J-A23011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ORIEN ROBERT MCBRIDE                      :
                                           :
                     Appellant             :   No. 1205 WDA 2018


        Appeal from the Judgment of Sentence Entered, July 26, 2018,
             in the Court of Common Pleas of Allegheny County,
            Criminal Division at No(s): CP-02-CR-0009591-2017.


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

MEMORANDUM BY KUNSELMAN, J.:                       FILED OCTOBER 18, 2019

       Orien Robert McBride appeals from the judgment of sentence imposing

an aggregate term of incarceration of nine to 18 months, twelve months of

electronic monitoring, and three years’ probation for various violations of the

Uniform Firearms Act. McBride claims the trial court should have suppressed

the gun that produced his conviction, because he believes it was obtained

unconstitutionally. We affirm the order denying suppression, because the gun

was not the fruit of the initial, allegedly-unconstitutional search, and McBride

waived his attack against the breadth of the second search that uncovered the

gun.

       The suppression court set forth the relevant facts as follows:

          Officers Darrin Young and Brian Coll of the McKees Rocks
          Police Department testified at the Suppression Hearing on
          April 23, 2018. Officer Young testified that officers from his
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        department were dispatched to the 1300 block of Vine
        Street for a report of a male and female arguing. Officers
        were advised that the male and female were running
        through a store parking lot.

           Officer Tyler Roche of Stowe Township Police Department
        was in the area and observed a male ([McBride]) and a
        female fitting the description. He and Allegheny County
        Housing Authority Officer Mancino chased [McBride] toward
        Church Avenue. Officer Roche observed [McBride] run into
        the yard of 1245 Church Avenue. Officer Young testified
        Officer Roche reported to him that he observed [McBride]
        running towards the backyard of 1245 Church Avenue and
        he heard the sound of a metal fence clanking. [McBride]
        exited the front door of 1245 Church Avenue, where he was
        met by Officer Mancino.

           [McBride’s] girlfriend, Joann Moore, told the officers that
        she lived at the residence and [McBride] sometimes stayed
        there. The Officers asked Ms. Moore for permission to
        search the residence and at first she was unsure of what to
        do. Officer Young testified that at that time he intended to
        go to the police station to type up a search warrant
        application. Before he obtained the warrant, however, he
        was advised that Ms. Moore had given the officers
        permission to search the residence. Officer Young testified
        that Officer Roche located a firearm in the charcoal grill
        which was up against the fence in the backyard.

            [McBride] was charged with three (3) counts of Violations
        of the Uniform Firearms Act, specifically one count of Person
        Not to Possess a Firearm, one count of Carrying a Firearm
        without a License, and Possessing a Firearm with
        Manufacturer Number Altered.

          [He] appeared before [the court of common pleas] for a
        hearing on his Pretrial Motion to Suppress, but that Motion
        was denied at the conclusion of the hearing . . . .

Trial Court Opinion, 1/22/2019, 2-3 (citations to the record and footnotes

omitted).

     McBride raises two issues on appeal:


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         I.    Whether . . . police began performing a "protective
               sweep" for evidence, not people, without consent or a
               warrant in violation of the federal and Pennsylvania
               constitutions?

         II.   Whether the . . . [secondary] search . . . exceeded the
               scope of [Ms. Moore’s] consent . . . in violation of the
               federal and Pennsylvania constitutions?

McBride’s brief at 5.

      In both of these issues, McBride claims the suppression court erred by

denying his motion to suppress.     When this Court reviews the denial of a

motion to suppress, our scope and standard of review is well-settled. The

scope of review is limited to “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.” Commonwealth v. Jones, 988 A.2d 649,

654 (Pa. 2010) (citations omitted). Additionally, appellate courts are limited

to reviewing only the evidence adduced at the suppression hearing. In re

L.J., A.3d 1073, 1086 (Pa. 2013).

      Our standard of review “is limited to determining whether the

suppression court’s factual findings are supported by the record and whether

the legal conclusions drawn from those facts are correct.” Jones, 988 A.2d

at 654 (citations omitted). Notably, "the suppression court’s findings are not

binding on an appellate court, ‘whose duty it is to determine if the suppression

court properly applied the law to the facts.’” Id. (quoting Commonwealth

v. Mistier, 912 A.2d 1265, 1269 (Pa. 2006)). Thus, the suppression court’s

conclusions of law are subject to de novo review. Id. (citations omitted).


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A.     The Commonwealth’s Evidence Was NOT the Fruit of the First Search.

       In his first issue, McBride claims that, prior to Ms. Moore’s consent, the

police had already unlawfully searched her residence for the hidden gun.1 He

contends the police conducted a search for evidence after arresting him, and

an evidentiary search can never be a protective sweep, as the police asserted

at the suppression hearing. It was, instead, a warrantless search for evidence,

according to McBride’s theory, which tainted the entire investigation, negated

Ms. Moore’s consent to the secondary search that uncovered the gun, and

rendered that gun fruit of the poisonous tree.

       Even if the initial search was not a constitutionally permissible protective

sweep, as McBride claims, no harm befell him from that first search. In short,

he has not convinced us that the firearm is the fruit of the first search.

       According to Officer Coll, investigators uncovered nothing of note during

the initial sweep of Ms. Moore’s residence. Moreover, nothing about this initial

walk-through impacted Ms. Moore’s subsequent consent to a more-thorough,

secondary search of her property.              McBride’s assertion that it did is mere

supposition, without reference to legal authority. See McBride’s Brief at 33.



____________________________________________


1 The suppression court concluded this issue is moot. See Trial Court Opinion,
1/22/19, at 5. That is incorrect. See, e.g., In re R.D., 44 A.3d 657, 680
(Pa. Super. 2012) (holding that an issue is only moot if the court can no longer
render an order of relief due to changes in facts or law). Because no changes
in facts or law have rendered this Court incapable of granting McBride relief,
the issue is not moot, and we reach its merits.


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      As the suppression explained:

         Ms. Moore consented, because she had nothing to hide.
         When asked why she consented to the search, she
         answered, “Basically we didn’t do anything. I didn’t do
         nothing to — I didn’t have nothing to hide.” ST at 33, 8-10.
         She also testified that she believed her lease required her
         to consent to the officers’ request. See ST at 33, 22-25 and
         34, 1-5. Ms. Moore answered yes to whether she was
         concerned about the level of intrusion that would occur if
         they did an actual search warrant search of the home. See
         ST at 33. Based on the totality of the circumstances, this
         Court found that Ms. Moore voluntarily consented to the
         search.     Her concern that the search would be more
         intrusive if police were required to obtain a warrant did not
         vitiate the consent.

Trial Court Opinion, 1/22/19, at 6-7. Thus, the suppression court’s factual

findings contradict the claim by McBride that Ms. Moore consented to the

second search because of the investigators’ initial, pre-consent search.

      And it was that second consented-to search that actually yielded the

gun, so, even if the initial search was unconstitutional, that constitutional

violation did not produce the evidence that the Commonwealth used to convict

McBride. The firearm was therefore not, as McBride asserts, the “fruit of the

poisonous tree.”   McBride’s Brief at 12; see, e.g., Wong Sun v. United

States, 371 U.S. 471 (1963).

      “[W]hether evidence is the fruit of illegal police conduct is resolved by

determining whether, assuming the primary illegality has been established,

the challenged evidence has been obtained by exploitation of that illegality, or

instead, by means sufficiently distinguishable to be purged of the taint of the

primary illegality.” Commonwealth v. Santiago, 290 A.3d 912, 924 (Pa.

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Super. 2019).    Assuming, without deciding, that law enforcement’s initial

sweep of the apartment was not valid, McBride establishes no meaningful

nexus between that initial, fruitless search and Ms. Moore’s consent to the

second, fruitful one.

      According to Ms. Moore’s and the officers’ testimony, her consent arose

from a concern that the police were on the verge of obtaining a search

warrant. She also hoped that the investigators would make less of a mess if

they searched with her consent than they would if they were executing a

search warrant. Nothing of record supports McBride’s claim that the consent

his girlfriend provided was based upon the fact that the police had previously

swept her property at the time of McBride’s arrest.

      Thus, the post-consent, police action that actually uncovered the gun

was sufficiently distinguishable from the pre-consent police action that did not.

If the pre-consent search violated either the Constitution of the United States

or the Constitution of the Commonwealth of Pennsylvania, the firearm was not

the fruit of that pre-consent search, nor did the pre-consent search unduly

coerce Ms. Moore into consenting. Ms. Moore did not claim her consent was

involuntary.

      We therefore dismiss McBride’s first issue as meritless.

B.    McBride Failed to Preserve His Second Claim of Error.

      Next, McBride challenges the post-consent search, because, in his view,

the police exceeded the permissible scope of Ms. Moore’s consent. He argues


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that Ms. Moore’s consent to search her apartment did not include consent to

search the backyard.

       The trial court indicates that McBride did not raise this issue at the

suppression hearing. Trial Court Opinion, 1/22/19, at 7, n 5.    Our review of

the record confirms this procedural error. See McBride’s Motion to Suppress

at 4-5 (alleging police searched the apartment without consent but not

asserting that, if consent was properly obtained, the officers exceeded the

scope of that consent); see also N.T., 4/23/18, at 39-41.

       “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pennsylvania Rule of Appellate Procedure 302(a).

Because McBride first raised his argument that the police exceeded the scope

of Ms. Moore’s consent in his 1925(b) Statement of Matters Complained of on

Appeal, he deprived the suppression court of an opportunity to rule upon this

issue in the first instance.

       We dismiss McBride’s second claim of error as waived.2

       Judgment of sentence affirmed.




____________________________________________


2Because neither of McBride’s claims of unconstitutional conduct by the police
warrant him any relief, we need not – and therefore do not – address the issue
of whether the trial court erred by concluding that he had no expectation of
privacy in Ms. Moore’s residence. Even if he had a reasonable expectation of
privacy, suppression of the evidence would not result.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2019




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