J-S11016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

BRUCE M. REESE

                            Appellant                No. 52 EDA 2013


        Appeal from the Judgment of Sentence of November 20, 2012
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0013539-2011


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

MEMORANDUM BY WECHT, J.:                          FILED AUGUST 06, 2014

       Bruce M. Reese appeals his November 20, 2012 judgment of sentence.



we remand for a new trial consistent with this memorandum.

       The underlying incident in this case occurred late in the evening on

November 11, 2011. On that date, the three complainants in this case

Darren Harrison, Ian White, and Bryan Shoecraft         were robbed at the

intersection of 57th and Belmar Streets in Philadelphia, Pennsylvania.



car, which was parked at the aforementioned intersection and outside of the



____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-S11016-14



7/31/2013, at 5-

wireless Internet signal to watch a video in the vehicle.            Id.    At



some items left there by anot                Id. at 8. Shoecraft and Nazario

exited the residence, and engaged Harrison and White in conversation, when

they noticed the men sitting in the vehicle. Id. at 5, 7-8.



Ha                                         Id. at 8. Reese accosted Nazario



                                                Id.   Reese proceeded to pat

                                                                           Id.



                                                                 Id. at 6, 9.



earlier demand. Id. at 5-

                                                              Id. at 9. After

his unidentified accomplice arrived at the car, Reese collected $90.00 in cash

from Harrison and White, and gave it over to his accomplice. Id. at 6, 9.



and emptied it of valuables and $2.00.       Id. at 9.   The accomplice also

                                                                       Id. at

7, 9.




                                     -2-
J-S11016-14




                                                                s related to a person

named Kyle. Id. at 6. Reese acknowledged that he knew Kyle, id. at 6, and

asked how much money he and his accomplice had taken from Harrison and

his friends. Id. at 7. Reese then asked his accomplice to return the money,

but the s
                                                                        1
                                                                            Reese and

                                                    Id. at 6.

       [Upon] returning home, [Shoecraft] immediately called the
       police to report the theft. Police officers came to his home, took
       him to the scene [of the robbery] and then to the Southwest
       Detectives [D]ivision of the Philadelphia Police Department
       where he was interviewed by Detective [Frank] Mullen. At
       approximately 2:32 a.m. [on November 12, 2011], after giving
       his statement, [Shoecraft] viewed a line-up of potential suspects
       without any results.



[Harrison] did not contact the police until 9:00 a.m. the following morning,

                           Id. at 6.




statement, including a description of [Reese], Detective Mullen generated a

photo array on his computer screen.              [Harrison] immediately identified
____________________________________________


1
      Ap
putative phone number. T.C.O. at 6 n.3.



                                           -3-
J-S11016-14


                                                 Id. at 6-7.   Specifically, Harrison

testified at trial that he immediately recognized Reese and told Detective

Mu

10/2/2012, at 72. White similarly identified Reese in a separate interview:

       [White] testified that [early in the morning on November 13,
       2011,] Harrison called him and took him to the police station
       where he was interviewed by a detective other than Detective
       Mullen.    After signing his statement at 3:25 a.m.[, White]
       positively identified [Reese] from a previously prepared photo




                                                                                 e of

                                   Id. at 11.

       Based on these identifications, a search warrant was prepared by
       [D]etective
       executing the warrant at 7:05 a.m. on the morning of November
                                              sic] on a sofa-like piece of
                                                                         -
       automatic] handgun
       been lying on. Although it appeared to be real, it was later
                                                           [2]
                                                                Detective
       Mullen testified that, in addition to the gun, several pieces of
       mail addressed to [Reese] at that address were also recovered.

Id. Thereafter, Reese was arrested:

       On November 14, 2011, [Reese] was arrested and charged with
       numerous offenses, including[,] inter alia[:] (1) [f]our counts of
       robbery  threatens serious bodily injury pursuant to 18 Pa.C.S.
____________________________________________


2




                                           -4-
J-S11016-14


      § 3701(a)(1)(ii); (2) [o]ne count of criminal conspiracy pursuant
      to 18 Pa.C.S. § 903(C); and (3) [o]ne count of possession of an
      instrument of crime with intent pursuant to 18 Pa.C.S. § 907(a).

Id. at 1-2 (citations modified).



suppress the evidence against [Reese] obtained as a result of the search

warrant, arguing that there was insufficient evidence in the affidavit of

                                                             Id. at 13. Reese




                        Id.

motion, and trial commenced on October 2, 2012. N.T. Trial I at 30.

      On October 5, 2012, at the conclusion of his jury trial, [Reese]
      was found guilty on all counts of robbery, one count of [criminal]
      conspiracy[,] and one count of possession of an instrument of
      crime. For the purposes of sentencing, the [trial court] broke
      the robbery charges into two separate groups. On the first two
      robbery counts[, Reese] was sentenced on each charge to
      concurrent periods of confinement in a state correctional facility
      of [five] to [ten] years. On the second [set of] robbery counts[,
      Reese] was also sentenced on each charge to concurrent periods
      of confinement in a state correctional facility of [five] to [ten]
      years, to run consecutively to the first two [robbery] sentences,
      for a total period of incarceration on [all of] the robbery charges
      of ten to twenty years. [Reese] was also sentenced to two
      consecutive periods of confinement in a state correctional facility
      of [two and one-half] to [five] years each on the counts of
      conspiracy and possession of an instrument of crime, for a total
      period of incarceration of [five] to [ten] years on these two
      charges. These sentences [were set] to run consecutively to the
      sentences on the robbery charges. Thus, [Reese] was sentenced
      to a total period of confinement of [fifteen] to [thirty] years.
      [Reese] was also ordered to pay restitution to two of his victims
      in the total amount of $108.

                                     -5-
J-S11016-14



       On December 10, 2012, [Reese] timely filed the instant appeal
       to the Superior Court of Pennsylvania.[3] [On] December 13,
       2012, [a]ppellate [c]ounsel was appointed to represent [Reese]
       for the purposes of this appeal. On January 3, 2013, [the trial
       court] filed and served on [Reese] an Order pursuant to
       [Pa.R.A.P. 1925(b)], directing [Reese] to file and serve a
       Statement of Errors Complained of on Appeal, within [twenty-


       Statement of [Errors U]pon Receipt of All Notes of Tes

       [and directed Reese] to file and serve a [Rule 1925(b)
       statement] within 21 days of the receipt of all notes of
       testimony.

                                      *        *   *

       On May 14, 2013, [Reese] timely filed his [Rule 1925(b)
       statement].

T.C.O. at 2-3 (citations and capitalization modified, parentheses added). On

July 31, 2013, the trial court filed its Rule 1925(a) opinion.

       Reese raises the following issues for our consideration:

       1.    Did the [trial] court err by den                    -trial
       motion to suppress evidence based on a lack of probable cause
       where the affidavit of probable cause for the issuance of the
       warrant did not provide sufficient information for the issuing
       court to make a determination of probable cause?



____________________________________________


3

                 cing order was entered by the trial court that same day. See

December 10, 2012 notice of appeal was filed timely. See Pa.R.A.P. 903(a)
                                                  0 days after the entry of




                                           -6-
J-S11016-14


      2.     Was the evidence insuf[f]icient to establish a reliable
      identification of [Reese] as being involved in the commission of
      the crimes he was convicted of committing?

Brief for Reese at 2.

                                                                            hich

challenges the sufficiency of the evidence adduced by the Commonwealth.

Specifically, Reese contends that this evidence was insufficient to establish



matter is clear that no complaining witness . . . claimed to have previously

known [Reese], or [to] have interacted with him. . . . [A]t no time during

the robbery did any witness state that [Reese] had been identified by

                              -13. Thus, Reese argues that the evidence was

insufficient positively to identify him. We disagree.

      Our standard of review in this context is well-established:

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the factfinder to find every element of the crime
      beyond a reasonable doubt. Commonwealth v. Heberling,
      678 A.2d 794, 795 (Pa. Super. 1996) (citing Commonwealth v.
      Williams, 650 A.2d 420, 424 (Pa. 1994)). In applying [the
      above] test, we may not weigh the evidence and substitute our
      judgment for that of the fact-finder. In addition, we note that
      the facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubts
                                                                  -finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. Commonwealth v. Cassidy, 668 A.2d 1143,
      1144 (Pa. Super. 1995). The Commonwealth may sustain its
      burden of proving every element of the crime beyond a
      reasonable doubt by means of wholly circumstantial evidence.

                                     -7-
J-S11016-14


      Moreover, in applying the above test, the entire record must be
      evaluated and all evidence actually received must be considered.
      Finally, the trier of fact while passing upon the credibility of
      witnesses and the weight of the evidence produced, is free to
      believe all, part or none of the evidence. Commonwealth v.
      Valette, 388, 613 A.2d 548, 549 (Pa. 1992).

Commonwealth v. Vetrini, 734 A.2d 404, 406 07 (Pa. Super. 1999)

(citations modified).   This Court specifically has discussed the sufficiency

standards, in the context of identity, as follows:

      Proof beyond a reasonable doubt of the identity of the accused
      as the person who committed the crime is essential to a

      positive and certain in order to convict, although any
      indefiniteness and uncertainty in the identification testimony
      goes to its weight. Direct evidence of identity is, of course, not
      necessary and a defendant may be convicted solely on
      circumstantial evidence.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citations



witnesses and the circumstances surrounding their opportunities to see their

                                             Id.

      Instantly, Reese was positively identified by Harrison, White, and

Shoecraft during their initial interactions with the Philadelphia Police

Department. T.C.O. at 5-8, 10-11. Furthermore, all three men testified at

trial that Reese was one of the perpetrators of the robbery. See N.T. Trial I

at 50 (Harrison identifying Reese in the courtroom); Notes of Testimony




                                      -8-
J-S11016-14


respectively, identifying Reese in the courtroom).       These identifications

clearly constituted sufficient evidence to

      Reese argues that inconsistencies in the respective descriptions of



identification. See

[Reese] was either wearing a hoodie, a vest, a jacket, or a white Muslim

                                      arguendo

identifications differed somewhat in describing Reese, such questions of

credibility are committed to the jury for resolution.     Vetrini, supra.    In

convicting Reese, the jury clearly found the identifications of Harrison,

Shoecraft, and White to be credible.         See Hickman, supra.     Thus, we



      We turn now to Ree




waived his remaining issue for failure specifically to enumerate his claim in

his Rule 1925(b) statement.

      In relevant part, the trial court asserts that Reese has waived his first



information was lacking rendering the search warra

The trial court has cited numerous cases in support of its argument that

                                                        Id.   at   4-5   (citing


                                      -9-
J-S11016-14


Commonwealth v. Gibbs, 981 A.2d

challenging the sufficiency of the evidence [to sustain a conviction] on



elements upon which the evidence was insufficient in order to preserve the

                     Commonwealth v. Williams, 959 A.2d 1252, 1257



evidence was insufficient [to sustain a conviction], then the 1925(b)

statement needs to specify the element or elements upon which the

                                                      Commonwealth       v.

McCree

requests a statement of matters complained of on appeal . . ., that

statement must indicate, with specificity, the error to be addressed on

                                     Gibbs, in the context of a challenge to



in cases where, as here, the [a]ppellant was convicted of multiple crimes

each of which contains numerous elements that the Commonwealth must



     This precedent is inapposite to the instant circumstances, because

                not a challenge to the sufficiency of the evidence. Rather,

Reese asserts that the search warrant issued in this case was not supported

by probable cause.     The potential pitfalls enumerated in Gibbs and

Williams are not implicated by this case because Reese has not challenged


                                  - 10 -
J-S11016-14


the sufficie



               -trial motion to suppress evidence based on a lack of probable

cause where the affidavit of probable cause for the issuance of the warrant

did not provide sufficient information for the issuing court to make a



Appeal, 5/14/2013, at 1 (unnumbered).          Absent any case law to the

contrary, we believe that this assertion of error adequately informed the trial



litigated at length by the parties before trial.   See N.T. Trial I at 9-30.




                                                                See T.C.O. at

11-15. Thus, we conclude that Reese has preserved his remaining claim.



sufficient probable cause for an issuing magistrate to issue a warrant for the



Reese at 9-10. The legal standards governing our review of this issue are

well-established:

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the

      and whether the legal conclusions drawn from those facts are
      correct.  Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the

                                    - 11 -
J-S11016-14


     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted when read in the context of the record

     supported by the record, we are bound by these findings and

     Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).
     Where . . . the appeal of the determination of the suppression


     duty it is to determine if the suppression court properly applied
                               Commonwealth v. Mistler, 912 A.2d
     1265, 1269 (Pa. 2006) (quoting Commonwealth v. Nester,
     709 A.2d 879, 881 (Pa. 1998)). Thus, the conclusions of law of
     the courts below are subject to our plenary review.

                              *     *      *

     Article I, Section 8 [of the Pennsylvania Constitution] and the
     Fourth Amendment [to the United States Constitution] each
     require that search warrants be supported by probable cause.
                -pin that has been developed to determine whether it
     is appropriate to issue a search warrant is the test of probable
               Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.
     1991) (quoting Commonwealth v. Miller, 518 A.2d 1187, 1191

     circumstan
     has reasonably trustworthy information[,] are sufficient in
     themselves to warrant a man of reasonable caution in the belief
                                              Commonwealth v.
     Thomas, 292 A.2d 352, 357 (Pa. 1972).

     In Illinois v. Gates, 462 U.S. 213 (1983), the United States

     test for determining whether a request for a search warrant
     under the Fourth Amendment is supported by probable cause.
     In Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986), [the
     Pennsylvania Supreme Court] adopted the totality of the
     circumstances test for purposes of making and reviewing
     probable cause determinations under Article I, Section 8. In
     describing this test, we stated:


       forth by the United States Supreme Court in Gates, the
       task of an issuing authority is simply to make a practical,

                                  - 12 -
J-S11016-14


         common-sense decision whether, given all of the
         circumstances set forth in the affidavit before him,
         including the veracity and basis of knowledge of persons
         who supply hearsay information, there is a fair
         probability that contraband or evidence of a crime
         will be found in a particular place. . . . It is the duty of
         a court revie
         determination to ensure that the magistrate had a
         substantial basis for concluding that probable cause
         existed. In so doing, the reviewing court must accord

         determination, and must view the information offered to
         establish probable cause in a common-sense, non-
         technical manner.

                                *     *      *

      Commonwealth v. Torres, 764 A.2d 532, 537-38 (Pa. 2001)
      (emphasis added).

Commonwealth v. Jones, 988 A.2d 649, 654-55 (Pa. 2010) (internal

citations modified).

      Reese has devoted the majority of his argument to the claim that

Detective Mullen ignored evidence that Reese actually resided on the 5700

block of Belmar Terrace in Philadelphia, and not at 413 North Edgewood.

Specifically, Reese asserts that Detective Mullen misinformed the issuing

                                             -known address was located on



address, and insertion of the Edgewood residence[,] is a misstatement of



Commonwealth v. Tucker, 384 A.2d 938, 941 (Pa. Super. 1978)




                                    - 13 -
J-S11016-14


suppression of the fruits of the search only if the misstatements of fact are



hints at and implicates the larger deficiency undergirding the search warrant

in   this   case.   Even    assuming,   arguendo



Edgewood did not constitute material and deliberate misrepresentations, the

search warrant issued in this case was not supported by probable cause.

       The precedent of this Court requires the Commonwealth to establish

probable cause for the premises to be searched, and not only for the person

suspected of criminal activity:

       Probable cause to believe that a man has committed a crime on
       the street does not necessarily give rise to probable cause to
       search his home. . . . [A]n allegation based on an assumption or
       supposition not supported by the facts is insufficient to support
       (an inference of) criminal activity in a premises, in spite of the
       fact that there are plenty of allegations alleged to relate to
       criminal activity of the individual who is alleged to have lived in
       the premises.

Commonwealth v. Kline, 335 A.2d 361, 364 (Pa. Super. 1975); see

Commonwealth v. Way, 492 A.2d 1151, 1154 (Pa. Super. 19

lack of a substantial nexus between the street crime and the premises to




[up]on facts described w

Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007) (citing

Commonwealth v. Smith, 784 A.2d 182, 184 (Pa. Super. 2001)).

                                     - 14 -
J-S11016-14


       The November 14, 2011 affidavit of probable cause in this case

primaril

respective identifications of Reese. There is only one paragraph discussing

the premises to be searched, which reads as follows:

       [Reese] has [eight] prior arrest[s] in Philadelphia and list[s] 413
       N Edgewood for [six] of the arrest[s]. While being interviewed .
       . . [Harrison] informed [Detective] Mullen that during the
       afternoon hours of 11/13/11 he encountered the cousin of
       [Reese], a male he knows as Kyle Bentley, outside of 5700
       Belmar. [Harrison] stated [that Bentley] informed him that
       [Reese] is residing in West Philly.       The address of 413 N
       Edgewood is in the West Philadelphia area. On 4/27/11[, Reese]
       was released from prison. The prison release information list[s
                        s as 1413 N Edgewood. This address listing
       appears to be a typographical error. There are no connections
       for [Reese] to 1413 N Edgewood at all.

Continuation of Probable Cause for Search Warrant #161856, 11/14/2011,

at 1. Stated simply, there is no in



address and the instant robbery. Way, surpa. There are ample facts in the

                                                                         at 413

North Edgewood Street.4 However, the affidavit offers no factual basis for



____________________________________________


4
                                                              -trial suppression
hearing confirms that the above-mentioned information formed the basis for
the warrant application in this case
totality, his criminal history, his prison release information, and that one of
the victims talked to a relative that said [Reese] lived in West Philadelphia, I
firmly believed that 413 North Edgewood was the



                                          - 15 -
J-S11016-14


any way.       Although the affidavit offered significant factual bases for

concluding that Reese was

man has committed a crime does not necessarily give rise to probable cause

                          Way, 492 A.2d at 1154.

                                           Kline and Way is highly instructive.5 In

Kline, the police obtained a search warrant for an apartment after

eyewitness complainants identified the defendant as a drug dealer and
____________________________________________


5
     Subsequent decisions have distinguished somewhat our holding in
Kline and, by extension, Way. Specifically, this Court has enumerated

                    e to be searched and the evidence to be seized.
See Commonwealth v. Davis, 595 A.2d 1216, 1220-22 (Pa. Super. 1991)

                                                                              sales

                                      Commonwealth v. Macolino, 485
A.2d 1134, 1136-38 (Pa. Super. 1984) (holding that police established
probable cause to search a home, when the affidavit of probable cause
contained information wiretapped conversations emanating from the house
discussing narcotics trafficking, and police surveillance of the property,
wherein the defendant was observed coming and going from that house
while meeting with a known narcotics supplier); Commonwealth v. Frye,

admission may form the basis for establishing probable cause to search a
                                                   evidence to be seized



We read these cases as standing for the general proposition that, while the
Commonwealth must establish a nexus between the place to be searched
and the items to be seized, that burden is not meant to be harshly
interpreted. However, the central holding of Kline and Way       that mere
                                                          of his residence
does not establish probable cause to search that residence      remains in
force.



                                          - 16 -
J-S11016-14


indicated that the defendant lived in that particular apartment. Specifically,

three different informants stated that they had purchased drugs from the

defendant in the preceding week. Although the complainants stated that the

defendant kept the drugs that he sold in his apartment, there was no factual

basis in the affidavit to support that claim:

      [The suppression court] suppressed the evidence seized
      pursuant to the warrant because [the suppression court]
      concluded that although the affidavit contained facts sufficient to
      establish that [the defendant] was indeed dealing in drugs and
      lived in the apartment described, it did not contain facts
      sufficient to establish the basis [up]on which the several
      informants . . . had concluded that [the defendant] had gone to
      his apartment to get the drugs.

Kline, 335 A.2d at 362-63. On appeal, this Court upheld the suppression

              , stating that assumptions regarding the premises to be

searched are insufficient to establish probable cause:

      Here, as far as appears from the affidavit, none of the
      informants said where the [drugs were.]        The [informants]
      apparently concluded that [the
      apartment.       However, an affidavit must set forth how
      information leading to such a conclusion was obtained.
      Commonwealth v. Ambers, 310 A.2d 347, 350 (Pa. Super.
      1973); Commonwealth v. Soychak, 289 A.2d 119, 124 (Pa.
      Super. 1972). There is no indication of where the transaction
      took place, how long it took, how long [the defendant] was
      gone, or what led the [informants] to conclude that [the
      defendant] had gone to his apartment. The information from the
      confidential informant does not corroborate their conclusion that
      [the defendant] kept drugs in his apartment, even though it
      does tend to establish that [the defendant] was a drug dealer.

Id. at 364 (internal citations modified). Thus, the mere fact that an affidavit

of probable cause tends to establish the criminal activity of a defendant, and


                                     - 17 -
J-S11016-14


the location of his home, does not provide probable cause to support the

issuance of a search warrant for that home.

     In Way, this Court relied upon Kline to suppress evidence seized

pursuant to a search warrant in another narcotics case:

     The facts fairly summarized are that the informant arranged a
     drug transaction by phone. The alleged transaction occurred in a
     blue van along a country road. After the alleged transaction,
     police followed the blue van to a driveway of a property at the
     corner of Douglas Dr. and Glendale Rd. The informant identified
     appellant as the driver of the blue van. A police source told the
     affiant that appellant lived at the intersection of Douglas Dr. and
     Glendale Rd.

Way, 492 A.2d at 1154. The trial court concluded that the search warrant

was supported by probable cause.               On appeal, this Court reversed,



sufficient facts to permit an issuing authority reasonably to conclude that

                                                            Id.

     Turning     to   the   instant   case,    examining   the    totality   of   the

circumstances,    and   considering    only    the   evidence    adduced     by   the

Commonwealth and the uncontradicted evidence of the defense, there are




establishes only probable cause to believe that Reese committed the robbery

and lived at the subject residence..          Consequently, Kline and Way are




                                      - 18 -
J-S11016-14


the street crime and the premises to be searched renders the warrant

                    Way, 492 A.2d at 1154; see Kline, 335 A.2d at 364.

       Consequently, we conclude that the trial court erred in denying
                                  6 7
                                   ,    Because the search in the instant case was

____________________________________________


6
       Based upon the transcript of the suppression hearing, it appears that

motion upo
requires that a warrant be supported by probable cause. See N.T. Trial I at

basis to say that he was at that address on E


Constitution. See U.S. v. Leon, 468 U.S. 897, 922-26 (1984). However,
the Supreme Court of Pennsylvania specifically has declined to adopt such an
exception pursuant to Article I, Section 8, of the Pennsylvania Constitution.
Commonwealth v. Edmunds, 586 A.2d 887, 905-
Section 8 of the Pennsylvania Constitution does
                                       see Commonwealth v. Johnson, 86
A.3d 182, 188-89 (Pa. 2014) (stating that Edmunds

Constitution,


7
      Despite concluding that the trial court erred in failing to suppress the
evidence seized at 413 North Edgewood, we also must assess whether the
tri

       Once a reviewing court has decided that admitted evidence
       should have been suppressed, it must determine beyond a
       reasonable doubt whether the error was harmless. When the
       error is harmless, a new trial is not warranted. Harmless error
       exists if the reviewing court is convinced from the record that (1)
       the error did not prejudice the defendant or the prejudice was de
       minimis, (2) the erroneously admitted evidence was merely
       cumulative of other untainted evidence, or (3) the properly
       admitted and uncontradicted evidence of guilt was so
       overwhelming and the prejudicial effect of the error was so
(Footnote Continued Next Page)


                                          - 19 -
J-S11016-14


conducted pursuant to an invalid warrant, the evidence seized as a result of

the search must be suppr

and we remand for further proceedings consistent with this memorandum.

      Judgment         of   sentence    vacated.    Case   remanded   for   further

proceedings. Jurisdiction relinquished.

      Strassburger, J. files a Dissenting Memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2014

                       _______________________
(Footnote Continued)

      insignificant by comparison that the error could not have
      contributed to the guilty verdict.

Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999) (citing
Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997)); see
Commonwealth v. Story, 383 A.2d 155, 164-
the harmless error analysis in a particular case, it is imperative that the
burden of establishing that the error is harmless beyond a reasonable doubt
                                   Commonwealth v. West, 834 A.2d 625,
635 (Pa. Super. 2003) (citing Commonwealth v. Drummond, 775 A.2d
849, 853 (Pa. Super. 2001)); see Commonwealth v. Story, 383 A.2d 155,
162 n.11 (Pa. 1978). Instantly, the Commonwealth has not offered a
discussion of harmless error in its brief before this Court. In the absence of
cogent argument, the Commonwealth cannot fulfill its burden of establishing
that the error in this case was harmless. Thus, we conclude that the error in
this case was not harmless.




                                           - 20 -
