J-A24030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

OMONT WIGGINS,

                            Appellee                 No. 2578 EDA 2013


                     Appeal from the Order August 8, 2013
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0001600-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 09, 2014

        Appellant, the Commonwealth of Pennsylvania, appeals from an order

granting suppression of physical evidence. The Commonwealth argues the

suppression court erred in suppressing evidence as a remedy for admitted

violations of the Rules of Criminal Procedure.       After careful review, we

affirm.

        On December 11, 2010, Appellee Omont Wiggins was arrested, and he

was subsequently charged with multiple violations of the Controlled

Substance, Drug, Device and Cosmetic Act, 35 P.S. §780-101 – 780-113.1,

as well as conspiracy and person not to possess firearms.       On April 15,

2011, Wiggins filed a pretrial suppression motion. A hearing on the motion

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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was held on March 26, 2012. The court summarized the facts adduced at

the suppression hearing as follows:

     Late at night on December 11, 2010, police were staking out an
     apartment house in Cheltenham Township, Montgomery County.

     …

           The supervising sergeant on the scene saw two unknown
     men who seemed to have emerged from the building come down
     the sidewalk, get into a car, and drive off.          The sergeant
     observed that, in his words, it "rolled” or "slid" through two stop
     signs, and was going too fast. The sergeant followed the vehicle
     and stopped it, radioing for backup, which arrived shortly in the
     form of two other officers from the stakeout.

           The sergeant ran a check on the vehicle and determined it
     was registered to a female, and, upon asking the driver for
     license and registration, was told he had no license. The driver
     said the car was his aunt's, but the two men in the car fumbled
     in the glove compartment before producing the registration,
     which behavior the sergeant found suspicious. The sergeant
     pulled the driver from the car and he was patted down for
     weapons, whereupon packets of cocaine fell from his belt to the
     ground, and he was arrested.

            The sergeant also questioned the passenger, [Wiggins]. At
     first the sergeant heard [Wiggins] identify himself as "Omar”
     Wiggins, but then he produced a card with the name "Omont"
     Wiggins. [Wiggins] also verbally gave the sergeant a date of
     birth later determined to be off by one day. [Wiggins] appeared
     to be passing over a Pennsylvania license among his papers, so
     the sergeant asked to see it. That license bore the name
     "Omount” Wiggins, and had a birth date that matched up with
     the name when run through a background cheek. After being
     removed from the car and patted down by one of the officers …
     [Wiggins] revealed that he stayed with his girlfriend in the
     apartment building the officers had been surveilling, and
     described how to get to her apartment on the second floor. The
     officers took [Wiggins] into custody too, apparently for false
     identification to law enforcement authorities under 18 Pa.C.S. §
     4914….



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          [A]s [Wiggins] and the driver of the vehicle were taken to
     the police station for processing, the officers returned to the
     apartment building to investigate.

           …

           The sergeant and the other two officers who responded to
     the car stop then went to the second floor to locate the
     apartment [Wiggins] had described. They knocked on the door,
     and a female answered, opening the door only partially. She
     confirmed she was [Wiggins]’s girlfriend and he lived there with
     her.

           The officers noticed a strong pungent odor of raw
     marijuana wafting from the apartment. Upon questioning, the
     female said if there was marijuana inside, it [was not] hers.

           The sergeant and one of the officers (the affiant) claimed
     the female then verbally consented to their request to search the
     apartment. … [This court] explicitly found the theory that there
     was consent to search not to be credible….

           The police took the female … to the station, and set about
     to obtain a warrant to search her apartment. The third officer,
     who had been present at both the traffic stop and the initial
     encounter with the female, stayed behind, and according to all
     three officers testifying at the hearing the apartment was
     "secured" while the others returned to the station. In fact the
     third officer testified, alone among the three, that, "I was in the
     apartment prior to that for a sweep when we originally made
     contact with one of the residents that lived in the apartment."

           …

           Meanwhile, back at the station the sergeant interviewed
     several of the detainees while the other officer prepared an
     affidavit of probable cause to submit to a magistrate in support
     of an application for a search warrant.

           …

           It was now the early morning of December 12, 2010, a
     Sunday, and rather than take his application for a search
     warrant before the regular local district judge, the officer had to
     go through county dispatch to contact the judge on duty … and
     arrange the audio-visual hookup required by the [Rules of
     Criminal Procedure] in the absence of an in-person presentation

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     of the affidavit and application. The officer did not know at the
     time the whereabouts of [the Judge] or his office (which the
     officer later learned was in Willow Grove, judicially noted to be
     less than half an hour's drive from Cheltenham) and … the two
     were previously unacquainted. [The Judge] informed the officer
     that the visual component (of the audio-visual communication
     required by the rule) would not be necessary, and that the
     application and warrant would be handled by fax and telephone
     alone… Thus, the officer confirmed there was no video done of
     the search-warrant procedure, but that it was done only
     telephonically, and, furthermore, "We have done that in the
     past."

            The officer typed an application and affidavit of probable
     cause to search the second floor apartment onto a computer
     form, printed it out, and signed it. He sent the signed application
     for the search warrant and affidavit by fax to [the Judge]. The
     officer and the Judge communicated back and forth by telephone
     about the application, with the Judge pointing out a problem in
     the papers that needed correcting. The officer corrected the
     problem and sent a redone application back by fax. At some
     point the Judge asked the officer over the telephone whether he
     swore that the facts set forth in the affidavit were true and
     correct, and the officer stated he did. The Judge then, according
     to the officer, signed the completed warrant and returned it to
     him by fax.

            The officer indicated in his testimony this back-and-forth
     process took place over a matter of minutes. However, he also
     indicated he was waiting anxiously for the final warrant to come
     back by fax from the Judge because, "We must have called each
     other numerous times because there was [sic] fax issues, but
     eventually it came over and I received the copy and I told the
     Judge I have the copy, everything is good[,] and then I went
     directly from the police station to the location in question."

           …

           [T]he actual search warrant, affidavit, and inventory of
     property seized were never filed with the Clerk of this Court as
     required by Pa.R.Crim.P. 210. The first evidence of record of the
     warrant is the copy the Commonwealth introduced as an exhibit
     at the hearing on suppression. This copy bore indicia of having
     been sent back and forth by fax. Both the officer's signatures on
     each of the three pages of the exhibit and the Judge's, as well as

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     the Judge's seals, are facsimiles…. The facsimiles of the Judge's
     signature on the front page attesting the oath and authorizing
     the warrant indicates … the time of affixation as 7:00 A.M.,
     December 12, 2010. Each of the three pages displays two fax
     "tags" at the top. The first page indicates a fax emanating from
     [the Judge] at 6:49 A.M., with the next two pages showing 6:50
     A.M.     Beneath these lines appear machine-generated tags
     indicating, on the first page, a fax from the Cheltenham Police at
     7:48 A.M., and on the next two pages 7:50 A.M. The officer at
     the hearing could not explain the discrepancies in time….

           …

             The Pennsylvania Rules of Criminal Procedure require that
     a copy of a search warrant that is served when no one is present
     at the premises searched must be left there in a conspicuous
     place together with the supporting affidavit(s) and a receipt for
     any property seized. Pa.R.Crim.P. 208. At the hearing, the
     defense introduced into evidence the actual documents the
     police left in the second-floor apartment of [Wiggins] and his
     girlfriend, through the testimony of the girlfriend, whom we
     found to be credible. After she was released from custody, the
     search of the apartment had concluded, and she was allowed to
     reenter her home, she found copies of the warrant/affidavit and
     receipt on a coffee table where the police testified they had been
     left and [she] turned them over to [Wiggins]’s attorney, who
     retained them until the hearing. The receipt is a yellow carbon
     copy of an original signed by the sergeant and the affiant
     showing the time of the search as 7:17 A.M. (The same time of
     search appears on a copy of the "Return of Service and
     Inventory" that the affiant prepared and the Commonwealth
     introduced as an exhibit. As stated, the issuing authority never
     filed these documents with the Clerk of Courts as required by
     Pa.R.Crim.P. 210, and the originals were not in evidence.) The
     copy of the warrant and supporting affidavit found on the table
     bears the affiant's original (raised) signature on each of its three
     pages. However, this copy is neither signed, dated, nor filled out
     in any manner by the District Judge (nor does it bear the fax
     tags appearing on the Commonwealth's exhibit). … The officers
     insisted they did not enter the apartment to conduct the search
     until the affiant arrived back on the scene with a copy of the
     warrant signed and sealed by the Judge.




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J-A24030-14



Trial Court Opinion (TCO), 2/19/14, at 1 - 10 (citations to the record

omitted).

       On August 8, 2013, the court granted Wiggins’s suppression motion.

The Commonwealth filed a timely notice of appeal, and certified that the

suppression court’s order would terminate or substantially handicap the

prosecution in the instant case.               Pa.R.A.P. 311(d).   Likewise, the

Commonwealth filed a timely Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and now presents the following questions for our

review:

       1. Whether the lower court erred in suppressing the evidence
          retrieved from [Wiggins]’s apartment based solely on
          technical violations of the Pennsylvania Rules of Criminal
          Procedure, where the purported violations did not implicate
          fundamental, constitutional concerns, were not committed in
          bad faith, and did not substantially prejudice [Wiggins]?[1]

Commonwealth’s brief at 4.

       Our standard of review in addressing a challenge to an order granting

suppression of evidence is well-settled: “The suppression court's findings of

fact bind an appellate court if the record supports those findings. The

suppression court's conclusions of law, however, are not binding on an
____________________________________________


1
  We note that, even assuming that we were to reverse the trial court’s
order, the instant case would be remanded for further proceedings regarding
suppression. Appellee Wiggins preserved a pretrial challenge to the “four
corners of the affidavit,” i.e., that the warrant was not supported by
probable cause. TCO at 12. The suppression court explicitly declined to
reach this claim, having concluded suppression was required on other
grounds. Id.



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J-A24030-14



appellate court, whose duty is to determine if the suppression court properly

applied the law to the facts.”   Commonwealth v. Chernosky, 874 A.2d

123, 124 (Pa. Super. 2005) (internal citations omitted).    Furthermore, we

note that “this Court is not bound by the rationale of the trial court, and we

may affirm the trial court on any basis.” Commonwealth v. Williams, 73

A.3d 609, 617 n. 4 (Pa. Super. 2013) (internal citations omitted).

      Initially, we are compelled to address the fact that, given the record

before us, we cannot conclude that the police obtained a search warrant

prior to executing their search of Wiggins’s residence. The uncontroverted

testimony of the police was that their search began at 7:17 a.m.         N.T.,

4/26/12, at 40.    The Commonwealth offered a copy of the warrant in

question into evidence at the suppression hearing. This exhibit contains a

space for the magistrate to enter the time he authorized the warrant; in that

space, it states the warrant was signed at 7:00 a.m.        The warrant was

delivered by fax to the police, and there is a time stamp at the top of the

exhibit that indicates the fax was received at 7:48 a.m.     The police were

unable to account for the fact that the fax appears to have arrived after the

search commenced, speculating (without foundation) that perhaps the fax

machine malfunctioned. Id. at 98. In addition, Appellee Wiggins introduced

testimony and evidence that the copy of the warrant left by the police at the

residence was not signed by the magistrate. The suppression court declined




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J-A24030-14



to make a finding as to what time the fax was received, and whether the fax

was received prior to the commencement of the search.2

       Compounding this ambiguity is the fact that one of the officers testified

that he was in the apartment prior to the warrant being issued “for a sweep

when we originally made contact with one of the residents that lived in the

apartment.” Id. at 115 – 116. It would appear that the officer believed he

was referring to a so-called “protective sweep” as discussed by the United

States Supreme Court in Maryland v. Buie, 110 S.Ct. 1093 (1990).

Despite this officer’s attempt to distinguish a “sweep” from a “search,” no

such distinction actually exists, and the Supreme Court unambiguously

described such an entry as a “search.”           Id. at 1094.    As such, the

Commonwealth’s own evidence suggests that a search commenced prior to

the issuance of the warrant.

       It is axiomatic that

       as a general rule, “a search warrant is required before police
       may conduct any search.” []Commonwealth v. White, 543 Pa.
       45, 669 A.2d 896, 900 (Pa.1995)[]. Absent the application of
       one of a few clearly delineated exceptions, a warrantless search
       or seizure is presumptively unreasonable. Id. (citing Horton v.
       California, [] [496] U.S. 128, 134 n. 4 [110 S.Ct. 2301, 110
       L.Ed.2d 112] (1990)). This is the law under both the Fourth
____________________________________________


2
  The court stated that this claim, raised by Appellee Wiggins, “though
plausible in light of all the obvious discrepancies with the warrant, was
unverifiable.”    TCO at 29.      However, as noted infra, it was the
Commonwealth’s burden of proof at the suppression hearing to show that
the evidence was not obtained in violation of Appellee Wiggins’s rights.
Williams, 73 A.3d at 614



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J-A24030-14


      Amendment to the United States Constitution and Article I,
      Section 8 of the Pennsylvania Constitution. Id. (citing
      Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621, 627
      (Pa.2007)); see Commonwealth v. Jones, 605 Pa. 188, 988
      A.2d 649, 656 (Pa.2010).

Williams, 73 A.3d at 614.      Moreover, where a defendant files a motion

seeking to    suppress evidence, the       burden of proof rests with the

Commonwealth to go “forward with the evidence and … establish[] that the

challenged evidence was not obtained in violation of the defendant's rights.”

Pa.R.Crim.P. 581(h). As such, we cannot conclude that the record before us

establishes that the police obtained a warrant before they conducted a

search of Appellee Wiggins’s residence. We therefore affirm the trial court’s

order granting suppression of the evidence seized from that residence on

this basis.

      In addition, we would not agree with the Commonwealth’s claim that

the evidence should have been admitted despite the numerous violations of

the Rules of Criminal Procedure that occurred while the warrant was being

obtained and executed. We would conclude that suppression was proper, as

Appellee Wiggins was demonstrably prejudiced by the Commonwealth’s

failure to adhere to the Rules of Criminal Procedure.

      At the suppression hearing, Wiggins introduced the testimony of his

girlfriend, who also lived at the residence that was searched. She testified

that when she returned home after the search, she found a copy of the

warrant left behind by the police. N.T., 4/26/12, at 125. The warrant she

described was then admitted into evidence.      The section of that copy that


                                     -9-
J-A24030-14



was to be filled out (and signed) by the magistrate was entirely blank. The

detective who had left the copy of the warrant at the premises could not

recall whether the copy he left had been signed by the judge, and admitted

it was possible that it had not been signed.    Id. at 45, 58.   As such, the

record before us does not establish that the police complied with

Pa.R.Crim.P. 208, which states in applicable part:

     (A) A law enforcement officer, upon taking property pursuant to
     a search warrant, shall leave with the person from whom or from
     whose premises the property was taken a copy of the warrant
     and affidavit(s) in support thereof, and a receipt for the property
     seized. A copy of the warrant and affidavit(s) must be left
     whether or not any property is seized.

     (B) If no one is present on the premises when the warrant is
     executed, the officer shall leave the documents specified in
     paragraph (A) at a conspicuous location in the said premises. A
     copy of the warrant and affidavit(s) must be left whether or not
     any property is seized.

     In addition, it was undisputed at the suppression hearing that no

visual communication occurred between the magistrate and the police officer

when the warrant was issued; rather, the affidavit of probable cause was

faxed to the judge, who faxed the warrant back to the officer, and the two

communicated about the warrant by phone.         This is a clear violation of

Pa.R.Crim.P. 203, which states in applicable part:

     (A) In the discretion of the issuing authority, advanced
     communication technology may be used to submit a search
     warrant application and affidavit(s) and to issue a search
     warrant.

     …




                                    - 10 -
J-A24030-14


      (C) Immediately prior to submitting a search warrant application
      and affidavit to an issuing authority using advanced
      communication technology, the affiant must personally
      communicate with the issuing authority by any device which, at
      a     minimum,       allows    for    simultaneous     audio-visual
      communication. During the communication, the issuing authority
      shall verify the identity of the affiant, and orally administer an
      oath to the affiant.

      Finally, Pa.R.Crim.P. 210 states: “The judicial officer to whom the

warrant was returned shall file the search warrant, all supporting affidavits,

and the inventory with the clerk of the court of common pleas of the judicial

district in which the property was seized.”      In the instant case, it was

uncontroverted at the suppression hearing that these documents were never

filed with the Clerk of Courts of Montgomery County, in violation of the rule.

We further note that Appellee Wiggins argued at the suppression hearing

that the warrant was not returned by the police to the magistrate. The court

agreed, and found this had not been done.       N.T., 8/8/13, at 3.    Such a

lapse would constitute a violation of Pa.R.Crim.P. 209(a), which states, “The

law enforcement officer executing the search warrant shall return the search

warrant promptly after the search is completed, along with any inventory

required under paragraph (C), to the issuing authority.”

      The Pennsylvania Supreme Court has held that suppression “is not an

appropriate remedy for every violation of the Pennsylvania Rules of Criminal

Procedure concerning searches and seizures. It is only where the violation

also implicates fundamental, constitutional concerns, is conducted in bad-

faith or has substantially prejudiced the defendant that exclusion may be an


                                    - 11 -
J-A24030-14



appropriate remedy.” Commonwealth v. Mason, 490 A.2d 421, 426 (Pa.

1985) (emphasis         in original).      Notwithstanding the   Commonwealth’s

argument that the violations in question are harmless “technical” violations,

it is clear that Appellee Wiggins was substantially prejudiced.      The papers

left by the police at his residence were never signed by the judge. 3       The

warrant was never returned to the judge or filed with the clerk of courts. It

is clear that the multiple violations of the Rules of Criminal Procedure made

it impossible for Appellee Wiggins to determine whether the police obtained

a warrant before searching his home. As such, we would conclude that the

trial court did not err in finding that suppression was proper on this basis, as

well.

        Order affirmed.

        Judge Gantman concurs in the result.

        Judge Platt files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2014
____________________________________________


3
  The Pennsylvania Supreme Court has concluded “no warrant, in fact,
exists” where a warrant is not signed by an issuing authority.
Commonwealth v. Chandler, 477 A.2d 851, 857 (Pa. 1984).



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