J. S04031/18


                             2018 PA Super 262

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
EDWARD CHESNEY,                         :          No. 315 MDA 2017
                                        :
                        Appellant       :


           Appeal from the Judgment of Sentence, January 25, 2017,
                in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0004784-2015


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


OPINION BY FORD ELLIOTT, P.J.E.:               FILED SEPTEMBER 20, 2018

      Appellant, Edward Chesney, appeals from the January 25, 2017

judgment of sentence entered by the Court of Common Pleas of Berks

County.    After careful review, we vacate appellant’s judgment of sentence

and reverse the trial court’s order denying suppression.

      The trial court provided the following relevant factual and procedural

history:

             [L]aw enforcement, pursuant to a warrant, searched
             a house where [a]ppellant used to live. Arriving at
             this     house,     Detective     [James]       Gresh
             [(“Detective Gresh”)] observed a Buick parked in the
             driveway. Trooper Higdon informed Detective Gresh
             that he could see a small glass vial with a black
             plastic cap in the vehicle. After seeing the vial,
             Detective Gresh opened the vehicle to search, as he
             was aware that such vials are commonly used to
             transport PCP. In the vehicle, the following evidence
             was discovered: jars, which are commonly used to
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          store PCP; large vials, which are commonly used to
          transport PCP; 92.31 grams of PCP, which was
          contained within these jars and vials, though some
          of the jars and vials were empty; a very large pair of
          sweatpants; a digital scale; three handguns and
          ammunition; seven cell phones, including a Maxwest
          Cellphone,    which    contained   text    messages.
          Additionally, discovered in the vehicle, was a bank
          statement, prescription bottle, and insurance
          documents bearing [a]ppellant’s name.

          Tying all this      evidence     together, Detective
          [George] Taveras [(“Detective Taveras”)] testified as
          to the relevance of the most important pieces of
          evidence.     First, the detective explained the
          relevance of the cell phones and the messages
          contained within.    Specifically, he discussed the
          messages extracted from the Maxwest Phone. One
          message, known to have been sent from a phone
          belonging to [Ivan] Meletiche, corroborated that
          [a]ppellant and Big Homie were the same person.
          Though, most important instantly, is a string of
          messages that stated the following:

                Will you please answer your phone[?]

                Chris said if I don’t come home with a jar
                for him he’s gonna put his hands on
                me[.]

                [W]ill you please answer your phone
                [E]d?

          Detective Taveras also testified that the quantity of
          cell phones indicated that [a]ppellant was a drug
          dealer, since keeping such a large quantity of phones
          is a common practice in the drug trade. Second, the
          detective related that the vials, jars, and a scale,
          were all an integral part of the repackaging and
          distribution operation needed to sell the PCP found
          within the vehicle. Third, the detective testified that
          the only purpose of having empty jars was for the
          intent of distributing the PCP in sellable quantities.
          Fourth, the detective testified that presence of


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            firearms clearly indicated that [a]ppellant desired to
            protect what was approximately $7,000 worth of PCP
            found in the vehicle.       From all this evidence,
            Detective Taveras was able to come to the expert
            opinion that [appellant] intended to distribute the
            PCP.

Trial court opinion, 5/23/17 at 4-5 (footnotes omitted).

      Appellant filed an amended omnibus pretrial motion in which he,

inter alia, sought to have evidence obtained during a search of his

residence and his 2002 Buick LeSabre suppressed.        On October 13, 2016,

the trial court granted appellant’s motion in part, suppressing evidence

obtained during a search of his residence, and denied appellant’s motion in

part with respect to the evidence seized from the 2002 Buick LeSabre.

            On January 25, 2017, a jury convicted [a]ppellant[]
            of the following offenses: five counts of Criminal Use
            of Communication Facility, five counts of Possession
            with Intent to Deliver a Controlled Substance – PCP
            (“PWID”); and five counts of Possession of a
            Controlled Substance.

            After being convicted, [a]ppellant was sentenced to
            several consecutive sentences. The first period of
            incarceration, lasting from 6 to 20 years, was
            received for PWID – Count 14. The second period of
            incarceration, lasting 2 to 5 years, was received for
            PWID – Count 10. The third period of incarceration,
            lasting 2 to 5 years, was received for PWID –
            Count 11. The fourth period of incarceration, lasting
            2 to 5 years, was received for PWID – Count 12.
            The fifth period of incarceration, lasting 2 to 5 years,
            was received for PWID – Count 13. Additionally,
            [a]ppellant was sentenced to 5 years’ probation on
            each charge of Criminal Use of Communication
            Facility.   All probationary sentences are to run
            concurrently.



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            Following sentencing, by and through counsel,
            [a]ppellant filed a post-sentence motion for a new
            trial and for the modification of sentence. [The trial
            court] denied this motion on February 8, 2017. On
            February 21, 2017, [a]ppellant filed a notice of
            appeal.    Subsequently, [a]ppellant petitioned the
            [trial court] for an extension to file a Concise
            Statement, which [was] granted.            A Concise
            Statement was then filed on March 20, 2017.

Id. at 1. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            I.     Did the trial court err in denying [a]ppellant’s
                   pretrial motion to suppress the PCP, firearms,
                   ammunition, and cellphones found in the 2002
                   Buick LeSabre as the search warrant was
                   invalid and the law enforcement officers had no
                   authority and no good faith reason to enter
                   onto the property of 133 Pieller Road, Berks
                   County, Pennsylvania where the 2002 Buick
                   LeSabre was parked?

            II.    Did the trial court err by admitting evidence, to
                   wit, the extracted information from the
                   Maxwest cell phone found in the 2002 Buick
                   LeSabre, pursuant to Pennsylvania Rule of
                   Evidence 404(b)(2) as the probative value of
                   the text messages extracted and shown to the
                   jury did not outweigh the potential for unfair
                   prejudice and should not have been admitted?

            III.   Did the trial court err in admitting evidence, to
                   wit, the extracted information from the
                   Maxwest cellphone found in the 2002 Buick
                   LeSabre, based upon an ostensible discovery
                   violation when the appropriate remedy under
                   the Pennsylvania Rule of Criminal Procedure
                   573 for this type of late discovery which
                   resulted from the Commonwealth’s decision to
                   delay the forensic analysis of the cellphone
                   contents until the week prior to the trial, and
                   telling defense counsel of the contents three


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                   business days prior to the start of trial, was
                   exclusion of evidence?

            IV.    Did the [trial court] err in denying a defense
                   objection to the improper rebuttal testimony of
                   Detective Haser (who testified that he
                   witnessed [a]ppellant leave from and return to
                   133 Pieller Road on April 20, 2015 between
                   1:11 a.m. and 1:18 a.m.) offered to rebut
                   testimony of [a]ppellant where [a]ppellant
                   stated clearly that he did not recall being at
                   133 Pieller Road on April 20, 2015 around
                   1:00 a.m. and admitted to being present at
                   that location occasionally late at night?

            V.     Was    the   evidence    presented   by   the
                   Commonwealth insufficient to prove beyond a
                   reasonable doubt that a Delivery of PCP
                   occurred on April 10, 2015 through the use of
                   cell phone communications (i.e. Counts 5, 6,
                   10 and 15)[?]

            VI.    Was    the   evidence    presented   by   the
                   Commonwealth insufficient to prove beyond a
                   reasonable doubt that the two Deliveries of
                   PCP occurred on April 21 and 22, 2015 through
                   the use of cell phone communications (i.e.
                   Counts 7, 11, 16, 8, 12 and 17)[?]

            VII.   Was    the   evidence  presented    by   the
                   Commonwealth insufficient to prove beyond a
                   reasonable doubt that the Delivery of PCP
                   occurred on May 3, 2015 through the use of
                   cell phone communications (i.e. Counts 9, 13
                   and 18)[?]

Appellant’s brief at 11-14.

      Appellant’s first three issues on appeal pertain to evidence that was

seized from the 2002 Buick LeSabre (“LeSabre”) parked in the driveway at

133 Pieller Road, North Heidelberg Township, in Berks County, Pennsylvania.



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On October 13, 2016, the trial court determined that the search warrant

used to search the house did not establish probable cause, and the items

seized from the house were suppressed. (See trial court opinion, 10/13/16

at 3-4.)    Appellant also moved to suppress evidence seized from the

LeSabre, which the trial court denied.

      On appeal, appellant argues that he had an expectation of privacy in

the LeSabre.     (Appellant’s brief at 37-38.)   Specifically, he notes that the

LeSabre was parked in a private driveway and that there was no evidence of

record that the LeSabre was visible from the street. (Id. at 38.) Moreover,

appellant contends that the police would not have seen the LeSabre but for

their unlawful presence on the property at the time the vehicle was

searched. (Id.)

      The Commonwealth avers that the evidence seized from the LeSabre

was in plain view, and thus not subject to a warrant requirement.

(Commonwealth’s brief at 11-12.)        Based upon the observation of a glass

vial lying on the floor of the LeSabre, the police searched both the passenger

compartment and trunk of the LeSabre.          (Id. at 12.)    Despite the search

warrant    for   the   house   having   been   determined     to   be   invalid,   the

Commonwealth contends that the police were nonetheless able to observe

the glass vial inside the LeSabre from a lawful vantage point, as the

driveway was a generally accessible area and the police needed “no greater

authority to be present in the driveway than delivery persons, visitors, or



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those engaged in door-to-door solicitation.”       (Id. at 13.)   To justify its

search of the LeSabre, the Commonwealth relies on our supreme court’s

decision in Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014), in which

our supreme court adopted the federal automobile exception, holding that

only probable cause must be established in order to search an automobile

without a warrant, as the inherent mobility of the automobile provides

sufficient exigent circumstances.

      The trial court notes that appellant’s sole argument in favor of

suppression of the evidence found in the LeSabre was based in the plain

view doctrine. (Trial court opinion, 10/13/16 at 5.) Specifically, the court

states that appellant’s claim is that “because of the hour of the day and the

nature of the windows in the vehicle, [the police] could not have actually

seen the vial lying on the floor without entering the vehicle first.” (Id.) The

trial court upheld the subsequent warrantless search of the LeSabre in

reliance on Gary. (See id. at 7.)

      When reviewing the denial of a defendant’s motion to suppress

evidence, we are held to the following standard:

            [An appellate court’s] 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


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           context of the record as a whole.           Where the
           suppression court’s factual findings are supported by
           the record, [the appellate court is] bound by [those]
           findings and may reverse only if the court’s legal
           conclusions are erroneous. Where . . . the appeal of
           the determination of the suppression court turns on
           allegation 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
           [] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015),

appeal denied, 135 A.3d 584 (Pa. 2016), quoting Commonwealth v.

Jones, 988 A.2d 649, 654 (Pa. 2010), cert. denied, 562 U.S. 832 (2010)

(internal citations and quotation marks omitted).      Pennsylvania appellate

courts apply the law in effect at the time of the appellate decision.

Commonwealth v. Tizer, 684 A.2d 597, 601 (Pa.Super. 1996), citing

Commonwealth v. Metts, 669 A.2d 346, 353 (Pa.Super. 1995), order

reversed on other grounds, Commonwealth v. Ardestani, 736 A.2d 552

(Pa. 1999). “This means that we adhere to the principle that, ‘a party whose

case is pending on direct appeal is entitled to the benefit of changes in law

which occur[] before the judgment becomes final.’” Blackwell v. State

Ethics Commission, 589 A.2d at 1094, 1099 (Pa. 1999), overruled on

other grounds, Bugosh v. I.U. North America, Inc., 971 A.2d 1228 (Pa.




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2009), quoting Commonwealth v. Brown, 431 A.2d 905, 906-907 (Pa.

1981).1

      Both the United States Constitution and the Pennsylvania Constitution

guarantee that individuals shall not be subject to unreasonable searches or

seizures.

            The right of the people to be secure in their persons,
            houses, papers, and effects, against unreasonable
            searches and seizures, shall not be violated, and no
            Warrants shall issue, but upon probable cause,
            supported by Oath or affirmation, and particularly
            describing the place to be searched, and the persons
            or things to be seized.

U.S. Const. amend. IV.

            The people shall be secure in their persons, houses,
            papers and possessions from unreasonable searches
            and seizures, and no warrant to search any place or
            to seize any person or things shall issue without
            describing them as nearly as may be, nor without
            probable cause, supported by oath or affirmation
            subscribed to by the affiant.

Pa. Const., Art. I, § 8.

      Evidence obtained as a result of an unlawful search is subject to the

fruit of the poisonous tree doctrine. The United States Supreme Court has

stated that any material, tangible, or verbal evidence “obtained either during

or as a direct result of an unlawful invasion” is inadmissible at trial. Wong

Sun v. United States, 371 U.S. 471, 485 (1963).


1  At the suppression hearing, appellant apparently conceded that the
driveway was not curtilage; however, based on recent decisional law and the
reasoning of the trial court, we do not find waiver.


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       Our supreme court further stated:

            We need not hold that all evidence is “fruit of the
            poisonous tree” simply because it would not have
            come to light but for the illegal actions of the police.
            Rather, the more apt question in such a case is
            “whether, granting establishment of the primary
            illegality, the evidence to which instant objection is
            made has been come at by exploitation of that
            illegality    or  instead    by   means      sufficiently
            distinguishable or to be purged of the primary taint.”

Commonwealth v. Cunningham, 370 A.2d 1172, 1176-1177 (Pa. 1977),

quoting Wong Sun, 371 U.S. at 487-488.

       Pennsylvania courts have recognized that the protections afforded to

individuals under both the Fourth Amendment and Article I, Section 8 are

applicable to the curtilage of a person’s home.            Commonwealth v.

Bowmaster, 101 A.3d 789, 792 (Pa.Super. 2014) (citations omitted). This

court defined the curtilage of the home as places “where the occupants have

a reasonable expectation of privacy that society is prepared to accept.” Id.

citing Commonwealth v. Johnson, 68 A.3d 930, 935 n.3 (Pa.Super. 2013)

(citations omitted).

       Subsequent to the trial court’s filing of its Rule 1925(a) opinion, our

supreme court announced its decision in Commonwealth v. Loughnane,

173 A.3d 733 (Pa. 2017).          In Loughnane, the court held that the

automobile exception to the warrant requirement recognized by Gary does

not apply to vehicles parked in private driveways. Loughnane, 173 A.3d at

745.    The investigative intentions of the police in Loughnane were not



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addressed as a reason to access the property in the first instance; rather,

the case centered on the seizure of the defendant’s vehicle in connection

with a hit and run investigation.

      Consistent with Loughnane, in Collins v. Virginia, 138 S.Ct. 1663,

1672 (2018), the Supreme Court of the United States held that the federal

automobile exception “does not afford the necessary lawful right of access to

search a vehicle parked within a home or its curtilage because it does not

justify   an   intrusion    on    a   person’s        separate   and    substantial   Fourth

Amendment interest in his home or curtilage.” The Court went on to warn

that permitting the police to conduct a warrantless search of a vehicle

parked on private property would be tantamount to the automobile

exception      swallowing    the      rule    established        by    Fourth   Amendment

jurisprudence.

               To allow an officer to rely on the automobile
               exception to gain entry into a house or its curtilage
               for the purpose of conducting a vehicle search would
               unmoor the exception from its justifications, render
               hollow the core Fourth Amendment protection the
               Constitution extends to the house and its curtilage,
               and transform what was meant to be an exception
               into a tool with far broader application.

Id. at 1673.

      Similar to Loughnane, the Collins Court did not provide any

discussion addressing whether the investigation permitted the police to have

access to the driveway.          Those circumstances were addressed in detail by

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


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Commonwealth v. Eichler, 133 A.3d 775 (Pa.Super. 2016), both of which

were relied upon by the trial court in the instant appeal.

       In Simmen, the police were investigating a hit-and-run resulting in

property damage. Simmen, 58 A.3d at 813. The police followed a trail of

fluid from the scene of the accident to the defendant’s driveway, where the

defendant’s vehicle was parked.        Id.    As the officer approached the

defendant’s house in an effort to speak to the owner of the vehicle parked in

the driveway, the officer noticed that the car was leaking fluid from its front

end.   Id.   The officer proceeded to knock on the door of the defendant’s

house and was admitted into the house by the defendant’s wife. Id. at 814.

This court found that the police were permitted to enter the defendant’s

driveway as they were in the course of an investigation. Id. at 816.

       Similarly, in Eichler, the police, while in the course of investigating a

hit-and-run, received information about a possible location of the vehicle

involved in the accident. Eichler, 133 A.3d at 781. Upon his arrival at the

defendant’s house, the police officer noted that the truck parked in the

defendant’s driveway matched the description of the vehicle involved in the

accident and the officer observed front-end damage consistent with the

accident. Id. at 782.

       This court noted that “when the police come on to private property to

conduct an investigation . . . and restrict their movements to places visitors

could be expected to go (e.g., walkways, driveways, porches), observations



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made from such vantage points are not covered by the Fourth Amendment.”

Id., quoting LaFave, Search And Seizure: A Treatise On The Fourth

Amendment, § 2.3(f) (5th ed.) (database updated October 2015).            The

Eichler court further noted that,

           Professor LaFave gathers 49 cases in support of this
           precept, including Trimble v. State, 842 N.E.2d
           798, 802 (Ind. 2006) (police entry onto private
           property and their observations do not violate Fourth
           Amendment       when      police    have    legitimate
           investigatory purpose for being on property and
           limit their entry to places visitors would be expected
           to go; the route which any visitor to residence would
           use is not private in Fourth Amendment sense, so if
           police take that route for purpose of making
           general inquiry or for some other legitimate
           reason, they are free to keep their eyes open), and
           State v. Lodermeier, 481 N.W.2d 614, 624 (S.D.
           1992) (approving officer’s examination of exterior of
           garden tractor parked in driveway, because “even
           though it is part of the curtilage, an officer with
           legitimate business may enter a driveway and, while
           there, may inspect objects in open view”). See
           LaFave, § 2.3(f) at n. 225 and 229.

Id. at 784 n.7 (emphasis added)

     Both Simmen and Eichler are distinguishable from the instant appeal.

In both of those cases, the police entered the curtilage for the purpose of

conducting an investigation and they restricted their movements to areas

where visitors could be expected to go.      In the instant appeal, the police

were at appellant’s residence executing a search warrant that the trial court

subsequently found to be lacking in probable cause. Put another way, the

police were not in the course of conducting an investigation when the vial



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was observed lying inside the LeSabre. Moreover, there is no evidence of

record that would indicate that the police had any reason to be at appellant’s

residence, but for the defective search warrant. Accordingly, the police were

in violation of appellant’s Fourth Amendment rights when the vial was

observed in the LeSabre. Because the police did not observe the vial in plain

view   from    a   lawful   vantage   point,   we,   therefore,   find   that   the

Commonwealth failed to establish that probable cause existed to search the

LeSabre without a warrant, and that the evidence seized from the LeSabre

should be suppressed.2

       We need not address appellant’s remaining six issues, as the issues

are now moot.




2 Even if the search warrant to search appellant’s residence had been valid,
the warrantless search of the LeSabre would have nonetheless been
improper. As the trial court noted, the search of the LeSabre was “in no way
directly tied to the search of the residence.” (Trial court opinion, 5/23/17
at 7.) Accordingly, in light of the Supreme Court of Pennsylvania’s holding
in Loughnane and the Supreme Court of the United States’ holding in
Collins, the warrantless search of the LeSabre was unreasonable.


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      Order denying suppression reversed. Judgment of sentence vacated.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/20/2018




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