Com. v. Wiggins, O.

J-A24030-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
OMONT WIGGINS,
Appellee No. 2578 EDA 2013
Appeal from the Order August 8, 2013
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0001600-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
DISSENTING MEMORANDUM BY PLATT, J.: FILED DECEMBER 09, 2014
I respectfully dissent from the learned Majority’s decision to affirm the
order of the trial court. From my review, I conclude that any deviations
from the rules for obtaining and executing a search warrant were mere
technical non-compliance which did not deprive Appellee of any
constitutional rights or substantially prejudice him. In particular, I disagree
with the conclusion that the record does not show that the police obtained a
warrant before conducting the search of Appellee’s apartment. (See
Majority Memorandum, at 7, 9, 12). I would vacate the order of suppression
and remand for trial.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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The record reflects that, prior to conducting the search, Officer Michael
Davis applied for a search warrant in the early morning on a Sunday using
the established process for contacting an on-call magisterial district judge
through county dispatch. (See N.T. Suppression Hearing, 3/26/12, at 36-
37, 87). District Judge Jay S. Friedenberg, whom Officer Davis had never
met, contacted the officer and asked him to explain the circumstances of the
warrant application. (See id. at 87, 104; see also N.T. Statement on the
Record, 8/08/13, at 6). Officer Davis testified that, because Judge
Friedenberg’s audio/visual equipment was not functioning properly, he told
Officer Davis that they would handle the search warrant process using the
telephone and fax machine. (See N.T. Suppression Hearing, 3/26/12, at 87-
88, 109-10). Officer Davis faxed the warrant application and affidavit to
Judge Friedenberg, and the officer swore to the truth and accuracy of the
affidavit while under oath over the telephone. (See. id. at 87-88, 103).
Judge Friedenberg signed the warrant at 7:00 a.m., Officer Davis received
the fax “within minutes,” and he “left and went right over [to Appellee’s
residence located approximately] three minutes” from the police station.
(Id. at 92; see also id. at 44, 108; Commonwealth’s Exhibit 3). The time
listed on the inventory for commencement of the search is 7:17 a.m. (See
N.T. Suppression Hearing, 3/26/12, at 39-40; see also Commonwealth’s
Exhibit 1).
Although the machine-generated fax tags indicate that police received
the signed warrant at 7:48 a.m., approximately one half-hour after the time
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listed on the inventory for commencement of the search, Officer Davis
unequivocally testified that police did not go into the apartment to conduct
the search before receiving the signed warrant. (See N.T. Suppression
Hearing, 3/26/12, at 90-93, 108; see also Commonwealth’s Exhibits 1, 3).
Officer David Chiofolo corroborated Officer Davis’s testimony, stating that he
held post at the door of Appellee’s residence “[t]o secure the apartment and
[make sure] no one entere[d] the apartment prior to us obtaining a search
warrant to enter.” (N.T. Suppression Hearing, 3/26/12, at 114). Officer
Chiofolo further testified that no one searched the apartment before
obtaining the signed search warrant and that Officer Davis returned the
apartment with the executed warrant “a couple [of] minutes after [7:00
a.m.].” (Id. at 115). Sergeant Richard Schaffer likewise testified that
Officer Davis arrived at the apartment with the signed search warrant before
they began the search. (See id. at 38-39, 44).1
Based on the foregoing, I do not agree with the learned Majority’s
conclusion that the record does not show that police obtained the warrant
____________________________________________
1
To the extent the Majority relies on the purported “sweep” of the
apartment before the search (Majority Memorandum, at 8), “the parties at
the hearing did not dwell on the scope—or even the existence—of the so-
called ‘sweep,’ and it was not mentioned in the search-warrant affidavit.”
(Trial Court Opinion, 2/19/14, at 5) (emphasis added). A review of the
suppression hearing transcript reflects that, prior to the search, police
secured the apartment and posted Officer Chiofolo at the door to make sure
no one entered while police were in the process of obtaining the warrant.
(See N.T. Suppression Hearing, 3/26/12, at 38, 89-90, 114-15). Officer
Davis testified that there was no “sweep” before the search. (Id. at 91).
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before searching Appellee’s apartment. Furthermore, I conclude that the
violations of our Rules of Criminal Procedure made during the search warrant
process, (see N.T. Statement on the Record, 8/08/13, at 3;
Commonwealth’s Brief, at 8-9), were merely technical in nature and did not
implicate fundamental, constitutional concerns or substantially prejudice
Appellee. See Commonwealth v. Ruey, 892 A.2d 802, 808 (Pa. 2006)
(Opinion Announcing the Judgment of the Court) (suppression of evidence is
not appropriate remedy for every violation of Pennsylvania Rules of Criminal
Procedure concerning searches and seizures, and suppression may be
necessary only when violations assume constitutional dimensions or
substantially prejudice accused); see also Commonwealth v. Wholaver,
989 A.2d 883, 898 (Pa. 2010), cert. denied, 131 S. Ct. 332 (2010) (citing
Commonwealth v. Mason, 490 A.2d 421 (Pa. 1985) (drastic remedy of
automatic exclusion for technical violation of rules unwarranted). I would
vacate the grant of suppression and remand the case for trial.
Accordingly, I respectfully dissent.
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