J-S67021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

JOHN SCHEFFLER

                           Appellant                      No. 833 EDA 2016


    Appeal from the Judgment of Sentence entered on January 29, 2016
           In the Court of Common Pleas of Northampton County
 Criminal Division at Nos.: CP-48-CR-0002423-2015 & CP-48-CR-0002507-
                                   2015


BEFORE: ELLIOT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.                            FILED OCTOBER 11, 2016

      John Scheffler appeals from the judgment of sentence to serve two

and one-half to five years’ incarceration plus $17,861.00 restitution, entered

on January 29, 2016, after he pleaded guilty to two counts of burglary,

following the denial of his motion to suppress DNA evidence. We affirm.

      At the pre-trial hearing in this matter, the parties stipulated to the

following facts. In 2014, police conducted an investigation that implicated

Appellant in a string of burglaries in Northampton County.               During this

investigation,    Appellant’s   co-conspirator   signed    a   written    statement

admitting that she and Appellant burglarized two residences in Forks

Township.        (Case No. 2507-2015).      Several witnesses also identified

Appellant’s car, license plate, and physical build, implicating him in other



*Former Justice specially assigned to the Superior Court.
J-S67021-16


burglaries in Williams Township and Upper Mount Bethel Township.         (Case

No. 2423-2015).        In addition, police found a cigarette butt at one of the

burglarized residences. Police submitted the cigarette butt for DNA testing

to the Combined DNA Index System (CODIS) in an attempt to identify the

DNA donor.

       Based on the CODIS results, Pennsylvania Police sought a New Jersey

warrant to obtain a DNA sample from Appellant who was incarcerated in

Warren County, New Jersey at the time.1          A Pennsylvania state trooper

prepared an affidavit to secure a warrant.        In March 2015, the Warren

County prosecutor submitted the affidavit to the Honorable Robert B. Reed

of the Superior Court of New Jersey, who determined the affidavit to have

probable cause. Judge Reed issued a warrant, authorizing the New Jersey

police to take buccal swabs from Appellant.2 The DNA test results confirmed

that Appellant’s DNA matched the evidence found on the cigarette butt at

the crime scene in Pennsylvania.

       In June 2015, the Commonwealth brought charges against Appellant

for Case Nos. 2507-2015 and 2423-2015 in a consolidated case. In August

2015, Appellant pleaded guilty but withdrew his guilty plea in October 2015.

____________________________________________


1
 In October 2014, Appellant pleaded guilty to burglaries committed in 2011,
2012, and 2013 in New Jersey.
2
 A Pennsylvania officer accompanied a New Jersey officer to the Warren
County jail to obtain the DNA sample.



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In January 2016, Appellant filed a motion to suppress the DNA results. The

trial court denied Appellant’s motion to suppress the DNA evidence. On the

same day, Appellant agreed to plead guilty to two counts of burglary. See

18 Pa.C.S. § 3502(a)(2).       Appellant specifically preserved his right to

challenge the trial court’s suppression ruling.      Appellant filed a timely

Pa.R.A.P. 1925(b) statement.    In March 2016, the trial court filed its opinion

relying on its January 2016 opinion.

      Appellant presents one question on appeal.

      1.    Should DNA evidence taken subject to a warrant in New
      Jersey at the request of the Pennsylvania State Police, based
      solely on the facts occurring in Pennsylvania, and used solely for
      prosecution in Pennsylvania be suppressed as gained
      constitutionality?

Appellant’s Brief at 7.

      As the Commonwealth prevailed below, we review the denial of

Appellant’s motion to suppress pursuant to the following standard:

      [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 factual findings of the trial court, we are
      bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error.

Commonwealth v. Jackson, 907 A.2d 540, 542 n.6 (Pa. Super. 2006)

(quoting Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003)).               In

this case, “we need only determine whether the application for the search

warrant and accompanying affidavit was sufficient to establish probable




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cause for the search warrant under Pennsylvania law.” Commonwealth v.

Dennis, 618 A.2d 972, 980 (Pa. Super. 1992) (citations omitted).

       Notably, Appellant failed to, inter alia, support his claim with citation

to relevant authority, develop the legal issue, and challenge the warrant in a

meaningful way, risking waiver on both arguments. See McEwing v. Lititz

Mut. Ins. Co., 77 A.3d 639, 647 (Pa. Super. 2013).3           Notwithstanding,

Appellant’s failure to cite relevant legal authority and develop the issue has

not hindered our review of his appeal.

       First, Appellant argues that the trial court erred when it denied his

motion to suppress DNA evidence because it was taken “solely for the

purpose of prosecution in Pennsylvania” without a warrant issued by a

Pennsylvania court.         Appellant’s Brief at 8.   Appellant contends that

Pennsylvania police exceeded their authority when they obtained a warrant

to take Appellant’s DNA sample while Appellant was incarcerated in New

Jersey. Appellant’s argument is without merit.

       The relevant Pennsylvania Rule of Criminal Procedure states: “[a]

search warrant may be issued by any issuing authority within the judicial

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3
  Appellant cites cases that do not support his position, including: Camara
v. S.F. Mun. Ct., 387 U.S. 523, 528 (1967) (establishing that Fourth
Amendment warrant requirement applies to searches of private dwellings for
suspected violations of California housing code); New Jersey v. T.L.O., 469
U.S. 325 (1985) (establishing a reasonableness standard for warrantless
searches in a public school setting based on the substantial interest in
maintaining discipline in the classroom and on school grounds).



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district wherein is located either the person or place to be searched.” See

Pa.R.Crim.P. 200.       This statute plainly authorizes Pennsylvania courts to

issue a warrant where it has jurisdiction over “the place or person to be

searched.” Id. It follows that police officers must obtain warrants from the

jurisdiction where the person, places, or effects to be searched or seized are

located. See id.; see also Commonwealth v. Ryan, 400 A.2d 1264, 1268

(Pa. 1979) (concluding that failure to recognize valid warrants issued in the

appropriate jurisdiction would lead to illogical results because judges’

authority to issue warrants is limited to the confines of their judicial district).

Both Pennsylvania and New Jersey have adopted the same “totality of

circumstances test” for evaluating probable cause. See Dennis, 618 A.2d

at 616-17 & n.6 (citing State v. Novembrino, 519 A.2d 820 (N.J. 1985)).4

Officers may use evidence seized pursuant to a warrant obtained through

the cooperation among officers in Pennsylvania and New Jersey in

Pennsylvania proceedings. See Commonwealth v. Corbo, 440 A.2d 1213,

1215 (Pa. 1980).

       In this case, Pennsylvania Police needed to work with officials outside

of Pennsylvania because Appellant was incarcerated New Jersey at the time.

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4
  New Jersey has “consistently characterized probable cause as a common-
sense practical standard for determining the validity of a search warrant.”
Novembrino, 519 A.2d at 835; see also State v. Kasabucki, 244 A.2d
101, 116 (N.J. 1987) (balancing of government need for enforcement of
criminal law against citizens’ privacy right).



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The assistance of a New Jersey police officer was necessary to execute the

warrant.      See Commonwealth v. Kunkel, 408 A.2d 475, 476-77 (Pa.

Super. 1978) (motion to suppress reversed: warrant was not defective just

because police officers were acting beyond the scope of their jurisdiction).5

Appellant’s suggestion that “Pennsylvania Courts have imposed higher

standards on searches and seizures” than New Jersey courts also fails.

Appellant’s Brief at 10.       Based on Dennis, the trial court did not err in

concluding that the New Jersey warrant satisfied the standards for obtaining

a warrant in Pennsylvania. Therefore, the trial court’s ruling was correct,

“under the Pennsylvania standard or the New Jersey Standard, the search

warrant was supported by sufficient probable cause.”       Trial Court Opinion,

01/29/2016, at 3.

       Appellant’s second argument maintains that he had “no way to

challenge the efficacy of the warrant in Pennsylvania Court.”       Appellant’s

Brief at 8.    However, his argument fails because it is the challenge to the

warrant that is the very basis of his appeal.        See Commonwealth v.

Hallowell, 383 A.2d 909, 912 (Pa. 1978) (holding that Appellant was

entitled to rehearing on suppression motion because he did not know about

the evidence until trial and “the opportunity did not previously exist” to
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5
  “[T]he Rules of Criminal Procedure do not prescribe procedures for the
delivery of the warrant from the issuing magistrate to the executing officer,
nor do we believe that a prescription is necessary.” Kunkel 408 A.2d at 477.




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challenge it).6    Appellant had notice when the evidence was seized that a

Pennsylvania police officer was present when the New Jersey officer took the

DNA sample and that the Commonwealth would use the DNA evidence in the

Pennsylvania proceeding. Unlike in Hallowell, Appellant had an opportunity

to challenge the warrant in his pretrial motion to suppress the DNA

evidence. Accordingly, Appellant’s second argument is devoid of merit.

       Even if Appellant had raised the argument that the warrant lacked

probable cause, we hold that the warrant and the evidence obtained

therefrom were admissible in the Pennsylvania proceedings. 7             For the

reasons above, we discern no error in the trial court’s decision to deny

Appellant’s pretrial motion. Accordingly, he is entitled to no relief.

       Judgment of sentence affirmed.



       Ford Elliot, P.J.E. Joins the Memorandum.


____________________________________________


6
 Contrastingly, a defendant may have grounds for suppression if he did not
know about the evidence before trial. See Hallowell, 383 A.2d at 912.
7
  Appellant does not challenge whether there was probable cause for the
New Jersey court to issue the warrant, failing to address Dennis, 618 A.2d
at 980. “Probable cause exists when an officer has knowledge of sufficient
facts and circumstances, gained through trustworthy information, to warrant
a prudent man to believe that the person seized has committed a crime.”
See Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa. 1992). The affidavit
established probable cause through: (1) information obtained by the Police
from a co-defendant/co-conspirator, and (2) Appellant’s DNA found on a
cigarette butt found at one of the burglarized residences.



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     Stevens, P.J.E. Concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




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