Com. v. Forney, T.

J-S40045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TED FORNEY III :
:
Appellant : No. 1964 EDA 2022
Appeal from the Judgment of Sentence Entered July 21, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004293-2021
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
MEMORANDUM BY KING, J.: FILED APRIL 17, 2023
Appellant, Ted Forney III, appeals from the judgment of sentence
entered in the Bucks County Court of Common Pleas, following his bench trial
convictions for possession of a controlled substance, possession of a controlled
substance with intent to deliver (“PWID”), possession of drug paraphernalia,
and criminal use of a communication facility.1 We affirm, albeit on different
grounds.2
The trial court set forth the relevant facts of this appeal as follows:
On May 5, 2021 at 1:07 A.M., Detective Stephen Reeves
(“Detective Reeves”) of the Falls Township Police
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1 35 P.S. § 780-113(a)(16), (30), (32) and 18 Pa.C.S.A. § 7512(a),
respectively.
2 “[I]f a trial court’s decision is correct, we may affirm on any ground.”
Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa.Super. 2001), appeal
denied, 568 Pa. 735, 798 A.2d 1288 (2002).
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Department responded to a shooting at the Castle Club
Apartments, located at 254 West Trenton Avenue,
Morrisville, Falls Township, Bucks County, Pennsylvania.
Upon arrival, Detective Reeves observed a large amount of
blood, consistent with evidence of a shooting, in an
apartment located within the A Building of Castle Club
Apartments. Detective Reeves began his investigation
alongside Detective Frank Groome (“Detective Groome”) of
the Bucks County District Attorney’s Office. Together, they
collected video surveillance from the Castle Club
Apartments’ security system, which monitored the exteriors
of each building as well as the surrounding parking lots. The
footage from May 5, 2021 depicted a gray 2007 Nissan
Altima (“Altima”) with an inoperable fog light on the front
passenger side pull into the parking lot near B Building at
approximately 12:53 A.M. The footage then showed an
individual exiting the Altima and walking toward the A
Building of Castle Club Apartments at 12:55 A.M. Finally,
the footage showed the same individual running from the A
Building to the Altima at 1:01 A.M.1 The Altima
subsequently fled the area and was seen on Toll Bridge
Commission video surveillance crossing the Calhoun Street
Bridge, which connects Morrisville Borough and Trenton,
New Jersey, at 1:06 A.M. The Altima crossing the toll bridge
was identified as the same Altima at Castle Club Apartments
by its make, model, and its inoperable fog light. Detective
Reeves and Detective Groome were initially unable to
distinguish the license plate from the Calhoun Street Bridge
video footage. However, upon further investigation, they
determined that the license plate read: KRW-7917. This
license plate is registered to a Kristen Forney, Appellant’s
wife. Further, a known confidential informant informed
Officer Denny Leighton (“Officer Leighton”) of Bristol
Township Police Department that Appellant was responsible
for the shooting at the Castle Club Apartments. Officer
Leighton relayed this information to Detective Reeves.
Finally, officers learned through Appellant’s Parole Officer,
Lauren DiMaria (“Officer DiMaria”), that he was known to
operate a gray 2007 Nissan Altima with license plate KRW-
7917. Based on all of the aforementioned facts, Detective
Reeves and Detective Groome determined that the Altima
could have evidence of the shooting that occurred on May
5, 2021 and that Appellant was a person of interest in their
investigation.
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1 The shooting occurred at approximately 1:00 A.M.
Officer DiMaria informed Detectives Reeves and Detective
Groome that Appellant would be at a specific address, 5604
Truman Street, Bristol, Bristol Township, Bucks County,
Pennsylvania on June 3, 2021. On that day, the detectives
went to this address to make contact with Appellant. When
they arrived, Appellant was standing in the driveway next
to the Altima. The detectives were able to determine it was
the Altima seen on Castle Club Apartments’ video
surveillance footage due to its make, model, and license
plate. For officer safety, the detectives conducted a pat
down of Appellant and found a proximity key for the Altima.2
Appellant agreed to travel with the detectives to the Fall
Township Police Department so they could speak privately.
Appellant was not under arrest and the detectives informed
him that he would be able to return to his residence after
speaking with them. At this time, Detective Reeves and
Detective Groome believed that the Altima itself was
evidence of the shooting and that additional evidence could
also be found within the vehicle. Due to concerns related to
Appellant’s newfound knowledge of an investigation, the
Altima’s inherent mobility, its location in plain view, and the
belief that the evidence could be destroyed in the interim,
Detective Reeves and Detective Groome towed the Altima
to the Falls Township Police Department to secure it while
they obtained a search warrant. On June 4, 2021, the
detectives secured and executed a search warrant for the
Altima. Detective Reeves and Detective Groome discovered
twenty-eight (28) individually wrapped bags of
methamphetamine and two (2) bags of marijuana.
2 A proximity key will start the corresponding vehicle
so long as it is in its proximity, it does not need to be
placed in the ignition.
(Suppression Court Opinion, filed 8/19/22, at 1-3) (internal record citations
omitted).
The Commonwealth filed a criminal information charging Appellant with
PWID and related offenses. On June 15, 2022, Appellant filed an omnibus
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pretrial motion seeking to suppress all evidence obtained from the search of
the Altima. Among other things, Appellant argued that the police did not
possess exigent circumstances to justify the warrantless seizure of the Altima.
(See Pretrial Motion, filed 6/15/22, at ¶9). Regarding the subsequent search
of the Altima, Appellant acknowledged that the police obtained a warrant.
Appellant insisted, however, that the search warrant failed to demonstrate
probable cause. (Id. at ¶10). The court conducted a suppression hearing on
June 16, 2022. At the conclusion of the hearing, the court denied Appellant’s
suppression motion.
Appellant immediately proceeded to a stipulated waiver trial, and the
court found him guilty of all charges. On July 21, 2022, the court sentenced
Appellant to an aggregate term of five (5) to ten (10) years’ imprisonment.
Appellant did not file post-sentence motions. Instead, Appellant timely filed
a notice of appeal on July 25, 2022. That same day, Appellant filed a voluntary
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant now raises one issue for this Court’s review:
Did the trial court err in allowing the seizure of Appellant’s
vehicle without a warrant and in not declaring the
subsequent search to be unlawful and to suppress the fruits
thereof.
(Appellant’s Brief at 4).
On appeal, Appellant initially disputes the court’s finding that police
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lawfully seized the vehicle pursuant to the “plain view” doctrine.3 Appellant
maintains that police did not actually want to seize his vehicle. Rather, police
“wanted the contents of the vehicle, which they thought might contain DNA,
firearms, ammunition,” or other evidence of the shooting. (Id. at 8).
Appellant emphasizes that police did not see any evidence of the shooting in
plain view, and police eventually found the contraband at issue inside a
suitcase recovered from the trunk of the vehicle. As such, Appellant also
asserts that it was not “immediately apparent” that the vehicle amounted to
“incriminating evidence.” (See id. at 10).
Further, Appellant argues that exigent circumstances did not support
the warrantless seizure of the vehicle. Appellant acknowledges that police
were concerned about the “inherent mobility” of the vehicle and “the likelihood
that evidence could be destroyed.” (Id. at 9). Appellant insists, however,
that these concerns were mitigated by the fact that Appellant could not have
moved the vehicle “while in the company of the investigating detectives.” (Id.
at 10). Under these circumstances, Appellant contends “there was no valid
reason to seize the vehicle without a warrant,” which police could have
obtained while questioning Appellant. (Id.) Appellant concludes that police
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3The trial court opinion sets forth the court’s conclusions that 1) police lawfully
seized the vehicle because it was in plain view; 2) an officer surveilling the
vehicle until a warrant was secured would have had the same effect as a
seizure; and 3) the police ultimately conducted a legal search of the vehicle
pursuant to a valid warrant. (See Suppression Court Opinion at 5-10).
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conducted an illegal seizure, which rendered the ensuing search unlawful. We
disagree.
The following principles govern our review of an order denying a motion
to suppress:
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. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal
denied, 647 Pa. 522, 190 A.3d 580 (2018) (quoting Commonwealth v.
Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015)).
“Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Heidelberg, 267 A.3d 492, 502 (Pa.Super. 2021) (en banc), appeal denied,
___ Pa. ___, 279 A.3d 38 (2022) (quoting Commonwealth v. Newsome,
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170 A.3d 1151, 1154 (Pa.Super. 2017)). “As a general rule, ‘a warrant stating
probable cause is required before a police officer may search for or seize
evidence.’” Id. (quoting Commonwealth v. Anderson, 40 A.3d 1245, 1248
(Pa.Super. 2012)). “To effectuate the rights guaranteed under the Fourth
Amendment, in the early part of the last century, the United States Supreme
Court adopted the exclusionary rule, which bars the use of evidence obtained
through an illegal search and seizure.” Commonwealth v. Arter, 637 Pa.
541, 547-48, 151 A.3d 149, 153 (2016). “The exclusionary rule also applies
to any evidence discovered as a result of the original illegal police conduct;
such evidence is termed ‘fruit of the poisonous tree.’” Commonwealth v.
Williams, 2 A.3d 611, 619 (Pa.Super. 2010) (en banc), appeal denied, 610
Pa. 585, 19 A.3d 1051 (2011).
Nevertheless, “the exclusionary rule does not prevent the introduction
of evidence that is ‘gained from an independent source,’ but rather applies
only to ‘knowledge gained by the Government’s own wrong.’” Id. (quoting
Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d
441, ___ (1963)).
The Supreme Court in Wong Sun noted that evidence is
admissible if the “connection between the lawless conduct
of the police and the discovery of the challenged evidence
has become so attenuated as to dissipate the taint.” The
Supreme Court ruled: “We need not hold that all evidence
is fruit of the poisonous tree simply because it would not
have come to light but for the illegal actions of the police.
Rather, the more apt question in such a case is whether,
granting establishment of the primary illegality, the
evidence to which instant objection is made has been come
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at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint.” Thus, where evidence was obtained through
constitutional police action unconnected with the illegal
police conduct, it is “purged” of “taint” based upon its
derivation from an independent source.
Id. (internal citations omitted).
In Williams, supra, this Court applied the independent source doctrine
and concluded that the warrantless seizure of a vehicle did not require the
suppression of contraband recovered from inside the vehicle. Specifically,
Williams involved a scenario where a veteran police officer received
information from a reliable confidential informant. The informant told the
officer that the defendant was dealing drugs out of a black Ford Expedition on
the 300 block of Myrtle Street in Erie. The officer 1) knew the defendant from
prior contacts; 2) was aware that the defendant drove a black Expedition; and
3) had received other complaints about the defendant’s drug-related activities
on the block at issue.
Immediately after hearing from the informant, the officer drove to the
300 block of Myrtle Street in an unmarked police cruiser. The officer saw the
defendant inside the black Expedition, drove past the defendant’s vehicle, and
parked one and one-half blocks away. The officer conducted surveillance for
twenty minutes. During that time, the officer watched three individuals
approach the Expedition and place their hands inside the vehicle. The officer
knew that this type of behavior was consistent with drug transactions.
After the transactions, the defendant drove away. The officer followed
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the defendant. As the defendant pulled into his driveway, the officer pulled
up behind him. The officer approached the defendant, conducted a pat down,
and discovered $600.00 in cash in the defendant’s pocket. The officer
handcuffed the defendant and transported him to the police station.
Thereafter, another officer drove the Expedition to a police garage for a dog
to conduct a drug sniff of the vehicle. While the Expedition was driven to the
garage, no search was conducted, and no evidence was recovered. During
the drug sniff, the dog made a positive indication on the driver’s side of the
Expedition. The officer shined a flashlight into the vehicle and saw a plastic
baggie protruding from the roof liner. At that point, the officer decided to
obtain a search warrant for the vehicle. The subsequent search yielded drugs
and additional paraphernalia.
The defendant filed a suppression motion, which the court denied.
Following trial, the defendant was convicted of various drug offenses. On
appeal, the defendant claimed that “the warrantless seizure of the Expedition
requires suppression of the evidence seized therefrom during execution of the
warrant.” Id. at 617. In affirming the suppression court’s ruling, this Court
relied upon the independent source doctrine:
[P]olice had probable cause to believe that [the defendant]
was dealing drugs from the Expedition, and, therefore, that
it contained contraband. They drove the vehicle from the
driveway to the police station to conduct the canine sniff and
wait for the warrant. Police did not search the Expedition
while driving to the police station, and no information
gleaned during that ride was utilized to support the warrant.
Thus, the warrantless seizure of the vehicle did not result in
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the discovery of a scintilla of evidence used by the
government in any aspect of this prosecution.
The information supporting the canine sniff and the warrant
was not derived to any extent from the singular act of taking
the Expedition from the driveway to the police station to
secure it. Rather, those two searches were based upon facts
learned prior to the act of transporting the vehicle. Thus,
the independent source doctrine … is directly applicable.
Id. at 620-21.
Instantly, the suppression court opinion includes factual findings and
conclusions of law. Among other things, the court determined that the police
possessed probable cause to believe that Appellant’s vehicle was involved in
the May 5, 2021 shooting:
Castle Club Apartments’ video surveillance showed the
Altima arriving at the scene of the shooting moments before
it occurred. An individual exited the vehicle and walked
toward the building where shots were fired, returned to the
Altima, and subsequently fled the scene. Further, a
confidential informant reported that Appellant was thought
to be the shooter. Finally, the Altima seen on video
surveillance was the same Altima that Appellant was known
to drive, which was registered to his wife….
(Suppression Court Opinion at 6). Our review leads us to conclude that the
suppression court’s factual findings are supported by the record, and its legal
conclusion is correct. See Ford, supra. See also Commonwealth v.
Goldsborough, 31 A.3d 299, 306 (Pa.Super. 2011), appeal denied, 616 Pa.
651, 49 A.3d 442 (2012) (reiterating that probable cause “is made out when
the facts and circumstances which are within the knowledge of the officer at
the time of the arrest, and of which he has reasonably trustworthy
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information, are sufficient to warrant a [person] of reasonable caution in the
belief that the suspect has committed … a crime”).
Although the police effectuated a warrantless seizure of Appellant’s
vehicle by towing it to the Falls Township Police Department, the police did
not conduct a search of the vehicle until they obtained the search warrant.
(See N.T. Suppression Hearing, 6/16/22, at 33). Additionally, the affidavit of
probable cause submitted with the application for the search warrant was
based upon facts that the police learned prior to the seizure of the Altima.
(See Commonwealth’s Suppression Exhibit CS-2, Affidavit of Probable Cause,
dated 6/4/21, at 1-4). Under these circumstances, the independent source
doctrine applies to the instant case. See Williams, supra. Thus, we cannot
say that the court erred in denying Appellant’s suppression motion, and we
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2023
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