J-A04037-14
                             2014 PA Super 189


COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

JOSHUA THOMAS WRIGHT,

                        Appellee                    No. 825 WDA 2013


                Appeal from the Order entered April 16, 2013
             In the Court of Common Pleas of Allegheny County
              Criminal Division at No: CP-02-CR-0010466-2012

BEFORE: BOWES, WECHT, AND STABILE, JJ.

DISSENTING OPINION BY BOWES, J.:                  FILED AUGUST 29, 2014



Appellee Joshua Wright was charged with two counts of homicide, burglary

and a violation of the Uniform Firearms Act. He was accused of entering an

apartment located at 552 Princeton Boulevard, Wilkinsburg, and killing

Michael Lee Black and Dashawna Gibson by shooting each victim in the head



apartment.    Ms. Gibson was temporarily staying with Ms. Clark because

Ms.

      In the early morning hours of July 1, 2012, Ms. Clark fell asleep on the

floor of the living room, which was located on the ground level of the two-

story residence.    At approximately 5:30 a.m., she was awakened by

someone moving past her and then she heard a gunshot emanating from the
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upstairs bedroom where the two victims were located.          Ms. Clark next



pretended to be asleep. N.T. Preliminary Hearing, 8/10/12, at 14. Ms. Clark

went upstairs, saw that the victims appeared to be dead, and ran back



                                           Id. at 16.   Ms. Clark was afraid,



contacted police.

      Based upon the information supplied by Ms. Clark, police obtained an

arrest warrant for Appellee. After police were informed that Appellee was at



Police Detectives Anthony Perry and Kenneth Ruckel, who were accompanied

by three Murrysville police officers, executed the arrest warrant at

approximately   2:20   a.m.    on   July

Stephanie Pollard, answered the door, gave police consent to enter the

home, and led them to Appellee. Appellee awoke when police arrived and

was placed under arrest.      Since Appellee was in his underwear, police

dressed him in pants and a T-shirt and then handcuffed him.

      When police were in the process of executing the arrest warrant, they

observed a cellular telephone.      It was located on a nightstand in the




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bedroom.1 The battery was removed from the cell phone and was lying next

to it.2   Police seized the cell phone and obtained a warrant to search its

contents.

      The warrant used to search the telephone is contained in the record.

It indicates the following:

                                                             tion
      often provides beneficial information that assists with an

      telephone provides the following: persons with whom the
      perpetrator and victim recently spoke, time lines of the
      perpetrator and victim, contacts and identities of persons with
      possible information.    Information from the telephone of
      associates of the perpetrator and victim provides the following:
      persons with whom the associate spoke with before, during and
      after the commission of a crime and time lines of both the

      with possible information. Your affiant feels this information is
      extremely crucial and will benefit this investigation. It is also
                              ce that people who are fugitives from
      justice or attempting to evade detection will often turn off their
      cellular phones or remove their batteries in furtherance to avoid
      detection.

Affidavit of Probable Cause, 7/3/12, at 2 (emphasis added).

      Allegheny    County     Detective   Anthony   Perry   explained   at   the



1
   While the police indicated that the cell phone was in the pocket of the
shorts that they had placed on Appellee, the suppression court credited the

2
                                      at the battery was removed from the cell



4/5/11, at 80.
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evidence for our case [--] to assist our



text messages, any contacts, photographs, videos, anything like that, of

which most of those items are very fragile.              They could be deleted or

                                 Id. at 12.       When Detective Perry seized the

phone in question, he was aware that Ms. Gibson, one of the victims, had a

                                                                           Id. at 12.

Detective Perry believed that the phone might contain evidence of contact

between Appellee and the victim before the murder. Id. He took the device



search warrant to get the information or any potential evidence off the

          Id. at 12-13.

     Detective Ruckel confirmed that police were aware that Appellee and

Ms. Gibson had a relationship. Ms. Clark had told them that Appellee was



past where [Appellee] had been abusive and hit Dashawna Gibson and also

                                Id. at 27.

     In this case, the suppression court concluded that the police

improperly seized the cell phone. It noted that they did not have a search

warrant   authorizing     the    seizure     of   that   object   and   rejected   the



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search incident to arrest on the basis that the cell phone was not within

                                                        stand.   Finally, the



view doctrine, which was raised in a timely motion for reconsideration. The

suppression court concluded that the plain view doctrine was inapplicable

since the incriminatory nature of the cell phone was not readily apparent.

      On appeal, the Commonwealth claims that the plain view doctrine

applied when police took the cell phone. The applicable scope and standard

of review is as follows:

            When the Commonwealth appeals from a suppression
      order, this Court follows a clearly defined scope and standard of
      review. We consider only the evidence from the defendant's
      witnesses together with the evidence of the prosecution that,
      when read in the context of the entire record, remains
      uncontradicted. This Court must first determine whether the
      record supports the factual findings of the suppression court and
      then determine the reasonableness of the inferences and legal
      conclusions drawn from those findings.

Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa.Super. 2013)

(citation omitted).

      As we observed in Commonwealth v. Anderson, 40 A.3d 1245,

1249 (Pa.Super. 2012) (citations omitted),

      the plain view doctrine provides that evidence in plain view of
      the police can be seized without a warrant . . . . The plain view
      doctrine applies if 1) police did not violate the Fourth
      Amendment during the course of their arrival at the location

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J-A04037-14



        where they viewed the item in question; 2) the item was not
        obscured and could be seen plainly from that location; 3) the
        incriminating nature of the item was readily apparent; and 4)
        police had the lawful right to access the item.

        In this case, the police did not violate the Fourth Amendment during

the course of their arrival in the bedroom where they saw the seized object

since they had an arrest warrant for Appellee and were granted permission



cell phone was not obscured as it was laying on top of the nightstand. Since

police were lawfully in the bedroom, they had the legal right to obtain the

item. The issue herein is whether the incriminatory nature of the object was

readily apparent to police.

                                      determining whether the incriminating

natur

all of the circumstances attendant to the situation.     Commonwealth v.

Williams

an object is incriminating must be supported by probable cause. Id. The

                                             merely requires that the facts

available to the officer would warrant a man of reasonable caution in the

belief, that certain items may be contraband or stolen property or useful as

evidence of a crime; it does not demand any showing that such a belief be

correct or more likely true than false. A practical, non-technical probability




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J-A04037-14



Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa.Super. 1995)

(citations and quotation marks omitted; emphasis in original).

      Our Supreme Court discussed the evidentiary value of cell phones in

Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010).            Therein, a search

                                                                   inter alia,

any phones and pagers located therein. When executing the warrant, police

                                                       ed it. We suppressed

the phone after concluding that the warrant was not supported by probable



dormitory room since he was murdered blocks away from that location.

      The High Court disagreed. It specifically held that evidence of a crime




provide leads with regard to any individuals who had spoken with or

                                                Id. at 656. The Court also

held that the cell phone was properly seized by police under the plain view

doctrine.

      This Court examined whether a cell phone was incriminatory in nature

and subject to seizure under the plain view doctrine in Commonwealth v.

McEnany, supra. In that case, police took possession of a cell phone that

was located in a van. They had obtained a warrant authorizing the search of



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J-A04037-14



the vehicle but that document did not delineate that a cell phone was an

object subject to seizure.     We concluded that the cell phone was validly

taken under the plain view doctrine and that its incriminatory nature was

readily apparent.     We observed that police had been told by one of the



rob her.

        Applying the logic contained in those two decisions, it is evident herein



be useful as evidence of a crime. In a practical sense, it is probable that the

cell phone would contain useful information. Even though they did not have

specific information that Appellee telephoned either victim on the night of

the murder, as did the police in McEnany, the police in this case had other

facts at their disposal when they removed the cell phone from the house that

gave them probable cause to believe it might be useful as evidence in this

case.

        Police were aware of the following when they took the phone. First,

Appellee and Ms. Gibson had previously been involved in an intimate

relationship that produced a child. The majority, in its analysis, overlooks

that Detective Kenneth Ruckel testified that he was aware that Appellee was

the father of

While I would agree that former lovers do not necessarily stay in touch with



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J-A04037-14



each other, people with a child have frequent contact with each other

regarding the well-being as well as custody arrangements for the child.

They were joint parents and had that extant relationship when the murder

occurred. Thus, in my view, the record supports that the cell phone would

likely reveal contact between the victim and the murderer.           Moreover,

Appellee had been abusive toward Ms. Gibson and had threatened the other

victim, which also supported the reasonable supposition that he remained in

contact with the victims.

      These facts all justify the belief of the police that the cell phone might

contain a record of Appellee contacting the victims prior to the murder.

Additionally, calls made by Appellee during the timeframe pertinent to the

murder investigation could reveal his location during those calls and provide

evidence that he was in the vicinity of the crime scene.

      Also notable is the fact that the battery was removed from the cell

phone.    As the search warrant indicates, batteries are removed by



removal from the cell phone gave police more reason to suspect that

Appellee was involved in the murders and that he was using his cell phone

during the relevant period that police were investigating.

      The record herein also includes the search warrant and its affidavit

outlining the fact that people fleeing from police will remove batteries from



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J-A04037-14



their cell phones so police cannot locate them.    The warrant with affidavit

was admitted into evidence at the suppression hearing, N.T. Suppression,

4/5/13, at 35, and its contents were not contradicted by any defense




      The majority concludes that the Commonwealth waived the right to

rely upon the fact that battery removal is evidence that the owner of the cell

phone wanted to avoid detection by police. An appellant cannot waive facts.

Issues are waived, not record evidence. The legal issue is whether police

articulated a basis for concluding that the cell phone might have contained

useful evidence.   The fact that the cell phone was disassembled supports

the legal argument that the cell phone may have contained evidence useful

to this murder prosecution. In my view, on appeal, the Commonwealth is

perfectly entitled to rely upon this fact of record to maintain that the

incriminatory nature of the cell phone was readily apparent to the two

officers in question

      The holdings of Jones, supra, and McEnany, supra, simply cannot

logically be distinguished herein.   Jones

telephone calls made by the victim of a murder, standing alone, renders the




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J-A04037-14



telephone calls made by the suspected perpetrator of the crime renders that

device incriminatory in nature.   In this case, as in McEnany, there were



                                                              Ms. Gibson and

Appellee had an ongoing relationship due to their child, and Appellee was in

contact with both Ms. Gibson and Mr. Black.

      The evidentiary value of cell phones cannot be overstated.           As

                                                            crucial pieces of




                                                           Id. at 12.   In my



the room where he was arrested with its battery removed when he had been

in ongoing contact with the victims is readily apparent.

      As noted by the United States Supreme Co



Riley v. California, 134 S.Ct. 2473, 2485 (2014).          The Court further



these devices are in fact minicomputers that also happen to have the

capacity to be used as a telephone. They could just as easily be called

cameras, video players, rolodexes, calendars, tape recorders, libraries,



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diaries, albums, televisions, maps, or ne                           Id. at 2489. The Court



picture messages, text messages, Internet browsing history, a calendar, a

thousand-                                                Id.; see also id. at 2488-89

(



id

on their person a digital record of nearly every aspect of their lives                    from




       Indeed,      the   holding    in   Riley     is    premised        upon   the    explicit

acknowledgement that cell phones contain such a vast amount of personal

data   that   the    phone      would     undoubtedly          contain     evidence    that   is

incriminatory in nature. Id

reasonable to expect that incriminating information will be found on a phone

                                                         id

become important tools in facilitating coordination and communication

among    members          of   criminal   enterprises,        and   can    provide     valuable

incriminating information about dangerous crimi

the fact that so much personal information is contained in a cell phone that

police must obtain a warrant before exploring its contents. Id.



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J-A04037-14




easily could have destroyed the phone if it had been left behind.   As the

police actions in this case were above reproach, I would reverse the

suppression order herein, and therefore respectfully dissent.




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