J-S52009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CORNELIUS ALEXANDER ANDREWS,

                        Appellant                   No. 1745 WDA 2014


    Appeal from the Judgment of Sentence Entered February 28, 2011
              In the Court of Common Pleas of Blair County
          Criminal Division at No(s): CP-07-CR-0000132-2009


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 21, 2015

     Cornelius Alexander Andrews (“Appellant”) appeals from the judgment

of sentence entered on February 28, 2011, in the Court of Common Pleas of

Blair County. We affirm.

     The suppression court set forth the facts of this case as follows:

     The date of the alleged offense is on or about July 10, 2008,
     within the City of Altoona, involving a controlled purchase
     through [the] use of a confidential informant (hereinafter “CI”).

           On the date of [the] incident, Officer Christopher Moser,
     Detective Thomas Brandt, and Patrolman Andrew Crist, of the
     West IV Drug Task Force, came into contact with the CI . . . at
     his residence within the City of Altoona. The CI was the initial
     target of the officer’s [sic] investigation. During such time, the
     CI advised the officers that he could immediately arrange a drug
     transaction with his alleged supplier, [Appellant]. The officers
     then searched the CI and the residence for controlled
     substances, US currency and contraband, with negative results.
     In the presence of Detective Thomas Brandt, the CI placed a
     phone call to [Appellant] to arrange for a $4,000 purchase of
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      four ounces of cocaine. Detective Brandt verified that the call
      was placed to a certain phone number, and that he was able to
      hear what the CI was saying, but that he did not overhear
      anything said from the other end of the conversation.
      [Appellant] subsequently entered the CI’s residence, wearing a
      motorcycle helmet with a raised visor. The CI verified that
      [Appellant] provided him with the cocaine in exchange for the
      $4,000.    The CI immediately turned over the cocaine to
      Detective Brandt, who was undercover.

             Upon exiting the residence, [Appellant] was taken into
      custody by Officer Christopher Moser of the Altoona Police
      Department. Officer Moser was assigned to a surveillance detail
      outside the CI’s residence. Officer Moser had been informed that
      the target would arrive via motorcycle, and he observed an
      individual riding a motorcycle wearing a full-face helmet pull up
      to the residence and enter. Upon observing the same individual
      leave the residence, Officer Moser then detained him.

Suppression Opinion, 6/26/09, at 1-2 (internal citations omitted). Following

Appellant’s arrest, Officer Crist opened Appellant’s cellular phone to access

its number in order to verify it was the same number the CI called for the

drug purchase. N.T. Preliminary Hearing, 12/29/08, at 65–66.

      Appellant was arrested and charged with possession with intent to

deliver cocaine, possession of cocaine, and criminal use of communication

facility. Following a preliminary hearing on December 29, 2008, the charges

were bound over to court.     Appellant filed a pretrial motion to suppress

evidence retrieved from his cellular phone, arguing that the search of his

cellular phone incident to his arrest was unlawful.   Oral argument was held

on May 22, 2009, at which time a transcript of the preliminary hearing was

admitted into the record and used by stipulation as the factual basis for the




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suppression court’s decision.    The suppression court denied Appellant’s

motion. Suppression Opinion, 6/26/09, at 7.

     Appellant proceeded to a bench trial where he was convicted of the

above charges.    Appellant did not appear for sentencing and remained a

fugitive until apprehended by United States Marshalls in December of 2010.

On February 11, 2011, the trial court sentenced Appellant to incarceration

for an aggregate term of twelve to twenty-four months followed by a period

of probation.   Sentencing Order, 2/28/11.    Appellant did not file a direct

appeal.   On August 16, 2011, he filed a petition for post-conviction relief,

seeking reinstatement of his direct appeal rights, which the trial court

granted on May 3, 2012. This appeal followed. Appellant and the trial court

complied with Pa.R.A.P. 1925.

     On appeal, Appellant challenges the denial of his motion to suppress

evidence retrieved from his cellular phone without a warrant.

           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.... The suppression court’s legal conclusions are not
     binding on an appellate court, whose duty it is to determine if
     the suppression court properly applied the law to the facts.
     Thus, the conclusions of law of the courts below are subject to
     our plenary review.

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Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).

     Appellant argues that the trial court “erred in determining that the

warrantless search of his cell phone upon his arrest was lawful.” Appellant’s

Brief at 8.    According to Appellant, the evidence should have been

suppressed because the police did not secure a search warrant before

searching his cellular phone. In support of his position, Appellant relies on

our decision in Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014).

In Stem, we addressed this issue, relying upon the legal analysis and

holding of the United States Supreme Court in Riley v. California, ___ U.S.

___, 134 S.Ct. 2473 (2014).        The Riley Court determined that the

warrantless search of a cellular telephone conducted incident to an arrest is

unconstitutional. Stem, 96 A.3d at 414 (citing Riley, 134 S.Ct. at 2495).

     In response, the Commonwealth concedes that, “while the seizure of

the cellular telephone at issue was lawful pursuant to a search incident to

arrest, the warrantless search of the phone was premature . . . [because]

there were no exigent circumstances or exceptions to the warrant

requirement.” Commonwealth’s Brief at 10. “However,” the Commonwealth

continues:

     the cellular telephone at issue [was] lawfully in police custody
     and could [have been] searched pursuant to a search warrant
     that summarized the evidence in this case prior to the search of
     said telephone. Accordingly, [the Commonwealth] respectfully
     submits that the doctrine of inevitable discovery is applicable
     and the evidence was properly admitted.

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Id. (citations omitted).

           With regard to      the   inevitable   discovery rule, under
      Pennsylvania law:

            if the prosecution can establish by a preponderance
            of the evidence that the illegally obtained evidence
            ultimately or inevitably would have been discovered
            by lawful means, the evidence is admissible. The
            purpose of the inevitable discovery rule is to block
            setting aside convictions that would have been
            obtained without police misconduct.

      See Commonwealth v. Bailey, 986 A.2d 860, 862
      (Pa.Super.2009), quoting Commonwealth v. Gonzalez, 979
      A.2d 879, 890 (Pa.Super.2009).

Commonwealth v. Gatlos, 76 A.3d 44, 60 n.13 (Pa. Super. 2013).

      In denying Appellant’s motion, the suppression court applied the

inevitable discovery doctrine with the following analysis:

            After seizure of the cell phone from [Appellant],
      Officer Crist testified that at the Altoona Police Department
      station, he opened [Appellant’s] cell phone to access the phone
      number to verify that it was the same number called by the CI.
      (PH Tr., pp. 65–66).

            The Commonwealth argues that the seizure of the cellular
      telephone at issue was lawful pursuant to a search incident to a
      lawful arrest. . . . [W]e agree. The Commonwealth concedes,
      however, that the warrantless search of the phone was
      premature. . . . The Commonwealth submits, however, that the
      cell phone at issue is lawfully in police custody and could be
      searched . . . pursuant to a search warrant that summarized the
      evidence in this case prior to the search of the cell phone.
      Therefore, the Commonwealth requests that we allow the
      evidence to be admitted under the doctrine of “inevitable
      discovery”. Commonwealth v. Rood, 686 A.2d 442 (Pa.
      Cmwlth. 1996).

                                     * * *


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              Based upon the factual circumstances herein, we are
       satisfied that the “inevitable discovery doctrine” is
       applicable.     Both the inevitable discovery doctrine and
       independent source rule[1] are 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.” Rood, 686 A.2d at
       448, quoting Nix v. Williams, 467 U.S. 431 443, 104 S.Ct.
       2501, 81 L.Ed.2d 377 (1984). Suppressing evidence which . . .
       would have inevitably been discovered, would effectively place
       the police and prosecutors in a worse position when the
       particular evidence . . . would have inevitably been, lawfully
       obtained.    In such situations, there is no significant causal
       connection between the acquisition of the evidence and the
       unlawful police conduct, and evidence so obtained is not
       considered to be tainted by, or to be the fruit of, an illegal
       search. Id.

Suppression Opinion, 6/26/09, at 6–7 (emphasis in original).

       Upon review, we conclude that the suppression court’s factual findings

are supported by the record and its legal conclusions drawn from those facts

are correct.     Officer Crist had the authority to seize Appellant’s cellular

phone incident to a lawful arrest. See Riley, 134 S.Ct. at 411 (recognizing

that the police are constitutionally permitted to seize and secure cellular


____________________________________________


1
  We recently reiterated the independent source doctrine in a cellular phone
search case:

       There is a two-prong test governing the application of the
       independent source doctrine: (1) whether the decision to seek a
       warrant was prompted by what was seen during the initial
       warrantless entry; and, (2) whether the magistrate was
       informed at all of the information improperly obtained.

Commonwealth v. Mosley, 114 A.3d 1072, 1081 (Pa. Super. 2015)
(quoting Commonwealth v. Ruey, 854 A.2d 560, 564–565 (Pa. Super.
2004)).



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phones in order to prevent the destruction of evidence).        At the police

station, while Officer Crist was packaging the money, the drugs, and the

phone, he opened the phone in order to obtain the number. N.T., 12/29/08,

at 65–66.   The record is unclear regarding whether Officer Crist actually

“searched” the phone (i.e., by scrolling through screens, swiping the phone

on, or otherwise accessing data) like in Stem, where a police officer

inspected the cellular phone after the defendant’s arrest, turned on the

phone, selected the picture icon, and then searched the photo data. Stem,

96 A.3d at 408. Nevertheless, even if Officer Crist improperly searched the

cellular phone confiscated incident to Appellant’s arrest, the phone was

properly in police custody, and the phone number would have inevitably

been discovered through lawful means.      The police could have called the

number dialed by the CI to verify that Appellant’s phone was used for the

drug transaction. Additionally, Officer Crist did not search for or obtain any

other information from Appellant’s phone, unlike in Stem where the officer

selected the smart phone picture icon and uncovered what appeared to be a

photograph depicting child pornography. Id.      Thus, we conclude that any

improper viewing by Officer Crist did not warrant setting aside a conviction

that would have been obtained without police misconduct. Bailey, 986 A.2d

at 862.   Hence, the suppression court did not err in denying Appellant’s

motion.

      Judgment of sentence affirmed.

      Judge Olson joins the memorandum.

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     Judge Wecht concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2015




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