J-A07031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                          Appellee

                    v.

SCOTT MICHAEL LOVELL,

                          Appellant                        No. 539 WDA 2014


       Appeal from the Judgment of Sentence Entered March 6, 2014
                In the Court of Common Pleas of Elk County
                         Criminal Division at No(s):
                         CP-24-CR-0000292-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                              FILED APRIL 13, 2015

      Appellant, Scott Michael Lovell, appeals from the judgment of sentence

of   16-48   months’     incarceration   following   his   conviction   for   growing

marijuana and related offenses. Appellant claims the trial court erred when

it denied his motion for a mistrial due to prosecutorial misconduct, and that

retrial should be barred on double jeopardy grounds because the misconduct

was so egregious.      Appellant also contends the trial court erred when it

denied his motion to suppress the seized contraband. After careful review,

we affirm.

      On July 25, 2012, Trooper James McIntosh of the Pennsylvania State

Police (PSP) conducted aerial surveillance of Appellant’s property in a rural

area of Elk County.      That warrantless search was prompted by a tip from

Anthony Milliard, Appellant’s neighbor, who advised the PSP that Appellant
J-A07031-15



was growing marijuana.           On the first flyover, Trooper McIntosh observed

what he believed to be marijuana plants growing in buckets along a tree line

on the east side of Appellant’s property.1 Trooper McIntosh then returned to

his barracks and proceeded to Appellant’s residence by ground.          Upon his

arrival, Trooper McIntosh met up with Trooper Emery Faith, and the two

troopers drove up Appellant’s driveway in separate vehicles. Trooper Faith

moved quickly to detain Appellant, who was spotted outside of his home.

Once detained, Appellant stated that “they are only male plants.”             N.T.,

1/3/13, at 53. He also indicated that additional narcotics were located in his

home.

       The    troopers    seized    approximately   11   marijuana   plants   from

Appellant’s property.      Based on these seizures, other observations at the

scene, and Appellant’s statements, Trooper McIntosh obtained a warrant to

search Appellant’s home and an enclosed structure near the home that

smelled of marijuana. During that ensuing search, a few more plants were

seized, as well as paraphernalia related to marijuana cultivation.

       Subsequently,       the     Commonwealth      charged    Appellant     with

manufacturing marijuana, 35 P.S. § 780–113(a)(30), possession of a

controlled substance (marijuana), 35 P.S. § 780–113(a)(16), and possession


____________________________________________


1
  Trooper McIntosh purportedly made this observation with his naked eye,
from 500-700 feet above ground, moving at approximately 75-85 miles per
hour. N.T., 1/3/13, at 17-18.



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of drug paraphernalia, 35 P.S. § 780–113(a)(32).          Appellant filed an

omnibus pre-trial motion on October 31, 2012, seeking, inter alia,

suppression of his statements and the seized contraband.       The trial court

conducted a suppression hearing on January 3, 2013, and denied Appellant’s

suppression motion(s) on May 28, 2013.      Appellant also filed a motion to

compel discovery on February 7, 2013, which, pertinent to this appeal,

sought discovery of the identity of an informant and lab results from the

testing of the seized marijuana plants.      The Commonwealth eventually

revealed the identity of the informant six months prior to Appellant’s trial

after initially denying that he existed.

      Appellant proceeded to a jury trial on December 12, 2013, where the

jury convicted him of all three of the above offenses. On March 6, 2014, the

trial court sentenced Appellant to an aggregate term of 16-48 months’

incarceration. On April 2, 2014, Appellant filed a timely notice of appeal. He

then filed a timely Pa.R.A.P. 1925(b) statement of errors complained of on

appeal on April 24, 2014. The trial court issued its Rule 1925(a) opinion on

June 6, 2014.

      Appellant now presents the following allegations of error for our

review:

      [I.] The lower court erred in refusing to grant a mistrial and in
      failing to bar a re-trial based on the extensive prosecutorial
      misconduct of the district attorney throughout the case.

      [II.] The lower court erred when it found that [Appellant]’s
      Fourth Amendment rights were not violated when the police


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      should have obtained a search warrant before going on[ ]to the
      property and securing any plants.

Appellant’s Brief, at 7 (unnecessary capitalization omitted).

      We apply the following standard of review to a claim that a trial court

erred in refusing to grant a mistrial:

      It is well-settled that the review of a trial court's denial of a
      motion for a mistrial is limited to determining whether the trial
      court abused its discretion. An abuse of discretion is not merely
      an error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will ... discretion is abused. A trial court may grant a
      mistrial only where the incident upon which the motion is based
      is of such a nature that its unavoidable effect is to deprive the
      defendant of a fair trial by preventing the jury from weighing
      and rendering a true verdict. A mistrial is not necessary where
      cautionary instructions are adequate to overcome prejudice.

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa. Super. 2014)

(quoting Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013)).

      Furthermore,

      The phrase “prosecutorial misconduct” has been so abused as to
      lose any particular meaning. The claim either sounds in a
      specific constitutional provision that the prosecutor allegedly
      violated or, more frequently, like most trial issues, it implicates
      the narrow review available under Fourteenth Amendment due
      process. See Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct.
      3102, 97 L.Ed.2d 618 (1987) (“To constitute a due process
      violation, the prosecutorial misconduct must be of sufficient
      significance to result in the denial of the defendant's right to a
      fair trial.”) (internal quotation marks omitted); Donnelly v.
      DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d
      431 (1974) (“When specific guarantees of the Bill of Rights are
      involved, this Court has taken special care to assure that
      prosecutorial conduct in no way impermissibly infringes them.”).
      However, “[t]he Due Process Clause is not a code of ethics for
      prosecutors; its concern is with the manner in which persons are
      deprived of their liberty.” Mabry v. Johnson, 467 U.S. 504,

                                         -4-
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        511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The touchstone is
        the fairness of the trial, not the culpability of the prosecutor.

Commonwealth v. Tedford, 960 A.2d 1, 28 (Pa. 2008).

        Appellant     sought    a    mistrial   based   on   multiple   allegations   of

prosecutorial misconduct. We consider each allegation in turn.

        The   first   subpart   of    Appellant’s   prosecutorial   misconduct   claim

concerns Appellant’s attempts to identify an informant who precipitated the

initial aerial search of his property by the Trooper McIntosh. At the January

3, 2013 suppression hearing, Trooper McIntosh testified that he conducted

aerial surveillance of Appellant’s property because he “had received a tip

that [Appellant] was growing [m]arijuana on the property.” N.T., 1/3/13, at

62.     When Appellant’s counsel asked if Anthony Milliard, Appellant’s

neighbor, had been the source of the tip, the Commonwealth objected on

relevancy grounds. The trial court sustained the Commonwealth’s objection,

reasoning that “[t]here’s been no challenge to the search warrant itself in

terms of the information that was supplied in support of the warrant. So I’ll

sustain that objection.” Id. at 63.

        On February, 4, 2013, the Commonwealth, in its response to

Appellant’s initial discovery request, denied the existence of an informant,

thereby contradicting Trooper McIntosh’s suppression hearing testimony.

This prompted Appellant to file a motion to compel discovery on February 7,

2013.     A hearing on that motion was held on March 4, 2013. Appellant

notified the court of Trooper McIntosh’s suppression hearing statement.



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Nevertheless, the Commonwealth again denied the existence of any

informant.

       In an order dated March 4, 2013, the trial court neither denied nor

granted Appellant’s motion, but instead afforded him the opportunity to

obtain and review the suppression hearing transcript in order to evidence

Trooper McIntosh’s suppression hearing statement. Appellant obtained the

transcript, proved the Commonwealth’s error, and, on June 7, 2013, the

Commonwealth advised Appellant that Trooper McIntosh had received a tip

from another Pennsylvania State Police officer, Trooper Agosti.            Trooper

Agosti then confirmed for Appellant that he had been tipped off by Anthony

Milliard.

       Appellant contends that the Commonwealth’s conduct, as detailed

above, constituted a Brady2 violation.           “To establish a Brady violation, a

defendant must show that: (1) the evidence was suppressed by the state,

either willfully or inadvertently; (2) the evidence at issue is favorable to the

defendant; and (3) the evidence was material, meaning that prejudice must

have ensued.” Commonwealth v. Willis, 46 A.3d 648, 667 (Pa. 2012).




____________________________________________


2
  Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States
Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.



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       Here, it is apparent that Appellant has satisfied the first element

necessary to establish a Brady violation. The Commonwealth admitted that

there was an informant in this case after having denied his existence. It is

also plausible that knowledge of the informant could have served one or

more defense strategies at trial.              Therefore, the (temporarily) withheld

evidence could be construed as “favorable” to Appellant, in satisfaction of

the second Brady element.3

       However, to be entitled to relief under Brady, Appellant must also

show that the (temporarily) undisclosed evidence was material to his case,

i.e., that he was prejudiced by the Commonwealth’s failure to disclose that

evidence.     The trial court rejected Appellant’s Brady claim because the

Commonwealth        ultimately    disclosed      the   existence   and   name   of   the

informant six months before Appellant’s trial.               Nevertheless, Appellant

contends that “[b]ecause of the District Attorney’s withholding of information

for 6 months, and due to the minimal information which was eventually

provided by the District Attorney, [d]efense counsel was unable to

adequately present the information to the jury regarding the tipster

neighbor.” Appellant’s Brief, at 18. Appellant’s argument appears to merely

be a bald, unsubstantiated assertion of prejudice.
____________________________________________


3
  Appellant suggests that the informant’s identity could have been used to
buttress an argument to the jury that the informant, Appellant’s neighbor,
rather than Appellant, had planted the marijuana plants in the field on the
outskirts of Appellant’s property.



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      Evidence is material under Brady, and the failure to disclose it
      justifies setting aside a conviction, only where there exists a
      reasonable probability that had the evidence been disclosed the
      result at trial would have been different. Conversely, “[t]he
      mere possibility that an item of undisclosed information might
      have helped the defense, or might have affected the outcome of
      the trial does not establish materiality in the constitutional
      sense.”

Commonwealth v. Chamberlain, 30 A.3d 381, 409 (Pa. 2011) (internal

citations omitted).

      Here, Appellant’s Brady claim is not based on the Commonwealth’s

failure   to   disclose   evidence   in    the   absolute   sense,   but   on   the

Commonwealth’s delay in disclosing that evidence.           Thus, it is incumbent

upon Appellant to demonstrate that the delay in disclosure prejudiced him to

an extent that it affected the outcome of his trial.        Appellant has not met

this burden.     The initially withheld evidence was disclosed well before

Appellant’s trial began, and he has not offered a plausible, specific argument

as to how that initial delay hindered his defense at trial six months later.

Accordingly, we conclude that this subpart of Appellant’s prosecutorial

misconduct claim lacks merit.

      Next, Appellant claims that the prosecutor failed to provide him with

an updated property log from the PSP. His entire argument is as follows:

             As part of the discovery process, the District Attorney
          provided the State Police Incident Report as well as the
          State Police Property Record. … The Property Record which
          was provided by the District Attorney indicates the date
          and time the evidence was originally received at the state
          police barracks and the officer who received the evidence.
          However the Property Record is not complete in that it
          does not indicate when the evidence was taken from the


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         evidence room and taken to the lab for testing. It also
         does not show which items were taken to the lab to be
         tested. On December 4, 2013, approximately 8 days
         before the trial, defense counsel emailed the District
         Attorney requesting a copy of the property log.         The
         purpose of the property log (also interchangeably referred
         to by defense counsel as a property record) was to
         establish the chain of custody for the material submitted to
         the lab. The District Attorney responded that he had
         previously supplied the property log in the original
         discovery and that he did not have an updated one.
         Defense counsel then viewed the property log but it was
         not updated and was not complete in that it did not
         indicate at the bottom portion when the evidence was
         taken out of the property room and taken to the lab.
         Obviously we know that the evidence was taken to the lab,
         but what was taken to the lab, when it was taken and by
         whom is information that the District Attorney did not
         provide to the defense.

            During a discussion in chambers after trial had
         commenced, defense counsel explained that she was
         prejudiced because she had not received an updated
         property record. The property record would have allowed
         defense counsel to better prepare for the case. Part of the
         defense relied upon the fact that there had been another
         marijuana arrest at the Defendant's neighbor's house,
         which also related to the information regarding the tipster.
         Also, the property record provides important information
         regarding chain of custody. It would show when items
         were taken out of evidence, what was taken out of
         evidence, and when items were returned to evidence. This
         information is analyzed by the defense in order to prepare
         questions for the police at trial, including establishing a
         proper chain of custody.

            The prosecutor's response to the missing property
         record during the trial was "I don't have an updated one in
         terms of when it went to the lab[,]" [a]gain demonstrating
         the complete lack of concern for [Appellant]'s right to
         discoverable documents.

Appellant’s Brief, at 19-20 (internal citations to the record omitted).




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      Notably, Appellant does not allege any specific trial court error with

respect to this claim. Additionally, the trial court found that

      [t]he property log was not admitted into evidence, the initial
      request by [Appellant] to the Commonwealth does not appear of
      record, and there was no motion made on behalf of [Appellant]
      to compel an updated property log. The chain of custody for the
      marijuana was not directly challenged during trial, nor was there
      any objection made to the introduction or the admission into
      evidence of the marijuana plants.

TCO, at 4.

      Nevertheless, Appellant included this claim when he requested a

mistrial. However, Appellant has not explained how the prosecutor’s actions

(or inactions) regarding the property log impeded his trial strategy other

than to baldly claim that “[t]he property record would have allowed defense

counsel to better prepare for the case.” Appellant’s Brief, at 20. Appellant

has not specified which of his constitutional rights, if any, were violated by

the Commonwealth’s (mis)conduct, nor has he cited any pertinent case law

in support of this allegation.    Accordingly, we conclude that the second

subpart of Appellant’s prosecutorial misconduct claim is under-developed,

meritless, or both.

      The third subpart of Appellant’s prosecutorial misconduct claim

concerns evidence of his relationship to the searched property.             The

document that provided indicia of Appellant’s occupancy was referenced in

the search warrant receipt, but neither it, nor its content, was provided to

the defense prior to trial. Instead, the document was revealed, apparently

for the first time since its seizure, in front of the jury.       The indicia of

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occupancy turned out to be a receipt for a payment that Appellant made to

Elk County Probation.

        Appellant complains that this document, from which the jury could

have inferred otherwise inadmissible prior criminal conduct, should have

been disclosed to him prior to trial. Furthermore, he claims the document

should have been reviewed by defense counsel, the prosecution, and/or the

court prior to having the witness read it aloud before the jury.

        When this matter arose at trial, the District Attorney stated that he

had no idea that the sealed envelope contained potentially inadmissible

content until it was opened at trial.4         N.T., 12/12/13, at 117-119.   The

District Attorney also argued that he had not acted in bad faith because he

had no intention of presenting that document to the jury.           The District

Attorney stated that he intended to simply ask the PSP troopers if they had

found indicia of Appellant’s residency at the home during the search. The

District Attorney argued that the document had only been revealed to the

jury because of Appellant’s best evidence objection to this testimony

regarding the receipt. Id. at 110.

        The trial court recognized the potential prejudice from reference to the

probation department, and issued the following curative instruction to the

jury:

____________________________________________


4
 The warrant receipt referred to this sealed document merely as, “Indicia of
Occupancy (Receipt).” Trial Court Docket Entry 3, at 7.



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      I am now instructing you that as a matter of law, you may not
      consider the reference to probation in any way adverse to
      [Appellant]. You may not construe that in any way. You may
      not extrapolate that information or make any inferences from
      that information.    In fact, you should not consider that
      whatsoever.

Id. at 154.

      The trial court states that “[t]here was no objection lodged by

[Appellant] to the cautionary instruction itself.”   TCO, at 5.   Nevertheless,

Appellant did argue during a lengthy sidebar preceding the curative

instruction that a curative instruction could not undue the prejudicial nature

of the probation reference.     N.T., 12/12/13, at 132.     Consequently, it is

apparent from the record that Appellant did not concede that the instruction

was sufficient to remedy his prior objection to the probation reference, nor

did he waive the claim.

      Nevertheless,   the   trial   court   considered   Appellant’s   aggregate

prosecutorial misconduct claim and found that

      the totality of the circumstances did not rise to the level of
      manifest necessity to declare a mistrial, where 1) a cautionary
      instruction was provided regarding the reference to the receipt
      issued by the Elk County Probation Department[;] 2) the identity
      of the confidential informant was ultimately provided to the
      defense in June of 2013, some six months before trial[;] 3) the
      fact that the Commonwealth did not provide the crime lab report
      dated November 7, 2013, until … December 4, 2013, was not by
      any fault of the Commonwealth as it was not presented to the
      district attorney’s office until December 4th[;] and 4) that the
      Commonwealth was not aware of items listed on the back page
      of the property record report, one of which was the reference to
      the probation department receipt. Considering all the factors,
      the Court determined that the discrepancies and the
      Commonwealth’s failure to present the evidence to the defense


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      in as timely a manner as [Appellant] would have liked did not
      rise to the level of manifest necessity.

TCO, at 5-6.

      Appellant claims he was denied a fair trial because of the actions of the

Commonwealth in this case.      However, as discussed above, the first two

subparts to Appellant’s claim do not provide a basis for relief. Despite the

Commonwealth’s initial denials, Appellant was provided with evidence

concerning the informant six months prior to his trial, providing     him with

ample time to prepare any defense premised on that information. Regarding

the property log discrepancies, Appellant failed to argue with adequate

specificity how or why he was prejudiced by those discrepancies.

      Thus, the only question that remains is whether the incident

concerning the probation receipt deprived Appellant of a fair trial, and we

agree with the trial court that it did not. We do recognize and acknowledge

the District Attorney’s lackluster performance of his duties in this case.

However, for the purpose of a prosecutorial misconduct claim, “[t]he

touchstone is the fairness of the trial, not the culpability of the prosecutor.”

Tedford, 960 A.2d at 28.         Although the prosecutor should not have

permitted his witness to read the probation receipt out loud before the jury

without first reviewing its content, there was no mention of specific criminal

conduct made, and the mention of probation was never repeated nor

referenced again by the prosecutor. Moreover, the jury was instructed not

to draw any adverse inference from the probation reference.                See

Commonwealth v. Morris, 519 A.2d 374 (Pa. 1986) (holding prejudice

                                     - 13 -
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from limited reference to specific prior criminal activity cured by immediate

cautionary   instruction    and     admonition   in   jury    charge);   and    see

Commonwealth       v.      Baker,   614   A.2d   663,   672     (Pa.   1992)   (“The

presumption in our law is that the jury has followed instructions.”).

Consequently, we conclude that the trial court did not abuse its discretion

when it denied Appellant’s motion for a mistrial.            As such, we need not

address Appellant’s derivative claim that retrial should be precluded on

double jeopardy grounds.

      Next, Appellant asserts that the police, absent exigent circumstances,

should have obtained a warrant before entering his property to seize the

marijuana plants discovered during the aerial surveillance of his property.

He contends the trial court erred when it denied his motion to suppress the

seized evidence on this basis.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion 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.   Because the Commonwealth prevailed before the
      suppression court, we may 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. Where the suppression court's factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court's legal conclusions are erroneous.
      Where, as here, the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court's legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts.           Thus, the
      conclusions of law of the courts below are subject to our plenary
      review.

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Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012)).

     The trial court determined that the aerial search that discovered the

marijuana plants on Appellant’s property was permissible under the ‘open

fields’ doctrine. It then concluded that the PSP troopers’ subsequent entry

onto Appellant’s property was “incident to detain any individuals found on

the property in the context of the perpetration of a felony in the nature of

the manufacture of a controlled substance[.]”       TCO, at 9.    Although we

disagree with the entirety of the trial court’s analysis, we ultimately agree

with its conclusion to deny Appellant’s suppression motion.

     In Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), our

Supreme Court explained and discussed the ‘open fields’ doctrine as follows:

              The open fields doctrine was first recognized by the U.S.
     Supreme Court in Hester v. United States, 265 U.S. 57, 44
     S.Ct. 445, 68 L.Ed. 898 (1924). In that case, while surveilling
     the home of Hester's father (where Hester lived), two revenue
     officers observed Hester exit the house and hand a quart bottle
     to an individual whom the officers suspected to be attempting to
     purchase illegal bootleg whiskey.           After the officers began
     pursuing the two men, they fled, Hester discarding a jug and his
     would-be customer the bottle. Thereafter, the officers recovered
     the vessels at an undisclosed distance from the house and
     determined them to contain “moonshine whisky, that is, whisky
     illicitly distilled.” Id. at 58, 44 S.Ct. at 446. Hester claimed that
     the evidence was inadmissible under the Fourth Amendment
     because the officers seized it without a warrant. In a brief
     opinion for a unanimous court, Justice Oliver Wendell Holmes,
     Jr., concluded that “[i]t is obvious that even if there had been a
     trespass, the [evidence] was not obtained by an illegal search or
     seizure.” Id. Citing Blackstone's Commentaries on the Laws of

                                    - 15 -
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     England, Justice Holmes held that “the special protection
     accorded by the Fourth Amendment to the people in their
     ‘persons, houses, papers and effects,’ is not extended to the
     open fields. The distinction between the latter and the house is
     as old as the common law.” Id. at 59, 44 S.Ct. at 446.

            Sixty years later, in a 6–3 decision in Oliver v. United
     States, [466 U.S. 170, (1984)], the High Court “reaffirm[ed]”
     the vitality of the open fields doctrine as announced in Hester.
     Oliver, 466 U.S. at 178, 104 S.Ct. at 1741; id. at 176 n.6, 104
     S.Ct. at 1740 n.6 (rejecting the notion that “subsequent cases
     discredited Hester's reasoning”). Turning its attention initially
     to the constitutional text, the Oliver Court noted that open fields
     are not “effects” within the meaning of the Fourth Amendment.
     Indeed, the Court observed, “[t]he Framers would have
     understood the term ‘effects' to be limited to personal, rather
     than real, property.” Id. at 177 n. 7, 104 S.Ct. at 1740 n.7
     (citing, as Justice Holmes did, Blackstone's Commentaries,
     among other sources).

           Even assuming one had a subjective expectation of privacy
     in his open fields, the Oliver Court went on to reason, such an
     expectation is not one that society would be prepared to
     recognize as reasonable:

        [O]pen fields do not provide the setting for those intimate
        activities that the Amendment is intended to shelter from
        government interference or surveillance.        There is no
        societal interest in protecting the privacy of those
        activities, such as the cultivation of crops, that occur in
        open fields. Moreover, as a practical matter these lands
        usually are accessible to the public and the police in ways
        that a home, an office, or commercial structure would not
        be. It is not generally true that fences or “No Trespassing”
        signs effectively bar the public from viewing open fields in
        rural areas. And both petitioner Oliver and respondent
        Thornton concede that the public and police lawfully may
        survey lands from the air.

     Id. at 178, 104 S.Ct. at 1741–42.

        Finally, the Oliver Court explicitly rejected the contention
     that the reasonableness of one's expectation of privacy in his
     open fields should be determined on an ad hoc, case-by-case
     basis:


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         Under this approach, police officers would have to guess
         before every search whether landowners had erected
         fences sufficiently high, posted a sufficient number of
         warning signs, or located contraband in an area sufficiently
         secluded to establish a right of privacy.... The lawfulness
         of a search would turn on a highly sophisticated set of
         rules, qualified by all sorts of ifs, ands, and buts and
         requiring the drawing of subtle nuances and hairline
         distinctions. The ad hoc approach not only makes it
         difficult for the policeman to discern the scope of his
         authority; it also creates a danger that constitutional rights
         will be arbitrarily and inequitably enforced.

      Id. at 181–82, 104 S.Ct. at 1743 (citations and quotation marks
      omitted). In this regard, the Court specifically

         reject[ed] the suggestion that steps taken to protect
         privacy establish that expectations of privacy in an open
         field are legitimate. It is true, of course, that petitioner
         Oliver and respondent Thornton, in order to conceal their
         criminal activities, planted the mari[j]uana upon secluded
         land and erected fences and “No Trespassing” signs around
         the property.      And it may be that because of such
         precautions, few members of the public stumbled upon the
         mari[j]uana crops seized by the police. Neither of these
         suppositions demonstrates, however, that the expectation
         of privacy was legitimate in the sense required by the
         Fourth Amendment. The test of legitimacy is not whether
         the individual chooses to conceal assertedly “private”
         activity.   Rather, the correct inquiry is whether the
         government's intrusion infringes upon the personal and
         societal values protected by the Fourth Amendment.

      Id. at 182–83, 104 S.Ct. at 1743 (footnote omitted).

Russo,   934   A.2d   at   1203-05    (footnote   omitted).     Moreover,     the

Pennsylvania Supreme Court concluded in Russo that “the guarantees of

Article I, Section 8 of the Pennsylvania Constitution do not extend to open

fields; federal and state law, in this area, are coextensive.” Id. at 1213.




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      Here, Appellant does not contend that the aerial surveillance of his

property was illegal.   Instead, he asserts that it was illegal for Troopers

McIntosh and Emery to subsequently enter his property without a warrant,

or in the absence of exigent circumstances, in order to seize the marijuana

plants discovered during the aerial surveillance.    He argues that to seize

property discovered in plain view, the Commonwealth must view the

contraband from a lawful vantage point and that there must be exigent

circumstances justifying the seizure without a warrant.

     However, Appellant does not dispute that the aerial surveillance was

legal in this case. Indeed, for the same reason the aerial surveillance was

not illegal, neither a warrant nor exigent circumstances were necessary to

justify the seizure that occurred. Because the marijuana plants were located

in open fields, Appellant lacked a legitimate expectation of privacy necessary

to justify suppression of the seized plants. Hester, Oliver, Russo.

     Appellant contends that Commonwealth v. English, 839 A.2d 1136

(Pa. Super. 2003), supports his claim that exigent circumstances were

required to justify the warrantless seizure of the marijuana plants.       In

English,

           Cranberry Township Patrolman Robert O'Neill and
     Detective Frank Evanson received an anonymous tip that the
     occupants of 206 Hester Drive were growing marijuana on their
     back porch. The following day the officers went to the residence
     to investigate. They knocked several times on the front door,
     got no response, and then walked around toward the back of the
     house. Their path took them through a neighbor's yard. From
     the neighbor's yard they observed marijuana plants growing on
     [the] appellant's back deck. Officer O'Neill recognized the plants

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     as marijuana because of his experience and training.            He
     explained that the plants were easily identifiable as they were
     elevated, sitting in a planter on top of a child's picnic table on
     the deck. The officers took photographs of the plants.

            The officers knocked repeatedly on the back door, which
     was situated under the deck, and got no response. They tried
     the front door again, with the same result. Thereafter, the
     officers unlatched the gate to the deck, entered the deck and
     seized the plants.

English, 839 A.2d at 1138-39.

     The English Court found that the marijuana plants had been

discovered in plain view. However, it also found that the plants were located

on the appellant’s “deck[,] which was enclosed by a fence and a latched

gate.” Id. at 1141. The court determined that the plants’ location clearly

fell within the curtilage of the appellant’s home, and the appellant had a

legitimate expectation of privacy therein. Id.

     As this Court has previously recognized:

     Our courts have extended this constitutional protection to the
     curtilage of a person's home by analyzing factors that determine
     whether an individual reasonably may expect that an area
     immediately adjacent to the home will remain private. Curtilage
     is entitled to constitutional protection from unreasonable
     searches and seizures as a place where the occupants have a
     reasonable expectation of privacy that society is prepared to
     accept.

Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

     Here, Appellant does not claim that the seized marijuana plants were

seized from within the curtilage of his residence, nor does he contest the




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trial court’s determination that the plants were seized from open fields.

Consequently, English does not support his claim.

     We reject the trial court’s conclusion that the seizure in question was

permissible “in the context of the perpetration of a felony” because, among

other things, the trial court has not provided any legal authority for such a

conclusion.    TCO, at 8.     Nevertheless, “the suppression court's legal

conclusions are not binding on an appellate court[.]” McAdoo, 46 A.3d at

784 (quoting Hoppert).      Because we conclude that Appellant lacked a

legitimate expectation of privacy in the location of the seized marijuana

plants, his Fourth Amendment rights did not provide a basis to suppress that

evidence.     Accordingly, we conclude that Appellant’s second claim lacks

merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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