Com. v. Miller, A.

J. S71005/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANDREW JAMES MILLER, : No. 1624 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, September 8, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0014034-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 19, 2016
Andrew James Miller appeals the judgment of sentence of
September 8, 2014, following his convictions of invasion of privacy and
criminal attempt, invasion of privacy.1 We affirm.
The trial court recited the following facts:
This matter arises out of [appellant’s] arrest
for taking or attempting to take photographs, using
his cell phone, up the skirt of a woman in a
supermarket and several other women at his place of
work. [Appellant] filed a Motion to Suppress
evidence obtained from his cell phone alleging that
the search warrant authorizing the seizure of his cell
phone, on which various pictures and videos were
found, was not supported by probable cause. In
addition, [appellant] alleged that the warrant lacked
the required specificity describing the phone to be
searched and seized.
1
18 Pa.C.S.A. §§ 7507.1 and 901, respectively.
J. S71005/15
The search warrant application of May 29,
2013 alleged that on Wednesday, May 22, 2013 the
victim reported that while she was shopping at a
grocery store “a male followed her and on three
occasions he was in such position, crouched down, to
take a photograph up her skirt with his cell phone.”
The warrant further alleged that in a personal
interview with the victim on May 24, 2013, she
described the following occurring in the supermarket
over a 30 to 40 minute period:
While inside she noted the male seemed
to be following her. She first noticed the
male while in the isle [sic] where pasta
products were. She did not know or
recognize the male. She described him
as being “really tall.” The male “invaded
her space” a total of three times. She
expounded by explaining the male came
unusually close to her when she would
stop or look for items on the shelf. The
third incident was the most egregious.
(She) recalled being in the cereal aisle.
She stopped to look at an item on the
shelf. She was standing facing the shelf
when she sensed someone close to her.
She immediately reacted by moving.
When she did, her left foot bumped the
right hand of the male. This indicated
that the male’s right hand was close to
the floor and directly behind her foot.
She was startled and quickly walked
away from the area. She looked back
and saw the male crouched down, facing
the shelf. His cell phone was in his right
hand resting on his thigh. She believed
the male may have taken a picture up
her skirt with his cell phone. It should
be noted that (the victim) was wearing a
short skirt at the time. If the male took
a photograph from where his hand was,
[it] would be conceivable that her
buttocks, genital and pubic area would
have been captured in the photo.
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The search warrant further described that the
victim then went to a self checkout lane and
[appellant] got in line behind her even though other
lanes were open and available. An employee advised
[appellant] that other lanes were available, but he
indicated that he wanted to remain in that lane, but
eventually moved to another lane. Later, she saw
[appellant] standing in the lobby area and he then
reentered the store. The victim had an employee of
the store escort her to her vehicle to load her
groceries and as she completed loading the groceries
she saw [appellant] sitting in a vehicle two spaces
away from her. She then noted that [appellant’s]
vehicle was following her as she proceeded through
the parking lot to the exit. At the exit she waited
until approaching cars were so close before she
pulled out so that [appellant’s] vehicle would not be
able to pull out directly behind her.
Detective Brace’s affidavit indicated that he
reviewed surveillance footage from the supermarket
which showed the victim at the checkout counter as
she described and [appellant] following her to the
same lane, standing behind her. The affidavit
further states “it appears the male is holding
something in his right hand (presumably his cell
phone).” The affidavit further sets forth
Detective Brace’s review of additional footage from
the supermarket surveillance video which was
consistent with the victim’s description of [appellant]
following her to the checkout lane and also describes
him being seen in the lobby “manipulating his cell
phone in his hands while waiting.” The affidavit
requests a warrant to search the “cell phone used by
[appellant] while at Giant Eagle at Moon Township on
May 21, 2013.”
The search warrant was issued and executed
on [appellant] at his residence on May 29, 2013
where his phone was seized and examined. There
were no videos or images of the woman in the
supermarket, however, several videos were found
showing other females’ genital areas which were
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recorded at [appellant’s] place of employment.
Further investigation, including review of surveillance
video from [appellant’s] place of employment,
revealed six different occasions when [appellant]
could be observed putting himself in a position where
he could record co-employees’ intimate parts by
placing his cellular phone under their skirts.
Trial court opinion, 7/7/15 at 2-4.
Appellant was convicted of the aforementioned charges following a
non-jury trial on June 10, 2014. On September 8, 2014, the trial court
sentenced appellant to an aggregate of seven years’ probation, and
appellant was also ordered to register under SORNA for 15 years. Appellant
filed notice of appeal on October 3, 2014. On October 8, 2014, the trial
court ordered appellant to produce a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant complied on
December 18, 2014. The trial court has filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
Did the lower court err in denying the motion to
suppress insofar as the search warrant used to
obtain the appellant’s cell phone, and ultimately, the
photographic/video evidence, was not supported by
probable cause when solely considering the four
corners of the affidavit of probable cause?
Appellant’s brief at 5.
When reviewing the denial of a defendant’s motion to suppress
evidence, we are held to the following standard:
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[An appellate court’s] standard of review in
addressing a challenge to the denial of a suppression
motion is limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because 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. Where the
suppression court’s factual findings are supported by
the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous. Where . . . the appeal of
the determination of the suppression court turns on
allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts
below are subject to [ ] plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015),
quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010),
cert. denied, 562 U.S. 832 (2010) (internal citations and quotation marks
omitted).
Both the United States and Pennsylvania Constitutions guarantee that
individuals shall not be subject to general investigative search warrants
lacking in probable cause and specificity of the items to be searched. See
Commonwealth v. Rega, 933 A.2d 997, 1011 (Pa. 2007), cert. denied,
562 U.S. 832 (2010).
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
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Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV.
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches
and seizures, and no warrant to search any place or
to seize any person or things shall issue without
describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const. Art. I, § 8.
A recent decision of this court explained our standard for determining
whether probable cause exists:
With regard to the somewhat elusive concept of
probable cause, we have explained as follows:
“[P]robable cause does not involve
certainties, but rather ‘the factual and
practical considerations of everyday life
on which reasonable and prudent men
act.’” Commonwealth v. Wright, 867
A.2d 1265, 1268 (Pa.Super. 2005)
(quoting Commonwealth v. Romero,
449 Pa.Super. 194, 673 A.2d 374, 376
(Pa.Super. 1996)). “It is only the
probability and not a prima facie showing
of criminal activity that is a standard of
probable cause.” Commonwealth v.
Monaghan, 295 Pa.Super. 450, 441
A.2d 1318 (Pa.Super. 1982) (citation
omitted); see also Illinois v. Gates,
462 U.S. 213, 238, 103 S. Ct. 2317, 76
L. Ed. 2d 527 (1983) (holding that
probable cause means “a fair probability
that contraband or evidence of a crime
will be found.”); Commonwealth v.
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Lindblom, 854 A.2d 604, 607
(Pa.Super. 2004) (reciting that probable
cause exists when criminality is one
reasonable inference, not necessarily
even the most likely inference). To this
point on the quanta of evidence
necessary to establish probable cause,
the United States Supreme Court
recently noted that “[f]inely tuned
standards such as proof beyond a
reasonable doubt or by a preponderance
of the evidence, useful in formal trials,
have no place in the probable cause
decision.” Maryland v. Pringle, 540
U.S. 366, 371, 124 S. Ct. 795, 157
L. Ed. 2d 769 (2003) (citations omitted).
Commonwealth v. Freeman, 2015 WL 7756864 at *7 (Pa.Super.
December 2, 2015), quoting Commonwealth v. Dommel, 885 A.2d 998,
1002 (Pa.Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007) (citations
modified). When determining whether probable cause exists, we must
consider the totality of the circumstances. Commonwealth v. Wallace, 42
A.3d 1040, 1048 (Pa. 2012), quoting Commonwealth v. Coleman, 830
A.2d 554, 560 (Pa. 2003) (citations omitted).
Here, the police produced sufficient probable cause to justify the
issuance of a search warrant for appellant’s cell phone. According to the
search warrant application, the victim “noticed a male seemed to be
following her.” (Affidavit of probable cause, 5/29/13 at 3.) The victim told
the police that appellant got “unusually close to her,” three times while
inside the Moon Township Giant Eagle. (Id.) As indicated supra, the
victim, after quickly walking away from appellant after their third encounter
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inside the store, noticed that appellant was, “crouched down, facing the
shelf. His cell phone was in his right hand resting on his thigh. She believed
[appellant] may have taken a picture up her skirt with his cell phone.” (Id.)
The affidavit also indicated that at the time of the third encounter between
appellant and the victim, appellant’s left hand was close to the floor and
directly behind the victim’s left foot; the affidavit also notes that the victim
was wearing a short skirt at the time. (Id.)
Given the totality of the circumstances surrounding the multiple
encounters between appellant and the victim inside the Giant Eagle, the
police have established that one could “reasonably infer” that a criminal act
took place, pursuant to Lindblom. Therefore, appellant’s argument that the
police lacked sufficient probable cause to justify issuing a search warrant for
his cell phone must fail.
Appellant also makes the argument that the search warrant was
overbroad. The Pennsylvania Rules of Appellate Procedure require an
appellant to raise an issue with the lower court before raising it on appeal.
Pa.R.A.P. 302(a). Failure to do so will result in the issue being waived.
Here, appellant avers that the search warrant, which included “any and all
electronically stored data, and/or multimedia phone and related storage
media,” was overbroad. A careful review of the suppression hearing and
trial transcripts and appellant’s omnibus pretrial motion reveal that appellant
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failed to raise this issue with the trial court. The issue is therefore waived,
and we cannot consider its merits.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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