J-S13031-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                   Appellant               :
                                           :
                     v.                    :
                                           :
SHAWN ANTHONY SCHAEFER,                    :
                                           :
                   Appellee                :    No. 1204 WDA 2018

                 Appeal from the Order Entered July 31, 2018
                 in the Court of Common Pleas of Elk County
                     Criminal Division at No(s): 34 of 2018

BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED MAY 21, 2019

        The Commonwealth of Pennsylvania appeals from the order entered on

July 31, 2018, which granted in part and denied in part a motion to suppress

evidence in a criminal case initiated by the Commonwealth against Shawn

Anthony Schaefer.1 After careful review, we affirm in part and reverse in

part.

        At 8:26 p.m. on the evening of April 25, 2017, Christine Delhunty went

outside to walk her dog. She heard “a large whooshing noise” and saw “a

fireball … pass[] by all the front windows of” her across-the-street neighbor’s

house, located at 1454 California Road in Elk County, Pennsylvania (the



1The Commonwealth has certified that this order substantially handicaps its
prosecution of this case. See Commonwealth’s Brief at 1. Therefore, this
order is appealable pursuant to Pa.R.A.P. 311(d).



*Retired Senior Judge assigned to the Superior Court.
J-S13031-19

Property). N.T., 1/19/2018, at 12. The Property is a log-cabin style house

owned by Schaefer and his estranged wife, Monique M. Schaefer. Id. at 3.

At that time of the fire, Schaefer and his two children lived at the Property at

least part-time. Id. at 63. Delhunty went back inside her house, saw smoke

rising across the street, and called 911 at 8:30 p.m.

      The fire department arrived at the Property shortly after 8:30 p.m.

N.T., 6/20/2018, at 30. By that time, “[t]here was significant damage [to

the Property], but [the fire] had pretty much [blown] itself out.” Id.

      Corporal Greg A. Agosti, a fire investigator with the Pennsylvania State

Police, was called upon to investigate the fire around 9:00 p.m. and arrived

at the Property just before 11:00 p.m. N.T., 1/19/2018, at 9. Upon entering

the Property, Agosti “noticed what [he] thought [was an] irregular fire

pattern … that stretched a distance across the living room floor [and]

extended into the dining room and into the kitchen.” Id. at 14-15. “The fire

damage on the [kitchen] countertop led [Agosti] to believe that a fire had

originated on the countertop in the kitchen, in the corner near the

refrigerator.” Id. at 16.

      According to Agosti, this “irregular fire pattern” formed due to fuel

being put on the fire “to cause the fire to move from one point to another.”

Id. at 17. Agosti described the fire as a flash fire that spread rapidly, was

short in duration, and left extensive smoke and heat damage. To aid in his

investigation, Agosti requested the assistance of an accelerant detection



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canine.    The canine and dog handler arrived around 3:00 a.m. Id. The

canine did not alert for any accelerants for which it had been trained. Agosti

checked the propane system on the property, including the 500-gallon tank

outside.   Agosti and the dog handler, who was also a fire investigator,

“checked all the pipe fittings that were accessible from the tank down

through the appliances for leaks, using air monitoring meters.” Id. at 18.

They “found no sign of leaks.” Id. Notably, Agosti removed a drawer on the

range in the kitchen to access the pipe behind the range, and “found no sign

of a hazardous environment … [and] no sign of a propane leak.” Id. at 19.

Agosti believed the fire was “an intentionally set fire, [and that] vapors that

were present in the atmosphere were ignited from an open flame, from a

candle, on the kitchen countertop.” Id. at 66. By the time Agosti left the

Property in the early hours of April 26, 2017, he “was convinced it was not a

propane leak” that caused the fire. N.T., 6/20/2018, at 33.

      In continuance of the investigation, on April 28, 2017, Agosti

requested that Hugh Rich, co-owner of Rich Gas, the propane supplier for

the Property, perform an inspection of the propane system. Id. at 14. Rich

performed a “leak check” on the system, and concluded there “was no leak”

in the system (April 28 Leak Check). Id. at 16. By May or June of 2017,

Agosti had “formulated the opinion that this was an incendiary fire” and was

the result of arson. Id. at 35.




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      Meanwhile, Schaefer had contacted his home-insurance carrier, State

Farm, to report the fire. State Farm secured the Property and began its own

investigation. Notably, State Farm secured the Property immediately after

the fire and for the next 11 days. Thereafter, the Property was returned to

the control of Schaefer, although nobody was able to move back into the

Property at that point.

      Because Agosti believed the fire was caused by arson, he investigated

potential motives, including a financial motive, for Schaefer to set the

Property on fire.   At the time of this incident, Schaefer and his wife were

separated. The Property had been listed for sale 20 days prior to the fire for

a sale price of $250,000.     The Schaefers had an outstanding mortgage

balance of $202,000. State Farm insured the Property for over $450,000. In

addition, credit reports for the Schaefers revealed several accounts that

were in collection and numerous accounts as past due.

      In addition, Agosti investigated Schaefer’s actions on the evening of

the fire and put together a timeline of Schaefer’s activity by tracking the

location of his cell phone. At 7:45 p.m., Monique dropped Schaefer off at the

property after the two attended their child’s baseball practice. At 8:21 p.m.,

Schaefer called Seth Young from the home.          That phone call lasted 4

minutes and 45 seconds. Schaefer and Young then had a 27-second phone

call at 8:29 p.m., which was “dropped.” N.T., 1/19/2018, at 13.       At 8:30

p.m., Schaefer placed a phone call to Young that lasted for 13 minutes, 21



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seconds. Surveillance video revealed that Schaefer was driving his car and

passed by state police barracks at 8:32 p.m., and he was at a nearby Sheetz

from 8:36 p.m. to 8:42 p.m. Id.

      Although Agosti believed the fire was caused by arson, and a chemical

was used to spread the fire based upon the irregular fire patterns on the

carpet and floors, it was not clear what chemical was actually used.        As

noted, the accelerant detection canine did not alert for any accelerants.

Therefore, Agosti investigated products found or used in the home. To do

so, Agosti obtained and executed numerous search warrants throughout the

summer of 2017.

      “On June 28, 2017, [] Schaefer advised [Agosti] that he used Aero

Kroil lubricant in an aerosol can on the ceiling fan in the living room a few

days prior to the fire.   [Schaefer] further explained he used 3M Drywall

Corner Bead Adhesive on the floor along the [] side of the living room to

glue tiles to the floor.” Affidavit of Probable Cause for Search Warrant Issued

on 9/8/2017, at 5. Both products are flammable. In addition, Agosti found

a can of Raid Wasp and Hornet Killer at the Property.      Schaefer explained

that he had a problem with carpenter bees tunneling into the Property. Fire

debris samples that were collected from the irregular and linear fire patterns

revealed the presence of a flammable chemical called naphthalene, a

chemical which is found in Raid.




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        On August 21, 2017, Agosti obtained a search warrant to examine

additional carpet samples.      According to the affidavit of probable cause

attached to that search warrant,

        [n]aphthalene is an uncommon incendiary agent. Special Agent
        Matthew Regentin, Certified Fire Investigator with the Bureau of
        Alcohol, Tobacco, Firearms, and Explosives (ATF) and Chief
        Donald Brucker, Officer in Charge of the Allegheny County Fire
        Marshall’s Office, will assist with recovery of the living room
        carpet and further examination, experimentation and testing.
        Regentin and Brucker have additional training and experience
        necessary to further understand the fire scene and steps taken
        by the actor responsible for igniting the fire.

Affidavit of Probable Cause for Search Warrant Issued on August 21, 2017,

at 5.

        Agosti contacted Schaefer’s attorney, Attorney Karl Geci, 2 prior to the

August 21, 2017 search, and Attorney Geci appeared for the search

conducted that day.        While together, Attorney Geci proposed several

accidental theories for the fire, including a defective coffee pot.         The

aforementioned experts took a sample of carpet pursuant to the search

warrant and testing revealed high levels of kerosene.

        Thus, Agosti obtained another search warrant for September 8, 2017,

for the purpose of obtaining unburnt carpet samples for comparison. That


2  Attorney Geci had been retained by Schaefer to assist with the civil-
litigation aspects of the fire. Although Schaefer was suspected of arson, he
had not yet been charged. Moreover, because the Property was unoccupied,
but controlled by Schaefer, Agosti contacted Attorney Geci prior to executing
each search warrant, rather than attempt to break down the door to gain
entry.



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search warrant identified certain items to be seized, including carpet and

chemicals. Search Warrant Authorization for 9/8/2017, at 1.

     Once again, Agosti contacted Attorney Geci to advise him that he had

obtained a search warrant for the Property for that day.       Attorney Geci

advised Agosti over the phone that Schaefer “had hired an expert[, Richard

Hughes,] and Hughes looked at the [P]roperty and opined that the fire was

caused by a propane leak.” N.T., 6/20/2018, at 41. According to Attorney

Geci, the leak was “[i]n the kitchen at the stove.” Id. at 42. Attorney Geci

told Agosti that “he even had a draft report [(Draft Report)] written by []

Hughes indicating that there was a leak behind the range in the kitchen.” 3

Id. at 42-43.



3  By way of background, Hughes and Agosti had an interaction in 2015.
According to Agosti, he had some plumbing work done by a contractor in his
home, and Hughes was hired by that plumbing contractor as an expert due
to a dispute between Agosti and that plumbing contractor. Agosti testified
that “Hughes lied to [him] in [his] very own home” and Agosti “called him on
it.” N.T., 6/20/2018, at 104. Agosti testified that therefore he does not hold
Hughes[’s] “credibility high.” Id. Agosti further stated that there have “been
a lot of questions of [] Hughes’[s] credibility in courtrooms in multiple
locations and multiple cases.” Id. at 105.         Alternatively, according to
Hughes, he has been an expert for almost 30 years and has looked at 2,000
sites, mostly for insurance companies. Id. at 111. Hughes looked at
Agosti’s house on behalf of the plumbing company because Agosti believed
that “foundation walls had moved” and “the activities of the plumbing
contractor may have [been the] cause[].” Id. at 110. While Hughes was
performing his inspection at Agosti’s home, Agosti asked Hughes for his
opinion, and Hughes informed Agosti that he would be giving his opinion to
the plumbing contractor, because the plumbing contractor, not Agosti, had
hired him. Agosti then threatened to “subpoena” Hughes for his opinion. Id.
at 111.



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      On September 8, 2017, pursuant to the search warrant, Agosti and the

other experts collected additional carpet samples. However, based on this

new information about a potential propane leak, Agosti once again contacted

Rich and asked him to come to the Property as well. Information about what

happened on September 8, 2017, is somewhat convoluted.         What is clear

from the record is that Rich performed a propane leak check on September

8, 2017 (September 8 Leak Check), and Attorney Geci was not present when

that check was performed. 4    The September 8 Leak Check revealed the

presence of a leak in the propane connection near the range. According to

Agosti,

      [t]he range was connected to the propane supply by a flexible
      connection. The connection could be reached by a human from
      under the range as the storage drawer of the range was
      removed. [Agosti] observed a knife, capable of puncturing the
      flexible gas connection pipe, positioned next to the range on the
      countertop. [Agosti] did not observe the knife at that location
      during previous examinations.

Affidavit of Probable Cause for Search Warrant Issued on 9/20/2017, at 7.

      Based on the foregoing, Agosti became “concerned that the propane

piping behind the range in the kitchen may have been tampered with …

[b]ecause it wasn’t leaking” on either April 26 or April 28, 2017. N.T.,




4 Agosti explained that Attorney Geci was there for the search initially on
September 8, 2017, but he had left prior to the leak check. N.T, 6/20/2018,
at 51.



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6/20/2018, at 47.     Agosti did not remove anything from the property, but

“initiated a tampering with evidence investigation.” Id.

      Meanwhile, Attorney Geci still wanted the opportunity to explain why

this was an accidental fire, and all investigating individuals and experts

scheduled an appointment for September 20, 2017, where Hughes would

offer his explanation.           Prior to September 20, Agosti obtained “an

anticipatory search warrant” in the event things did not go as planned on

September 20. Id. at 49. In addition, Agosti wanted to pursue the

tampering with evidence investigation and further investigate the propane

leak near the range.        Specifically, that warrant identified the “propane

supply system” as an area to be searched. Search Warrant Authorization for

9/20/2017, at 1.

      When everyone arrived on September 20, Attorney Geci informed

them that Hughes would not be attending.           Therefore, pursuant to the

warrant, Agosti, Rich, and the others present conducted a leak check.       A

leak was detected “at the flexible appliance connection behind the range in

the kitchen.” N.T., 6/20/2018, at 52.         Pursuant to the warrant, police

removed the range, the tubing, and a piece of the pipe from the Property for

testing.5



5 On December 4, 2017, the ATF submitted a report identifying “several
microscopic leaks in the flexible tubing” and concluded the “tubing leaks
occurred as a result of fracturing.” Id. at 53. Thus, it was evident the knife
(Footnote Continued Next Page)



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      On September 21, 2017, Agosti applied for a search warrant of

Attorney Geci’s office in order to obtain the Draft Report. Agosti averred the

following:

      38. [] Hughes, Hughes Engineering or his associates developed a
      hypothesis or an opinion indicating a propane leak occurred to
      cause the fire at or around the location of the kitchen range.
      The opinion or hypothesis was reached without completing the
      proper investigative steps. The fact this opinion was reached
      prematurely may demonstrate criminal knowledge of an
      intentional act designed to mislead both criminal and civil
      investigators. An investigation into hindering apprehension or
      prosecution and tampering with or fabricating physical evidence
      has been initiated.

      39. The draft report issued may easily be destroyed or deleted
      prior to the conclusion of this investigation.

Affidavit of Probable Cause for Search Warrant Issued on 9/21/2018, at 8.

      After obtaining the warrant, Agosti went to Attorney Geci’s office.

Agosti was greeted by Attorney Geci’s secretary, who called Attorney Geci.

Eventually, Agosti was provided a copy of the Draft Report. After reviewing

the Draft Report, Agosti went to meet Hughes on September 28, 2017, as a

person of interest in a tampering with evidence or hindering prosecution

investigation.

      At that meeting, Hughes informed Agosti that he was contacted by

Attorney Geci in August of 2017 to perform a “cursory look” at the Property.

N.T., 6/20/2018, at 113.              Hughes had reviewed Agosti’s reports prior to
(Footnote Continued)   _______________________



located near the range did not cause the damage to the flexible tubing
system.



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J-S13031-19

examining the Property. Hughes’s initial impression was that “the origin of

the fire was in the kitchen” and in his opinion it was caused by gas. Id. at

115-16.     Hughes emphasized that based upon Attorney Geci’s request, he

put very little work into the case and his draft report was “by no means

done, complete, [or] definitive.” Id. at 115.

      Agosti applied for another search warrant on October 16, 2017, to

“continue    with the   consideration of the    propane    leak.”   Id. at 62.

Specifically, Regentin wanted to bring in an engineer who specialized in gas-

related incidents. Id. During that search, Agosti collected a bean bag chair

and additional carpet samples.

      On December 1, 2017, Schaefer was charged with three counts of

arson, theft by deception, criminal mischief, and insurance fraud. 6        A

preliminary hearing was held on January 19, 2018, and at the close of the

hearing, the court held all charges for trial. N.T., 1/19/2018, at 148.

      On March 12, 2018, Schaefer filed his omnibus pre-trial motion. That

motion included numerous requests for suppression and preclusion of

evidence. Notably, it requested suppression of the Draft Report because the

September 21, 2017 search “warrant was improperly issued as it illegally

sought work[-]product information belonging to [Attorney Geci].” Omnibus


6  Schaefer was not charged with any crimes related to tampering with
evidence or hindering prosecution, based upon the results of the testing of
the tubing. However, Agosti testified that the investigation into those crimes
is ongoing. N.T., 6/20/2018, at 77.



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Pre-Trial Motion, 3/12/2018, at ¶ 9.   According to Schaefer, the improper

disclosure of the Draft Report led to “[w]arrantless testing of the propane

supply line for the cooking range on September 8, 2017,” as well as

additional pieces of physical evidence. Id. at ¶ 11.    Schaefer also argued

that the failure of police to secure the Property after May 5, 2017, resulted

in “contamination of the alleged crime scene,” and argued that all evidence

gathered thereafter should be suppressed. Id. at ¶ 18. In addition, on June

8, 2018, Schaefer filed a petition for writ of habeas corpus, arguing that the

Commonwealth produced insufficient admissible evidence at the preliminary

hearing.

      A combined hearing on both motions was held on June 20, 2018. At

that hearing, the Commonwealth presented the testimony of Rich and

Agosti, and Schaefer presented the testimony of Hughes.       The trial court

then permitted both the Commonwealth and Attorney Geci to offer closing

arguments.7 N.T., 6/20/2018, at 133. Attorney Geci requested suppression

of the Draft Report and argued that Agosti has “tainted everything

associated with this case” due to the seizure of the report. Id. at 136.

Attorney Geci further requested suppression of testimony by “anybody that

has ever seen [the Draft Report] or had anything to do with it.” Id.      The


7At the close of the hearing, the trial court asked the parties to submit
written arguments and briefs by August 1, 2017. N.T., 6/20/2018, at 132.
Attorney Geci objected to this procedure as taking too long, so no briefs
were filed by either party after the hearing.



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relief requested by Attorney Geci was that “all the suppression should be

granted, particularly on the [Draft Report], all of the fruit of the poisonous

tree, [and] the September 8 search warrant.” Id. at 138. The primary focus

of this argument was that it was Attorney Geci’s belief that his office was

illegally searched and the Draft Report was illegally seized.

      In   its   closing   argument,   the   Commonwealth    pointed   out   that

Schaefer’s motion to suppress “is very vague and general and broad, and

they’re not asking for specific things.” Id. at 140. The Commonwealth

argued that Attorney Geci’s office was searched pursuant to “a valid search

warrant that was reasonable.” Id. at 143.         Further, the Commonwealth

argued that the September 8 Leak Check was within “the scope of that …

warrant.” Id. at 143.       The Commonwealth contended “there was nothing

illegal about” the police interviewing Hughes. Id. at 144.

      On July 31, 2018, the trial court entered an opinion and order, which

granted Schaefer’s motion to suppress in part. In particular, the trial court

required the Commonwealth to “surrender all copies of the [D]raft [R]eport

which was the subject of the September 21, 2017 search warrant,” and

precluded the Commonwealth “from cross examining [] Hughes should []

Hughes testify on behalf of [Schaefer]” at trial. Order, 7/30/2018.           In

addition, the trial court precluded the Commonwealth “from utilizing any

information garnered from the interview of [] Hughes by the state police.”

Order, 7/30/2018.      Furthermore, the trial court precluded “[a]ll testimony



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concerning the September 8, 2017 leak test performed by” Rich and

suppressed “[a]ll evidence seized from [the Property] on and after

September 8, 2017.” Order, 7/30/2018.           All other requests made by

Schaefer were either denied or deferred until trial.    In addition, the trial

court denied Schaefer’s petition for writ of habeas corpus.

       The Commonwealth timely filed a notice of appeal, and both the

Commonwealth and the trial court complied with Pa.R.A.P. 1925.

       On appeal, the Commonwealth challenges the trial court’s suppression

and preclusion of evidence. For ease of organization, we will analyze each

piece of evidence that was suppressed or precluded.

Evidence Related to Hughes

       We begin with the suppression of evidence related to Hughes. Here,

the trial court took three actions: 1) it suppressed the Draft Report; 2) it

suppressed information obtained from Hughes during Agosti’s interview; and

3) it precluded the Commonwealth from cross-examining Hughes should he

testify at trial.

       We start with the Draft Report. See Commonwealth’s Brief at 16-26.

As discussed supra, the Draft Report was obtained pursuant to a search

warrant issued on September 21, 2017, in furtherance of a tampering with

evidence investigation related to the fact that a propane leak was found near

the range several months after the fire.     We consider this search, bearing

the following in mind.



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     Because Schaefer was challenging the validity of a search warrant, our

standard of review is “unique.” Commonwealth v. Manuel, 194 A.3d 1076,

1080 (Pa. Super. 2018) (en banc).

     When reviewing a magistrate’s decision to issue a warrant, there
     are no factual findings from the trial court. Thus, we need not
     consider only the evidence of the Commonwealth and so much of
     the evidence for the defense as remains uncontradicted when
     read in the context of the record as a whole. Instead, we are
     merely reviewing the magistrate’s decision to issue the warrant.
     As such, our duty is to ensure that the magistrate had a
     substantial basis for concluding that probable cause existed. In
     so doing, the reviewing court must accord deference to the
     issuing authority’s probable cause determination, and must view
     the information offered to establish probable cause in a
     common-sense, non-technical manner.

Manuel, 194 A.3d at 1080-81 (internal citations and quotation marks

omitted).

     After a search warrant is issued, and the search conducted, an
     aggrieved defendant may file a motion to suppress evidence on
     the basis that the search warrant lacked probable cause. See
     generally Pa.R.Crim.P. 581. The burden is on the
     Commonwealth to show that the magistrate had a substantial
     basis for concluding probable cause existed. Id. at 581(H), cmt.
     … Rule 203(D) unequivocally states, “[a]t any hearing on a
     motion for the return or suppression of evidence, or for
     suppression of the fruits of evidence, obtained pursuant to a
     search warrant, no evidence shall be admissible to establish
     probable cause other than the affidavits provided for in [Rule
     203](B).” Pa.R.Crim.P. 203(D).

           The Supreme Court of the United States has instructed
     “that after-the-fact scrutiny by courts of the sufficiency of an
     affidavit should not take the form of de novo review.” [Illinois
     v.] Gates, 462 U.S. [213,] 236 [(1983)]. Indeed, a magistrate’s
     probable cause determination should receive deference from the
     reviewing courts. Id. In keeping with the Fourth Amendment’s
     strong preference for warrants, “courts should not invalidate …



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     warrants by interpreting affidavits in a hyper[-]technical, rather
     than a commonsense, manner.” Id. (some brackets omitted).

Commonwealth v. Leed, 186 A.3d 405, 413 (Pa. 2018).

     The trial court offered the following rationale in support of its decision

that the search warrant was invalid.

     A fact which was not included in the probable cause affidavit for
     the September 21, 2017 search warrant nor for any other search
     warrants is that the police officer had failed to secure the alleged
     crime scene. The insurance company secured the house for 11
     days after the fire after which the house was returned to the
     control of [Schaefer and his wife].          Initiating a hindering
     prosecution or tampering with or fabricating evidence
     investigation against [] Hughes and [Attorney] Geci, a forensic
     engineer and an attorney, individuals not otherwise suspected of
     any criminal involvement where there was no control over the
     crime scene[,] was highly improper. The [D]raft [R]eport sought
     by the police officer could not be evidence of a crime under such
     circumstances and it is protected from discovery by the
     Commonwealth for the fact that it is attorney work product.

Memorandum Opinion, 7/31/2018, at 11-12 (unnumbered).

     The trial court further explained that “[t]wo critical facts [were]

omitted from the search warrant application for the search of Attorney Geci’s

office to obtain the [D]raft [R]eport.” Supplemental Opinion, 10/25/2018, at

8 (unnumbered).     One fact was that the “crime scene had not been

controlled for over 4 months” and therefore there could not be “a finding

that someone has criminally tampered with evidence.” Id. The second fact

is that Agosti, who applied for the warrant, believed that Hughes is “at a

minimum disreputable.” Id.




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         Instantly, as discussed supra, the trial court concluded that the

September 21, 2017 warrant was invalid because 1) it believed Agosti

should have included additional facts in the affidavit of probable cause and

2) the Draft Report was attorney work product. Both conclusions were in

error.

         First, as set forth in Leed, supra, the role of the trial court in

considering a motion to suppress evidence obtained pursuant to the

execution of a search warrant is to consider the facts that were set forth in

the affidavit of probable cause to determine whether, in fact, probable cause

existed. Rather than doing that in this case, the trial court considered facts

not included in the affidavit of probable cause to determine that probable

cause did not exist.

         While it is true that a “search warrant is invalid” when it is “based on

an affidavit containing deliberate or knowing misstatements of material

fact;” that is not the case sub judice. Commonwealth v. Ryerson, 817

A.2d 510, 514 (Pa. Super. 2003). Here, Schaefer was not challenging the

veracity of the facts set forth in the affidavit of probable cause; rather, he

was claiming probable cause did not exist. To determine probable cause did

not exist, the trial court considered facts not included in the affidavit. That

was error. See id. (holding search warrant not invalid where Ryerson was

claiming facts were omitted from affidavit).       Accordingly, we reverse the




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portion of the trial court’s order granting the motion to suppress the Draft

Report.

      In addition, the trial court’s conclusion that the motion to suppress

should be granted on the basis of the Draft Report being attorney work

product was also in error. In his omnibus pre-trial motion, Schaefer argued

that the Draft Report was protected and could not be discovered as

attorney   work   product   pursuant     to    Pa.R.Crim.P.   573(G)   (providing

“[d]isclosure shall not be required of legal research or of records,

correspondence, reports, or memoranda to the extent that they contain the

opinions, theories, or conclusions of the attorney for the Commonwealth or

the attorney for the defense, or members of their legal staffs”).       The trial

court agreed with this concept. See Memoradum Opinion, supra. On appeal,

the Commonwealth concedes that the Draft Report was attorney work

product, but also argues that it was properly seized as “material evidence in

an ongoing criminal investigation.” Commonwealth’s Brief at 17.

      Attorney work product in criminal cases comes into play pursuant to

rules governing discovery.          The rules provide that once a criminal

information is filed, both the defendant and the Commonwealth can engage

in limited pre-trial discovery. See Pa.R.Crim.P. 573(A)-(C). In addition, the

parties may object to such discovery by filing, inter alia, a motion for

protective order. Id. at (E)-(F).




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      Here, the Draft Report was obtained by the Commonwealth pursuant

to a search warrant executed prior to the filing of an information. Thus, we

conclude that the work-product doctrine, as contemplated by the Rules of

Criminal Procedure, was not at issue at that juncture, and the only issue

before the trial court was whether the search warrant was valid.8 Based on

the foregoing, the trial court committed legal error in suppressing the Draft

Report for the reasons it did, and we reverse this portion of the order of the

trial court.9

      We now consider whether the trial court erred in suppressing

information obtained from Agosti’s interview of Hughes and whether the trial

court erred by precluding the Commonwealth from cross-examining Hughes

should    he    testify   at   trial.   Commonwealth’s   Brief   at   26-30.   The




8 The Commonwealth even alludes to this concept by pointing out that even
if the trial court suppresses the Draft Report on the basis of the search
warrant, it would just file a motion for pre-trial discovery pursuant to
Pa.R.Crim.P. 573(C)(1)(a). See Commonwealth’s Brief at 23.

9 We point out that the issue currently before us is separate from the issue
of whether the Draft Report is admissible at trial. See Commonwealth v.
Kennedy, 876 A.2d 939, 948-49 (Pa. 2005) (“[A] practical application of the
work-product doctrine to trial in criminal proceedings prevents the
Commonwealth from calling as a witness an agent who[m] the defense hired
in preparation for trial but decided not to call as a witness at trial or to use
the materials prepared by the agent as evidence at trial, unless the
Commonwealth can show a substantial need for such testimony and an
inability to obtain the substantial equivalent of such testimony without
undue hardship.”).



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Commonwealth contends that preclusion of such cross-examination “would

be a constitutional error.” Commonwealth’s Brief at 26.

      With respect to these issues, the trial court offered the following. In

concluding that the Draft Report was obtained improperly pursuant to the

search warrant, the trial court fashioned the relief it felt to be appropriate

under the circumstances.    As discussed supra, it precluded the use of the

Draft Report. Memorandum Opinion, 7/31/2018, at 12.            In addition, it

precluded the Commonwealth “from using any information gathered from

the [Draft Report]. The Commonwealth shall be precluded from cross

examination of [] Hughes should [] Hughes testify [at trial] on behalf of

[Schaefer].” Id. at 13. In addition, with respect to the September 21, 2017

search warrant, the trial court precluded the Commonwealth “from utilizing

any information gathered from the [D]raft [R]eport as well as the interview

of [] Hughes by the state police.” Id.       The trial court followed up this

memorandum opinion with a supplemental opinion. In that opinion, the trial

court pointed out that

      police without a valid reason cannot interview a defense expert.
      To hold otherwise would destroy the attorney work product
      privilege. Here … police had no valid reason to interrogate the
      defense expert. [] Hughes cooperated with the police and even
      “voluntarily” gave them additional information beyond which
      they had seized at Attorney Geci’s office. Such unlawful and
      unprofessional police conduct cannot be countenanced let alone
      rewarded. The least restrictive measure that [the trial court]
      could think of to address the situation which [the trial court has]
      never experienced before was to prevent the Commonwealth
      from cross-examining [] Hughes should the defense call him as a
      witness. [The trial court] thought to do less would encourage

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J-S13031-19

      police officers to find a reason to suspect defense experts of
      criminal conduct and initiate investigations to justify
      interrogations.

Supplemental Opinion, 10/25/2018, at 10-11 (unnumbered).

      It appears that the trial court fashioned its remedy based upon two

somewhat distinct bases. First, it suppressed information gathered from the

interview of Hughes and precluded cross-examination of Hughes on the basis

that the Commonwealth should not have obtained the Draft Report.

Because the trial court did not properly analyze the validity of the search

warrant, as discussed supra, this portion of the order must be reversed.

      Second, to the extent the trial court fashioned this remedy due to its

belief that police acted improperly by interviewing Hughes, we also reverse

the order. It appears from Hughes’s testimony that police informed him that

he was suspected of criminal activity, then went on to question him. That

may have been a violation of Hughes’s rights should Hughes be charged with

a crime related to tampering.    However, the issue here is whether police

violated Schaefer’s rights. On September 28, 2017, Schaefer had not been

charged with a crime.   Thus, once again, the rules of discovery were not

triggered.   We do not know whether the action of police in questioning

Hughes was common practice for police. However, we cannot agree with the

trial court that the police action was either so improper or so violative of

Schaefer’s rights that these remedies are appropriate at this juncture.

Accordingly, to the extent the trial court suppressed information gathered



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from the interview with Hughes or precluded Hughes’s cross-examination

should he testify at trial as a violation of Schaefer’s rights, that portion of

the order is reversed.

September 8, 2017 Search Warrant and Search

      We next consider the Commonwealth’s argument that the trial court

erred in precluding admission of the September 8 Leak Check performed by

Rich. Commonwealth’s Brief at 31-35.         The Commonwealth sets forth two

alternative arguments: 1) the trial court erred in precluding the results of

the September 8 Leak Check because it was included within the scope of the

warrant; and 2) even if the search warrant did not include checking the

propane system, the September 8 Leak Check was not a search so no

warrant was necessary. Commonwealth’s Brief at 32.

      We begin with a review of the September 8, 2017 search warrant. The

authorization for the September 8, 2017 search warrant set forth the

following.

      Items to be searched for and seized: Fire debris, chemicals,
      pesticides, flammable liquids, flammable solids, solvents,
      lubricants, adhesives, items which may contain naphthalene or
      are readily mixed with naphthalene, items that may contain
      petroleum distillates. Burned and unburned carpet, carpet pad,
      floor covering, tile, floor sheeting, wood wall and floor
      assemblies, kitchen countertop, residues and other materials
      which may have been involved with or affected by the fire.

Search Warrant Authorization, 9/8/2017, at 1.

      A review of the September 8, 2017 search warrant reveals no mention

of the propane system. The Commonwealth contends that the search was

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within the scope of the search warrant, because it permitted search of “other

materials which may have been involved with or affected by the fire.”

Commonwealth’s Brief at 34.

     However, as the trial court aptly pointed out, when Agosti wanted to

search the for a propane leak, he specifically included that in the September

20, 2017 search warrant. See Memorandum Opinion, 7/31/2018, at 15-17.

     Items to be searched for and seized: Fire debris, chemicals,
     pesticides, flammable liquids, flammable solids, solvents,
     lubricants, adhesives, items which may contain naphthalene or
     are readily mixed with naphthalene, items that may contain
     petroleum distillates. Burned and unburned carpet, carpet pad,
     floor covering, tile, floor sheeting, wood wall and floor
     assemblies, kitchen countertop, residues and other materials
     which may have been involved with or affected by the fire.
     Propane supply system, connections, joints, regulators,
     propane appliances, any material transporting or
     regulating propane.        Tools or implements capable of
     puncturing supply lines or loosening connections.

Search Warrant Authorization, 9/20/2017, at 1 (emphasis added).

     Thus, the Commonwealth’s argument at this juncture appears to us an

attempt to back door the leak check into the meaning of the warrant.10 The




10Moreover, Agosti had the opportunity to obtain a new or amended search
warrant prior to the September 8 Leak Check. Agosti took the time to
request that Rich come to the Property; he could have also taken the time to
ensure the search warrant included a reference to the leak. See also
Supplemental Opinion, 10/25/2018, at 5 (“After receiving information from
Attorney Geci on the morning of September 8, 2017[, Agosti] did not take
the time to amend the application for [the] search warrant even though
there was no urgency to act without doing so.”).



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J-S13031-19

September 8, 2017 search warrant clearly did not authorize the search of

the propane system that day.

     In the alternative, on appeal, the Commonwealth argues that Schaefer

“did not have expectation of privacy in the air, propane and/or propane leak

within [Schaefer’s] residence.” Commonwealth’s Brief at 33.               According to

the Commonwealth, once Attorney Geci informed Agosti there might be a

propane leak, there was “inherent danger” and “as a matter of public policy”

Agosti could check for the leak. Id.                 Accordingly, the Commonwealth

requests that we reverse the order on this basis.

     Our review of the record reveals that the Commonwealth did not argue

this theory at the hearing. It argued only that the September 8 Leak Check

was within the scope of the search warrant. N.T., 6/20/2018, at 143. It is

well-settled that “[i]ssues not raised in the lower court are waived and

cannot    be   raised   for   the   first    time    on   appeal.”   Pa.R.A.P.   302(a).

Accordingly, we conclude that this issue is waived, and we will not reverse

this portion of the order on this basis.             Therefore, we conclude that the

September 8 Leak Check was in violation of Schaefer’s rights; accordingly,

we must evaluate whether the trial court’s exclusion of this evidence was

proper.

            Pursuant to the so-called exclusionary rule, [e]vidence
     discovered as a result of a search that violates the fundamental
     constitutional guarantees of Article I, Section 8 will be
     suppressed. Thus, it is important to distinguish between a
     violation of the fundamental constitutional guarantees of Article
     I, Section 8 and mere technical noncompliance with the

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J-S13031-19

     Pennsylvania Rules of Criminal Procedure. We have, in fact,
     specifically reject[ed] the automatic application of the
     exclusionary rule to suppress evidence seized pursuant to a
     search which in some way violates the Pennsylvania Rules of
     Criminal Procedure relating to the issuance and execution of
     search warrants. Indeed, it is only when violations of the Rules
     assume constitutional dimensions and/or substantially prejudice
     the accused that suppression may be necessary.

Commonwealth v. Ruey, 892 A.2d 802, 808 (Pa. 2006) (internal citations

and quotation marks omitted).

     “In a private home, searches and seizures without a warrant are

presumptively   unreasonable….    Absent    probable   cause   and   exigent

circumstances, the entry of a home without a warrant is prohibited under

the Fourth Amendment.” Commonwealth v. Roland, 637 A.2d 269, 270

(Pa. 1994) (internal citation and quotation marks omitted). “When an official

search is properly authorized[,] the scope of the search is limited by the

terms of its authorization.” Commonwealth v. Parker, 619 A.2d 735, 740

(Pa. Super. 1993).

     Here, because we concluded that Agosti performed a search of

Schaefer’s home that went beyond the scope of the warrant that was issued,

we also conclude Schaefer’s constitutional rights were violated. Thus, the

trial court did not err in excluding evidence obtained from the September 8




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Leak Check pursuant to the exclusionary rule, and we affirm this portion of

the trial court’s order.11

      In summary, we reverse the portion of the trial court order granting

the motion to suppress with respect to all evidence related to the Draft

Report and Hughes. We affirm the order in all other respects.

      Order affirmed in part and reversed in part. Jurisdiction relinquished.




11 There was also some confusion about what evidence was excluded by the
trial court’s order. According to the Commonwealth, the trial court’s order
suppressed evidence that was not related to the leak check and therefore
was lawfully obtained pursuant to the September 8, 2017 search warrant.
See Commonwealth’s Brief at 31 (pointing to “wood from the stairway” area,
carpet and carpet pad samples, and upholstery from a living room chair).
The Commonwealth contends that this evidence was not “fruit of the
poisonous tree.” See, e.g., Commonwealth v. Johnson, 68 A.3d 930, 946
(Pa. Super. 2013) (“The ‘fruit of the poisonous tree’ doctrine excludes
evidence obtained from, or acquired as a consequence of, lawless official
acts.”). Our review of the trial court’s order and opinion indeed reveals a
discrepancy. The trial court order states that “[a]ll evidence seized from
[the Property] on and after September 8, 2017 is suppressed.” Trial Court
Order, 7/31/2018 (emphasis in original). However, in the memorandum
opinion accompanying that order, it refers only to “information illegally
obtained on September 8, 2017” as being suppressed. Memorandum
Opinion, 7/31/2018, at 17. We read these parts together and conclude that
evidence that was lawfully seized on September 8, 2017, namely those
items set forth in the search warrant and referenced by the Commonwealth,
was not suppressed by the trial court. Accordingly, there is no relief we
must provide to the Commonwealth on this argument.



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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 5/21/2019




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