J-A20033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               : IN THE SUPERIOR COURT OF
                                               : PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAVELLE JOHNSON,                           :
                                               :
                       Appellant               : No. 1082 WDA 2017


             Appeal from the Judgment of Sentence June 27, 2017
              in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0000765-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED OCTOBER 18, 2018

        Lavelle Johnson (“Johnson”) appeals from the judgment of sentence

entered following his conviction of one count each of possession of a controlled

substance (heroin), and possession with intent to deliver a controlled

substance (heroin).1 We affirm.

          On November 23, 2014, at approximately 2:43 a.m., Pittsburgh Police

officers were dispatched to 2143 Rhine Street, Apartment 2D, for a call

regarding possible shots fired. Upon arriving at the apartment’s door, officers

heard loud talking and shouting inside of the apartment, and noticed an odor

of marijuana. Narcotics Agent Joseph Barna (“Agent Barna”) knocked on the

door of Apartment 2D, and could hear whispering and movement inside of the

____________________________________________


1   35 P.S. § 780-113(a)(16), (30).
J-A20033-18


residence. Agent Barna also heard the sound of metal hitting the floor inside

the apartment. Believing the sound to be a firearm, Agent Barna told the

other officers to take cover outside of the apartment. Several minutes after

police first knocked, a female opened the door to the apartment.          Upon

entering the apartment, officers encountered Johnson, Eli Herring (“Herring”),

Kent Morton (“Morton”), Jaquayla Kendrick (“Kendrick”) and Jemera Hibbler

(“Hibbler”).   The officers began “clearing the residence for possibly hurt

people.” N.T., 5/24-25/16, at 73. While clearing the area, Agent Barna saw,

in a closet with an open door, one full brick and a partial brick of suspected

heroin, comprised of packages wrapped in “pornographic paper.” Id. at 74.

Another officer found several firearms in a closet. Agent Barna also found 15

stamp bags of heroin on top of the kitchen cupboard. The officers arrested all

occupants of the apartment. In a search of Johnson incident to his arrest,

officers recovered two cell phones and U.S. currency.

      Officers subsequently sought and were granted a search warrant for the

apartment.     Upon execution of the search warrant, officers seized a

Pennsylvania identification card for Herring, suspected heroin, a digital scale,

ammunition, cellular telephones, U.S. currency, and a small amount of

suspected marijuana.     Pursuant to a second search warrant, Pittsburgh

Computer Crime Unit detectives analyzed the contents of the Samsung cell

phone recovered from Johnson.




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        Johnson filed an Omnibus Pretrial Motion to suppress the evidence

seized by police after their entry to the apartment and upon execution of a

search warrant. After a hearing, the suppression court denied the Motion.

Johnson also filed a supplemental Motion to suppress the digital contents of

his cell phone, which, after a hearing, the suppression court also denied.

        The matter proceeded to a jury trial, of Johnson and his four co-

defendants, on the charges of possession with intent to deliver heroin,

possession of heroin and possession of a small amount of marijuana, see 35

P.S. § 780-113(a)(32).2       However, on May 25, 2016, the Honorable David R.

Cashman (“Judge Cashman”) declared a mistrial. Thereafter, the case was

reassigned to the Honorable Thomas E. Flaherty (“Judge Flaherty”).

        Johnson filed a Motion to bar his retrial, claiming a violation of his

constitutional protection against double jeopardy. Judge Flaherty denied the

Motion.     Following a bench trial, Judge Flaherty found Johnson guilty of

possession with intent to deliver heroin and possession of heroin, but not

guilty of possession of a small amount of marijuana. Thereafter, for his

conviction of possession with intent to deliver heroin, the trial court sentenced

Johnson to one to two years in prison, with a credit of 94 days for time served.3




____________________________________________


2   The firearms charges were severed from the narcotics charges for trial.

3 Johnson’s conviction of possession of heroin merged for sentencing
purposes.

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Johnson filed a timely Notice of Appeal, followed by a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

      Johnson now raises the following issues for our review:

      1. Whether Judge Cashman erred in granting a mistrial[,] sua
         sponte, and, upon his reassignment of the case to Judge
         Flaherty, his honor erred in denying [Johnson’s] Motion to Bar
         the second trial under state and federal double jeopardy
         principles?

      2. Whether the trial court erred in denying [Johnson’s]
         supplemental Omnibus Pretrial Motion and not suppressing
         evidence seized from a cell phone because the search warrant
         for the cell phone lacked probable cause and was overbroad, in
         violation of the Fourth Amendment to the United States
         Constitution and Article I, Section 8 of the Pennsylvania
         Constitution?

Brief for Appellant at 5.

      Johnson first claims that Judge Cashman improperly declared a mistrial,

sua sponte, and consequently, Judge Flaherty erred by denying Johnson’s

Motion to bar a retrial on double jeopardy grounds. Id. at 28. Citing this

Court’s decision in Commonwealth v. Kelly, 797 A.2d 925 (Pa. Super.

2002), Johnson argues that in the instant case, there was no “manifest

necessity” warranting Judge Cashman’s declaration of a mistrial.      Brief for

Appellant at 35. According to Johnson, the key similarities between this case

and the circumstances in Kelly are that “in both cases[,] the mistrial was

declared due to the behavior of defense counsel in conducting themselves;

and in both cases, the record was inadequate to demonstrate that the jury

hearing the case could not decide the case impartially.” Id. at 34.


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      Johnson further argues that Judge Cashman improperly failed to

consider less drastic options, thereby rendering the sua sponte declaration of

a mistrial unsupported by manifest necessity. Id. at 36. Johnson points out

that there was no on-the-record discussion of less drastic remedies other than

the declaration of a mistrial. Id. at 37. In addition, Johnson observes, the

mistrial was declared because of defense counsel’s legitimate advocacy. Id.

      “It is within a trial judge’s discretion to declare a mistrial sua sponte

upon the showing of manifest necessity, and absent an abuse of that

discretion, we will not disturb his or her decision.”       Commonwealth v.

Walker, 954 A.2d 1249, 1254 (Pa. Super. 2008) (en banc) (citations

omitted).

      In accordance with the scope of our review, we must take into
      consideration all the circumstances when passing upon the
      propriety of a declaration of mistrial by the trial court. The
      determination by a trial court to declare a mistrial after jeopardy
      has attached is not one to be lightly undertaken, since the
      defendant has a substantial interest in having his fate determined
      by the jury first impaneled. Commonwealth v. Stewart, 456
      Pa. 447, 452, 317 A.2d 616, 619 (1974), citing United States v.
      Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971).
      Additionally, failure to consider if there are less drastic
      alternatives to a mistrial creates doubt about the propriety of the
      exercise of the trial judge’s discretion[,] and is grounds for barring
      retrial[,] because it indicates that the court failed to properly
      consider the defendant’s significant interest in whether or not to
      take the case from the jury. Commonwealth, ex rel. Walton
      v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976). Finally, it is well
      established that any doubt relative to the existence of manifest
      necessity should be resolved in favor of the defendant.
      [Commonwealth v.] Bartolomucci, 468 Pa. [338,] 347, 362
      A.2d [234,] 239 [(Pa. 1976)].




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Commonwealth v. Diehl, 615 A.2d 690, 691 (Pa. 1992); accord Kelly, 797

A.2d at 936-37. Nevertheless,

     [w]e do not apply a mechanical formula in determining whether a
     trial court had a manifest need to declare a mistrial. Rather,
     varying and often unique situations arise during the course of a
     criminal trial ... [and] the broad discretion reserved to the trial
     judge in such circumstances has been consistently reiterated[.]

Commonwealth v. Orie, 88 A.3d 983, 996-97 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

     In Kelly, upon which Johnson relies, the trial judge decided to recuse

himself, and declare a mistrial sua sponte. Kelly, 797 A.2d at 933. The trial

judge felt compelled to do so, stating that he could not fairly judge the case

based upon his rancor with the prosecutor. Id. Specifically, the trial court

informed the jury that

     [t]he issue of a mistrial typically comes up in the context of a
     [j]udge acting to assure a fair trial for a [d]efendant. I would see
     no reason why that same concern should not be afforded [to] the
     Commonwealth, although I acknowledge that when there is any
     doubt as to the manifest [necessity] of declaring a mistrial, that
     doubt must be resolved in the [d]efendant’s favor….

     … My frustration in all honesty, has been with [c]ounsel for the
     Commonwealth in this matter, and his manner in which he has
     conducted the case on behalf of the Commonwealth….

Id. When the Commonwealth sought to retry the defendants, the defendants

filed motions to dismiss and bar re-prosecution on double jeopardy grounds.

Id. at 935. The trial court granted the defendants’ motions. Id.

     On appeal, this Court reversed the trial court, holding that “we are not

convinced that the trial judge’s obvious frustration with the ‘bombastic’

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prosecutor   and   concern    that   he   might   appear    biased   against   the

Commonwealth, without clear impact on the jury, would support a

determination of manifest necessity.” Id. at 938. This Court explained that,

“[t]o automatically grant a mistrial whenever the prosecution, through its trial

conduct, is ‘shooting [itself] in the foot with the jury,’ the trial judge would

often, in effect, be unconstitutionally exercising his authority to help a

prosecution that is going badly by affording the state another more favorable

opportunity to convict the accused.” Id. at 939. Thus, “if the Commonwealth

makes mistakes which damage its prosecution, it is not entitled to a second

bite at the apple due to its poor performance.” Id. at 940.

      Here, it was actions of defense counsel, and not the Commonwealth,

that precipitated the declaration of a mistrial. At trial, an issue arose regarding

whether defense counsel had agreed to the Commonwealth’s offer to stipulate

that no DNA, fingerprint, or gunshot residue testing was conducted by police

on the items seized from Apartment 2D. The issue first arose during the cross-

examination of Agent Barna by Johnson’s counsel, Kenneth Haber, Esquire

(“Attorney Haber”):

      Q. [Attorney Haber:] I’m not sure you are the precise person to
      ask this, but you are up there now so I’ll ask it. Did you know of
      any gunshot residue tests that were administered to anybody?

      A. [Agent Barna:] You’ll have to refer to [Pittsburgh Police Officer
      Clayton Black (“Officer Black”)].

      Q. As far as you know, you have no knowledge?

      A. No knowledge.

                                       -7-
J-A20033-18



          [The prosecutor, Lawrence Sachs, Esquire (“Attorney
          Sachs”)]: The Commonwealth would be willing to
          stipulate that no such test was performed.

          THE COURT: Okay.

          [Attorney Haber]: Thank you.

N.T., 5/24-25/16, at 109-10 (emphasis added). Thus, it appears from the

record that Attorney Haber agreed to the Commonwealth’s offer of a

stipulation.

        During the cross-examination of Agent Barna, counsel for Morton

(Angela Carsia, Esquire (“Attorney Carsia”)) and counsel for Kendrick (Patrick

Sweeney, Esquire (“Attorney Sweeney”)) each asked Agent Barna whether

the 15 glassine stamp bags seized by police underwent DNA analysis or testing

for fingerprints, and each time, Agent Barna responded in the negative. Id.

at 117-18, 120-22.

        During the cross-examination of Agent Barna, Hibbler’s counsel, Jacob

McCrea, Esquire (“Attorney McCrea”)4 made the same inquiry:

        Q. [Attorney McCrea:] And not to belabor a point that has already
        been made by the other four lawyers, but we have no fingerprints
        or DNA connecting [Hibbler] with the scale, the heroin, the
        marijuana, or anything else in that apartment; correct?

          [Attorney Sachs]: Your Honor, if it would help the [c]ourt
          and the [j]ury, the Commonwealth would stipulate there
          is no DNA or fingerprint evidence of any kind.

          THE COURT: Okay.
____________________________________________


4   Attorney McCrea represents Johnson in the present appeal.

                                           -8-
J-A20033-18



        [Attorney McCrea]: We will accept that. Your Honor, I
        have nothing further for Agent Barna. Thank you, sir.

        [Agent Barna]: Thank you sir.

        [Attorney McCrea]: Just as a follow[ ]up to the stipulation—

        THE COURT: No. [Attorney Sachs], do you have anything on
        redirect?

        [Attorney Sachs]: Yes, Your Honor.

Id. at 125 (emphasis added).     Thus, Hibbler’s counsel also agreed to the

Commonwealth’s proposed stipulation.

     During the recross-examination of Agent Barna, counsel for Johnson,

Attorney Haber, again asked about the lack of fingerprint or DNA testing,

notwithstanding his prior agreement to the Commonwealth’s stipulation:

     Q. Detective, the issue of submission of items for DNA or
     fingerprints, it is not that there is no -- anybody’s DNA or prints
     on these items, the more accurate thing to say about it would be
     it was never looked for; correct?

     A. Due to budgetary issues, we did not do the DNA, fingerprint.

     Q. I understand the reason may be budgetary, but I just want to
     clarify, it wasn’t even attempted?

     A. We did not send it to get fingerprinted.

Id. at 131.

     Attorney Haber raised the issue again during his cross-examination of

Pittsburgh Police Officer Jenny Monteleone (“Officer Monteleone”):

     Q. [Attorney Haber:] Are you the one who retrieved those three
     guns?


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J-A20033-18


     A. [Officer Monteleone:] Yes.

     Q. Did you do so with care, so to speak?

     A. Yes. I do believe I had gloves on.

     Q. You had gloves on?

     A. Yes.

     Q. Is that your general practice?

     A. Yes.

     Q. Why do you do that?

     A. Typically, if a firearm is recovered, we try to maintain it, if there
     is any DNA evidence on there.

     Q. Or fingerprint evidence?

     A. Yes.

     Q. Have you recovered guns with gloves on before?

     A. Yes.

     Q. Have you submitted them for those two tests?

     A. Yes.

     Q. Was that done in this case?

     [Attorney Sachs]: Your Honor, the Commonwealth has
     previously stipulated that none of these items were sent
     for either DNA or fingerprint examination.

     THE COURT: I thought you already did.

     [Attorney Sachs]: I did, but I was hoping to do that so we
     wouldn’t have to keep hearing the same questions for
     every witness.

Id. at 143-44 (emphasis added).

                                     - 10 -
J-A20033-18


      Notwithstanding the reminder of his prior agreement to the stipulation,

Attorney Haber pursued this same inquiry during his cross-examination of

Officer Black:

      Q. [Attorney Haber:] In terms of the evidence that was gathered,
      after the search warrant, the heroin, and there were some
      firearms; correct?

      A. [Officer Black:] Correct.

      Q. Now, you would make the decision as to what gets submitted
      to the lab or not; correct?

      A. Well, we have policies, I mean, that certain things get
      submitted to the Crime Lab. Certain things get submitted to the
      property room. So I’m under those constraints. I can’t decide
      this goes here or -- I don’t necessarily have that option.

      Q. And do you remember testifying at the preliminary hearing
      that was referenced a few moments ago, the District Attorney, not
      [Attorney] Sachs, but [counsel] asked you, “And all of the
      firearms, were they submitted for prints --” meaning fingerprints,
      “and DNA?” Do you remember being asked that?

      A. I don’t remember it specifically, but that’s usually the question
      that is asked.

        [Attorney Sachs]: Once again, the Commonwealth objects to
        the relevance of this line of inquiry. We already stipulated that
        nothing was submitted for testing of that sort.

        [Attorney Haber]:    I don’t accept that stipulation.

        THE COURT: I’m sorry?

        [Attorney Haber]: On behalf of [] Johnson, I don’t accept that
        stipulation.

        THE COURT: You didn’t object to it.

        [Attorney Haber]: I didn’t stipulate yesterday.


                                     - 11 -
J-A20033-18


         THE COURT: No. That issue has always been resolved.

     [Q. Attorney Haber to the witness:] You did submit this for
     fingerprint –

     THE COURT: No, [Attorney] Haber, that issue has already been
     resolved. The guns weren’t submitted for fingerprints and they
     weren’t submitted for DNA.

     [ATTORNEY] HABER: Yes, they were.

     THE COURT: Thank you. Move on.

     …

     (The following discussion was held at sidebar.)

     [Attorney Haber]: I do understand the [c]ourt’s ruling, but I do
     feel compelled, on behalf of my client, to at least create a record
     for why I was asking the questions and the evidence that I can
     proffer as to the foundation for it. At the preliminary hearing, this
     officer, who is on the stand now, [Officer] Black, testified in
     response to the District Attorney’s question, that he submitted all
     of the firearms and drugs for fingerprints and DNA testing. He
     was asked, “Are the results back? Are they still pending?” He said,
     “They are still pending.” I do believe it is a relevant inquiry in a
     case such as this, where five people are in a house where they
     don’t live in.   And I do understand the [c]ourt’s ruling, but in
     order to preserve the issue for appeal, I do feel compelled that I
     have to make the record. And I apologize to the [c]ourt. I’m not
     trying to do anything but represent my client on issues that I
     believe are relevant.

     THE COURT: I already ruled on it.

     [Attorney Haber]: I understand.

     THE COURT: Thank you.

     (End of sidebar.)

Id. at 188-93.




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      The next day, all counsel for the defendants approached the trial court

to make the following inquiry, outside of the presence of the jury:

      [Attorney Sweeney]: Your Honor, on behalf of [] Kendrick, I think
      I’m speaking for all five of us, with respect to the stipulation, it
      sort of came to a head during [Attorney] Haber’s cross-
      examination, and what we are allowed to ask and what we are not
      allowed to ask.      There was an offer to stipulate, by the
      prosecution, that I don’t believe any of us really stood up and
      accepted. It was just sort of understood there is no DNA or
      fingerprint evidence against any of our clients, and we know there
      will not be none submitted; however, we did not believe that
      would preclude us from asking why. In particular[,] with respect
      to Officer Black’s testimony, he was asked at the preliminary
      hearing, by the prosecutor at the preliminary hearing, if the
      firearms were submitted for prints and DNA. He said they were.
      “Are those results pending? Are the results back or are they still
      pending.” He indicated, “They are pending.” We would like to ask
      about those issues and who made the decisions, what was
      submitted, and what was not, what was tested and what was not.
      We think those are still relevant. We obviously know there isn’t
      any DNA or fingerprint evidence that will be introduced. We do
      believe we should be able to ask about and argue about those
      questions. So to clarify what we are stipulating to and what we
      are not stipulating to –

      THE COURT: I don’t think there needs to be any clarification of
      anything. I already ruled on that issue. No.

      [ATTORNEY] SWEENEY: We would just like to make that record.

      THE COURT: Would anybody else like to add their two cents?

      [ATTORNEY] McCREA: Just for clarification –

      THE COURT: Clarification on what?

      [ATTORNEY] McCREA: Are you saying we can’t argue that they
      should have gotten DNA evidence?

      THE COURT: No. I said you didn’t object to the stipulation. You
      accepted the stipulation. It is not relevant.


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J-A20033-18


     [ATTORNEY] McCREA: And I do not wish to belabor that point in
     any way, shape or form.

     THE COURT: Then why are you? Go right ahead. Belabor it all
     you want.

     [ATTORNEY] McCREA: No, it wouldn’t serve any purpose.

     [ATTORNEY] WESTCOTT: Your Honor, for the record, [Attorney]
     Westcott on behalf of [] Herring. I don’t believe I ever stipulated.
     [Attorney] Sachs said he would stipulate. And I believe you said,
     “Move on.” I don’t believe we ever accepted the stipulation or
     that we intended to accept the stipulation. Nevertheless, I want
     to put that on the record.

     THE COURT: You didn’t reject the stipulation.

     [ATTORNEY] WESTCOTT:        I’m not sure I didn’t reject it, but I
     didn’t accept it.

     THE COURT: Okay. We’ll start all over. I’ll declare a mistrial and
     you can start all over. You can take [the defendants] back. We
     are done.

     [ATTORNEY] SWEENEY:        Your Honor, we are not asking for a
     mistrial.

     THE COURT: I granted it.    [Attorney] Haber already asked for it.

     [ATTORNEY] HABER: I didn’t ask for a mistrial.

     THE COURT: Yeah, you are going to get one. You have attempted
     to trample on every ruling I made, and you haven’t had the
     courtesy to look me in the eye. You are talking to people over
     there. We are done.

     [ATTORNEY] SACHS:       I would ask the [c]ourt to reconsider its
     decision.

     THE COURT: I’ll see you at 1:30. Bring your lawyers.

     (RECESS)

     …

                                    - 14 -
J-A20033-18



     THE COURT [to all defense counsel]: I have a collective question
     for all of you. What is so difficult about understanding the word
     “no?” Nobody wants to talk? Everybody wanted to talk this
     morning. [Attorney] Haber pulled that little stunt at the end of
     the day—or at the end of the morning session, having [Attorney]
     Sweeney act as his stag horse, because he was afraid I was going
     to hold him in contempt, and I would have. Nobody wants to
     address that question?

     [Richard Narvin, Esquire (“Attorney Narvin”):] … I’m here on
     behalf of [Attorney] McCrea, who is one of the attorneys here. I
     think I would ask the Court to elaborate a bit as to directly how
     that question affects [Attorney] McCrea and in what context.

     THE COURT: [Attorney] McCrea, if I can repeat his statement, “I
     don’t want to belabor the point, but –” I had already ruled on it
     four times.

     [ATTORNEY] NARVIN: So there is a specific question you believe
     he kept asking when you told him not to?

     THE COURT: Yes.

     [ATTORNEY] NARVIN: So, do you recall what that question is?

     [ATTORNEY] McCREA: My recollection, [Attorney] Narvin, was
     that I wished for a clarification from the Court regarding the
     parameters of what the Court had already ruled on, on the one
     hand, and what was still permissible argument in questioning on
     the other, rather –

     THE COURT: What courtroom were you in this morning?

     [ATTORNEY] McCREA: Your Honor’s courtroom.

     THE COURT: What you needed a clarification on was beyond me.
     It was real [sic] simple. The question of whether or not the items
     were submitted and the reason why they were not was irrelevant.

     [ATTORNEY] NARVIN: Well, in response, Your Honor, I’ve known
     [Attorney] McCrea for some time, and I believe he was attempting
     to advocate on behalf of his client. I don’t think he meant any


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J-A20033-18


     disrespect towards you, towards the [c]ourt, or the Criminal
     Justice System.

     THE COURT: Well, you weren’t here.

     [ATTORNEY] NARVIN: I appreciate that, Your Honor, but I’m
     trying to get that established for the record.

     THE COURT: [Attorney] Westcott?

     [ATTORNEY] WESTCOTT: I do know now your position. I do know
     now with clarity what your order was, and is, and remains. And I
     do understand “no.”

     [Counsel for Attorney Carsia]: On behalf of my client, [Attorney]
     Carsia, she is going to abide by whatever ruling this Court makes.
     She has nothing to say about any issue that she has with the
     Court’s ruling. Whatever the [c]ourt rules, she is going to abide
     by. I’m here on her behalf. I don’t think she really spoke today
     about anything. She is here to comply with whatever the [c]ourt
     desires.

     [Counsel for Attorney Haber]: … [Attorney] Haber was not clear
     on whether or not there was a stipulation, and if there was, the
     scope of the stipulation.

     THE COURT: What courtroom was he in yesterday?

     [Counsel for Attorney Haber]: This courtroom, Your Honor. So if
     he was mistaken, he certainly stands corrected. He was inquiring
     into a line of cross-examination that he believed was outside the
     scope of the stipulation, and he apologizes for the inconvenience
     to the Court and any stress created.

     THE COURT: What I’m going to do is recuse myself, because I
     can guarantee you these defendants cannot get a fair trial because
     of the disrespect that has been demonstrated by counsel in this
     matter. We are going to declare a mistrial, and you can be
     reassigned to another courtroom. Thank you.

     [Counsel for Attorney Carsia]: Thank you, Your Honor.

     THE COURT: [Attorney] Haber, why don’t you put an inventory of
     your cases together, so I can see where I can send them, too.

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      [ATTORNEY] HABER: There was no disrespect intended, Your
      Honor.

      THE COURT: Get an inventory of your cases. Thank you.

Id. at 214-22.

      Thus, the record reflects that at trial, Johnson’s counsel, Attorney Haber,

initially agreed to a stipulation, then ignored his agreement repeatedly.

Further, Attorney Haber later denied having agreed to the stipulation. Judge

Cashman’s concern over the prejudice resulting from Attorney Haber’s

conduct, and his potential bias, and his finding of manifest necessity

warranting the declaration of a mistrial, are supported by the record. Further,

the record does not support a finding that any alternative existed other than

the declaration of a mistrial.

      As this Court emphasized in Kelly, “the public’s interest in fair trials

designed to end in just judgments … is negatively impacted when a prejudicial

element is injected or discovered at trial. In such a situation, a mistrial serves

to eliminate the prejudicial element and foster a just judgment.” Kelly, 797

A.2d at 939 (internal citations omitted).

      Undoubtedly, neither party has a right to have his case decided
      by a jury which may be tainted by bias; in these circumstances,
      the public’s interest in fair trials designed to end in just
      judgements must prevail over the defendant’s valued right to have
      his trial concluded before the first jury impaneled.

Id. (internal quotation marks and citations omitted).




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      While we are cognizant that doubts relative to the existence of manifest

necessity should be resolved in favor of the defendant, the decision to declare

a mistrial sua sponte is left to the sound discretion of the trial court. Kelly,

797 A.2d at 936. Utilizing this standard of review, and upon consideration of

the aforementioned facts, we conclude there was no abuse of discretion in

Judge Cashman’s decision.       Because we conclude that Judge Cashman

declared a mistrial due to manifest necessity, we further conclude that it

correctly denied Johnson’s Motion to bar his retrial. See id. (concluding that,

when the trial court declares a mistrial sua sponte due to manifest necessity,

neither the Fifth Amendment to the United States Constitution, nor Article I,

§ 10 of the Pennsylvania Constitution will bar retrial).

      Johnson next claims that the suppression court improperly denied his

supplemental Motion to suppress the digital evidence recovered from his cell

phone. Brief for Appellant at 38. Johnson alleges that the warrant to search

his cell phone was not supported by probable cause. Id. at 38-39. In support,

Johnson points out that no narcotics, evidence of drug use, or firearms were

found on his person.    Id. at 44.   Further, Johnson asserts that four other

individuals were in the house at the time, making it less likely that the

narcotics and firearms seized from the residence belonged to Johnson. Id.

Further, Johnson argues that he was not the lessor of the apartment in which

the firearms and narcotics were found. Id. Because no evidence connected




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him to the firearms or narcotics, Johnson asserts that there was no probable

cause to search his cell phone. Id.

     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. We are bound by the suppression
     court’s factual findings so long as they are supported by the
     record; our standard of review on questions of law is de novo.
     Where, as here, the defendant is appealing the ruling of the
     suppression court, we may consider only the evidence of the
     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted. Our scope of review of suppression
     rulings includes only the suppression hearing record and excludes
     evidence elicited at trial.

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa. Super. 2017) (citations

omitted).

     A search warrant must be supported by probable cause. U.S. CONST.

AMEND. IV; PA. CONST. ART. I, § 8. “Probable cause exists where the facts and

circumstances within the affiant’s knowledge and of which he has reasonably

trustworthy information are sufficient in themselves to warrant a man of

reasonable caution in the belief that a search should be conducted.”

Commonwealth v. Torres, 177 A.3d 263, 270 (Pa. Super. 2017) (citations

omitted).

     Before an issuing authority may issue a constitutionally valid
     search warrant, he or she must be furnished with information
     sufficient to persuade a reasonable person that probable cause
     exists to conduct a search. The standard for evaluating a search
     warrant is a “totality of the circumstances” test as set forth in
     Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d

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      527 [] (1983), and adopted in Commonwealth v. Gray, [] 503
      A.2d 921, 503 A.2d 921 ([Pa.] 1985). A magistrate is to make a
      practical, common sense decision whether, given all the
      circumstances set forth in the affidavit before him, including the
      veracity and basis of knowledge of persons supplying hearsay
      information, there is a fair probability that contraband or evidence
      of a crime will be found in a particular place. The information
      offered to establish probable cause must be viewed in a common
      sense, nontechnical manner. Probable cause is based on a finding
      of the probability, not a prima facie showing of criminal activity,
      and deference is to be accorded a magistrate’s finding of probable
      cause.

Commonwealth v. Rapak, 138 A.3d 666, 670-71 (Pa. Super. 2016) (some

internal quotation marks and citation omitted).

      In the instant case, the Affidavit of Probable Cause underling the search

warrant for the cell phone stated, in relevant part, as follows:

      Your affiants are members of the Pittsburgh Bureau of Police
      currently assigned as patrol officers in Zone 1. Affiant [Officer]
      Black has been a police officer with the City of Pittsburgh since
      July of 2011 and assigned to Zone 1 since June 2012. Affiant
      [Officer] Black has made numerous arrests for firearms and
      controlled substances.

      Affiant [Officer] Marabello has been a police officer since 1991 and
      a police officer for the City of Pittsburgh since May of 2000. Affiant
      [Officer] Marabello has been assigned to the Narcotics and Vice
      Unit since September of 2006 to November of 2013. Affiant
      [Officer] Marabello has been involved in over three hundred
      undercover purchases of illegal narcotics with your affiant
      purchasing drugs hand to hand from drug dealers.               Affiant
      [Officer] Marabello has also been involved in, or supervised
      hundreds of controlled purchases of illegal narcotics. Affiant
      [Officer] Marabello has extensively interviewed hundreds of
      individuals involved in selling or using illegal narcotics. These
      individuals have provided your affiants with detailed information
      concerning how illegal narcotics are sold and used. In addition to
      standard state mandated police training[, Officer Marabello] has
      received additional training in narcotics[,] including DEA Narcotics
      Investigation Course, PA Attorney General’s Top Gun Narcotics

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J-A20033-18


     Investigation Course, as well as other courses related to narcotics
     investigations. Affiant [Officer] Marabello [(Affiants Black and
     Marabello hereinafter collectively referred to as “Affiants”)] has
     worked jointly in narcotics investigations with other agencies
     including the DEA, FBI, Pennsylvania State Attorney General’s
     Office, and the Allegheny County Police Narcotic’s Unit[.]

     ….

     On 11/23/14 at 0243 hours your [A]ffiants received a 911
     dispatch call where the complaintant [sic] wished to remain
     annonymous [sic]. The call stated that shots were fired inside of
     … Apt 2D. Affiants went to this apartment[.]

     Affiants approached the front door of Apt 2D and smelled a strong
     odor of burning marijuana coming from inside of the apartment
     and could hear individuals moving inside of Apt 2D. Affiants
     knocked and announced their presence fearing someone might be
     shot or injured inside. Affiants continued to knock for several
     minutes with no response. A female later identified as [] Hibbler
     eventually opened the door.

     Affiants did a protective sweep of the apartment and detained five
     (5) individuals. [] Herring … [,] [] Johnson … [,] [] Morton … [,]
     [] Kendrick … [,] [and] Hibbler …. During the protective sweep
     Officers observed in plain view two (2) bricks of heroin on a shelf.
     For officer safety, officers did a cursory search for firearms.
     Officers recovered three stolen firearms hidden together above
     the apartment’s hot water tank. The five detained individuals
     were then placed under arrest. Officers secured the apartment
     and obtained a search warrant.

     [In a] [s]earch incident to arrest[,] Officers recovered two cell
     phones from [] Johnson and two cell phones from [] Morton[.]

     The Apartment Search [W]arrant was signed on 11/23/14 at 0600
     hours by District Justice Zoller. Officers executed the warrant at
     approximately 0610 hours. Officers conducted a systematic
     search of the residence. Officers recovered an additional 717
     stamp bags of heroin and three cell phones from the living room
     area.

     From previous drug investigations your affiants have been
     involved with, your Affiants have become aware that persons

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J-A20033-18


      involved in the trafficking of controlled substances regularly use
      cellular telephones to accomplish their trafficking activities. These
      persons additionally maintain within their cellular telephones,
      information that includes the telephone numbers of persons to
      whom they distribute controlled substances[], the telephone
      numbers of persons from whom they obtain controlled substances
      to distribute, abbreviations or acronyms for the persons to whom
      they distribute controlled substances[], the persons from whom
      they obtain controlled substances to distribute, and pictures of
      controlled substances, firearms, and quantities of monies [sic].

Affidavit of Probable Cause, 3/15/15.

      Summarizing, the Affidavit of Probable Cause averred that the police

received a call regarding shots fired inside of Apartment 2D; when officers

knocked on the door of Apartment 2D, they heard voices inside, but no one

opened the door for several minutes; officers found Johnson and four other

persons inside of Apartment 2D; as officers conducted a protective sweep of

the apartment, they found, in plain view, two bricks of heroin and three

firearms; Johnson possessed two cell phones on his person; and, during the

execution of a search warrant for Apartment 2D, officers seized an additional

717 stamp bags of heroin and three additional cell phones. See id.

      Thus, the evidence established that Johnson was in close proximity to

firearms and evidence of the distribution of heroin. Based upon the foregoing,

the evidence established probable cause for officers to believe that additional

evidence of narcotics distribution would be found on Johnson’s cell phone.

Consequently, we cannot grant Johnson relief on this claim.




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J-A20033-18


       Johnson also argues that the warrant to search his cell phone was

overbroad.5 Brief for Appellant at 39, 45. Johnson claims that

       there was no limitation whatsoever as to the date or time frame
       of the potential evidence, nor is there any limitation to the
       evidence which is potentially relevant to the sole issue(s) in the
       case: whether the guns and drugs found in the apartment were
       possessed by [Johnson] or someone else.

Id. at 48. Johnson posits that the scope of the warrant at issue is dramatically

more broad than the search warrant in Commonwealth v. Dougalewicz,

113 A.3d 817 (Pa. Super. 2015), which, Johnson acknowledges, survived an

overbreadth challenge.        Brief for Appellant at 48.   Johnson compares the

instant warrant to the search a flash drive in Orie, which was held to be

unconstitutionally overbroad. Id. at 49. According to Johnson, the issue in

this case was whether Johnson possessed the narcotics and/or firearms found

in the apartment. Id. at 50. Johnson contends that “where ... the alleged

criminal acts took place over a short period of time[,] and were factually

simple, the scope of … a valid search warrant[] should be narrowed

accordingly.” Id.

       Article I, Section 8 of the Pennsylvania Constitution provides, in

pertinent part, that “no warrant to search any place or to seize any person or



____________________________________________


5 In its Opinion, the trial court opined that this issue was not preserved for
appellate review. See Trial Court Opinion, 3/13/18, at 4. However, our
review discloses that Johnson raised this issue in his Supplemental Omnibus
Pretrial Motion. See Supplemental Omnibus Pretrial Motion, 5/10/16, at
¶¶ 25-26. It is thus preserved for our review.

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J-A20033-18


things shall issue without describing them as nearly as may be, nor without

probable cause ....” PA. CONST. ART. I, § 8.

      It is a fundamental rule of law that a warrant must name or
      describe with particularity the property to be seized and the
      person or place to be searched. ... The particularity requirement
      prohibits a warrant that is not particular enough and a warrant
      that is overbroad. These are two separate, though related, issues.
      … A warrant unconstitutional for its overbreadth authorizes in
      clear or specific terms the seizure of an entire set of items, or
      documents, many of which will prove unrelated to the crime under
      investigation …. An overbroad warrant is unconstitutional because
      it authorizes a general search and seizure.

      .…

      The language of the Pennsylvania Constitution requires that a
      warrant describe the items to be seized “as nearly as may be ....”
      The clear meaning of the language is that a warrant must describe
      the items as specifically as is reasonably possible.          This
      requirement is more stringent than that of the Fourth
      Amendment, which merely requires particularity in the
      description. The Pennsylvania Constitution further requires the
      description to be as particular as is reasonably possible ....
      Consequently, in any assessment of the validity of the description
      contained in a warrant, a court must initially determine for what
      items probable cause existed. The sufficiency of the description
      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 and the description in the
      warrant requires suppression. An unreasonable discrepancy
      reveals that the description was not as specific as was reasonably
      possible.

Orie, 88 A.3d at 1002-03 (citations omitted).       “Because the particularity

requirement in Article I, Section 8 is more stringent than in the Fourth

Amendment, if the warrant is satisfactory under the Pennsylvania Constitution

it will also be satisfactory under the federal Constitution.” Id. at 1003.




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J-A20033-18


       In Orie, the defendant, a Pennsylvania Supreme Court justice, was

charged with, inter alia, theft of state property and theft by the diversion of

services with regard to the misuse of state personnel and property, for her

political campaign. Orie, 88 A.3d at 990. This Court found that a warrant to

search the defendant’s flash drive was overbroad where it sought “any

contents contained therein, including all documents, images, recordings,

spreadsheets or any other data stored in digital format.” Orie, 88 A.3d at

1008. The Court stressed that there was no limitation to account for non-

criminal use of the flash drive. Id.6

       Here, unlike in Orie, the warrant to search Johnson’s cell phone sought

evidence regarding the ongoing distribution of narcotics by Johnson and his

co-defendants. The affidavit attached to the March 31, 2015, supplemental

search warrant averred that

       [f]rom previous drug investigations your [A]ffiants have been
       involved with, your Affiants have become aware that persons
       involved in the trafficking of controlled substances regularly use
       cellular telephones to accomplish their trafficking activities. These
       persons additionally maintain within their cellular telephones,
       information that includes the telephone numbers of persons to
       whom they distribute controlled substances to, the telephone
       numbers of persons from whom they obtain controlled substances
____________________________________________


6 By contrast, in Dougalewicz, the defendant, a girls’ softball coach, was
accused of sexually assaulting a 14-year-old player on the team.
Dougalewicz, 113 A.3d at 820-21. This Court upheld a warrant to search
the contents of the defendant’s cell phone, for a defined period of time, for
text messages, phone calls and picture mail to or from the defendant in regard
to the victim. Id. at 828.



                                          - 25 -
J-A20033-18


      to distribute, abbreviations or acronyms for the persons to whom
      they distribute controlled substances to, the persons from whom
      they obtain controlled substances to distribute, and pictures of
      controlled substances, firearms, and quantities of monies.

Affidavit of Probable Cause, 3/31/15, at 1.

      Unlike in Orie, evidence of a narcotics distribution enterprise would not

be limited to a distinct period of time, a limited number of people, or a

particular form of digital file. Therefore, the breadth of the search warrant

was necessary and reasonable due to the digital storage capacity of the

electronic device to be searched at that time.    See Dougalewicz, supra.

Under these circumstances, we cannot conclude that the supplemental search

warrant was constitutionally overbroad.       Accordingly, we cannot grant

Johnson relief on this claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2018




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