J. A30033/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
ROBERT DAVID REINHART,                   :          No. 498 WDA 2017
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, March 9, 2017,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0000724-2016


BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED NOVEMBER 28, 2018

      This case returns to us from the Court of Common Pleas of Allegheny

County.    The trial court conducted an evidentiary hearing relating to

appellant’s motion to dismiss pursuant to Pa.R.Crim.P. 600 on June 21, 2018,

pursuant to this court’s May 21, 2018 memorandum. Having received the

record of the Rule 600 hearing from the trial court, along with its findings, we

shall now consider appellant’s appeal on its merits.

      The trial court made the following factual determination:

            [Elizabeth Police Department Officer Garret Kimmel’s]
            initial observation of [appellant] was [appellant]
            driving a quad on a road where quads are not allowed.
            The     officer  noticed    a    very   distinguishable
            characteristic on the front of the quad—a fishing rod.
            Within minutes of that initial observation, followed by
            losing track of the vehicle, the officer saw that very
            same quad parked alongside a house in a neighboring
            jurisdiction, maybe 15 yards from the road. He
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           approached the quad. He touched it. It was warm.
           The grass between the road and its resting place gave
           every appearance of it having been recently been
           driven over that patch of grass. He then went to the
           front door and knocked. He interacted with Scott
           Johnson. After some dialogue at the door, which
           included Johnson telling the officer that the quad was
           “Bob’s,” home owner Johnson[] allowed the officer to
           enter his house. From that [] vantage point, the
           [o]fficer saw the male that [was riding] on the quad.

Trial court opinion, 8/3/2017 at 5 (internal quotation marks and citations to

the record omitted).

     The procedural history of this case, as stated by our May 21, 2018

memorandum is as follows:

           The Commonwealth charged appellant with the
           following offenses: DUI highest rate of alcohol, DUI
           general impairment, habitual offenders, driving while
           BAC 0.02 or greater while license is suspended,
           driving without a license, operating a snowmobile/ATV
           on streets and highways, unlawful operation, unlawful
           operation of snowmobile/ATV under influence, proof
           of liability insurance required to be produced and
           displayed, driving an unregistered vehicle, improper
           display of registration plate, failure to signal, giving
           false information, investigation by officer/duty of
           operator, fleeing or attempting to elude a police
           officer, and failure to yield to emergency
           vehicle.[Footnote 1] At the preliminary hearing on
           January 26, 2016, the following charges were
           dismissed: driving an unregistered vehicle, failure to
           signal, failure to yield to emergency vehicle, fleeing or
           attempting to elude a police officer, giving false
           information, improper display of registration plate,
           and investigation by officer/duty of operator. All of
           the remaining charges were held over for trial.

                 [Footnote 1] 75 Pa.C.S.A. §§ 3802(c),
                 3802(a)(1), 6503.1, 1543(b)(1.1)(i),
                 1501(a), 7721(a), 7711.1(a), 7726(a)(3),


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               7730(b), 1301(a), 1332(a), 3335(a),
               3748, 6308(a), 3733(a), and 3325(a),
               respectively.

          On April 5, 2016, appellant filed an omnibus pretrial
          motion in which he sought to suppress evidence. A
          suppression hearing and trial were originally
          scheduled for June 7, 2016. On May 17, 2016, the
          Commonwealth filed a motion for continuance, which
          the trial court granted. The suppression hearing and
          trial were rescheduled for September 8, 2016.

          On September 8, 2016, the trial court denied
          appellant’s omnibus pretrial motion following a
          suppression hearing, and immediately called the case
          for trial. The Commonwealth, having dismissed its
          only witness, Elizabeth Police Department Officer
          Garret Kimmel, at the conclusion of his suppression
          hearing testimony, orally moved for a continuance,
          which the trial court granted.       The trial was
          rescheduled for December 12, 2016.                On
          November 10, 2016, appellant filed a motion to
          dismiss pursuant to Pa.R.Crim.P. 600, which the trial
          court denied on December 12, 2016, following a
          hearing immediately preceding trial.

          At the conclusion of the bench trial on December 12,
          2016, the trial court convicted appellant of DUI
          highest rate, DUI general impairment, driving while
          BAC 0.02 or greater while license is suspended,
          driving without a license, operating a snowmobile/ATV
          on streets and highways, unlawful operation of
          unregistered snowmobile/ATV, and unlawful operation
          of snowmobile/ATV under influence. The trial court
          acquitted appellant of proof of insurance required to
          be produced and displayed.         The Commonwealth
          withdrew the habitual offenders charge. On March 9,
          2017, the trial court sentenced appellant to one year
          less one day to two years less two days’
          imprisonment.

          Appellant filed a notice of appeal to this court on
          March 30, 2017. The trial court ordered appellant to
          file a concise statement of errors complained of on


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            appeal pursuant to Pa.R.A.P. 1925(b) and appellant
            complied. The trial court filed its opinion pursuant to
            Pa.R.A.P. 1925(a) on August 3, 2017.

Commonwealth         v.   Reinhart,     No.   498       WDA   2017,   unpublished

memorandum at *1-3 (Pa.Super. filed May 21, 2018).                    We filed a

memorandum remanding the case on May 21, 2018, to provide the trial court

with an opportunity to conduct a fuller hearing pursuant to Pa.R.Crim.P. 600.

See id. at *7. The trial court did so on June 21, 2018.

      We may now address the following issues raised on appeal:

            I.     Did the [trial] court err in refusing to grant
                   [appellant’s] Rule 600 motion when all of the
                   delay in this case was attributable to the
                   Commonwealth and trial was not commenced
                   until 62 days beyond the mechanical run date?

            II.    Did the [trial] court err in refusing to suppress
                   all evidence, including the identification of
                   [appellant] and blood evidence, following
                   Officer Kimmel’s illegal search of the curtilage at
                   914 15th Street, Elizabeth, Pennsylvania?

Appellant’s brief at 5 (full capitalization omitted).

      In his first issue for our review, appellant avers that the Commonwealth

violated his constitutional right to a speedy trial pursuant to Pennsylvania Rule

of Criminal Procedure 600.

            “In evaluating Rule [600] issues, our standard of
            review of a trial court’s decision is whether the trial
            court abused its discretion.” Commonwealth v. Hill,
            736 A.2d 578, 581 (Pa. 1999).              See also
            Commonwealth v. McNear, 852 A.2d 401
            (Pa.Super. 2004). “Judicial discretion requires action
            in conformity with law, upon facts and circumstances
            judicially before the court, after hearing and due


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            consideration.” Commonwealth v. Krick, 67 A.2d
            746, 749 (Pa.Super. 1949). “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, as shown
            by the evidence or the record, discretion is abused.”
            Commonwealth v. Jones, 826 A.2d 900, 907
            (Pa.Super. 2003) (en banc) (citing Commonwealth
            v. Spiewak, 617 A.2d 696, 699 n.4 (Pa. 1992)).

            “The proper scope of review . . . is limited to the
            evidence on the record of the Rule [600] evidentiary
            hearing, and the findings of the [trial] court.” Hill,
            supra at 581; McNear, supra at 404. See also
            Commonwealth v. Jackson, 765 A.2d 389
            (Pa.Super. 2000), appeal denied, 793 A.2d 905 (Pa.
            2002). “[A]n appellate court must view the facts in
            the light most favorable to the prevailing party.” Id.
            at 392.

Commonwealth v. Hunt, 858 A.2d 1234, 1238-1239 (Pa.Super. 2004),

appeal denied, 875 A.2d 1073 (Pa. 2005).

      The comment to Rule 600 provides that “delay in the time of trial that

is attributable to the judiciary may be excluded from the computation of time.”

Pa.R.Crim.P. 600 cmt., citing Commonwealth v. Crowley, 466 A.2d 1009

(Pa. 1983); see also Commonwealth v. Mills, 162 A.3d 323, 325 (Pa.

2017), citing Commonwealth v. Bradford, 46 A.3d 693, 705 (Pa. 2012)

(“periods of judicial delay are excludible from calculations under the rule”).

      In the instant appeal, the Elizabeth Borough Police Department filed a

criminal complaint against appellant on October 11, 2015.              Pursuant to

Rule 600, the Commonwealth was required to commence trial on or before

October 11, 2016. The Commonwealth originally listed this case for trial on


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June 7, 2016. On May 17, 2016, the Commonwealth requested a continuance

due to the unavailability of Officer Kimmel.      The trial court granted the

Commonwealth’s request, rescheduling the trial for September 8, 2016.

      As noted above, the trial court called the case to trial on September 8,

2016, immediately upon the conclusion of the suppression hearing.           The

Commonwealth, having dismissed Officer Kimmel at the conclusion of his

suppression hearing testimony, indicated it would not be able to proceed that

day with trial, and the trial court responded by stating, “Pick a date, whatever

you want.” (Notes of testimony, 9/8/16 at 67.)

      At the Rule 600 hearing, Kristen Reitmeyer, the trial court’s minute

clerk, testified that even if the Commonwealth had been prepared to proceed

to trial immediately after the suppression hearing, the trial court would have

been unable to proceed due to jury selection taking place in another case.

(Notes of testimony, 6/21/18 at 8.) Additionally, appellant at that time was

still seeking a jury trial. Ms. Reitmeyer further testified that the trial would

be postponed to a date in which there would not be a conflict with other jury

trials or with either of the attorneys’ calendars. (Id.) Ms. Reitmeyer also

testified that these postponements could last two to three months. (Id. at 9.)

When determining a new date for appellant’s trial, Ms. Reitmeyer testified that

she “wanted to schedule it on a day [she] knew we would be able to proceed

so we didn’t run into the same issue.” (Id. at 10.) Critically, Ms. Reitmeyer

stated that the postponement of appellant’s trial on September 8, 2016, was



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attributable to neither the Commonwealth nor the defense, but rather to

unavailability of the trial court. (Id. at 9.)

      Accordingly, we find that the delay in the trial in this case was

attributable to the trial court, thus rendering the period of delay excludable

for Rule 600 purposes.1 Therefore, we find that the trial court ultimately did

not abuse its discretion when it denied appellant’s Rule 600 motion.

      In his second issue, appellant avers that the trial court erred when it

refused to suppress evidence, including the identification of appellant and

blood evidence.

            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 . . . 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


1 We acknowledge Justice Wecht’s concurring opinion in Mills, in which he
opines that judicial delay is not a “mechanism or totem” that exempts the
Commonwealth from demonstrating that it is “ready, able, and willing to
proceed with the case against the defendant.” Mills, 162 A.3d at 326
(Wecht, J., concurring). This, however, is not binding authority on this court.


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            conclusions of law of the courts below are subject to
            our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013), quoting Commonwealth v.

Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012), appeal denied, 57 A.3d

68 (Pa. 2012) (citations omitted).

      We    must   first   determine   whether   appellant   had   a   reasonable

expectation of privacy as a guest at Mr. Johnson’s residence.

      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 affiant.

Pa. Const. Art. I, § 8. A search or seizure conducted without a warrant is,

under the Fourth Amendment and Article I, Section 8, presumed to be




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unconstitutional. Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007),

citing Horton v. California, 496 U.S. 128, 134 n.4 (1990) (citations omitted).

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

of the poisonous tree doctrine. The Supreme Court of the United States 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).

      Pennsylvania courts have recognized, however, the following exception

to the warrant requirement:

            First, police officers have the authority to enter the
            curtilage for the purpose of conducting an
            investigation. Commonwealth v. Gibson, [] 638
            A.2d 203, 207 ([Pa.] 1994) (“police have the power
            to knock on the doors of the citizens of this
            Commonwealth for investigatory purposes without
            probable cause”) (emphasis added). Second, entry
            onto the curtilage generally is not a Fourth
            Amendment violation when the curtilage is used by
            the public. Cf. [Commonwealth v. Gibbs, 981 A.2d
            274, 280 (Pa.Super. 2009), appeal denied, 3 A.3d
            670 (Pa. 2010),] (“courts which have found that the
            front porch constitutes curtilage have generally found
            no Fourth Amendment violation where the porch in
            question is used by the general public”); see
            generally LaFave, Search And Seizure: A Treatise On
            The Fourth Amendment, § 2.3(f) (5th ed.) (database
            updated October 2015) (“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 made from such vantage points are not
            covered by the Fourth Amendment”).[Footnote 7]

                  [Footnote 7] Professor LaFave gathers
                  49 cases in support of this precept,


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                  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.

Commonwealth v. Eichler, 133 A.3d 775, 784 (Pa.Super. 2016), appeal

denied, 161 A.3d 791 (Pa. 2016).

      The facts of the instant appeal reflect that Officer Kimmel entered

Mr. Johnson’s property for the purposes of conducting an investigation. The

fact that Officer Kimmel entered the side yard of Mr. Johnson’s property to

determine whether the quad was hot to the touch is inconsequential.

Officer Kimmel testified that while he was on patrol on Barrett Avenue in

Elizabeth on October 9, 2015, he observed a red quad traveling in the opposite

direction. (Notes of testimony, 9/8/16 at 23-24.) Officer Kimmel attempted

to pursue the quad; however, he lost sight of the vehicle and began searching

for the quad in the immediate area. (Id.) From his seated position in his


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patrol car, Officer Kimmel observed the quad in plain view parked on

Mr. Johnson’s property. (Id. at 25.) Officer Kimmel further testified that the

quad he observed parked on Mr. Johnson’s property was the same color,

shape, and had the same number of wheels as the vehicle he observed on

Barrett Avenue. (Id. at 26.) Additionally, Officer Kimmel testified that the

quad parked on Mr. Johnson’s property had a fishing rod attached to the front,

and that the quad he observed on Barrett Avenue also had a fishing rod

attached to the front.   (Id.)     Upon his arrival to Mr. Johnson’s property,

Officer Kimmel observed freshly pressed down grass in the yard, which

appeared to be from tire tracks. (Id. at 28.)

      Upon   observing   the     freshly   pressed   down    grass   in   the   yard,

Officer Kimmel approached the quad, felt near the exhaust area, and noted

that it was hot to the touch. (Id.) Officer Kimmel then knocked on the door

to Mr. Johnson’s house. (Id.) Mr. Johnson answered the door and denied

owning the quad.       (Id. at 29.)        Officer Kimmel testified that upon

Mr. Johnson’s opening the door, Officer Kimmel was able to observe appellant

sitting at the dining room table. (Id.) Officer Kimmel further testified that he

recognized appellant as the same person that he observed driving the quad

on Barrett Avenue. (Id.)

      The trial court determined that Officer Kimmel’s testimony was credible,

and the record before us supports this conclusion.          We therefore find that

Officer Kimmel’s decision to knock on the door to Mr. Johnson’s house was



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based on his observation from his patrol car of a quad parked in the side yard

matching the description of the quad he had previously observed on Barrett

Avenue.   We further find that Officer Kimmel’s entry onto Mr. Johnson’s

property was not in violation of appellant’s constitutional rights against

unreasonable search and seizure because Officer Kimmel’s decision to knock

on Mr. Johnson’s door was not based solely on his inspection of the quad, but

rather his observations from his squad car and his observations of the fresh

tracks in the grass on Mr. Johnson’s property. (See id. at 40.)

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2018




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