J-S76001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

FREDERICK C. HARRIS, III,

                         Appellant                   No. 449 WDA 2017


     Appeal from the Judgment of Sentence Entered February 14, 2017
             In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0008659-2015


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 26, 2019

      Appellant, Frederick C. Harris, III, appeals from the judgment of

sentence of an aggregate term of life imprisonment without parole, imposed

following his conviction for two counts of first-degree murder and two counts

of abuse of a corpse.    Appellant challenges the trial court’s admitting into

evidence ten autopsy photographs of the victims’ bodies, as well as the court’s

denying his motion to suppress evidence. After careful review, we affirm.

      Appellant was arrested for the murders of his mother, Olivia Gilbert, and

her husband (Appellant’s stepfather), Lamar Gilbert.          The trial court

summarized the facts adduced at trial as follows:

      Angela Joanne Harris, [Appellant’s sister], testified that she and
      her mother[, Olivia Gilbert,] had a very good relationship and
      talked … every day, so when she had not heard from her mother
      in three days…, she called the Penn Hills police for a wellness
      check on December 1[6, 2014]. She stated that … Appellant had
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     been living with her father, and her mother had told her that she
     would not allow … Appellant to move back into [the Gilberts’]
     home. She testified that she was told that the police could not
     enter the home unless someone let them in. Harris kicked the
     door in, and the police entered the home. She testified that the
     police showed her a piece of paper at some point that appeared
     to be a note from her mother to … Appellant[,] which stated[:]
     “Hello Fred. Thanks for housesitting and fixing up the place while
     we are on vacation. See you soon. Tell everyone hello. Mr. and
     Mrs. Gilbert Lamar. [sic] P.S.: Don’t open the door for anyone.”
     Harris testified that the note was in … Appellant’s handwriting.
     She also testified that she had some mental health problems and
     a history of strangling cats when she was not taking her
     medication, but she had been taking her medication at the time
     of her mother and stepfather’s deaths and she had not hurt her
     mother and stepfather.

     Frederick C. Harris, Jr., the father of … Appellant, testified that …
     Appellant lived with him for over a year and took care of him after
     he had surgery, but because of the bickering, eventually …
     Appellant was going to move out and get his own place. He also
     noted that … Appellant would visit his mother often. []Appellant
     moved out Thursday, December 11. Frederick Harris, Jr. went to
     Olivia Gilbert and Lamar Gilbert’s home with Angela Harris on
     December 13. He testified that he later told the police that Angela
     Harris was worried about her mother and … Appellant’s car was in
     the driveway.

     Dwayne Yenchik, a police officer, testified that he, Officer
     [Michael] Lape, and Officer Broadway responded to the call for a
     welfare check at 223 Suncrest Drive on December 1[6]. He was
     not present when Angela Harris kicked in the door, but he had
     been told by Officer Lape that that was what happened. He
     testified that he entered the home and found a fully-dressed, black
     male, identified as … Appellant, on the bed, underneath the
     blankets, in the master bedroom. []Appellant did not respond to
     attempted rousing, so they requested an ambulance and looked
     for identification in his pockets. He testified that he found …
     Appellant’s identification, a credit or debit card, and a note in …
     Appellant’s pockets. The officers then proceeded to look for Mr.
     and Mrs. Gilbert, but did not see them or any indication that they
     had gone on vacation.

     [Officer] Lape, … testified that he responded to a call for a welfare
     check at 223 Suncrest on December 1[6]. The officers did not see

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     any broken windows or unlocked doors; no one answered the
     door, and they told Angela Harris that if she entered the home,
     she could be charged with a crime.             He stated that they
     methodically looked for Mr. and Mrs. Gilbert, searching the entire
     first floor. When they found no sign of the Gilberts on the first
     floor, they proceeded to the basement and the garage. He
     testified that there were several garbage cans in the garage, and
     a short time later, the officers opened the first garbage can, which
     contained a rolled-up piece of carpet. The second garbage can
     contained what the officers believed to be a human head. At that
     point, he testified that the officers stopped what they were doing
     and contacted their superiors and the Allegheny County Police.

     Patrick Kinavey, a detective with the Allegheny County Police
     Department’s Homicide Unit, responded to a call from the Penn
     Hills municipality police for assistance with a homicide
     investigation. The Mobile Crime Unit was contacted to process the
     crime scene. Once the detective was briefed by the officers who
     initially responded, [Detective] Kinavey decided that it was
     necessary to get a search warrant, so he proceeded to obtain one.
     He determined that … Appellant owned the car that was sitting in
     the driveway.        The Commonwealth, using photos, asked
     [Detective] Kinavey to describe what they found once inside the
     home. [Detective] Kinavey stated that they found a partially
     constructed Christmas tree, a receipt from Home Depot for a 45-
     gallon, wheeled trashcan purchased on December 16, a receipt for
     money withdrawn from a MAC machine, a MAC card issued to
     Olivia Gilbert, bleach bottles in the basement, a red-brown stain
     on the blue carpet in the basement, a block set of knives with no
     knives in it[,] a receipt from Home Depot for 3 45-gallon trashcans
     purchased [on] December 15, and several new, large trashcans in
     the garage, some open and some closed. The officers marked the
     trashcans [with numbers for] identification [purposes].

     [Detective] Kinavey testified that in the trashcans, there was a
     portion of blue carpet with heavy red-brown stains, a taped-shut
     trash bag with a human head inside, other body parts, and knives
     from the empty block in the kitchen. The trashcans were removed
     to the medical examiner’s office. In the basement, there was a
     portion of carpet missing; a portion of the wall missing; red-brown
     staining on an iron board, the carpet, and the furnace; and what
     the officers suspected was human tissue. In the Gilberts’ car, the
     officers found a receipt from Lowe’s for a 14-piece knife set,
     purchased on December 16. Can 2 contained a portion of a human
     torso, with several stab wounds. Can 3 contained the lower

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     portion of a female from the waist down, cut at the knees. Can 4
     contained the lower portion of a male, the genital area and the
     thigh, cut at the knees. Can 5 contained bloody clothing and
     human heads. Can 6 contained the portion of the blue carpet and
     5 knives, which had bent or broken handles. Can 7 contained
     rugs, clothing, and other body parts. He also testified that …
     Appellant was wearing a white t-shirt and tan khaki pants, which
     had blood stains on them.

     Pamela Woods, a trace evidence examiner for the Allegheny
     County Medical Examiner’s Office, testified as an expert that the
     carpet in the garage matched the carpet in the basement. Emily
     Wilkinson, a scientist in the Medical Examiner’s Forensic
     Laboratory Division, testified as an expert, that she performed
     luminal testing in the basement of the home. She testified that
     there were wiping patterns, splatter patterns, and drip patterns.
     Anthony Perry, a police officer, testified that he was assigned to
     determine who picked up the trash at 223 Suncrest Drive. He
     testified that he went to the landfill and searched for … body parts
     but was unable to locate them.

     Kevin L. McCue, a detective, testified that he interviewed …
     Appellant’s father, Frederick Harris, Jr., who told him that he told
     his son to move out of their home, figuring that he was probably
     going to stay at a shelter. Venerando Costa, a detective, testified
     that he went to Lowe’s and Home Depot and obtained evidence
     related to the receipts found in the Gilberts’ home. Mike Feeney,
     a detective, testified that he collected video evidence from various
     businesses that show[ed] the movements of the victims and …
     Appellant. Daniel McGregor Mayer, a detective, testified to two
     wounds observed on … Appellant’s hands.

     Elizabeth Wisbon, a scientist for the Allegheny County Medical
     Examiner’s Office, testified as an expert about the testing of blood
     evidence in the case. Stephanie Nickolas, a scientist with the
     Allegheny County Medical Examiner’s Office, testified as an expert
     on latent fingerprint examination. She testified that she was able
     to develop latent fingerprints on one of the trash bags, the items
     within the new knife box, plastic sleeves that came out of a trash
     bag, and the roll of packing tape. Jason Clark, a scientist for the
     Allegheny County Medical Examiner’s Office, testified as a latent
     fingerprint expert that he processed the remaining items that
     Wisbon did not test for latent fingerprints. He testified that he
     found … Appellant’s fingerprints of value, meaning they were
     sufficient enough to be connected with someone, on 3 of the knots

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       of the trash bags. Ashley Platt, a scientist for the Allegheny
       County Medical Examiner’s Office, testified as an expert on
       forensic biology and DNA analysis about DNA swabbing from
       inside the trash bags. []Appellant’s DNA did not match the
       samples that were taken, except for possible bloodstaining on the
       pocket of a pair of pants and a t-shirt. There was some testimony
       that there may have been a third DNA sample in a mixed sample,
       but … Appellant’s DNA did not match it. She also testified to the
       general ability of cleaners and bleach to degrade DNA samples.

       Abdulrezak Shakir, a forensic pathologist for the Allegheny County
       Medical Examiner’s Office, testified as an expert about what body
       parts were found in each trashcan. He testified about the wounds
       on the body parts of Lamar and Olivia Gilbert, opining that Lamar
       Gilbert died from stab wounds of the trunk and dismemberment
       took place after death. The manner of death was homicide. In
       his opinion, Olivia Gilbert died as a result of sharp force trauma
       with dismemberment taking place after death; the manner of
       death was homicide.

Trial Court Opinion (TCO), 3/14/18, at 4-9 (footnote and citations to the trial

transcripts omitted).

       The Commonwealth charged Appellant with two counts of first-degree

murder, 18 Pa.C.S. § 2502(a);1 and two counts of abuse of a corpse, 18

Pa.C.S. § 5510. Appellant filed a timely motion to suppress, and the trial court

conducted a suppression hearing on May 23, 2016. On July 27, 2016, the

court denied Appellant’s suppression motion.         A jury trial followed on

September 20-27, 2016. On the final day of trial, the jury found Appellant

guilty on all counts. On January 3, 2017, the court sentenced Appellant to life

imprisonment without the possibility of parole for each count of first-degree


____________________________________________


1In the criminal information, the Commonwealth charged Appellant generally
with homicide, 18 Pa.C.S. § 2501, but also indicated that it was specifically
seeking a conviction for first-degree murder.

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murder, and to 1-2 years’ incarceration for each count of abuse of a corpse.

The court ordered all sentences to run consecutively.

      Appellant filed a timely post-sentence motion, which was denied

immediately following a hearing held on February 14, 2017. Appellant then

filed a timely notice of appeal and a timely, court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued its Rule 1925(a) opinion on March 14, 2018.

Appellant now presents the following questions for our review:

      Did the court below err when it permitted the Commonwealth to
      introduce, over defense objection, 10 photographs of the
      decedents’ dismembered remains?

      Did the court below err when it denied Appellant’s pretrial motion
      to suppress physical evidence, including but not limited to the
      body parts found in the garbage cans located in the garage of the
      residence that the police entered?

Appellant’s Brief at 4.

       Appellant’s first issue concerns the court’s admission of ten “gruesome

photographs depicting the severed heads and body parts of the two victims in

this case.” Id. at 13. Appellant contends that the Commonwealth could have

“establish[ed] what it need[ed] to establish in an alternative way” and, as

such, the probative value of the photos was outweighed by their prejudicial

effect on the jury. Id. Appellant also argues that the prejudice that resulted

was not alleviated by the court’s issuance of a curative instruction. Id.




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       We are constrained to deem this issue waived, as the at-issue

photographs are not contained in the certified record.2
       It is well-settled … that “this Court may consider only the facts
       that have been duly certified in the record when deciding an
       appeal.” PHH Mortgage Corp. v. Powell, 100 A.3d 611, 614
       (Pa. Super. 2014), citing Pa.R.A.P. 1921 Note. Moreover, “it is
       [the a]ppellant’s responsibility to ensure that this Court has the
       complete record necessary to properly review a claim.”
       Commonwealth v. Tucker, 143 A.3d 955, 963 (Pa. Super.
       2016) (internal quotation marks and citation omitted).

Commonwealth v. Kennedy, 151 A.3d 1117, 1127 (Pa. Super. 2016)

(holding that the appellant waived his challenge to the trial court’s admission

of crime scene photographs where the photographs were not contained in the

certified record on appeal). It is simply impossible for this Court to assess the

inflammatory nature of photographs without the ability to view them.

       Next, Appellant argues that the trial court erred when it denied his pre-

trial motion to suppress the physical evidence seized from 223 Suncrest Drive.

Specifically, Appellant sought to suppress evidence of the victims’ body parts

discovered in the garbage cans, as the search discovering that evidence was

initiated without a warrant, in the absence of an exception to the warrant

requirement, and while Appellant was present in that home. The trial court

held that Appellant did not reside in the home where the evidence was found

____________________________________________


2 We note that this Court made numerous attempts to bring the omission of
the photographs from the certified record to Appellant’s counsel’s attention.
Despite these efforts, Appellant did not make any attempt to seek this Court’s
assistance with obtaining the photographs from the Commonwealth and/or
the trial court, nor did Appellant make any attempt to advise this Court of any
progress made or not made in obtaining that evidence for our review.

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and, thus, lacked standing to challenge the search, and/or a reasonable

expectation of privacy in that home. TCO at 13-14. Alternatively, the trial

court held that the search was justified under the community caretaking

doctrine, an exception to the warrant requirement. Id. at 14-15.

       Our standard of review in addressing a challenge to a trial court’s
       denial of a motion to suppress is limited to determining whether
       the factual findings are supported by the record and whether the
       legal conclusions drawn from those facts are correct. Because the
       prosecution prevailed in the suppression court, we may consider
       only the evidence of the prosecution 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 record supports the
       factual findings of the suppression court, we are bound by those
       facts and may reverse only if the legal conclusions drawn from
       them are in error.

Commonwealth v. Bell, 871 A.2d 267, 271 (Pa. Super. 2005) (cleaned up).

       The law of search and seizure remains focused on the delicate
       balance of protecting the right of citizens to be free from
       unreasonable searches and seizures and protecting the safety of
       our citizens and police officers by allowing police to make limited
       intrusions on citizens while investigating crime.        It is well
       established that probable cause alone will not support a
       warrantless search or arrest in a residence unless some exception
       to the warrant requirement is also present. Absent consent or
       exigent circumstances, private homes may not be constitutionally
       entered to conduct a search or to effectuate an arrest without a
       warrant, even where probable cause exists.

Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa. Super. 2013) (cleaned

up). However, even assuming a defendant has standing to challenge a search

on Fourth Amendment grounds in a suppression motion,3 “[i]n order to


____________________________________________


3 Standing requires “a proprietary or possessory interest in the premises
searched[.]” Commonwealth v. Torres, 764 A.2d 532, 542 (Pa. 2001).

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actually prevail on such a motion, the defendant must also separately

demonstrate that he had a subjective expectation of privacy in the premises

at the time of the search and that such an expectation is objectively

reasonable, i.e., that he had a legitimate expectation of privacy.” Torres,

764 A.2d at 542.

     Here, the trial court found that:

     Appellant did not live in the home with the victims. []Appellant’s
     father, with whom he had been living for over a year, testified that
     he was told by … Appellant that he was going to get his own place.
     An officer testified that … Appellant’s father said he believed …
     Appellant was going to stay at a shelter. []Appellant’s sister
     testified that the victim, Olivia Gilbert, had told her that she would
     not allow … Appellant to move into her home. []Appellant’s
     driver’s license listed 223 Suncrest Drive as his residence, but for
     at least one year prior to the murders, … Appellant was living with
     his father. The evidence of his license indicates that … Appellant
     does not update his residence on his license. The evidence
     supports that … Appellant did not live in the home….

TCO at 13-14 (citations omitted).

     Appellant contends, however, that he did have a privacy interest in the

premises at 223 Suncrest Drive:

     Appellant was the only person of record who possessed a privacy
     interest in the residence, judging by his valid license … listing
     2[2]3 Suncrest Drive as being his residence. Additionally, he was
     inside the residence, and had not entered it by force; as both the
     responding police officers and Angela Harris reported, the house
     was secure and had no signs of forced entry. Moreover, Appellant
     was inside the residence in a locked bedroom. This evidence
     presented at the suppression hearing suggests that Appellant was
     either let into the house by its occupants or else gained entry
     through appropriate methods (such as the garage code or doors).
     Appellant’s father, it will be recall[ed], testified that Appellant
     often visited his mother and had a very close relationship with his
     mother. Appellant’s father also noted that Appellant would spend

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      … nights away and that he could have been staying with his
      mother at the Suncrest Drive address. The fact that Appellant was
      found in the secured home is evidence that he was permitted entry
      or gained lawful entry to the home. As such, these factors
      establish an expectation of privacy in the 223 Suncrest Drive
      address. Appellant was, at a minimum, an overnight guest, in the
      home of his mother and therefore, has a recognized expectation
      of privacy[.]

Appellant’s Brief at 36-37.

      We agree with the trial court. First, Appellant places undue emphasis

on the address listed on his license. It was undisputed that Appellant had not

resided at the residence for more than a year, as he had been living with his

father. Thus, it was reasonable for the trial court to assign little weight to the

license address when assessing whether Appellant had a reasonable

expectation of privacy at 223 Suncrest Drive.

      Second, while Appellant’s counsel speculates as to how Appellant likely

gained entry into the home, it is merely that: speculation. It is also possible

that Appellant entered through an unlocked door without permission to do so.

It is possible that he followed either victim into the home immediately before

murdering them. It is possible that the victims permitted him entry, but then

he murdered the victims when he [was] instructed to leave. Thus, there are

multiple scenarios consistent with the lack of signs of forced entry that are

also inconsistent, rather than consistent, with a reasonable expectation of

privacy in the residence.      Unfortunately, the best possible evidence of




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Appellant’s objective expectation of privacy in the home—the testimony of the

victims who owned it and resided therein—is not available.4

       Third, the trial court clearly placed greater weight on the testimony of

Appellant’s sister, who stated that Appellant was not permitted to reside at

223 Suncrest Drive. The trial court was free to believe this testimony, and to

assess lesser weight to contradictory evidence.           Indeed, “it is within the

suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given their testimony. The suppression court

is also entitled to believe all, part or none of the evidence presented.”

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011)

(cleaned up).

       Finally, it was Appellant’s burden at the hearing to establish a

reasonable     expectation      of   privacy   at   223   Suncrest   Drive.    See

Commonwealth v. Millner, 888 A.2d 680, 686 (Pa. 2005) (recognizing that

a “suppression defendant” has an “obligation to demonstrate that the

challenged police conduct implicated a reasonable expectation of privacy that

he personally possessed”). Appellant’s presence in the home and, indeed,

even his possession of a license bearing that address, speak only to his

“subjective expectation of privacy in the premises at the time of the search….”
____________________________________________


4 According to Appellant’s father’s testimony, Appellant had moved out of his
father’s home (where he had been living for more than a year) a few days
prior to the search. N.T. Suppression, 5/23/16, at 5-6. Appellant told his
father that he had found an apartment. Id. at 6. Thus, immediately prior to
the search at issue, Appellant did not claim to be living with his mother at 223
Suncrest Drive.

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Torres, 764 A.2d at 542.      Here, Appellant may well have demonstrated a

subjective expectation of privacy, but he failed to demonstrate that the

expectation was “objectively reasonable” in the circumstances of this case.

Id.

      In this regard, we find convincing the Commonwealth’s comparison of

this case to that of Commonwealth v. Cameron, 561 A.2d 783 (Pa. Super.

1989).     In Cameron, the police entered an ostensibly abandoned house

without a warrant and discovered the defendant in possession of narcotics

therein.   The defendant sought suppression of the seized contraband and,

“[t]he suppression court granted the motion to suppress, holding that the

presence of food, a couch, and a television set in the room indicated that the

house had some of the attributes of a dwelling place, and therefore Cameron

had a reasonable expectation of privacy there.”       Id. at 784.    This Court

ultimately reversed that decision.

      The Cameron Court first acknowledged that the defendant had

“manifested a subjective expectation of privacy” in the dwelling. Id. at 785.

Nevertheless, the Court stated that it could not “be said that his expectation

of privacy is one that society is prepared to accept as reasonable.” Id. The

Court went on to reason:

      Although the property interest involved need not amount to an
      ownership interest, there must be some legal or de facto right to
      control the area in question. Considering the record in the instant
      case, there is no evidence to indicate that Cameron had any legal
      or de facto right to control the house. The testimony of [the police
      officer] indicated that the house was abandoned, and, although
      there was some evidence to show that Cameron was “squatting”

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      there, the record contains no facts which would lead us to believe
      that he had any rights as against the owner, or as against any
      other person who attempted to enter the house. He therefore
      could not expect to exclude any other person who attempted to
      enter.

Id. at 786.

      Similarly, here, Appellant’s presence in the home, the address on his

license, and, perhaps, even his relationship to one of the home’s owners,

adequately demonstrated his subjective expectation of privacy at 223

Suncrest Drive. However, there was no evidence presented to demonstrate

any “legal or de facto right to control the house.” Id. Indeed, in Cameron,

the defendant was squatting in an abandoned house, whereas here, Appellant

was found in the Gilberts’ home.     In that sense, Cameron was in a better

position to claim an objectively reasonable privacy interest, given that there

was no objectively superior competing interest in the abandoned dwelling.

Here, however, it is undisputed that Appellant was discovered in the Gilberts’

home, and no credible evidence was proffered by Appellant to demonstrate

that the Gilberts had granted him legal or de facto control of the house. To

the contrary, the trial court received testimony that it found credible that

Appellant’s mother had declined to grant Appellant such control. Accordingly,

we conclude that the trial court did not err in finding that Appellant lacked an

objectively reasonable expectation of privacy interest in the home.

       Appellant argues, however, that even if he did not possess a

reasonable expectation of privacy in the residence, he “at the very least”

possessed a reasonable expectation of privacy “in the interior of the 45-gallon


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plastic garbage cans….” Appellant’s Brief at 40. Appellant did not raise this

issue in his Rule 1925(b) statement and, consequently, the trial court did not

address it specifically in its Rule 1925(a) opinion. Accordingly, we conclude

that is waived. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any

issues not raised in a 1925(b) statement will be deemed waived.”).

      In any event, had Appellant not waived this claim, we would conclude

that he would not be entitled to relief on that basis. To support his contention

that he possessed a distinct and objective expectation of privacy in the

garbage cans, Appellant cites Arizona v. Hicks, 480 U.S. 321 (1987). In

Hicks,

      a bullet was fired through the floor of [Hicks]’s apartment, striking
      and injuring a man in the apartment below. Police officers arrived
      and entered [Hicks]’s apartment to search for the shooter, for
      other victims, and for weapons. They found and seized three
      weapons, including a sawed-off rifle, and in the course of their
      search also discovered a stocking-cap mask.

      One of the policemen, Officer Nelson, noticed two sets of
      expensive stereo components, which seemed out of place in the
      squalid and otherwise ill-appointed four-room apartment.
      Suspecting that they were stolen, he read and recorded their serial
      numbers—moving some of the components, including a Bang and
      Olufsen turntable, in order to do so—which he then reported by
      phone to his headquarters. On being advised that the turntable
      had been taken in an armed robbery, he seized it immediately. It
      was later determined that some of the other serial numbers
      matched those on other stereo equipment taken in the same
      armed robbery, and a warrant was obtained and executed to seize
      that equipment as well. [Hicks] was subsequently indicted for the
      robbery.

Id. at 323–24.




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       The trial court granted Hicks’s motion to suppress, reasoning that

although the warrantless search of Hicks’s apartment was justified based on

exigent circumstances related to the shooting, Officer Nelson’s action of

moving the stereo components to view their serial numbers constituted a

search unrelated to the exigency. Id. at 324. The Court of Appeals of Arizona

affirmed, and the state appealed that decision to the Supreme Court of the

United States, which also affirmed. In doing so, the Supreme Court reasoned

that Nelson did not discover the serial numbers in plain view during an

otherwise lawful search. Rather, a search requiring a separate showing of

probable cause occurred that was independent from the initial justification for

entering and searching Hicks’s apartment.5         Id. at 326-27.

       However, Hicks, unlike Appellant here, had a reasonable expectation of

privacy in his apartment. The warrantless breach of Hicks’s privacy right was

justified only due to the exigency created by the shooting and, therefore, that

breach was limited to the scope of the exigency. Here, however, Appellant

had no reasonable expectation of privacy in the home searched at all,

including any containers found therein. This is not a search that constitutes

an exception to the warrant requirement; rather, this was a situation where

Appellant lacked a privacy right upon which to assert a suppression claim

____________________________________________


5 The Court acknowledged that “[i]t would be absurd to say that an object
could lawfully be seized and taken from the premises, but could not be moved
for closer examination.” Id. at 326. However, the police lacked probable
cause that the item was stolen until the serial numbers were revealed, and
nothing about the shooting itself suggested the illegality of the stereo parts.

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against the government at all.       Thus, Hicks is inapplicable to the

circumstances of this case and, even had Appellant not waived this aspect of

his suppression claim, we would deem it meritless.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2019




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