the homicide. Detective Houghton of the
Yeadon Borough Police Department provided
Philadelphia Homicide Unit Detectives the Warrant
they had requested.
Detective Nordo, Detective Williams, Detective
Houghton, and several police officers entered
[appellant]’s residence and began searching for
[appellant]’s cellular phone that contained the
picture of the individual [appellant] had stated to the
victim’s wife was involved in the victim’s shooting
and murder. [Appellant] permitted the Detectives
and officers to enter his residence only after asking
them whether they had a Search Warrant and being
satisfied that they in fact did. Detectives Nordo and
Williams of the Philadelphia Homicide Unit were the
lead detectives in the homicide investigation, and
they asked [appellant] for the location of the cellular
phone that contained the picture of the individual
allegedly involved in the homicide. [Appellant]
refused to tell the Philadelphia Homicide Unit
Detectives where his cellular phone was located.
When one of the Philadelphia Homicide Unit
Detectives asked [appellant] whether there were any
illegal items in the residence that could pose a
danger to their safety, [appellant] admitted to
having hid a firearm in one of the rooms. The Police
Officers found and retrieved a loaded
.40 semi-automatic black handgun. After confirming
that [appellant] was a convicted felon not allowed to
possess a firearm, the Yeadon Borough Police
Officers placed [appellant] under arrest. Detective
Houghton of the Yeadon Borough Police Department
charged [appellant] with Person Not To Possess A
Firearm.
Trial court opinion, 10/18/16 at 1-4 (citations to transcript omitted).
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Appellant filed a pre-trial suppression motion which was denied on
February 4, 2016. On April 11, 2016, appellant was found guilty of persons
not to possess firearms following a stipulated non-jury trial before the
Honorable George A. Pagano. On June 17, 2016, appellant was sentenced to
4½ to 10 years’ imprisonment, and this timely appeal followed.2 Appellant
complied with Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a)
opinion.
Appellant has raised the following issue for this court’s review,
challenging the trial court’s denial of his pre-trial suppression motion:
Did the trial court err by failing to grant [appellant]’s
motion to suppress physical evidence and
statements made by [appellant] as required by the
Fourth, Fifth, Sixth and Fourteenth
Amendements [sic] of the United States Constitution
and Article I, Section 8 of the Pennsylvania
Constitution?
Appellant’s brief at 4.3
Our standard of review in addressing a challenge to a
trial court’s denial of a suppression motion is
whether the factual findings are supported by the
record and whether the legal conclusions drawn from
those facts are correct. When reviewing rulings of a
suppression court, we must consider only the
evidence of the prosecution and so much of the
evidence for the defense as remains uncontradicted
2
A timely post-sentence motion was filed on June 27, 2016; however,
before the trial court could rule on it, appellant filed a notice of appeal.
(Trial court opinion, 10/18/16 at 5.)
3
An additional issue raised in appellant’s Rule 1925(b) statement
challenging the sufficiency of the evidence to sustain the verdict has been
abandoned on appeal.
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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 legal conclusions drawn
therefrom are in error.
Commonwealth v. Korenkiewicz, 743 A.2d 958, 962 (Pa.Super. 1999)
(citations omitted).
Appellant argues that the search of his closet for contraband was
outside the scope of the search warrant. (Appellant’s brief at 9.) Appellant
complains that the police did not enter his home to look for contraband
prohibited by the terms of his parole; rather, by the plain terms of the
search warrant, they were supposed to be looking for evidence related to
Chestnut’s murder, particularly any cell phones or electronic devices capable
of storing a photograph or image. (Id.) Appellant contends that police did
not have reasonable suspicion of contraband possession or a violation of the
terms of his supervision and Detective Nordo’s questioning was in violation
of the Constitution. (Id.) Appellant also claims that during the search, his
freedom of movement was restricted and he was not free to leave. (Id.)
Appellant concludes that his admission to Detective Nordo and the firearm
must be suppressed. We disagree.
First, appellant was not “in custody” for Miranda4 purposes, nor was
he being interrogated. Commonwealth v. Williams, 941 A.2d 14, 30
(Pa.Super. 2008) (en banc). Appellant was not a suspect in the homicide
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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investigation and had not been charged with any crime. See
Commonwealth v. Wholaver, 989 A.2d 883, 896-897 (Pa. 2010) (right to
counsel attaches only at or after the initiation of adversary proceedings
against the defendant, and questioning the defendant about soliciting
murder, a crime for which he was not arrested or arraigned, was
permissible). The police believed that appellant was a possible eyewitness
to Chestnut’s murder and had material evidence in his possession. (Notes of
testimony, 2/4/16 at 48-49.) Detective Nordo testified that they wanted to
speak with appellant about the picture in his phone. (Id. at 47.) They were
not there to look for a gun or any other form of contraband. (Id.)
Second, other than asking appellant to show them where the phone
was, police did not restrict appellant’s freedom of movement in any
significant way. The police asked appellant to sit on the living room couch
during the search, but he was not secured in any way and was allowed to
move around the house. (Id. at 40; notes of testimony, 1/28/16 at 18.) At
one point, they asked appellant to come into his bedroom to show them the
location of the phone. (Notes of testimony, 1/28/16 at 19.) Appellant went
into the bedroom but refused to cooperate with the search. (Notes of
testimony, 2/4/16 at 41.)
Obviously, appellant was not “free to leave” in the sense that the
police possessed a valid search warrant for his house. Appellant does not
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contest the validity of the warrant. However, appellant was never in custody
and was not being interrogated about Chestnut’s murder or anything else.
Third, appellant was on state parole. It is well established that a
parolee has limited Fourth Amendment rights and a diminished expectation
of privacy in exchange for his early release from prison. Commonwealth v.
Curry, 900 A.2d 390, 394 (Pa.Super. 2006) (citations omitted).
Fourth, and most importantly, it is clear from the suppression hearing
testimony that Detective Nordo’s inquiry was for the purpose of ensuring
officer safety during the search of appellant’s residence. Detective Nordo
testified,
I said to [appellant], you are on state parole. He
replied yes. I said, is there anybody else in this
house? Just so we know. We’re not going to come
upon anybody that’s going to be springing out
because we do have a search warrant for the entire
house. No, he replied. I says [sic] is there anything
of contraband in this house that we should be aware
of that parole would consider contraband? And he
said, it’s in the closet. And I said, what’s in the
closet? And he said, what I’m on parole for. And I
said, I don’t know what that is. What are you talking
about? And he says, a gun. And they’re – you’re
talking about a rancher [sic] type home, so it’s not
like there are bedrooms in rooms away. They’re like
yards away from where I’m standing.
Notes of testimony, 2/4/16 at 45. “And at that point, I asked him, where is
this gun you’re referring to in this closet? He says, I put it under the towels.
I says [sic], he put it under the towels, I hollered back. And at that point,
they find what they find.” (Id. at 46.)
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Detective Singleton testified that he was searching the linen closet and
overheard appellant state that there was a weapon in the house. (Notes of
testimony, 1/28/16 at 15.) Detective Singleton recovered a .40 caliber
firearm and a magazine loaded with .9 mm rounds from inside a shaving kit
underneath some towels. (Id.) Detective Singleton testified, “I was glad
that I was able to retrieve that gun as [appellant] was moving around and,
you know, the property. I would like to have that weapon under control,
yes.” (Id. at 15-16.)
The detectives continued to search for the black cell phone and
eventually found it underneath some clothing in a plastic storage container
in the bedroom closet. (Id. at 16.) After police discovered the firearm and
ammunition, appellant became more cooperative and told them where the
cell phone was located. (Id.) Up until that point, appellant had been
uncooperative. (Id. at 16-17.)
While Detective Nordo did ask appellant, a state parolee, about the
presence of contraband, it is clear that it was in connection with executing
the search and to ensure officer safety. The detectives had a valid warrant
to search appellant’s residence, and they were not there for purposes of
uncovering parole violations. The detectives were aware that appellant was
on state parole, was a material witness to a homicide, was being
uncooperative with the investigation, and took at least 10 minutes to answer
the front door. (Id. at 12.) They reasonably wanted to protect themselves
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during the search. Furthermore, appellant volunteered that there was a
firearm in the house; Detective Nordo had only asked about contraband
generally. (Id. at 21-22; notes of testimony, 2/4/16 at 22-23, 29, 54.)
Finally, we agree with the Commonwealth that even if there had been
a constitutional violation, which there was not, the inevitable discovery
exception would apply to allow admission of the evidence.
Detective Singleton would have recovered the gun from inside the shaving
bag independent of appellant’s admission. Police were searching for a cell
phone or similar electronic device, small enough to hide in a container such
as a shaving bag. In fact, Detective Singleton was already looking in the
linen closet when appellant revealed that a firearm was hidden there.
Appellant did not begin to cooperate and tell the officers where the cell
phone was located until after they had already found the gun. Therefore,
even assuming Detective Nordo’s questioning of appellant was somehow
improper, the evidence was admissible. See Commonwealth v. Gonzalez,
979 A.2d 879, 889-890 (Pa.Super. 2009) (explaining the inevitable
discovery rule). For these reasons, the trial court did not err in denying
appellant’s suppression motion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
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