J-S35003-15 & J-S35004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MELVIN MOORE

                            Appellee                 No. 1919 EDA 2014


                     Appeal from the Order March 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005370-2013


COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

SHANA MOORE

                            Appellee                   No. 60 EDA 2015


                     Appeal from the Order March 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005371-2013


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                               FILED JUNE 18, 2015

        In this consolidated appeal,1 the Commonwealth appeals from the

March 10, 2014 order granting the motion to suppress filed by Appellees,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Melvin Moore and Shana Moore.2                   After careful review, we reverse and

remand for further proceedings.3

        The suppression court set forth the facts of this case as follows.

                    On February 11th, 2013, [four] Complainants
              reported the robbery of two HP laptops, a white
              Samsung cell phone, and a black myTouch cell
              phone. The Philadelphia Police Department identified
              one of the robbers as a man known as Pace, and
              obtained a warrant for his house at 2922 South 62nd
              Street. On the evening of February 12th, 2013, the
              police arrested Pace at his home, where they
              discovered fruits of the robbery—college textbooks
              and a black JanSport backpack. Pace then gave a
              voluntary statement admitting to the robbery, and
              alleged that Jakeel Walker committed the crime with
              him, took backpacks from the rear of the
              Complainants’ vehicle, and fired a small revolver
              once during the robbery. Pace informed police that
              he had known Walker for two (2) years, and that
              Walker lived “on 65th between Lindberg and
              Eastwick.”       Police databases confirmed this
              information, listing Walker’s address as 2844 South
                       _______________________
(Footnote Continued)
1
  We have sua sponte consolidated the appeals under the referenced journal
numbers for disposition in the interest of judicial economy. As the motions
to suppress were heard by the same jurist in a combined proceeding, we
hereafter make reference in general to the “suppression court.” Further, all
dates and documents referenced herein are identical in both cases. See
Pa.R.A.P. 513 (stating that, “[w]here there is more than one appeal from the
same order, or where the same question is involved in two or more appeals
in different cases, the appellate court may, in its discretion, order them to be
argued together in all particulars as if but a single appeal”).
2
   The Commonwealth has averred, pursuant to Pa.R.A.P. 311(d), that the
trial court’s order would terminate or substantially handicap its prosecution.
Commonwealth’s Notice of Appeal, 4/4/14. Therefore, we have jurisdiction
to address the Commonwealth’s interlocutory appeals.
3
    We note that Appellees elected not to file briefs in the present appeal.



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              65th Street.      The four Complainants, however,
              fail[ed] to identify Walker’s picture in a police lineup.
              Police were issued a warrant for Walker’s residence
              seeking two HP laptops, a white Samsung cell phone,
              a black myTouch cell phone, and a proof of residency
              on Walker. When they entered the residence on
              February 15th, 2013, police discovered marijuana
              and     [Appellees],   who[m]      they    subsequently
                        [4]
              arrested.

Suppression Court Opinion, 12/5/14, at 1-2 (citations omitted).5

        On May 1, 2013, the Commonwealth filed an information charging

each Appellee with one count each of conspiracy, intentional possession of a

controlled substance by a person not registered, use or possession of drug

paraphernalia, and manufacture, delivery, or possession with intent to

manufacture or deliver a controlled substance.6             Appellees moved to

suppress the evidence obtained from the search of Walker’s residence,

arguing that the search warrant for Walker’s residence was not supported by

probable cause.       On January 10, 2014, the suppression court heard oral
____________________________________________


4
   Police seized the evidence based on the plain view doctrine. See, e.g.,
Commonwealth v. Harvard, 64 A.3d 690, 698 (Pa. Super. 2013)
(explaining “police executing a valid search warrant may seize items not
listed in the warrant if their incriminating nature is immediately apparent[]”
pursuant to the plain view doctrine) (citation omitted), appeal denied, 77
A.3d 636 (Pa. 2013). Appellees did not challenge the seizure of this
evidence pursuant to the plain view doctrine. Additionally, we note that the
police established Appellees’ residency at the premises.
5
    The suppression court filed an identical opinion in each case.
6
  18 Pa.C.S.A. § 903, 35 P.S. §§ 780-113(a)(16), (a)(32), and (a)(30),
respectively.




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argument from all parties7 and then granted each Appellee’s motion to

suppress.     On February 7, 2014, the suppression court entered orders

granting the Commonwealth’s motions to reconsider and vacating its

January 10, 2014 suppression orders. Thereafter, on March 10, 2014, the

suppression court filed an order, dated February 7, 2014, in each case

reinstating suppression. On April 4, 2014, the Commonwealth filed timely

notices of appeal.8

        On appeal, the Commonwealth presents this issue for our review.

              Where police investigating a gunpoint robbery in
              which a shot was fired arrested one of the
              participants in that same crime, who identified his
              accomplice who fired the shot and told police that his
              accomplice lived on a particular block, and where (a)
              the police corroborated the accomplice’s address, (b)
              phone records showed a call between the informant
              and the accomplice an hour before the robbery, and
              (c) the accomplice’s physical description matched
              that given by the robbery victims, did the lower court
              err in holding that the “four corners” of the search
              warrant application failed to state probable cause to
              search the accomplice’s house for the fired gun and
              other evidence of the robbery?


____________________________________________


7
    Appellees did not present any evidence during the suppression hearing.
8
  On April 4, 2014, the Commonwealth filed a concise statement of matters
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) before the suppression court ordered such a statement.
The suppression court filed its opinion on December 5, 2014. Therein, the
suppression court explained, “[d]ue to a docketing error by this [c]ourt, the
Commonwealth was not able to appeal until April 4th, 2014.” Suppression
Court Opinion, 12/5/14, at 2.



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Commonwealth’s Brief at 4.9

       We begin by noting our well-settled standard of review.

                    When the Commonwealth appeals from a
              suppression order, this Court may consider only the
              evidence from the defendant’s witnesses together
              with the evidence of the prosecution that, when read
              in the context of the record as a whole, remains
              uncontradicted. In our review, we are not bound by
              the suppression court’s conclusions of law, and we
              must determine if the suppression court properly
              applied the law to the facts.      We defer to the
              suppression court’s findings of fact because, as the
              finder of fact, it is the suppression court’s
              prerogative to pass on the credibility of the
              witnesses and the weight to be given to their
              testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(internal quotation marks and citations omitted), appeal denied, 106 A.3d

724 (Pa. 2014).

                    The ultimate issue in a suppression hearing is
              whether the police officer affiants had probable
              cause at the time they applied for a search warrant.
              At such hearings, the Commonwealth has the burden
              of proving that the facts presented to the magistrate
              demonstrate probable cause.        The standard for
              evaluating whether probable cause exists for the
              issuance of a search warrant is the “totality of the
              circumstances” test as set forth in Illinois v. Gates,
              462 U.S. 213 (1983), which was adopted by the
              Pennsylvania Supreme Court in Commonwealth v.
              Gray, 503 A.2d 921, 925 (Pa. 1985). A magistrate
              is to make a practical, common-sense decision
              whether, given all the circumstances set forth in the
____________________________________________


9
  The Commonwealth filed identical briefs in both appeals, presenting the
same issue for our review, verbatim.



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           affidavit before him, including the veracity and basis
           of knowledge of persons supplying hearsay
           information, there is a fair probability that
           contraband or evidence of a crime will be found in a
           particular place. The information offered to establish
           probable cause must be viewed in a common sense,
           non-technical manner and deference must be given
           to the issuing magistrate. It must be remembered
           that probable cause is based on a finding of the
           probability of criminal activity, not a prima facie
           showing of criminal activity.

Commonwealth v. Luton, 672 A.2d 819, 821-822 (Pa. Super. 1996)

(some citations and parallel citations omitted) (internal quotation marks

omitted); see also Pa.R.Crim.P. 203(B), (D).

     The suppression court suppressed the evidence based on its conclusion

that there was no substantial basis for the search warrant of Walker’s

residence because Pace, as an accomplice-informant, was not a reliable

source and there was no independent evidence corroborating Walker’s

involvement in the robbery. Suppression Court Opinion, 12/5/14, at 6. The

Commonwealth contends that probable cause was supplied by Pace’s

statement, wherein he admitted to participating in the robbery and

implicated Walker in the robbery, and by the police corroboration of some of

the information Pace provided. Commonwealth’s Brief at 10-11.

     We conclude that the suppression court erred as a matter of law when

it determined that Pace’s uncorroborated confession implicating Walker in

the robbery was not a substantial basis for the warrant. Under Pennsylvania

law, probable cause is established by the uncorroborated statement of an


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J-S35003-15


accomplice’s confession to participation in a criminal act and implication of

the defendant in the crime.   See, e.g., Commonwealth v. Wright, 702

A.2d 362, 366 (Pa. Super. 1997), appeal denied, 727 A.2d 1120 (Pa. 1998).

In Wright, police observed two juveniles selling drugs and arrested them.

Id. at 364.    One of the juveniles cooperated with police and gave a

statement implicating the defendant as his supplier and identifying the hotel

room out of which defendant operated.        Id.   Based on the juvenile’s

statement alone, police obtained a search warrant for the hotel room. Id.

Upon executing the warrant, police seized cash and drugs from the hotel

room and arrested the defendant. Id. After his conviction, the defendant

appealed, among other things, the suppression court’s denial of his motion

to suppress based on probable cause to support the warrant.      Id. at 365.

This Court rejected the argument that the informant was not reliable and

concluded that the affidavit established probable cause, explaining, “[t]he

fact that the informant herein was a co-defendant who made a statement

against penal interest does not, as appellant argues, defeat the validity of

the search warrant. In fact … the statements against penal interest support

the validity of the warrant.” Id. at 366; accord Commonwealth v. Miller,

439 A.2d 1167, 1169 (Pa. 1982) (holding “[t]he personal involvement of the

declarant assures direct knowledge of the source of the information and the

self[-]implication tends to suggest the reliability of the statement[]”);

Commonwealth v. Bradley, 295 A.2d 842, 844 (Pa. 1972) (holding “[i]t


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has long been the law of Pennsylvania that the uncorroborated testimony of

an accomplice is sufficient to convict a defendant. In light of the fact that

probable cause may be established by less evidence than would be sufficient

to support a conviction, it would be quite inconsistent to hold that

information supplied by a confessed accomplice cannot form the basis for

probable   cause    to   arrest[]”)   (footnote   and    citations   omitted);

Commonwealth v. Reviera, 563 A.2d 1252, 1256 (Pa. Super. 1989)

(holding “[w]here a person is an admitted participant in a crime and police

secure a search warrant upon information received from him, affiant-officers

need not support their claim that the informant was credible or his

information reliable since the individual’s admission of participation in the

crime insures his reliability[]”) (citation omitted), quoting, Commonwealth

v. Stickle, 398 A.2d 957, 961-962 (Pa. 1979), appeal dismissed, 584 A.2d

308 (Pa. 1991).

      In this case, evaluating the totality of the circumstances, we conclude

that the issuing magistrate properly concluded that the police officer affiants

established probable cause to search Walker’s residence.         The affidavit

contained Pace’s statement admitting participation in the robbery and

identifying Walker as his accomplice, which was an inherently reliable

statement against penal interest.     See Miller, supra; Reviera, supra.

Based on this source alone, the magistrate could conclude that there was a

fair probability that Walker participated in the robbery and, therefore,


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contraband or evidence of the robbery would be found in Walker’s residence.

See Luton, supra.         The Commonwealth was not required to corroborate

Pace’s statement with independent evidence of Walker’s involvement in the

robbery.10 See Reviera, supra. Therefore, because the affidavit contained

sufficient facts to demonstrate probable cause, the search warrant was

properly issued and the evidence seized in the execution of the warrant was

not subject to suppression. See Luton, supra.

       In its December 5, 2014 opinion, the suppression court relied on

Commonwealth v. Abbruzzese, 302 A.2d 853 (Pa. Super. 1973).                   In

Abbruzzese, the informant, under arrest for burglary, supplied police with

information that the defendant purchased items from various other burglars.

Abbruzzese, supra at 853-854.             This Court held that the search warrant

based on the informant’s statement lacked probable cause because the

informant was not reliable, as the informant did not implicate himself in any

crime and his statement could be viewed as a self-serving attempt to

mitigate his own charges on an unrelated burglary.                  Id. at 854.

Abbruzzese, however, is distinguishable from this case because herein Pace

confessed to his involvement in the robbery and identified Walker as his

accomplice in the same crime.              Therefore, as discussed above, Pace’s

____________________________________________


10
   Based on this, we need not address the Commonwealth’s remaining
argument that police corroborated some of the information in Pace’s
statement.



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statement implicating himself in the robbery and naming Walker as his

cohort was a reliable statement against penal interest that alone gave rise to

probable cause to search Walker’s residence for proceeds or evidence of the

crime. See Bradley, supra; Miller, supra; Reviera, supra.

      Based on the foregoing, we conclude that the suppression court erred

when it granted Appellees’ motions to suppress.        See Hudson, supra.

Accordingly, the suppression court’s March 10, 2014 orders are reversed,

and the case is remanded for further proceedings, consistent with this

memorandum.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015




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