J-A24030-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                              IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA
                            Appellant

                       v.

OMONT WIGGINS,

                            Appellee                           No. 2578 EDA 2013


                     Appeal from the Order August 8, 2013
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0001600-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

DISSENTING MEMORANDUM BY PLATT, J.:                        FILED DECEMBER 09, 2014

        I respectfully dissent from the learned Majority’s decision to affirm the

order of the trial court.      From my review, I conclude that any deviations

from the rules for obtaining and executing a search warrant were mere

technical    non-compliance        which       did   not    deprive   Appellee   of    any

constitutional rights or substantially prejudice him. In particular, I disagree

with the conclusion that the record does not show that the police obtained a

warrant before conducting the search of Appellee’s apartment.                         (See

Majority Memorandum, at 7, 9, 12). I would vacate the order of suppression

and remand for trial.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      The record reflects that, prior to conducting the search, Officer Michael

Davis applied for a search warrant in the early morning on a Sunday using

the established process for contacting an on-call magisterial district judge

through county dispatch. (See N.T. Suppression Hearing, 3/26/12, at 36-

37, 87). District Judge Jay S. Friedenberg, whom Officer Davis had never

met, contacted the officer and asked him to explain the circumstances of the

warrant application. (See id. at 87, 104; see also N.T. Statement on the

Record, 8/08/13, at 6).       Officer Davis testified that, because Judge

Friedenberg’s audio/visual equipment was not functioning properly, he told

Officer Davis that they would handle the search warrant process using the

telephone and fax machine. (See N.T. Suppression Hearing, 3/26/12, at 87-

88, 109-10).   Officer Davis faxed the warrant application and affidavit to

Judge Friedenberg, and the officer swore to the truth and accuracy of the

affidavit while under oath over the telephone.     (See. id. at 87-88, 103).

Judge Friedenberg signed the warrant at 7:00 a.m., Officer Davis received

the fax “within minutes,” and he “left and went right over [to Appellee’s

residence located approximately] three minutes” from the police station.

(Id. at 92; see also id. at 44, 108; Commonwealth’s Exhibit 3). The time

listed on the inventory for commencement of the search is 7:17 a.m. (See

N.T. Suppression Hearing, 3/26/12, at 39-40; see also Commonwealth’s

Exhibit 1).

      Although the machine-generated fax tags indicate that police received

the signed warrant at 7:48 a.m., approximately one half-hour after the time

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listed on the inventory for commencement of the search, Officer Davis

unequivocally testified that police did not go into the apartment to conduct

the search before receiving the signed warrant.          (See N.T. Suppression

Hearing, 3/26/12, at 90-93, 108; see also Commonwealth’s Exhibits 1, 3).

Officer David Chiofolo corroborated Officer Davis’s testimony, stating that he

held post at the door of Appellee’s residence “[t]o secure the apartment and

[make sure] no one entere[d] the apartment prior to us obtaining a search

warrant to enter.”       (N.T. Suppression Hearing, 3/26/12, at 114).    Officer

Chiofolo further testified that no one searched the apartment before

obtaining the signed search warrant and that Officer Davis returned the

apartment with the executed warrant “a couple [of] minutes after [7:00

a.m.].”    (Id. at 115).       Sergeant Richard Schaffer likewise testified that

Officer Davis arrived at the apartment with the signed search warrant before

they began the search. (See id. at 38-39, 44).1

       Based on the foregoing, I do not agree with the learned Majority’s

conclusion that the record does not show that police obtained the warrant
____________________________________________


1
  To the extent the Majority relies on the purported “sweep” of the
apartment before the search (Majority Memorandum, at 8), “the parties at
the hearing did not dwell on the scope—or even the existence—of the so-
called ‘sweep,’ and it was not mentioned in the search-warrant affidavit.”
(Trial Court Opinion, 2/19/14, at 5) (emphasis added). A review of the
suppression hearing transcript reflects that, prior to the search, police
secured the apartment and posted Officer Chiofolo at the door to make sure
no one entered while police were in the process of obtaining the warrant.
(See N.T. Suppression Hearing, 3/26/12, at 38, 89-90, 114-15). Officer
Davis testified that there was no “sweep” before the search. (Id. at 91).



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before searching Appellee’s apartment.       Furthermore, I conclude that the

violations of our Rules of Criminal Procedure made during the search warrant

process,    (see   N.T.   Statement     on   the     Record,    8/08/13,   at    3;

Commonwealth’s Brief, at 8-9), were merely technical in nature and did not

implicate fundamental, constitutional concerns or substantially prejudice

Appellee.   See Commonwealth v. Ruey, 892 A.2d 802, 808 (Pa. 2006)

(Opinion Announcing the Judgment of the Court) (suppression of evidence is

not appropriate remedy for every violation of Pennsylvania Rules of Criminal

Procedure concerning searches and seizures, and suppression may be

necessary   only   when   violations   assume      constitutional   dimensions   or

substantially prejudice accused); see also Commonwealth v. Wholaver,

989 A.2d 883, 898 (Pa. 2010), cert. denied, 131 S.Ct. 332 (2010) (citing

Commonwealth v. Mason, 490 A.2d 421 (Pa. 1985) (drastic remedy of

automatic exclusion for technical violation of rules unwarranted).         I would

vacate the grant of suppression and remand the case for trial.

     Accordingly, I respectfully dissent.




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