HomeMy WebLinkAbout99-0641 CriminalCOMMONWEALTH
Vo
ANTHONY BERNARD
CROMWELL
O]~,l: F311438-1
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES:
(1) ROBBERY
(2) SIMPLE ASSAULT
(3) THEFT BY UNLAWFUL
TAKING
NO. 99-0641 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., November d{, 2000.
This criminal case arises out of an armed robbery that occurred in
Mechanicsburg (Upper Allen Township), Cumberland County, Pennsylvania, on
December 1, 1998.1 As a result of the incident, Defendant was charged with
robbery,2 simple assault,3 and theft by unlawful taking or disposition.4
Following a jury trial, Defendant was found guilty on all three counts.5 He
has now filed a direct appeal to the Pennsylvania Superior Court from the
judgment of sentence.6
The bases for Defendant's appeal are that the court erred in denying a
suppression motion and in rulings upon several evidentiary issues.? Specifically,
Defendant expresses the matters complained of on appeal as follows:
1 Trial N.T. at 33, 56, 58, 133 (hereinafter N.T. at ).
2 18 Pa. C.S. §3701(a)(1).
3 18 Pa. C.S. {}2701(a)(1), (3).
4 18 Pa. C.S. §3921(a).
5 N.T. at 568-70.
6 Defendant was sentenced on April 11, 2000. His appeal from the judgment of
sentence was filed following denial of a post-sentence motion.
? Defendant's Statement of Matters Complained of on Appeal, Pursuant to Pa.
R.A.P. 1925(b), 42 Pa. C.S.A., filed July 20, 2000.
1. The trial court erred in concluding that the Omnibus Pre-
Trial Motion to suppress evidence was untimely.
2. The trial court erred in determining that the application for
a search warrant was sufficient.
3. The trial court erred in determining that the search warrant
was reliable.
4. The trial court erred in determining the search warrant
contained the requisite specificity.
5. The trial court erred in denying Defendant's Motion in
Limine and failing to exclude photographs depicting the
above-named Defendant with firearms.
6. The trial court erred in failing to exclude statements made
by the above-named Defendant.
7. The trial court erred in failing to suppress the
identification of the above-named Defendant.
8. The trial court erred in failing to suppress the
identification of the above-named Defendant at 109 Hoerner
Street, Harrisburg, PA.
9. The trial court erred in failing to exclude testimony
regarding the above-named Defendant's statements relating to
possession of a pistol,a
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
PROCEDURAL HISTORY
The robbery in question occurred in Mechanicsburg (Upper Allen
Township), Cumberland County, Pennsylvania, on December 1, 1998.9 On that
date, in the course of an investigation of the robbery, an application for a search
warrant, supported by a probable cause affidavit, was submitted by an Upper Allen
Township police detective to a Cumberland County district justice requesting
aid.
9 See note 1 supra.
2
authorization to search a certain apartment in the township,l° A search warrant
was issued by the district justice and executed by police on December 1, 1998. TM
A warrant for Defendant's arrest was issued on December 21, 1998.
Defendant was apprehended in February of 1999. ~2
Defendant, represented by a public defender,~3 was formally arraigned on
May 21, 1999. Trial was ultimately scheduled for Monday, March 6, 2000, at
9:00 a.m.TM
On May 26, 1999, Robert P. Kline, Esq., had succeeded the public defender
as Defendant's court-appointed counsel.25 On November 29, 1999, Jason P.
Kutulakis, Esq., had succeeded Mr. Kline as Defendant's court-appointed
counsel. 16
On the eve of trial, Defendant's counsel filed an omnibus pretrial motion
for relief requesting, inter alia, that evidence be suppressed due to constitutional
defects relating to the search warrant.~7 The motion postdated, by more than three
months, the appointment of counsel who filed it; it postdated, by more than nine
months, the initial appointment of counsel; and it postdated, by more than nine
months, the formal arraignment of the defendant. The motion was, in terms of the
court calendar, filed less than an hour before the commencement of trial. ~8
lo See Commonwealth's Exhibit No. 1.
ll ld'
~2 N.T. at 437.
~3 Order of Court, May 21, 1999.
~4 Order of Court, January 11, 2000.
~5 Order of Court, May 26, 1999.
26 Order of Court, November 29, 1999.
27 Omnibus Pre-Trial Motion of Defendant, filed March 3, 2000.
~8 The motion was filed at 3:34 p.m. on Friday, March 3, 2000. Trial was
scheduled to commence on Monday, March 6, 2000, at 9:00 a.m. See Order of
Court, January 11, 2000.
3
At the time of trial, outside the presence of the panel from which the jury
would be selected, the court received the positions of counsel with respect to the
suppression motion, as well as their positions regarding five motions in limine
~vhich Defendant included in the omnibus pretrial motion.~9 The court denied the
motion to suppress, noting both its untimeliness and, in the court's view, its lack
of merit, and also considered the various motions in limine.2°
Defendant was found guilty following the jury trial on March 9, 2000.2~ He
was sentenced on April 11, 2000,22 and, following the denial of a post-sentence
motion,23 filed an appeal from the judgment of sentence to the Pennsylvania
Superior Court.24
STATEMENT OF FACTS
On Tuesday, December 1, 1998, an armed robbery occurred at the office of
the Belle Terre apartment complex in Mechanicsburg (Upper Allen Township),
Cumberland County, Pennsylvania.25 At approximately 10:55 a.m., a young, tall,
thin black male who was wearing a handkerchief over part of his face and carrying
a handgun entered the office and demanded money from the eighty-four-year-old
female rental manager.26 The victim described the handgun as being a long, shiny,
silver revolver.27 She stated that it looked like the gun which Defendant was
19 N.T. at 4-25.
20 Id.
2~ N.T. at 568-70.
22 Order of Court, April 11, 2000.
23 The motion was based on the weight of the evidence.
24 The appeal was permitted to be filed nunc pro tunc by this court.
25 See note 1 supra.
26 N.T. at 55, 58-59, 263.
27 N.T. at 60-61, 78.
4
shown holding in a certain photograph.28 After obtaining $200.00 in cash, which
had been paid by a tenant named Teyonna Smith earlier that morning, the robber
forced the victim into a bathroom and fled the scene?
Motion to suppress and motions in limine. On December 1, 1998, an
application for a search warrant, supported by an affidavit of probable cause, was
submitted to District Justice Gayle A. Elder by Upper Allen Township Police
Detective Michael S. McLaughlin.3° The location to be searched was 609 "A"
Apartment 33 Geneva Drive, Belle Terre Apartments, Upper Allen Township,
Cumberland County, which was leased to Teyonna Smith.31
A description of the items to be seized read as follows:
1. U.S. Currency in the amount of $200.00 excluding the
denominations of ones and fives. 2. Any firearm which could
fit the description of a handgun 3. dark colored jacket and
pants 4. Dark colored bandanna 5. Any document,
photograph or any other items which could be used to ID the
robber. 6. The ability to identify any black male found at the
scene.32
The affidavit of probable cause read as follows:
Your Affiant, Michael S. McLaughlin is an Upper Allen
Township Police Officer and has so been employed since
January 5, 1981. In my capacity as a Police Officer I have
participated in numerous criminal investigations which have
resulted in the arrest and convictions of approximately six
hundred (600) persons. As a criminal investigator for Upper
Allen Township Police Department, I am empowered to
conduct investigations and make arrests for offenses of the
Pennsylvania Crimes Code.
28 N.T. at 60. This photograph is discussed at more length subsequently in this
opinion.
29 N.T. at 57-58.
30 See Commonwealth's Exhibit No. 1.
3~ Id'
32 Id.
5
Based on your Affiant's familiarity with the circumstances
and facts of this investigation, you [sic] Affiant alleges that
the facts outlined in the following paragraphs are sufficient to
support probable cause for issuance of a search warrant for
the aforementioned premises and persons located in the
residence.
On August 12, 1998 your Affiant interviewed an individual
who indicated the following:
An individual known as "Aaron" who is described as a young
black male has been in possession of handguns when selling
marijuana from the aforementioned apartment. "Aaron" was
to be living with a black female who was pregnant. The lease
holder for said unit is Teyona Smith who your Affiant
confirmed was a black female and pregnant. On August 12,
1998 your Affiant conducted an investigation in regards to
DDCA violations in which drugs were being sold from said
apartment. The investigation was not successful due to no
one being home. There was a note on the door "To my
friends, I went to see my mom be back tomorrow at 5:30
p.m."
On November 30, 1998 at approximately 1830 hours the
managing partner of Octagon Associates, Ramay Swamy had
a meeting with Teyona Smith who was behind in her payment
of rent totaling $1,800.00. Teyona Smith who recently gave
birth to a child indicated to Swamy that she was unemployed
but expecting to become employed in the near future. Smith
and Swamy agreed that Smith would pay $200.00 to the
office clerk who was robbed before noon on December 1,
1998.
On December 1, 1998 at 1030 hours Smith did make a cash
payment of $200.00 to the office clerk in U.S. Currency
which excluded ones and fives. At the time of this payment
the office clerk happened to be talking to Swamy on an
unrelated matter and mentioned the fact to him that Smith
was in making the payment as promised.
On December 1, 1998 at 1055 hours the Upper Allen
Township Police Department received a report of an armed
robbery in the business office of Belle Terre Apartments. A
thin black male wearing dark colored jacket and pants, with a
bandana described as dark colored folded in a triangle and
tied around his nose/mouth and facial area concealing his
6
identity entered this office and confronted the 84 year old
female office employee. The robber was in possession of a
handgun described as large, pointing it as [sic] the clerk and
demanded money. After obtaining the money from the clerk
the robber forced the clerk into a bathroom and fled the scene.
An initial investigation which included a canine search
showed a track which lead [sic] in the direction of Building
609. A chance witness was interviewed by Officer Tappan
who indicated a black male fitting the description of the
robber was seen running from the direction of the robbery in
the general direction of Building 609.
At 1315 hours your Affiant interviewed Arthur Williams who
is the maintenance man for Belle Terre Apartments and who
was not at the scene during the robbery. The incident and
description were described to Williams by your Affiant and
asked if the description meant anything to him. Immediately
and without hesitation Williams indicated that there have
been three (3) black males who fit the description of the
robber who he associates with 609 "A" Apartment 33 Geneva
Drive. Williams has seen these individuals within the last
five (5) working days. When asked by your Affiant if the
description fit any other known residents of Belle Terre
Apartments, Williams indicated no.
Based on the totality of circumstances, there is probable cause
to believe that evidence associated with this robbery could be
located in 609 "A" Apartment 33 Geneva Drive and could
assist in identifying the perpetrator.33
On December 1, 1998, a search warrant was issued and executed.34 Items
seized or observed in the search were described in an arrest warrant which was
subsequently issued as follows: "Numerous photographs were obtained of
[Defendant] holding various firearms including pistols and revolvers. Other
photographs include [Defendant] in groups where individuals are holding
shotguns, what appears to be semi-automatic rifles and wearing body ballistic
armor which included [Defendant]. Some of the photographs of [Defendant]
33/d.
7
possessing handguns were photographed at Belle Terre Apartments. During the
developing process of some of the film a computer-generated writing appears on
the rear of a photograph showing [Defendant] holding what appears to be a
chrome six inch revolver and the date of November 8, 1998. In other photographs
taken inside 609 "A" Apartment 33 Geneva Drive various electronic equipment is
photographed. Included in the photograph is a blue semi automatic pistol and two
bullets. Handwritten on the back of the photograph is the following: "DADDY'S
TOYS 9/98". An acknowledge (sic) of paternity document was observed in the
apartment between [Defendant] with a DOB of 06 OCT 76, social security number
162585777 and Teyonna Shawnteea SMITH with a DOB of 24 NOV 77, social
security number 180584335 and their daughter Ninyah Capri CROMWELL with a
DOB of 31 OCT 98."
On the day of the robbery, in addition to procuring (and subsequently
executing) the search warrant, police, at approximately 2:45 p.m., observed Ms.
Smith leave by taxi from the apartment complex in Upper Allen Township in
Cumberland County, where she lived, and ride to a house at 109 Hoerner Street in
Harrisburg, Dauphin County, where her grandmother lived?
At 8:20 p.m., three officers arrived at 109 Hoerner Street in search of Smith
and Defendant.36 At the house, the police found several individuals, but
specifically interviewed Smith, Smith's aunt, and Smith's grandmother.37 Two
officers returned to 109 Hoerner Street shortly after midnight.38 They
reinterviewed Smith and her grandmother, the latter of whom informed them that
35 N.T. at 409-10, 414-15.
36 N.T. at 414-17.
37 N.T. at 418-19.
38 N.T. at 420, 423-24.
8
Defendant had been at 109 Hoerner Street prior to the initial arrival of the police
and had fled through the back door immediately upon the arrival of the police?
As previously indicated, almost immediately prior to the commencement of
trial Defendant filed an omnibus pretrial motion, which contained a motion to
suppress.4° The motion to suppress sought suppression of "all evidence and the
fruits thereof allegedly obtained through the ... search" of Ms. Smith's apartment,
including "[t]wo 6X6 photo albums, one found on the top of the kitchen cabinet
and the second found on the top of videotapes in the master bedroom"; the albums
were said to "include pictures of the above-named Defendant holding handguns.''4~
The bases of the motion to suppress were expressed in the motion as
follows:
13. It is believed and therefore averred that the
Commonwealth lacked a reasonable basis to search Teyonna
Smith's 609 A Apartment 33.
14. The search warrant was invalid and not supported by
probable cause, in that inter alia:
(a) The Affidavit of Probable Cause to Search did not
contain information which was legally sufficient and
adequate, and of such kind and quality, to constitute
probable cause to believe contraband or fruits of
evidence of crime could be found in the apartment.
(b) The Warrant did not state with particular
specificity the description of things to be seized. It
was general and exploratory in nature, which is in
violation of the rights guaranteed by the United States
Constitution, 4th Amendment, and the Pennsylvania
Constitution, Article 1, §8.
(c) The Affidavit of Probable Cause to search did not
establish that there was probable cause to search.
39 N.T. at 422.
40 Omnibus Pre-Trial Motion, filed March 3, 2000.
4ild. at 3-4.
9
(d) The use of challenged evidence would violate the
right and guarantees provided by the United States
Constitution, 4th and 14th Amendments, and the
Pennsylvania Constitution, Article 1, §8.42
As also previously indicated, Defendant's omnibus pretrial motion
additionally included five "motions in limine." These were a "Motion in Limine
to Exclude Photographs Depicting the Above-named Defendant with firearms,''43 a
"Motion in Limine to Exclude Evidence of Other Criminal Incidents,''44 a "Motion
in Limine to Exclude Testimony of Layton Fricke [apparently a neighbor of Ms.
Smith],''45 a "Motion in Limine to Preclude Testimony of Defendant's Current
Incarceration Status,''46 and a "Motion in Limine to Preclude Testimony and
Evidence Regarding the Above-named Defendant's Presence at or Around 1019]
Hoerner Street, Harrisburg, Pennsylvania on or about December 1, 1998.''47
The premise of the motion to exclude photographs of Defendant with
firearms was that the photographs were irrelevant and unfairly prejudicial.4a The
motion to exclude evidence of other criminal conduct referred to "[a]n assault on
or about December 30, 1998," and to unspecified incidents "[o]n or about August
11 and 12, 1998," and "[o]n or about February 5, 1999, in Philadelphia"; exclusion
of this evidence was sought on the grounds of irrelevance and unfair prejudice.49
The motion to exclude testimony of "Layton Fricke" sought to exclude testimony
of Mr. Fricke to the effect that Defendant and Ms. Smith "argued a lot" and that
"the odor of burning marijuana was often emanating from" Ms. Smith's
42 .Id.
43 .Id. at 4-5.
44.id. at6.
45 Omnibus Pre-Trial Motion, filed March 3, 2000, at 7.
46 .id. at 7-8.
47 .id. at 8-9.
4aid. at5.
49Id. at6.
10
apartment; exclusion of this evidence was sought on the grounds of irrelevance
and unfair prejudice?
The motion to exclude evidence as to Defendant's "[c]urrent [i]ncarceration
[s]tatus" suggested that a Commonwealth witness might testify "as to the fact that
above-named Defendant is currently incarcerated"; exclusion of this testimony
was sought on the grounds of irrelevance and unfair prejudice.5~ Finally, the
motion to exclude evidence as to Defendant's presence at the home of Ms. Smith's
grandmother on the day of the robbery reiterated the contention that such evidence
was the "fruit of an illegal seizure, and hence, should be suppressed as tainted by
the ... illegality.''52
At the proceeding on Defendant's omnibus pretrial motion, the search
warrant was admitted as an exhibit? As noted previously, the positions of
counsel were received on the several aspects of the motion?
With respect to Defendant's motion to suppress based on constitutional
deficiencies relating to the search warrant, Defendant's counsel stated that he had
not seen the search warrant application until February 22, 2000.55 On the merits of
the motion to suppress, he contended (1) that the application for a search warrant
lacked particularity in terms of the items to be seized to the extent that they were
described as "[a]ny document, photograph or any other items which could be used
to ID the robber" and "[t]he ability to identify any black male found at the scene,"
and (2) that the probable cause affidavit was deficient in that (a) it contained
inaccuracies as to the time Ms. Smith made her $200 rental payment and as to the
50 Omnibus Pre-Trial Motion, filed March 3, 2000, at 7.
5~ Id. at8.
52Id. at9.
53 N.T. at 524.
54 N.T. at 4-25.
55 N.T. at 10.
11
direction of a canine track from the site of the robbery and (b) it contained no
indicia of reliability as to the unnamed individuals who advised police that a black
male named Aaron had handguns and sold marijuana from an apartment in the
Belle Terre complex and that a black male had run toward Building 609.56
56 The contentions of Defendant's counsel with respect to deficiencies relating to
the search warrant are more fully set forth in the following excerpt from the
proceeding on the omnibus pretrial motion:
MR. KUTULAKIS: ... Your Honor, there are certain
points within the application for the search warrant which are
inaccurate, and the most pointed inaccuracy, as I can see it,
deals with the time that a payment was made.
The affiant listed, cash payment made on December 1st,
1998, at 10:30. I believe the testimony is going to show, and
the preliminary hearing transcript shows, that the payment
was actually made at 9:50. That's a 40 minute difference,
Your Honor. The 10:30 time frame is essentially important
because that is the time at which a witness for the
Commonwealth, a cab driver, will be placed at the scene of
the robbery, and his testimony in that time frame is very
crucial.
So I feel that an error in the application process regarding
that time is critical. That's point number one. Point number
two, the affiant relies upon, and I'll quote, on August 12th,
1998, the affiant interviewed an individual who indicated the
following. There's no discussion of who that individual was,
the relationship the affiant had with that individual, and the
reliability of that individual. That individual allegedly
relayed the following information: That an individual known
as Aaron, young black male, was in possession of handguns
while selling marijuana from an apartment in the complex at
Belle Terre.
Later in the application for the search warrant, the affiant
indicates that the initial investigation, which included the K-9
search, showed a track which led in the building of 609.
Building 609 is the building where the girlfriend had resided
in Belle Terre. That is not exactly accurate, as the testimony
is going to show.
12
The K-9 report shows that, in fact, the track which led
away from the robbery did not actually go to 609; in fact, it
crossed the street and led several blocks away to a different
apartment complex where another suspect had been detained
at Cumberland Pointe Circle. It did not go back to 609.
Regarding the application for search warrant, it goes further
on to say that, a chance witness said he saw a black male was
seen running towards 609.
Again, the same argument, Your Honor, that this is vague.
It's not reliable, and there's no relationship between the
affiant and this chance witness. The chance witness is not
named again. We're not sure how we can rely upon that
information. And Detective McLaughlin, in concluding, says,
based on the totality of the circumstances, he felt that there
was probable cause at that point.
Well, the totality of the circumstances set forth in the
application for the search warrant are not exactly reliable, and
there's, in fact, an inaccuracy as to when the cash payment
was made. So I would submit to the Court that the totality, the
totality of the circumstances are, in fact, they're not there. So
the application for the search warrant should fail on its face.
The second argument for the suppression of the search
warrant is within the four comers of the search warrant itself,
Your Honor. I believe that's contained--the search warrant
is contained in Commonwealth's Exhibit No. 1 as well, and it
states, the items could be searched for and seized, item
number five, any document, photograph, or any other items
which could be used to identify the robber, and number six,
the ability to identify any black male found at the scene.
I submit to the Court that, that does not fall within the
requirements necessary for a valid search warrant in that
those are vague and non-specific, and consequently, the
search warrant should fail. It does not say what items we're
looking for specifically. It does not say what individual
they're looking for specifically.
N.T. at 5-8.
13
The court denied Defendant's motion to suppress, citing both its
untimeliness and, in the court's view, its lack of substantive merit? With respect
to the various motions in limine, several rulings, deferrals or understandings
ensued.
First, the court excluded a photograph of Defendant at the Belle Terre
apartment complex holding a gun which could not be associated with the
robbery,58 excluded a photograph of a gun unconnected with the robbery which the
victim would testify resembled the gun used in the robbery, and declined to
exclude a photograph of Defendant holding a gun which the victim would testify
looked like the gun used in the robbery.59 Second, the Commonwealth indicated
that it did not intend to present evidence of criminal activity on the part of
Defendant in the form of an assault upon a woman in December of 1998, gang-
related activity contemporaneous with his arrest in February of 1999, or offenses
for which Defendant was awaiting trial in Philadelphia.6° However, the
Commonwealth indicated that it did propose to introduce a statement of Defendant
to Detective McLaughlin during an interview about the present offenses to the
effect that Defendant was a drug dealer trying to provide for his family, not a
robber, on the theory that it tended to show a need for money and thus a motive for
the offenses charged; on this issue, the court reserved an immediate ruling, with a
direction that the Commonwealth not attempt to elicit such evidence without
securing court approval at sidebar.61
57 N.T. at 9.
58 N.T. at 12-13.
59 N.T. at 13. The victim subsequently testified in accordance
prosecutor's proffer. See note 28 supra and accompanying text.
6° N.T. at 16.
6~ N.T. at 17-20. It does not appear that the Commonwealth
attempted to elicit this evidence.
with the
subsequently
14
Third, the Commonwealth indicated that it did not intend to elicit testimony
from Layton Fricke as to drug use by Defendant? Fourth, the Commonwealth
indicated that it did not intend to present evidence that Defendant was currently
incarcerated? Finally, the court declined to exclude evidence as to Defendant's
presence at the house in Harrisburg to which Ms. Smith took a taxi following the
robbery.64
Evidence and rulings at trial. The evidence at trial may be summarized, in
part, as follows: On Tuesday, December 1, 1998, an armed robbery occurred at
the office of the Belle Terre Apartment Complex in Mechanicsburg (Upper Allen
Township), Cumberland County, Pennsylvania? On the evening of November
30, 1999, the night before the robbery, the managing partner of the apartment
complex met with Teyonna Smith, Defendant's girlfriend, regarding overdue rent
payments.66 Ms. Smith agreed to pay two hundred dollars to the office clerk the
next day.67 Ms. Smith made the payment at approximately 9:50 a.m. on the
morning of December 1, 1999.68 Later that morning, at approximately 10:55 a.m.,
a young, tall, thin, black male, who was wearing a handkerchief over part of his
face and carrying a handgun entered the office and demanded money from Betty
Zimmerman, the eighty-four-year-old rental manager.69 After obtaining the
$200.00 in cash which had been paid by Ms. Smith earlier that morning, the
robber forced the victim into the bathroom and fled the scene.TM
62 N.T. at 17.
63 N.T. at 20.
64 N.T. at 20-22.
65 See note 1 supra.
66 N.T. at 37-40.
67 N.T. at 41.
68 N.T. at 45, 56-57.
69 See note 26 supra.
70 N.T. at 58.
15
Several witnesses placed Defendant at the apartment complex on the
morning of the robbery. A witness for the Commonwealth testified that he had
seen and heard Defendant respond to a cab's horn from an apartment window
corresponding in location to the apartment of Ms. Smith? Another witness for
the Commonwealth testified that she saw Defendant in the stairwell leaving the
apartment complex while a cab, which had tooted its horn, waited outside.TM The
driver of the cab testified that he picked up a black male (whom he could not
identify) who instructed him to pull up to the building in which the office was
located and wait? The driver further testified that, after returning from the
building in which the office was located, the passenger asked to be transported to
the intersection of 13th and Market Streets in Harrisburg? this intersection was a
few blocks from the house of the grandmother of Defendant's girlfriend on
Hoerner Street, where events previously recited transpired?
The initial investigation also included a canine search conducted by
Cumberland County Deputy Sheriff Dawn Kell. On more than one occasion,
Defendant's counsel brought to the jury's attention the fact that the gun involved
in the robbery had been indicated by Deputy Kell to have been a nine-millimeter
(pistol)? The canine search was unsuccessful in leading to the perpetrator of the
robbery.77
During the trial, a number of evidentiary issues arose. In the course of
Detective McLaughlin's testimony regarding an interview he had conducted with
Defendant on February 26, 1998, after Defendant had been taken into custody,
7~ N.T. at 222-23.
72 N.T. at 197-200.
73 N.T. at 166-67.
74 N.T. at 171.
75 N.T. at 142-43.
76 N.T. at 82, 281,364; seeN.T, at 15.
16
Defendant's counsel objected to the admissiOn of several responses of Defendant
on the grounds that they were not admissions against interest and were unduly
prejudicial?
Within this category of statements were (1) a remark by Defendant that "I
did not rob that old woman" (where the detective had not indicated the age or sex
of the victim in the interview),79 (2) a statement that a neighbor of Ms. Smith
named Jasie Garlin was a "drug fiend" (in response to Ms. Garlin's statement to
police that she had seen Defendant at the apartment complex on the morning of the
robbery),8° (3) a statement that Ms. Smith was "mistaken" (in response to a
statement by Ms. Smith to police that Defendant was at 109 Hoerner Street on the
day of the robbery),st (4) a comment that "that would be stupid," or "how stupid
could I be to do that?" (in response to the cab driver's report to police that he had
picked up a black man from Building 609-A who directed the cab to Building 613-
A, where the office was),82 and (5) a statement that "her [Ms. Smith's] family
hates me" (in response to a statement of Mrs. Smith's grandmother to police that
Defendant had run from her house on the day of the robbery when the police
arrived for the first time and to a statement of Mrs. Smith's sister to police that
Defendant had a long-barreled revolver in Harrisburg in December of 1998).83
77 N.T. at 338.
78 N.T. at 351-53, 443-44. Defendant's Statement of Matters Complained of on
Appeal indicates that "[t]he trial court erred in failing to exclude statements made
by the above-named Defendant." In preparing this opinion, the court has reviewed
the record and attempted to locate those instances where Defendant's counsel
objected to introduction of a statement by Defendant.
79 N.T. at 439-42.
80 N.T. at 447.
8~ N.T. at 447-48.
82 N.T. at 448.
83 N.T. at 448-49.
17
Defendant's counsel also objected on the same grounds to the admission of
two statements Defendant made during the interview regarding his mother, who he
suggested could provide an alibi for him.84 He claimed that on the day of the
robbery he and his brother "were hustling on the street [in Philadelphia while his]
mother was sucking dick in the basement," and he identified his mother as a
"crack whore.''85
Finally, Defendant's counsel objected to the admission of statements
Defendant made pertaining to his possession of guns on the grounds that they were
not admissions against interest and were unduly prejudicial? Specifically,
Defendant stated that he had owned the long-barreled, six-inch stainless steel
revolver which he was pictured holding in the aforesaid photograph that was
admitted into evidence, and that he had sold the weapon on the street?
Defendant's counsel also objected to the admission of statements made by
Defendant regarding his possession of a nine-millimeter pistol on the additional
ground of irrelevance, in that it was apparently not the gun used in the robbery?
Specifically, Defendant stated that he had possessed a nine-millimeter pistol, and
that he had also sold that weapon on the street? The court declined to exclude
any of the above-mentioned statements.9°
DISCUSSION
Motion TO Suppress
Timeliness of motion to suppress. Under the Pennsylvania Rules of
Criminal Procedure, a motion to suppress is to be included in an omnibus pretrial
84 N.T. at 352-53.
85 N.T. at 450.
86 N.T. at 353.
87 N.T. at 444-45.
88 N.T. at 442-44.
89 N.T. at 446.
18
motion,9~ and in general such a motion must be filed and served within 30 days of
a defendant's formal arraignment? The importance of this rule in facilitating a
proper disposition of pretrial issues is evident in the present case, where a late
filing placed the court in a position of attempting to adjudicate a suppression issue
as a panel from which the jury was to be selected waited to be called.
Exceptions to the general 30-day rule are authorized where
opportunity therefor did not exist, or the defendant or defense
attorney, or the attorney for the Commonwealth, was not aware
of the grounds for the motion, or unless the time for filing has
been extended by the court for cause shown.93
In Commonwealth v. Page, 246 Pa. Super. 380, 383, 371 A.2d 890, 891
(1977), the Pennsylvania Superior Court declined to accept the proposition that a
change in court-appointed counsel would, in itself, excuse compliance with time
constraints under the rules of criminal procedure for the filing of a suppression
motion. "The orderly administration of justice," the Court observed, "would be ill
served if we interpreted [the rule establishing time constraints for the filing of
suppression motions] to be so flexible as to permit an exception whenever a
defendant obtained a new attorney .... "Id.
In the case subjudice, the court was not able to perceive a good reason that
Defendant's suppression motion was filed (a) nine months after appointment of
counsel and formal arraignment, (b) effectively, a few minutes before trial, and (c)
without procurement of an extension of the prescribed period. For this reason, it
did not feel that the motion should be considered timely.
Merits of motion to suppress. In addition to the untimeliness of
Defendant's motion, substantive factors militated against granting the motion.
9o N.T. at 354-55,444.
9~ See Comment, Pa. R. Crim. P. 306.
92 Pa. R. Crim. P. 307.
93 Id.
19
First, a defendant does not invariably have standing to secure relief where an
illegal search has been conducted. See Commonwealth v. Patterson, 392 Pa.
Super. 331,346, 572 A.2d 1258, 1266 (1990), appeal denied, 527 Pa. 631, 592
A.2d 1299 (1991). As a general rule,
[i]n order to have standing [to challenge the legality of a
seizure of an item in the course of a search upon premises, a
defendant] must demonstrate one of the following: 1) that he
was present on the premises at the time of the search; 2) that he
had a possessory interest in the evidence improperly seized; 3)
that possession was an essential element of the prosecution's
case; or 4) that he had a proprietary interest in the premises
searched.
Id. (citing Commonwealth v. Peterkin, 511 Pa. 299, 309-10, 513 A.2d 373, 378
(1986). The absence of these elements in the present case was an obvious
deficiency with respect to Defendant's motion to suppress evidence resulting from
the search of Ms. Smith's premises.
Second, in the court's view, the alleged deficiencies relating to the search
warrant did not rise to the level of constitutional infirmities. In this regard,
Defendant contends on appeal that the court erred "in determining that the
application for a search warrant was sufficient," "in determining that the search
warrant was reliable," and "in determining the search warrant contained the
requisite specificity.''94
As noted previously, it was Defendant's position that the probable cause
affidavit in support of the application for the warrant was deficient due to factual
inaccuracies and a lack of indicia of reliability of unnamed sources, and that the
application lacked sufficient particularly in terms of items to be seized.95 These
contentions will be discussed seriatim.
94 Defendant's Statement of Matters Complained of on Appeal, Pursuant to Pa.
R.A.P. 1925(b), 42 Pa. C.S.A., filed July 20, 2000 (emphasis added).
95 See note 56 supra.
20
With respect to inaccuracies in a probable cause affidavit in support of an
application for a search warrant, it is well settled that such inaccuracies may
render the warrant constitutionally defective where they are deliberate and
material. See Commonwealth v. Jones, 229 Pa. Super. 224, 323 A.2d 879 (1974).
In this context, "a material fact is ... one without which probable cause to search
would not exist." Id. at 230, 323 A.2d at 881. Stated otherwise, an affidavit of
probable cause will not fail on the basis of a factual inaccuracy where the affidavit
would be sustainable if it were redacted to exclude the averment in question. See
Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667,
682 (1978).
The reason that not every inaccuracy in a search warrant affidavit will
render the warrant invalid is a practical one. Commonwealth v. Jones, 229 Pa.
Super. 224, 323 A.2d 879 (1974). "[W]arrants are ordinarily drafted in haste,
from sketchy notes, and minor discrepancies are virtually unavoidable." Id. at
230, 323 A.2d at 881.
[Search warrants] are normally drafted by nonlawyers in the
midst and haste of a criminal investigation. Technical
requirements of elaborate specificity once exacted under
common law pleadings have no proper place in this area. A
grudging or negative attitude by reviewing courts toward
warrants will tend to discourage police officers from
submitting their evidence to a judicial officer before acting.
United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741,746, 13 L. Ed. 2d
684, 689 (1965).
In the present case, Defendant's counsel argued that a statement in the
probable cause affidavit to the effect that Ms. Smith had made her $200 rental
payment at 10:30 a.m. was inaccurate, in that the payment was actually made at
9:50 a.m.96 The robbery occurred at 10:55 a.m. It was not suggested that this
statement in the detective's affidavit was deliberately false, nor does the evidence
96/d.
21
support Defendant's position that the discrepancy was significant in terms of
probable cause?
Defendant's counsel also argued that a statement in the probable cause
affidavit concerning the canine track was improper. In this regard, counsel
paraphrased the affidavit as stating that "the initial investigation, which included
the K-9 search, showed a track which led in the building of 609.''98 Such a
statement, according to Defendant's counsel, was inaccurate, in that the track "did
not actually go to 609" and, in fact, "crossed the street and led several blocks away
to a different apartment complex where another suspect had been detained.''99
An examination of the affidavit, however, reveals that it did not state that
the canine track led into building 609; rather, it stated that the track led "in the
direction of building 609?® This limited statement was apparently true.l°l
Furthermore, a redaction of the affidavit to exclude the statement would not have
materially affected its character in terms of probable cause to search Ms. Smith's
apartment.
With respect to indicia of reliability of sources of information in an
affidavit of probable cause, the constitutional rule formerly was that, where a
search warrant was based upon information provided by confidential informants,
the warrant was required to pass two specific tests,
under which the issuing authority had to be able to see, on the
face of the affidavit of probable cause, both the informant's
basis for his knowledge and independent facts showing the
reliability of the informant.
Commonwealth v. Gray, 509 Pa. 476, 481,503 A.2d 921,924 (1985).
97/d.
98 Id.
99 Id.
~°°See text accompanying note 33 supra.
~o~ See N.T. at 228-29, 276, 389; Commonwealth's Exhibit 7; Defendant's Exhibit
2.
22
The present, more relaxed,~°2 practical~°3 standard for review of an affidavit
of probable cause for a search warrant, which is based upon information supplied
by confidential informants, has been expressed as follows:
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances
set forth in the affidavit before him, including the "veracity"
and "basis of knowledge" of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. And
the duty of a reviewing court is simply to ensure that the
magistrate had a "substantial basis for ... concluding that
probable cause existed.
Id. at 484, 503 A.2d at 925.
In the present case, several factors led the court to conclude that the search
warrant issued by the district justice for Ms. Smith's apartment was not defective
due to an absence of indicia of reliability as to two sources of information in the
affidavit of probable cause. First, a necessary predicate of Defendant's position--
that the search warrant in question was "based" upon the information supplied by
the two unnamed individuals--was dubious at best. In this regard, the following
facts in the affidavit of probable cause were not dependent upon information
supplied by the unnamed individuals: (a) the dire financial straits of Ms. Smith,
(b) her need to provide for a new child, (c) her knowledge that $200 had been
deposited with an elderly woman who was alone in the manager's office, (d) the
robbery of the woman of the $200 at that location shortly thereafter, (e) the
description of the robber, and (f) information supplied by a named individual (i.e.,
the apartment maintenance man) with a substantial basis for his knowledge that a
person matching the description of the robber was involved with Ms. Smith and
that other people in the complex did not match the description of the robber.
102 ~.
103 ./d.
23
These independent facts could accurately be said to have served as the basis for
the warrant.
Second, the totality of the circumstances, which included (1) information,
as recited above, independent of the unnamed individuals which strongly
supported a belief that evidence related to the robbery could be found in Ms.
Smith's apartment and (2) facts tending to corroborate some of the information
supplied by the unnamed individuals, convinced the court that District Justice
Elder had a substantial basis, as set forth in Detective McLaughlin's affidavit, for
concluding that probable cause existed to search the premises in question, without
regard to the absence of further indicia of reliability on the part of the two
unnamed individuals.
With respect to the particularity with which objects of a search must be
described in an application for a warrant, the Fourth Amendment to the Federal
Constitution provides that "no Warrants shall issue but upon probable cause,
supported by Oath or affirmation, and particularly describing ... the persons or
things to be seized." Article I, Section 8, of the Pennsylvania Constitution
provides that "no warrant to search any place or to seize any person or things shall
issue without describing them as nearly as may be .... "
In the present case, Defendant contended that
The particularity requirement prohibits a warrant that is not
particular enough and a warrant that is overbroad. These are
two separate, though related issues. A warrant unconstitutional
for its lack of particularity authorizes a search in terms so
ambiguous as to allow the executing officers to pick and
choose among an individual's possessions to find which items
to seize. This will result in the general "rummaging" banned
by the fourth amendment. A warrant unconstitutional for its
overbreadth authorizes in clear or specific terms the seizure of
an entire set of items, or documents, many of which will prove
unrelated to the crime under investigation. The officers
executing such a warrant will not rummage, but will "cart away
all documents." An overbroad warrant is unconstitutional
because it authorizes a general search and seizure.
24
Commonwealth v. Santner, 308 Pa. Super. 67, 69-70 n.2, 454 A.2d 24, 25 n.2
(1982), cert. denied, 468 U.S. 1217, 104 S. Ct. 3585, 82 L. Ed. 2d 883 (1984)
(citations omitted). A description of items to be seized as "all files" of an
insurance agent, where only three files were known to be relevant to the
investigation being pursued, has been held incompatible with the particularity
requirement. Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d 896 (1988).
In appropriate cases, reference to the probable cause affidavit may help to
clarify the intended meaning of a description of an item in an application for a
search warrant. See Commonwealth v. Bagley, 408 Pa. Super. 188, 596 A.2d 811
(1991), appeal denied, 531 Pa. 637, 611 A.2d 710, cert. denied, 506 U.S. 1002,
113 S. Ct. 606, 121 L. Ed. 2d 541 (1992).
In the present case, Defendant contends that of the six descriptions of items
proposed for seizure in Detective McLaughlin's application for a search warrant
two lacked sufficient particularity: "[a]ny document, photograph or any other
items which could be used to ID the robber" and "[t]he ability to identify any
black male found at the scene." Two difficulties were apparent, however, with
respect to this position.
First, when viewed in the context of the affidavit of probable cause, the
descriptions were obviously intended to apply to a limited class of evidence, such
as a photograph, serving to identify the individual who was reported to be
associated with Ms. Smith who matched the description of the robber. The
description was not comparable to one for "all files [regardless of their relevance
to the investigation being pursued]."
Second, under the doctrine of severance, which is followed in many
jurisdictions, the generality of the description of some items will not invalidate a
warrant as it relates to items which have been described with sufficient
particularity. Id. at 215, 596 A.2d at 824; United States v. Cochran, 806 F. Supp.
560, 565 (E.D. Pa. 1992); cf. Grossman, 521 Pa. 290, 555 A.2d 896; but see
Commonwealth v. DePrez, No. 00-1563 Criminal Term (Cumberland Co. October
25
16, 2000). In the case sub judice, items seized in the search consisted of
photographs of Defendant, and the application for the warrant referred specifically
to "photographs" of the perpetrator.
Motions in Limine
In general, the admissibility of evidence is a matter addressed to the sound
discretion of the trial court. Commonwealth v. Claypool, 508 Pa. 198, 203-04, 495
A.2d 176, 177-78 (1985) (citing Commonwealth v. Bartlett, 446 Pa. 392, 400, 288
A.2d 796, 799-800 (1972)).
A prerequisite to the admission of evidence is relevancy. Pa. R.E. 402; see
Commonwealth v. A.W. Robl Transport, 747 A.2d 400, 404 (Pa. Super. Ct. 2000).
Evidence is relevant if it has "any tendency to make the existence of any fact that
is of consequence in the determination of the action more probable or less
probable than it would be without the evidence." Pa. R.E. 401; see
Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373,376 (1998).
"Although relevant, evidence may be excluded if its probative value is
outweighed by the danger of unfair prejudice .... "Pa. R.E. 403. In a criminal
case, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a [defendant] in order to show action in conformity therewith," but
may be admitted for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident, upon a
showing that the probative value of the evidence outweighs its potential for
prejudice. Pa. R.E. 404(b).
With particular reference to evidence of a defendant's prior possession of a
gun, the general rule is that, "where a weapon can not be specifically linked to a
crime, such weapon is not admissible as evidence." Commonwealth v. Robinson,
554 Pa. 293, 306, 721 A.2d 334, 351 (1998), cert. denied, 120 S. Ct. 804, 145 L.
Ed. 2d 677 (2000) (emphasis added).
However, there is an exception to the general rule where "the
accused had a weapon or implement suitable to the commission
26
of the crime charged. This weapon is always a proper
ingredient of the case for the prosecution.
Id. (quoting Commonwealth v. Lee, 541 Pa, 260, 274, 662 A.2d 645, 652 (1995),
cert. denied, 517 U.S. 1211, 116 S. Ct. 1831, 134L. Ed. 2d935 (1996)).
In this regard, the Pennsylvania Supreme Court "has repeatedly held that
the prosecution need not establish that a particular weapon was actually used in
the commission of a crime in order for it to be admissible at trial." Lee, 541 Pa. at
274, 662 A.2d at 652 (1995).
The only burden on the prosecution is to lay a foundation that
would justify an inference by the finder of fact of the
likelihood that the weapon was used in the commission of the
crime.~°4
See Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699 (1989) (hatchet);
Commonwealth v. Clayton, 516 Pa. 263, 532 A.2d 385 (1987), cert. denied, 485
U.S. 929, 108 S. Ct. 10989, 99 L. Ed. 2d 261 (1988) (gun); Commonwealth v.
Yount, 455 Pa. 303,314 A.2d 242 (1974) (knife); Commonwealth v. Ford, 451 Pa.
81,301 A.2d 856 (1973) (knife).
With respect to Defendant's motion in limine to preclude admission of a
photograph of Defendant with a handgun, it is noted that the photograph admitted
into evidence by the court showed Defendant in possession of a handgun prior to
the robbery which, according to the victim, looked like the handgun used by the
robber. The admission of this item, in the court's view, was consistent with the
principles stated above.
With respect to Defendant's motion in limine to preclude admission of
evidence that Defendant had been at the home of Ms. Smith's grandmother in
Harrisburg after the robbery and had fled when police arrived, Defendant's
counsel indicated that the motion was predicated upon the invalidity of the search
warrant.~°5 In this regard, it was apparently counsel's view that police would not
104 Lee, 541 Pa. at 274, 662 A.2d at 652.
105 N.T. at 20-22.
27
have been at the grandmother's house looking for Defendant at the time he fled
had they not searched Ms. Smith's apartment, and that the evidence in question
was thus a fruit of an unlawful search.~°6
Inasmuch as Ms. Smith's involvement in the crime was under investigation
and her departure by cab to her grandmother's house was observed by police, a
premise of the motion--that police presence at her grandmother's house after the
robbery was a result of the search of her apartment--was not compelling. A
second premise--that the observance by Ms. Smith and her grandmother of
Defendant at the premises when police arrived was also a result of the search of
Ms. Smith's apartment--was unpersuasive for the same reason. To the extent that
these pieces of evidence were the result of the search, the court's ruling that the
search was not invalid, if correct, also warranted denial of the motion in limine.
Evidentiary Rulings During the Trial
The principles regarding admission of evidence recited in the preceding
section of this opinion are again noted. In addition, with regard to the
admissibility of statements of a party in a case, the following commentary is
pertinent to some of the objections raised by Defendant:
Admissions [by a party opponent] ... are admissible
because it is fair in an adversary system that a party's
statements be used against the party ....
The term "admission" is sometimes confused with the lay
usage of the term--a person's statement of his or her guilt or
responsibility. However, it is not required that the party's
statement accept guilt or responsibility. Pa.R.E. 803(25)
requires only that the party's statement be offered against the
party.
It is not uncommon for admissions to be confused with
statements against interest.
Packel & Poulin, Pennsylvania Evidence §803(25)-1, at 798 (2d ed. 1999)
(emphasis added). In other words, when proffered by a party opponent, the
106 Id.
28
admissibility of a relevant statement by the other party is not dependent upon a
determination by the trial court that it was made contrary to the interest of the
declarant. Id.
As noted previously, Defendant objected to the admission of a number of
statements made by him. The bases for most of the objections were that the
statements were not in fact against Defendant's interest and that they were unduly
prejudicial. Because of Defendant's status as a party, however, the position that
the out-of-court declarations were inadmissible because they were not against the
declarant's interest was not correct, in the court's view.
It was also the court's view that the significance of the statements to the
prosecution's case, where the identity of the perpetrator was the main issue in
dispute, weighed heavily in favor of their admission. Thus, Defendant's statement
to police that he had not robbed "that old woman" tended to show knowledge on
his part which would have been possessed by the perpetrator. Defendant's
explanations for various pieces of evidence tending to support the
Commonwealth's case against him also bore upon the merits of the prosecution as
the explanations appeared more, or less, credible to the trier of fact.
Defendant's statements regarding his mother and his activity in
Philadelphia at the time of the crime in Cumberland County were made in the
context of his presentation of an alibi defense to Detective McLaughlin; redaction
of the alibi to eliminate its weaker aspects would have rendered it incomplete and,
in that sense, misleading as to its import. His admission to possession of the
handgun in the aforesaid photograph, which resembled the weapon used in the
robbery, was admissible for the reasons the photograph was admissible, in the
court's view. Finally, Defendant's statement that he had owned a nine-millimeter
handgun was rendered significant by reason of the introduction of evidence by
Defendant concerning a report that such a weapon was used in the robbery.
For the foregoing reasons, it is believed that the judgment of sentence in the
present case was properly entered.
29
Jaime M. Keating, Esq.
Chief Deputy District Attorney
BY THE COURT,
!
J[ e-siey Oler/_'?~.
Jason P. Kutulakis, Esq.
Court-appointed attorney
for Defendant
30