J. S42039/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
JONATHAN P. NAYLOR III,                     :
                                            :
                            Appellant       :     No. 2499 EDA 2014

              Appeal from the Judgment of Sentence July 28, 2014
                In the Court of Common Pleas of Chester County
               Criminal Division No(s).: CP-15-CR-0004372-2010

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 11, 2015

        Appellant, Jonathan P. Naylor, III, appeals from the judgment of

sentence entered in the Chester County Court of Common Pleas following a

stipulated fact trial.      Appellant was found guilty of rape of a child,1

involuntary deviate sexual intercourse with a child,2 corruption of minors,3

and indecent assault of a child less than 13.4 Appellant contends the court




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3123(b).
3
    18 Pa.C.S. § 6301(a)(1).
4
    18 Pa.C.S. § 3126(a)(7).
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erred in finding that the H.S.’s testimony was admissible at trial and not

excluded as “fruit of the poisonous tree.” We affirm.

        On May 18, 2011, Appellant pleaded guilty and was sentenced to an

agreed upon sentence.      On February 15, 2013, Appellant filed a Post

Conviction Relief Act5 (“PCRA”) Petition requesting to withdraw his guilty

plea. On May 23, 2013, the petition was granted. On September 19, 2013,

Appellant filed an Omnibus Pretrial Motion seeking, inter alia, to suppress

certain physical evidence, including his digital camera, obtained as a result

of the search of his backpack at the time of his arrest on an outstanding

warrant “and any derivative evidence obtained as a result of the illegal

search.”      Omnibus Pretrial Mot., 9/19/13, at 2 (unpagniated).           On

September 30, 2013, a hearing was held on the motion to suppress.6

        At the hearing on Appellant’s motion to suppress, the following

transpired:


5
    42 Pa.C.S. §§ 9541-9546.
6
  The certified record did not include the September 30, 2013 suppression
hearing transcript, which we deemed necessary for our review of Appellant’s
issue on appeal.      Upon informal inquiry by this Court, the trial court
informed us that the notes of testimony were not transcribed. We directed
Appellant to order the notes of testimony from the suppression hearing.
Order, 7/1/15. We remind Appellant’s counsel, “Our law is unequivocal that
the responsibility rests upon the appellant to ensure that the record certified
on appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty.”                   See
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc)
(citations omitted).




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     Detective Trish Logic testified that she is responsible for handling all

child abuse investigations.   N.T., 9/30/13, at 7.   She received “a call of

alleged child abuse.”   Id. at 10.   The alleged victim was H.S. and the

reported suspect was Appellant.      Id.   H.S. was living with an aunt in

Delaware County, having lost both of her parents.     Id. at 11.   She spoke

with W.S., H.S.’s paternal grandmother. W.S. told her that H.S.’s father had

argued with Appellant about what he “considered to be an inappropriate

relationship between [Appellant] and his daughter [H.S.], prior to him dying

obviously.” Id. at 14. A few days later, on September 8, 2010, she went

with Detective Sergeant Patrick Mitchell to H.S.’s aunt’s house to talk with

H.S. Id. H.S. did not want to talk to the police. Id. at 15.

     Detective Logic stated that

        [H.S.] said they were close and that she confided in him
        and that she saw him as─these are not her words, but
        mine: Sort of a kindred spirit. They both lost their parents
        at a young age, and he was the only tie she had to her
        dead parents.

Id. at 15.   Detective Logic said that they were going to speak with the

person who came forward initially. Id. at 15-16. Although H.S. did not say

anything happened, Detective Logic was still “actively investigating a

suspected child abuse relationship between [Appellant] and [H.S.].” Id. at

16. She explained:

        Because in my training and experience, I know that
        children that are abused sexually by someone they care
        about, they’re reluctant to talk about it and admit anything
        happened because they will get in trouble. The child


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       themselves will be in trouble, that is in their mind or that is
       what the abuser put in their mind. Often children care
       about that person. They don’t want this person to get in
       trouble. Some children are afraid to talk to the police.
       There are all different reasons that children will say that
       nothing happened the first time that they’re interviewed.

       [The Commonwealth:] So up to that point, you would still
       have been considered to have been actively investigating a
       suspected child abuse relationship between [Appellant]
       and [H.S.]?

       A: Yes.

       Q: And at this point, how old was [H.S.]?

       A: 12.

       Q: Prior to you taking any further steps, did you become
       aware of the Delaware County investigation to [sic]
       [Appellant]?

       A: Shortly after we started our investigation, several
       weeks into it, we did receive notice from the Delaware,
       from Media Borough Police that they encountered
       [Appellant] along with another adult male, two juvenile
       females, one of which was [H.S.].

       Q: After Delaware County became involved, did you, on
       October 4th, 2010 interview [H.S.] again?

       A: Yes.

       Q: And at this point, was she able to disclose details of
       various actions between her and [Appellant]?

       A: Yes, she was.

       Q: On October 7th, 2010, did your department receive
       more information from another source in the child abuse
       investigation?

       A: Yes.



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       Q: Who did that information come from?

       A: A gentleman by the name of Randell Snyder, a resident
       of the trailer park of [Appellant] and [H.S.].

       Q: Did his interview have an impact on your child abuse
       investigation?

       A: Yes.

                               *    *    *

       Q: Detective, after Mr. Snyder came in, was your
       department able to take a full interview from Mr. Snyder?

       A: Yes, another detective, not me, took an interview of Mr.
       Snyder.

       Q: Was Mr. Snyder’s information significant to your
       investigation?

       A: Yes. It was not part of my criminal─I already had
       spoken to [H.S.] by the time he came in, but it did
       corroborate the initial report that was made.

                               *    *    *

       Q: Detective Logic, on November 30th, 2010 was there a
       preliminary hearing in this case?

       A: Yes.

       Q: Based on sex abuse charges against [Appellant] where
       [H.S.] was the victim?

       A: Yes.

       Q: And did [H.S.] testify under oath at that district court
       hearing?

       A: Yes.

                               *    *    *



                                   -5-
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             Q: Detective, on December 16th, 2010, did you meet with
             public defender Peter Jurs to discuss an inmate David
             Price?

             A: Yes.

             Q: Did you arrange for a proffer?

             A: Yes.

             Q: Did David Price report incriminating statements made
             by [Appellant] to you that day?

             A: Yes.

Id. at 16-19, 20, 22-23.

      Edward Fullmer, patrolman with the Media Borough Police Department,

testified.

             [The Commonwealth:] Officer, were you on duty back on
             September 11th, 2010?

             A: I was.

             Q: Were you on patrol with anyone else from your unit?

             A: Yes. Officer Eric Gavin and I were both on patrol.

             Q: That would have been patrol in the Borough of Media?

             A: Yes, in a uniform, on patrol, with marked patrol cars in
             Media.

                                     *    *      *

             Q: That day, did you observe [Appellant] in Media?

             A: Yes . . . . I did observe him and another white male by
             the name of Marcus Jackson, I believe, and two juvenile
             females . . . .

                                     *    *      *


                                         -6-
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       Q: What do you recall from your observations?

       A: As I was driving by, I happened to notice that one of
       the juvenile females was sitting up on a tool box in the
       back of the pick-up truck.      [Appellant] was standing
       outside the truck near the driver’s door.        There was
       another juvenile female standing on the ground and the
       other white male was talking to her and it just seemed out
       of place to me because of their ages. Both the white
       males appeared to be in the mid to late 20’s and both
       juveniles appeared to be very young, 13 or below. It
       caught my attention, but I also saw the female seated in
       back and I had concerns for her safety. . . .

                               *    *    *

       Q: So when you went up to [Appellant] and expressed
       your concern about someone riding in the back of this
       truck, what was his reaction?

       A: He identified himself as the operator of the vehicle. He
       said he would not pull away with her in there and she
       would be safe.

       Q: What were the reactions of the two young juvenile
       females?

       A: When I approached in the police car, they were very,
       very nervous. They would not make eye contact, which
       raised my suspicion level again that something was wrong,
       and when I did pull away after talking to [Appellant], I
       observed the young juvenile jump out of the back of the
       truck and both of them almost ran all the way up to State
       Street.

                               *    *    *

       Q: What happened next?

       A: I drove down the street, down around, came back
       again. For some reason I was suspicious of the entire
       scene. So I pulled back up the street. . . . I was actually
       coming up the street, made eye contact and [Appellant]
       decided to get out of the driver’s side and go into the


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        passenger side and Marcus Jackson decided to take over
        the driver’s side. I pulled up next to him because when I
        talked to them at close distance, it appeared they might be
        high or intoxicated. . . . At that time, I initiated a car stop
        and called my partner Officer Gavin.

        Q: As part of the process, did you run [Appellant’s] name
        through law enforcement database?

        A: Yes, both him and Mr. Jackson. . . . I found a warrant
        for [Appellant] for drugs. . . .

        Q: Did you arrest [Appellant] that day?

        A: We took him and Mr. Jackson into custody . . . .

                                 *    *    *

        Q: Was there a backpack in [Appellant’s] vehicle that day?

        A: Yes. It was actually on the passenger side of the
        vehicle. Once I took them into custody, we did a search. .
        ..
                               *    *   *

        Officer Gavin and I did not even know who it belonged to,
        went through the backpack and were looking for evidence
        as to who owned it. We found a bunch of syringe boxes,
        with drugs in it. We found the camera . . . . Then I saw a
        lot of pictures . . . .

Id. at 29-34.

     Detective Sergeant Jack Kelly of the District Attorney’s Office of

Delaware County testified. Id. at 40. On September 24, 2010, he went to

H.S.’s aunt’s house to speak with H.S. regarding the pictures. Id. at 44, 45.

The photographs on the camera were not actually shown to H.S. Id. at 46.

She became very upset and she agreed to come speak with the detective at

another time. Id. On September 27, 2010, Detective Kelly conducted a full


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interview with H.S. and obtained a written statement written by her. Id. at

47.

      H.S. testified at the hearing.   She was asked by the Commonwealth

about the initial meeting at her aunt’s house with Detective Logic and one of

the Detective’s colleagues.

         [The Commonwealth:] Did they ask you whether or not
         there was anything inappropriate or sexual going on
         between you and [Appellant]?

         A: Yes.

         Q: At that point, did you tell them no?

         A: Yes.

         Q: Why?

         A: Well, I was pretty nervous that the police were in my
         house.

         Q: How old were you then?

         A: I was 12.

         Q: You said you were nervous about the police being at
         your house?

         A: Yes.

         Q: Back then, in September 2010, did you care for
         [Appellant]?

         A: Yes.

         Q: Had he been a friend of your parents?

         A: Yes.

         Q: Did you believe that he cared for you?


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       A: Yes.

                                 *     *      *

       Q: . . . [A]fter that visit . . . officers came to see you.

       A: Yes.

       Q: Did they ask you the same thing as to whether or not
       there was anything inappropriate going on between you
       and [Appellant]?

       A: Yes.

       Q: At some point, what did you tell them?

       A: At first I said: No.

       Q: Did you want to talk to them?

       A: No.

       Q: Why?

       A: I was scared. My aunt was mad at me.

       Q: Did they tell you about photographs?

       A: Yes.

       Q: Why were you scared about your aunt being mad at
       you?

       A: Well, at first, I would not come forward to talk to the
       police.

       Q: Your aunt was upset with you about that?

       A: A little.

       Q: You said that the police did tell you about photographs?

       A: Yes.


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J. S42039/15



        Q: Do you recall one way or the other whether they
        showed you the photographs?

        A: I don’t think they did.

        Q: But you knew what they were talking about when they
        mentioned it.  Did you tell them what was going on
        between you and [Appellant] during that conversation at
        your home?

        A: Yes.

        Q: Did you agree to come into the Delaware County
        detectives office a couple days later and speak to them
        further?

        A: Yes.

        Q: Did you then agree to come into the Chester County
        District Attorney’s office and speak with Detective Logic
        about what was going on?

        A: Yes.

        Q: On November 30, 2010, do you recall testifying under
        oath as to your relationship between you and [Appellant]?

        A: Yes.

                                 *     *      *

        Q: Are you willing to testify against [Appellant] as to what
        happened when you were 12 between you and him?

        A: Yes.

Id. at 51-52, 53-55. Following the hearing, in an oral ruling from the bench,

the court found that H.S.’s testimony “would be admissible and not




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suppressible as fruit of the poisonous tree.”           Id. at 60.     The court

suppressed the photographs from the camera in the backpack.7 Id. at 61.

         On October 10, 2013, Appellant filed a motion for reconsideration. On

January 28, 2014, the court denied the motion to preclude the testimony of

HS. Order, 1/28/14. Following his conviction on stipulated facts, Appellant

was sentenced to ten to twenty years’ incarceration, plus five years’

consecutive probation. This timely appeal followed. Appellant filed a timely

court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal and the trial court filed a Pa.R.A.P. 1925(a) statement incorporating

its January 28, 2014 order and opinion.

         Appellant raises the following issue for our review: “Did the [c]ourt err

in finding that H.S.’s testimony was admissible at trial and not excluded as

‘fruit of the poisonous tree?’” Appellant’s Brief at 9. Appellant contends the

inevitable discovery rule does not prevent the exclusion of H.S.’s statement

because “[t]he Commonwealth has demonstrated no independent source for

this discovery.”     Id. at 16.   Appellant argues that the “[e]vidence of the

sexual relationship between [him] and H.S. was obtained as a direct result

of the illegal search and seizure of the digital camera and its contents.” Id.

at 17.

         Our review is governed by the following principles:


7
  The court also suppressed a letter that was taken from the backpack. Id.
at 61.



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            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. Where the prosecution prevailed in
        the suppression court, we may consider only the
        Commonwealth’s evidence 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 record
        supports the factual findings of the trial court, we are
        bound by those facts and may reverse only if the legal
        conclusions drawn therefrom are in error.

In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted).8

     In Commonwealth v. Williams, 2 A.3d 611 (Pa. Super. 2010) (en

banc), this Court explained

        the “inevitable discovery rule” and the “independent
        source rule” actually are distinct doctrines. The Third
        Circuit in United States v. Herrold, 962 F.2d 1131, 1140
        (3rd Cir. 1992) (emphases in original), observed that the
        two concepts are often conflated, and the Court cogently
        analyzed the difference between them:

           [U]nder the independent source doctrine, evidence
           that was in fact discovered lawfully, and not as a
           direct or indirect result of illegal activity, is
           admissible.   In contrast, the inevitable discovery
           doctrine . . . permits the introduction of evidence
           that inevitably would have been discovered
           through lawful means, although the search that
           actually led to the discovery of the evidence was
           unlawful. The independent source and inevitable
           discovery doctrines thus differ in that the former
           focuses on what actually happened and the latter


8
  We note that the rule announced in In re L.J., 79 A.3d 1073 (Pa. 2013)
does not apply in the case sub judice because litigation was commenced
prior to October 30, 2013. See id. at 1089 n.19.




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            considers what would have happened in the absence
            of the initial search.

         . . . The independent source rule derives from the very
         nature of the exclusionary rule; thus, we start at the
         beginning. The exclusionary rule provides that evidence
         obtained due to an unconstitutional search or seizure
         cannot be used against a defendant. The exclusionary rule
         also applies to any evidence discovered as a result of the
         original illegal police conduct; such evidence is termed
         “fruit of the poisonous tree.”

Id. at 618-19 (some citations omitted).

      In Commonwealth v. Roberts, 681 A.2d 1274 (Pa. 1996), the

Pennsylvania Supreme Court addressed the issue of whether “counsel was

ineffective for failing to file a motion to suppress the victim’s identification of

[the defendant] as the fruit of an illegal arrest.” Id. at 1275. The Roberts

Court opined:

         [W]e find that the victim’s identification of [the defendant]
         is legally admissible because it was not the direct result of
         [his] arrest. In Commonwealth v. Garvin, [ ] 293 A.2d
         33 ([Pa.] 1972), this Court was confronted with the issue
         of whether the appellant’s arrest was illegal and, if so,
         whether the subsequent identification was tainted by the
         illegality. Although it was determined that the appellant’s
         arrest was illegal, this Court nevertheless upheld the
         admissibility of an in-court identification as well as an out-
         of-court identification that occurred immediately after the
         appellant was arrested. In so holding, we observed that
         “[n]o law abiding society could tolerate a presumption that
         but for the illegal arrest the suspect would never have
         been required to face his accusors [sic]. Thus, . . . the
         only effect of the illegal arrest was to hasten the inevitable
         confrontation and not to influence its outcome.” Id. at [ ]
         37.

            Assuming arguendo that [the officer’s] arrest of [the
         defendant] was illegal in the instant case, the identification


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        evidence is nonetheless admissible. The record reveals
        that an adequate and independent basis existed to support
        the victim’s identification of [the defendant]. . . .

            Based on the foregoing, it is apparent that the
        illegality of the arrest, if any, did not contribute to
        the knowledge of the witness nor to the accuracy of
        his identification.     As such, we must conclude that
        counsel was not ineffective for failing to file a motion to
        suppress the identification of [the defendant].

Id. at 1276-77 (emphasis added).

     Instantly, the trial court opined:

        This is not a case where H.S. came to the attention
        of the police because of the photographs. She was
        already a focus of their attention, as was her relationship
        with [Appellant]. The mere fact that they were reported as
        being together within 11 days of Detective Logic’s initial
        contact would have warranted further contact between the
        Detective and H.S.

                                 *     *      *

        H.S. testified freely both at [Appellant’s] preliminary
        hearing and before me. . . . There was no evidence that
        H.S. was testifying because of the existence of the photos
        as opposed to doing so of her own free will.

Trial Ct. Op., 1/28/14, at 5, 6 (emphasis added). We agree no relief is due.

     In the case sub judice, Detective Logic had received a call regarding

alleged child abuse involving Appellant and H.S.. Her department received

information from another source, Randell Snyder, in reference to the child

abuse investigation. David Price reported that Appellant made incriminating

statements to him while in prison. The investigation of inappropriate contact

between H.S. and Appellant was not discovered as a result of illegal police



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conduct.     Therefore, it was not the fruit of the poisonous tree.      See

Williams, 2 A.3d at 618-19. The illegality of the seizure of the photographs

did not contribute to H.S.’s knowledge of what transpired between her and

Appellant.   See Roberts, 681 A.2d at 1276-77.       We discern no abuse of

discretion in the trial court’s denial of the motion to preclude the testimony

of H.S. based upon its finding that H.S. was testifying of her own free will,

not because of the existence of the photographs. See In re J.E., 937 A.2d

at 425.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2015




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