J-S03018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

CURTIS WORMLEY

                         Appellant                 No. 1242 EDA 2013


        Appeal from the Judgment of Sentence November 14, 2012
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010791-2010
                                       CP-51-CR-0011695-2010


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                          FILED MARCH 24, 2015

     Appellant, Curtis Wormley, appeals from the judgment of sentence

entered November 14, 2012, by the Honorable Daniel J. Anders, Court of

Common Pleas of Philadelphia County, following the denial of Wormley’s

Motion to Suppress Physical Evidence. We affirm.

     We take the underlying facts in this matter from the trial court’s April

3, 2014, opinion.

            Philadelphia Police Detectives Don Suchinsky and Steve
     Grace were assigned to investigate a kidnapping and shooting
     that occurred on July 1, 2010. As part of their investigation, the
     detectives interviewed the shooting victim’s two brothers and
     cousin who witnessed the shooting. They told the detectives
     that an individual known to them as “Q” accused the four men of
     stealing ten pounds of marijuana from [“Q’s”] store located at
     4927 Old York Road. “Q” confronted them, kidnapped them in a
     purple van, and tied their hands and feet with duct tape and
     rope. “Q” drove the men to a remote location where he pistol-
     whipped and threatened the men to either return the narcotics
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     or pay him the monetary value for the drugs. One of the men
     was shot during this interaction. N.T., 9/10/2012 at 40-45.

           While conducting a search of [“Q’s”] store located at 4927
     Old York Road, the detectives recovered a business license in the
     name of Darin Thomas. The license listed an address of 87 West
     Sharpnack Street. Detective Grace obtained a Pennsylvania
     Driver’s License photo of Darin Thomas and showed it to one of
     the witnesses. The witness identified the individual in the photo
     as the brother of the person that they knew as “Q”. During a
     [visual] check of 87 West Sharpnack Street before applying for
     the search warrant, the detectives observed a purple van parked
     nearby.    The van matched the description provided by the
     eyewitnesses, and the van’s Pennsylvania license plate came
     back to 87 West Sharpnack Street.

            As a result of this information, Detectives Suchinsky and
     Grace obtained a search warrant for 87 West Sharpnack Street.
     The warrant identified the items to be searched for and seized as
     “Firearms, any ballistic evidence, any information concerning the
     identity of suspect “Q” and any other items of evidentiary value
     so that this investigation can be brought to a successful
     conclusion.” Although the search warrant does not mention
     “narcotics” as an item to be searched and seized, the affidavit of
     probable cause contains a summary of the detectives’
     investigation to date as well as a possible motive of the crime,
     i.e., that “Q” demanded the return of his narcotics or money
     prior to the victim being shot. N.T. 9/10/2012 at 45-46, 60, 63-
     65; Search Warrant and Affidavit No. 151128.

            On July 16, 2010, the detectives executed a search
     warrant for 87 West Sharpnack Street.        A female let the
     detectives into the building and told them that [Wormley] was
     sleeping in the rear bedroom on the second floor. Detective
     Suchinsky entered the bedroom and found [Wormley] sleeping
     next to a baby. Detective Suchinsky searched the bedroom and
     recovered bullets, a holster, a roll of duct tape, a state
     identification card with [Wormley’s] name, mail and shipping
     labels listing [Wormley’s] name with the address of … 87 West
     Sharpnack Street, the key to the purple van believed to be
     linked to the crime, and $150. N.T., 9/10/2012 at 46-47, 52,
     56-57.

           As Detective Suchinsky searched the rear bedroom,
     Lieutenant Lark searched the room adjacent to [Wormley] for


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       weapons and contraband. As part of her search, Lieutenant Lark
       observed a large freezer that measured four feet long by three
       feet high.    As Lieutenant Lark searched the freezer, she
       discovered a large trash bag inside the freezer. Inside the trash
       bag, Lieutenant Lark found several wrapped bags containing
       what she immediately recognized as marijuana. The officers
       seized over 10 pounds of marijuana from the freezer. N.T.,
       9/10/2012 at 47-48; 68; N.T., 9/11/2012 at 13-22.

              Lieutenant Lark was aware that – prior to executing the
       search warrant – the warrant was based upon a kidnapping and
       shooting that related to a narcotics dispute. Lieutenant Lark has
       executed over one hundred search warrants during her twenty-
       four years as a police officer including as a drug enforcement
       officer in the 17th police district. When conducting a search for
       weapons, Lieutenant Lark usually searches closets, bags,
       basements, under beds, refrigerators, freezers, and anywhere
       else a firearm or contraband may be concealed. When executing
       search warrants, Lieutenant Lark has found weapons hidden
       inside of refrigerators and freezers similar to the freezer she
       searched at 87 West Sharpnack Street. N.T. 9/11/2012 at 6-9,
       11, 21.

Trial Court Opinion, 4/3/14 at 1-3.

       Wormley was subsequently arrested and charged with numerous

weapons and narcotics-related charges. On May 31, 2011, Wormley filed an

Omnibus Pre-Trial Motion seeking, inter alia, to suppress physical evidence

on the grounds that the search warrant “did not particularly describe the

place or persons to be searched or the items of evidence to be seized and

did not set forth probable cause for its issuance or for a nighttime search.”

Omnibus Pre-Trial Motion, 5/3/11 at II.3. The trial court denied Wormley’s

four-corners challenge after a hearing.1         On September 18, 2012, a jury
____________________________________________


1
  The trial court did exclude evidence of zip lock bags (packaging), a cell
phone, and scales, for which the Commonwealth failed to provide an account
(Footnote Continued Next Page)


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convicted Wormley of Possession with Intent to Deliver a Controlled

Substance (“PWID”),2 Persons not to Possess Firearms,3 and Firearms Not to

Be Carried Without a License.4             On November 14, 2012, the trial court

sentenced Wormley to an aggregate term of 12½ to 27 years’ imprisonment.

On November 19, 2012, Wormley filed a post-sentence motion, which the

trial court denied. This timely appeal followed.

      On appeal, Wormley contends that the trial court erred when it denied

his motion to suppress evidence.             We review the denial of a motion to

suppress physical evidence as follows:

          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.

          [W]e may consider only the evidence of the prosecution
          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 findings of the
          suppression court, we are bound by those facts and may
          reverse only if the court erred in reaching its legal
          conclusions based upon the facts.

          Further, [i]t is within the suppression court’s sole province
          as factfinder to pass on the credibility of witnesses and the
          weight to be given their testimony.

                       _______________________
(Footnote Continued)

detailing how that evidence was discovered during the search. See Order,
9/12/12.
2
  35 Pa.C.S.A. § 780-113(a)(16).
3
  18 Pa.C.S.A. § 6105.
4
  18 Pa.C.S.A. § 6106.



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Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted).

      The trial court’s factual findings are supported by the record.         We

therefore proceed to examine the propriety of the lower court’s legal

conclusions. Wormley asserts that the warrant authorizing the search of 87

West Sharpnack Street was constitutionally overbroad in that it did not

state, with particularity, the items to be searched and seized.               See

Appellant’s Brief at 2.

            A search warrant cannot be used as a general
      investigatory tool to uncover evidence of a crime. In re Casale,
      512 Pa. 548, 517 A.2d 1260, 1263 (1986); Commonwealth ex
      rel. Ensor v. Cummings, 416 Pa. 510, 207 A.2d 230, 231
      (1965). Nor may a warrant be so ambiguous as to allow the
      executing officers to pick and choose among an individual's
      possessions to find which items to seize, which would result in
      the general “rummaging” banned by the Fourth Amendment.
      See Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d
      24 (1982) (quoting Marron v. United States, 275 U.S. 192,
      195, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). Thus, Pa.R.Crim.P. 205
      specifies the necessary components of a valid search warrant.
      The comment to Rule 205 provides, however, that even though
      general or exploratory searches are not permitted, search
      warrants should “be read in a common sense fashion and should
      not be invalidated by hypertechnical interpretations. This may
      mean, for instance, that when an exact description of a
      particular item is not possible, a generic description will suffice.”
      Pa.R.Crim.P. 205 (cmt.). Embracing this approach, we have held
      that “where the items to be seized are as precisely identified as
      the nature of the activity permits ... the searching officer is only
      required to describe the general class of the item he is seeking.”
      Commonwealth v. Matthews, 446 Pa. 65, 85 A.2d 510
      (1971).

            A warrant is defective when its explanatory narrative does
      not describe as clearly as possible those items for which there is
      probable cause to search. Grossman, 521 Pa. 290, 555 A.2d

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      896. In assessing the validity of a description contained in a
      warrant, a court must initially determine for what items there
      was probable cause to search. Id. at 900. “The sufficiency of
      the description [in the warrant] must then be measured against
      those items for which there was probable cause. Any
      unreasonable discrepancy between the items for which there was
      probable cause [to search] and the description in the warrant
      requires suppression.” Id.

Commonwealth v. Rega, 933 A.2d 997, 1011-1012 (Pa. 2007).

      We note at the outset that Wormley does not allege that the search

warrant was invalid because it was issued without probable cause. We must

therefore measure the description contained in the warrant. See Rega, 933

A.2d at 2012. As previously noted, the warrant described the items to be

searched for and seized as:

      Firearms, any ballistic evidence, any information concerning the
      identity of suspect ‘Q’ and any other items of evidentiary value
      so that this investigation can be brought to a successful
      conclusion.

Search Warrant and Affidavit No. 151128.        The affidavit in support of the

application for the warrant provided a further description of the items as

follows:

             At this time the affiants respectfully requests [sic] approval
      of this warrant to search the property 87 W. Sharpnack Street
      by, [sic] for any firearms or ballistic evidence, any duct tape,
      twine to tip up the complainants, and information leading to the
      identity of “Q”, also any other item(s) of evidentiary value so
      that this investigation may be brought to a successful
      conclusion.

Id.

      We have no problem concluding that the items listed in the search

warrant and affidavit were described with sufficient particularity and limited


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to evidence directly pertaining to the kidnapping and shooting and to

information leading to “Q’s” identity.    We do not agree with Wormley’s

contention that the search warrant authorized an impermissible general

“rummaging”, merely because the scope of the warrant was not limited to

specific areas of the residence.    As the trial court cogently recognized,

“[w]here a search warrant adequately describes the place to be searched

and the items to be searched and the items to be seized, the scope of the

search extends to the entire area in which the object of the search may be

found and properly includes the opening and inspection of containers and

other receptacles where the object may be secreted.” Trial Court Opinion,

4/3/14 at 4-5 (quoting Commonwealth v. Watson, 724 A.2d 289, 292

(Pa. 1998) (emphasis added)).      See also, Rega, supra, at 1013 (“[A]

lawful search generally extends to the entire area in which the object of the

search may be found.”) (citation omitted). Lieutenant Lark testified that, in

her experience, weapons are sometimes stored in refrigerators or freezers

such as the freezer in which the marijuana was discovered.            We are

therefore satisfied that the search of the freezer did not constitute

impermissible “rummaging”.

      We further reject Wormley’s claim that the narcotics uncovered during

the search should have been suppressed as items seized outside of the

scope of the search warrant. It is well-settled that when police are executing

a search pursuant to a valid search warrant, any “evidence seized, relating

to crimes not specified in the warrant, which was inadvertently found, may

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be admitted as evidence in the trial of those crimes.” Commonwealth v.

Doria, 574 A.2d 653, 656 (Pa. Super. 1990) (en banc).

     Based on the foregoing, we find no error in the trial court’s denial of

Wormley’s suppression motion. Accordingly, we affirm Wormley’s judgment

of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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