J-S71027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH D. BORRAJO,                         :
                                               :
                       Appellant               :   No. 1331 EDA 2019

      Appeal from the Judgment of Sentence Entered November 20, 2018
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0008420-2017


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 12, 2020

        Joseph D. Borrajo (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of theft by unlawful taking, receiving stolen

property, and criminal conspiracy.1 We affirm.

        We adopt without repeating the trial court’s comprehensive recitation of

the underlying facts and procedural history. See Trial Court Opinion, 7/10/19,

at 1-8. In this timely appeal, Appellant presents the following issues for our

review:

       A. Whether Appellant’s cell site location records should have been
          suppressed pursuant to the Fourth Amendment to the United
          States Constitution and Article I, Section 8 of the Pennsylvania
          Constitution?

       B. Whether the Honorable Trial Court erred when it imposed an
          illegal sentence of restitution in the amount of $2,199.99 when
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1   18 Pa.C.S.A. §§ 3921(a), 3925(a), 903(a).
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         the jury found Appellant guilty of theft, receiving stolen
         property, and conspiracy to commit receiving stolen property
         in the amount of less than $2,000?

     C. Whether the Honorable Trial Court erred when it imposed a
        sentence of $2,199.99 in restitution when said amount was not
        supported by the record?

Appellant’s Brief at 4.

      Appellant first argues that the trial court erred in denying his motion to

suppress the evidence of his historical cell phone site location information (the

cell site evidence), because the evidence was unlawfully obtained without a

search warrant, in contravention of the decision of the United States Supreme

Court in Carpenter v. United States, 138 S. Ct. 2206 (2018).                See

Appellant’s Brief at 12-22. The Carpenter Court held that law enforcement

must first obtain a search warrant supported by probable cause in order to

obtain historical cell site location information from wireless service providers,

absent a specific exception to the warrant requirement. Carpenter, 138 S.

Ct. at 2221. According to Appellant, suppression of the cell site evidence was

necessary where:

      (1) Detective John Burke initially obtained the cell site evidence,
          on July 12, 2017, pursuant to the Wiretapping and Electronic
          Surveillance Control Act, see 18 Pa.C.S.A. § 5743(c), and the
          Stored Communications Act, see 18 U.S.C.A. § 2703
          (collectively referred to as “the Wiretap Acts”), which permit
          a government entity to obtain disclosure of the records of a
          an electronic communications service provider based on a
          showing that there are specific and articulable facts that
          demonstrated reasonable grounds for believing that the




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             records are material to an ongoing investigation, which is a
             lesser standard than that mandated by Carpenter;2 and

       (2) The fact that Detective Burke later obtained a search warrant
           for the cell site evidence following Carpenter is unavailing,
           as the Commonwealth cannot cure a prior illegality to obtain
           evidence in this manner.

See Appellant’s Brief at 12-19, 22. Additionally, Appellant contends:

       By the time[] [that] the Commonwealth sought the search
       warrant, it had information from the cell[] [site evidence, i.e.,
       which the police had previously obtained via the Wiretap Acts
       Order,] contradicting the complainant’s statements as to
       Appellant’s contact with her the day of the burglary.       The
       complainant’s assertions that Appellant was contacting her [on]
       the day of the burglary to ascertain her location were used to
       establish probable cause for the warrant.

Id. at 19.

       We review Appellant’s claim mindful that:

       our standard of review in addressing a challenge to a trial court’s
       denial of a suppression motion is limited to determining whether
       the factual findings are supported by the record and whether the
       legal conclusions drawn from those facts are correct. We are
       bound by the suppression court’s factual findings so long as they
       are supported by the record; our standard of review on questions
       of law is de novo. Where, as here, the defendant is appealing the
       ruling of the suppression court, we may consider only the evidence
       of the Commonwealth and so much of the evidence for the defense
       as remains uncontradicted. Our scope of review of suppression


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2 We note that both the Commonwealth and trial court concede that Detective
Burke’s initial acquisition of the cell site evidence, i.e., pursuant to a court
order issued on July 12, 2017, prior to the Carpenter decision and under the
standards articulated in the Wiretap Acts (the Wiretap Acts Order), was
unlawful in the wake of Carpenter, because it did not require a probable
cause determination. Thus, the issue becomes whether Detective Burke’s
subsequent acquisition of the cell site evidence, pursuant to the search
warrant issued on June 27, 2018, should have been suppressed.

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      rulings includes only the suppression hearing record and excludes
      evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted).

      Appellant additionally contends that the affidavit of probable cause that

Detective Burke submitted in support of the search warrant (probable cause

affidavit) was defective, rendering the warrant invalid. See Appellant’s Brief

at 19-21. According to Appellant, the probable cause affidavit contained a

material misstatement of fact; namely, that Appellant had “repeatedly”

contacted the complainant by cell phone on the day of the burglary in an

attempt to ascertain the complainant’s whereabouts. See id.

      Where a defendant files a motion seeking to suppress evidence, “[t]he

Commonwealth shall have the burden of going forward with the evidence and

of establishing that the challenged evidence was not obtained in violation of

the defendant’s rights.” Pa.R.Crim.P. 581(H); see also id., Comment (stating

that the standard of proof is a preponderance of the evidence). Moreover, “a

defendant at a suppression hearing has the right to test the veracity of the

facts recited in the affidavit in support of probable cause.” Commonwealth

v. James, 69 A.3d 180, 187 (Pa. 2013) (citation omitted). When testing the

veracity of facts recited in an affidavit, a defendant must make “a substantial

preliminary showing [that] the affiant knowingly and intentionally, or with

reckless disregard for the truth, included a false statement in the affidavit.”

Id. at 188 (citation omitted). Additionally, our Pennsylvania Supreme Court

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has cautioned that a “grudging or negative attitude by reviewing courts

towards warrants is inconsistent with the Fourth Amendment’s strong

preference for searches conducted pursuant to a warrant; courts should not

invalidate warrants by interpreting affidavits in a hypertechnical, rather than

a commonsense, manner.” Commonwealth v. Jones, 988 A.2d 649, 655-

56 (Pa. 2010) (citation and ellipses omitted).

        In its opinion, the trial court thoroughly addressed Appellant’s claims

and determined that although Carpenter indisputably rendered the initial

receipt of the cell site evidence unlawful, suppression of this evidence was not

necessary because:

        (1)   Detective Burke lawfully obtained the cell site evidence after
              submitting the probable cause affidavit, which contained
              only information that the police had obtained prior to their
              initial acquisition of the cell site evidence via the Wiretap
              Acts Order. See Trial Court Opinion, 7/10/19, at 9-10;

        (2)   Pursuant to the “independent source doctrine,”3 the
              Commonwealth lawfully obtained the cell site evidence via
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3   This Court has explained the doctrine:

      [W]here the Commonwealth can demonstrate that the allegedly
      tainted evidence was procured from an independent origin – a means
      other than the tainted source – the evidence will be admissible. The
      test for whether there is an independent source is as follows: (1)
      whether the decision to seek a warrant was prompted by what was
      seen during the initial [warrantless acquisition of evidence]; and (2)
      whether the magistrate was informed at all of the information.

Commonwealth v. Beck, 34 A.3d 111, 114 (Pa. Super. 2011) (citations and
quotation marks omitted); see also Commonwealth v. Wiley, 904 A.2d
905, 908 (Pa. 2006) (stating that “under the independent source doctrine,



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              the search warrant, which was supported by probable cause
              and bore no taint of the prior illegality. See id.; and

       (3)    The probable     cause affidavit did not contain a material
              misstatement      of fact; rather, the record reveals that
              Appellant, in    fact, had repeatedly inquired as to the
              complainant’s    whereabouts on the day of the robbery. See
              id. at 12-15.

The trial court’s rationale is supported by the record and prevailing law, and

we agree with its determination. Thus, we affirm on this basis in rejecting

Appellant’s first issue, see id., with the following addendum.

       Contrary to Appellant’s claim, the record reflects that Detective Burke,

when submitting the probable cause affidavit, did not improperly rely upon

facts discovered via the Wiretap Acts Order. Rather, Detective Burke testified

at the suppression hearing that he “include[d] the exact same information” in

the probable cause affidavit that he had previously “included [when he]

applied for the [Wiretap Acts] Order in July of 2017[.]” N.T., 9/6/18, at 51

(emphasis added); see also id. at 52 (Detective Burke explaining that he did

not “retype the Search Warrant application”; rather, he “cut and pasted” the

exact same information that he had previously submitted in applying for the




____________________________________________


evidence that was in fact discovered lawfully, and not as a direct or indirect
result of illegal activity, is admissible.” (citation omitted)). The independent
source doctrine is intended to “put[] the police in the same, not a worse,
position [than] they would have been in if no police error or misconduct had
occurred.” Nix v. Williams, 467 U.S. 431, 434 (1984) (emphasis in original).



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Wiretap Acts Order).4 Nor did Detective Burke engage in any misconduct.

See James, 69 A.3d at 188. Rather, he initially obtained the Wiretap Acts

Order under the then-lawful standards under the Wiretap Act. Thereafter, he

submitted the probable cause affidavit in response to an intervening change

in the law; the affidavit did not contain any false statements and was not

tainted by evidence discovered via the prior Wiretap Acts Order. Accordingly,

Appellant’s first issue is without merit.

       We next address Appellant’s second and third issues together, as they

are related.     Appellant contends that the trial court imposed an illegal

restitution order, in the amount of $2,199.99, as part of his sentence, where

the amount was unsupported by the record and contravened the findings of

the jury. See Brief for Appellant at 23-29. Specifically, Appellant argues that

the jury found that (1) the value of the property he stole was $200 or more,

but did not exceed $2,000; and (2) Appellant was only responsible for $200,

the value of the stolen items that he and his codefendant sold to Gold Rush,

LLC, which the owner of eventually returned to the complainant.5 See id. at



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4 Further, if Detective Burke had the benefit of the Carpenter decision at the
time he applied for the Wiretap Acts Order in July 2017, he likely would have
(1) applied for a search warrant, rather than a court order, to obtain the cell
site evidence; and (2) submitted the same information available to him when
he subsequently submitted the probable cause affidavit, which a neutral
magistrate found established probable cause.

5The remaining items that Appellant stole from the complainant’s home were
never returned to her.

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23, 26; see also id. (pointing out that the jury acquitted Appellant of the

charges of burglary and criminal trespass). Thus, Appellant asserts, “[s]ince

the items Appellant was convicted of stealing were returned, the amount of

restitution should be limited to $200[,] payable to Gold Rush[,] LLC[.]” Id.

at 23. We disagree.

      Initially, we agree with Appellant that his claim is a challenge to the

legality, and not the discretionary aspects, of his sentence.       See In the

Interest of M.W., 725 A.2d 729, 731 n.4 (Pa. 1999) (distinguishing the

respective claims and explaining that “there has been some confusion as to

whether an appeal of an order of restitution implicates the legality or the

discretionary aspects of a particular sentence in a criminal proceeding.”). In

interpreting the M.W. Court’s instruction, this Court has stated:

            According to the High Court, when a challenge is directed to
      the trial court’s statutory authority to impose restitution, it
      concerns the legality of the sentence. Id. at 731. A sentencing
      court has statutory authority to impose restitution under [18
      Pa.C.S.A.] § 1106(a) when the defendant committed a crime, the
      victim suffered damage to person or property, and there exists a
      direct causal nexus between the crime of which defendant was
      convicted and the loss or damage suffered by the victim. See 18
      Pa.C.S. § 1106(a). Thus, a challenge to the legality of sentence
      is presented when the defendant claims that the trial court lacked
      statutory authority to impose restitution because the
      Commonwealth failed to establish one or more of the
      requirements of section 1106(a). See e.g., In re M.W., supra
      at 731 (holding that a claim that the juvenile court lacked
      statutory authority to impose restitution in light of the
      Commonwealth’s failure to prove that M.W. caused any property
      damage implicated the legality of sentence); … Commonwealth
      v. Poplawski, 2017 PA Super 78, 158 A.3d 671, 674-75 (Pa.
      Super. 2017) (treating defendant’s claim of no causal nexus


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       between the offense for which he was convicted and the restitution
       award as a legality of sentence claim)….

Commonwealth v. Weir, 201 A.3d 163, 172-73 (Pa. Super. 2018); cf. id.

at 174 (holding that the appellant’s challenge to the restitution component of

his sentence as being “unsupported by the record” implicated the discretionary

aspects of the sentence, not its legality, where “[a]ppellant does not claim

that there is no direct causal connection between his conviction of criminal

mischief and the costs” to repair the damage appellant inflicted upon the

victim’s property).

       Here, Appellant’s claim implicates the legality of his sentence,6 since he

argues that the sentencing court imposed an amount of restitution that does

not bear a causal connection to the actual damages caused by Appellant’s

criminal conduct. See Brief for Appellant at 24. Additionally, Appellant relies

upon this Court’s decision in Commonwealth v. Reed, 543 A.2d 587 (Pa.

Super. 1988), where we stated, “In a case of theft by receiving stolen

property, a reviewing court will not countenance a sentence provision which

requires restitution for property which the Commonwealth has not proven was

either stolen or received by the defendant.” Id. at 589 (citation, quotations

and brackets omitted).



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6Where such a question of law is raised, our standard of review is plenary.
Commonwealth v. Rotola, 173 A.3d 831, 834-35 (Pa. Super. 2017).



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       Upon review, we find no record support for Appellant’s general

speculation that the jury determined he was only responsible for $200 worth

of stolen items sold to Gold Rush, LLC, particularly where the remaining items

that Appellant stole from the complainant’s home were never recovered.7

Additionally, the trial court properly concluded that Appellant’s “interpretation

of the jury’s finding with regard to the value of the property stolen cannot

form the basis for a restitution order.            The amount of restitution is to be

determined by the record, not speculation as to what the jury believed.” Trial

Court Opinion, 7/10/19, at 15-16.

       Further, Appellant’s reliance upon Reed, supra, is unavailing.            The

appellant in Reed was convicted of theft by receiving stolen property worth

approximately $400, but he was not charged with committing the burglaries

in which the stolen items, worth a total of approximately $12,000, had been

taken. Reed, 543 A.2d at 588. The sentencing court ordered the appellant

to pay restitution for the total value of all of the items stolen during the

burglaries.    Id.   This Court held that the restitution award was improper,

because there was no causal connection between the victim’s total losses and

the small amount of stolen property the appellant had received. Id. at 589.

By contrast, in the instant appeal, Appellant was convicted of the underlying



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7 Indeed, the jury convicted Appellant for theft of the items stolen from the
complainant’s residence, and Appellant does not challenge the sufficiency of
the evidence supporting his convictions.

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theft of the complainant’s property (as well as theft by receiving stolen

property and criminal conspiracy).     Cf. id. at 588.   Moreover, the record

contains ample evidence for the trial court to find a causal connection between

Appellant’s actions and the losses sustained by the complainant and Gold

Rush, LLC. Accordingly, Appellant’s second and third issues lack merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/20




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