J-S78042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
FREDERICK ANDREW POSTIE,                   :
                                           :
                   Appellant               :            No. 17 MDA 2014

      Appeal from the Judgment of Sentence entered on December 6, 2013
               in the Court of Common Pleas of Schuylkill County,
                 Criminal Division, No. CP-54-CR-0001119-2012

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 26, 2015

        Frederick Andrew Postie (“Postie”), pro se, appeals from the judgment

of sentence imposed after a jury convicted him of four counts each of

burglary, criminal trespass, theft by unlawful taking, and receiving stolen

property, as well as two counts of criminal conspiracy.1, 2 We affirm.

        The trial court set forth the procedural history and relevant facts

underlying this appeal in its Pa.R.A.P. 1925(a) Opinion, which we incorporate

herein by reference. See Trial Court Opinion, 3/25/14, at 1-5.

        At the close of trial, the jury convicted Postie of the above-mentioned

offenses.    Following Postie’s filing of a Notice of Appeal, and a pro se

Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal, the

1
    See 18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 3921(a), 3925(a), 903(a)(1).
2
 Postie currently has an unrelated appeal pending in this Court, at docket
number 2442 EDA 2014, concerning his separate criminal case in the Carbon
County Court of Common Pleas.
J-S78042-14

trial court filed its Pa.R.A.P. 1925(a) Opinion. In response, Postie filed a pro

se Application for relief with this Court, requesting that we grant him

permission to file an Amended Rule 1925(b) Concise Statement with the trial

court. This Court granted Postie’s Application, after which Postie filed a pro

se Amended Rule 1925(b) Concise Statement, and the trial court filed an

Amended Rule 1925(a) Opinion.

      On appeal, Postie presents the following issues for our review:

      1) Did the trial court err when it denied suppression of
         statements made by [Postie to police,] and [inculpatory
         evidence seized from Postie’s] cell phone[,] where police,
         lacking probable cause and acting outside of their territorial
         jurisdiction, seized [Postie] and subjected him to a custodial
         interrogation, coercing his statement[s] by confronting him
         with illegally seized items?

      2) Did the trial court err and deny [Postie] due process by not
         conducting a hearing to address [Postie’s] Petition to
         proceed in a self-representative role?

      3) Did the trial court err when it denied [Postie’s] Motion to
         dismiss the conspiracy charges pursuant to section 110 of
         the Pennsylvania Crimes Code?

      4) Did the trial court err by sentencing [Postie] for multiple
         conspiracy charges, burglary[,] and the act in which the
         burglarious entry resulted in[, graded] as felony 1’s[,]
         where the facts only supported felony 2’s, and by improperly
         failing to credit [Postie] for time spent in custody prior to
         trial?

      5) Did the trial court abuse it’s [sic] discretion by relying on a
         deficient pre-sentence report during sentencing and then
         failing to state its reason[s] [for the sentence imposed] on
         the record?

      6) Was [Postie] denied due process when the prosecuting
         authorities failed to provide a video of the custodial
         interrogation?

                                  -2-
J-S78042-14


Brief for Appellant at 4 (some capitalization omitted).3

      First, Postie argues that the suppression court erred in failing to

suppress (1) his inculpatory written and oral statements made to police

officers   (hereinafter       “the   interviewing   officers”)   during     the    interview

conducted at the Summit Hill Police Department on February 28, 2012; and

(2) inculpatory evidence seized from his cell phone.                 See id. at 13-35.

Postie points out that the suppression court ruled that evidence, found by

police when executing a search warrant of Postie’s residence a few days

before the February 28, 2012 interview, was inadmissible because the items

seized were not specifically identified in the search warrant. See id. at 30-

32; see also Suppression Court Opinion, 5/30/13, at 5 (stating that “[t]he

application for the warrant simply stated that [the police] were searching for

‘stolen items from several burglaries in Rush Township.’ … Pa.R.Crim.P[].

215 does require that the applicant specifically identify the property to be

searched and seized, and appellate court decisions have consistently held

that a warrant can be held to be unlawful if this requirement is not met.”

(citations to case law omitted)). Postie contends that the suppression court

should     have    suppressed        his   inculpatory   statements,        made    to    the

interviewing      officers,   because      the   interviewing    officers   coerced      such


3
  We observe that Postie’s Argument section is voluminous. See Brief for
Appellant at 13-63. Moreover, Postie concedes that his brief slightly exceeds
the word limit contained in Pa.R.A.P. 2135. See Brief for Appellant at 64;
see also Pa.R.A.P. 2135(a)(1) (providing that a principal brief shall not
exceed 14,000 words). However, we will overlook this minor defect.

                                           -3-
J-S78042-14

statements by confronting Postie with the illegally seized evidence from his

residence. See Brief for Appellant at 30-35. Moreover, according to Postie,

the suppression court erred in failing to rule that (a) the interviewing officers

lacked probable cause to conduct a valid custodial interrogation; and (b) the

warrant to seize Postie’s cell phone was not supported by probable cause.

See id. at 13, 16-18, 28-30.

            Our standard of review of a denial of suppression is
      whether the record supports the trial court’s factual findings and
      whether the legal conclusions drawn therefrom are free from
      error. Our scope of review is limited; we 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.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en

banc) (citation omitted).

      Initially, we observe that the evidence seized from Postie’s cell phone

pursuant to a warrant was not used at trial. Accordingly, this issue is moot.

      Regarding the admissibility of Postie’s inculpatory statements to the

interviewing officers, the suppression court set forth the applicable law,

thoroughly addressed Postie’s challenge concerning this evidence, and

determined that the court properly refused to suppress Postie’s statements.

See Suppression Court Opinion, 5/30/13, at 6-14.           Because our review

confirms that the suppression court’s thorough and cogent analysis is




                                   -4-
J-S78042-14

supported by the record and the law, we affirm on this basis with regard to

Postie’s first issue. See id.4

      Next, Postie argues that the trial court erred by depriving him of his

constitutional right to proceed pro se at trial. See Brief for Appellant at 36-

43. Postie points out that, prior to trial, he sent the trial court judge a pro

se Petition invoking his right to represent himself (hereinafter “the Petition

for self-representation”).5      Id. at 37.   Although Postie concedes that he

subsequently expressed that he wanted defense counsel to represent him at

trial, according to Postie, defense counsel “coerce[d] Postie into acquiescing

to his will.” Id.; see also id. at 41-42. Postie further argues that the trial

court erred in failing to conduct a hearing on the Petition for self-

representation. Id. at 39-41.

      The trial court addressed Postie’s claim concerning the Petition for self-

representation in its Pa.R.A.P. 1925(a) Opinion, and properly rejected it,

reasoning   that   it   is   “disingenuous”   based   upon   Postie’s   subsequent

expression that he wanted to be represented by defense counsel at trial.

See Trial Court Opinion, 3/25/14, at 9.           The trial court’s rationale is

4
  As an addendum, to the extent that Postie challenges the jurisdiction of the
interviewing officers, he correctly observes in his brief that “[a]rgument
[regarding this matter] was not forwarded by [Postie’s] trial counsel as to
the Municipial Police Jurisdiction Act[, 42 Pa.C.S.A. § 8951 et seq.,] violation
and[,] thus, [this claim is] waived for purposes of this appeal.” Brief for
Appellant at 13; see also Pa.R.A.P. 302(a) (providing that “issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”).
5
  Postie was represented by defense counsel when he filed the Petition for
self-representation.

                                     -5-
J-S78042-14

supported by the record, and we therefore affirm on this basis with regard to

this claim. See id. Moreover, we find no merit to Postie’s bald allegation

that defense counsel coerced Postie into being represented by counsel at

trial, nor do we discern any error or abuse of discretion by the trial court in

not conducting a full hearing on the Petition for self-representation.

        In his third issue, Postie argues that the trial court erred when it

denied defense counsel’s oral Motion to dismiss the conspiracy charges

pursuant to the compulsory joinder rule, codified at 18 Pa.C.S.A. § 110.6

See Brief for Appellant at 44-45. Specifically, Postie contends that section

110 mandated dismissal of these charges because (1) he was previously

convicted of conspiracy in Northampton County; and (2) these conspiracies

were a part of the same criminal episode, and occurred during the same


6
    Section 110 provides, in relevant part, as follows:

      Although a prosecution is for a violation of a different provision of the
      statutes than a former prosecution or is based on different facts, it is
      barred by such former prosecution under the following
      circumstances:

      (1) The former prosecution resulted … in a conviction … and the
      subsequent prosecution is for:

        ***

        (ii) any offense based on the same conduct or arising from the
        same criminal episode, if such offense was known to the
        appropriate     prosecuting   officer  at   the    time   of the
        commencement of the first trial and occurred within the same
        judicial district as the former prosecution unless the court
        ordered a separate trial of the charge of such offense[.]

18 Pa.C.S.A. § 110(1)(ii) (emphasis added).

                                     -6-
J-S78042-14

timeframe. See Brief for Appellant at 44 (arguing that “[t]he Northampton

[C]ounty charge allegedly took place on January 1, 2012, while the

Schuylkill [C]ounty charges allegedly occurred between the dates of

December 12, 2011[,] and January 13, 2012. Hence, it would be illogical to

assume these were separate conspiracies.”).

      As noted above, the compulsory joinder rule only bars a subsequent

prosecution if all charges were within the same judicial district as the former

prosecution. See 18 Pa.C.S.A. § 110(1)(ii); see also Commonwealth v.

Miskovitch, 64 A.3d 672, 686 (Pa. Super. 2013). The compulsory joinder

rule is inapplicable in the instant case because Northampton and Schuylkill

Counties are different judicial districts. Therefore, this claim does not entitle

Postie to relief.

      Postie’s fourth issue is actually comprised of several distinct sub-

issues, which we will address separately.        First, Postie argues that the

sentencing court erred in failing to credit him for 59 days that he had served

in jail (hereinafter “the disputed time”) while awaiting sentence on the

instant charges.    See Brief for Appellant at 46.    According to Postie, the

disputed time was not credited to any of his other sentences imposed in

other counties. Id. We disagree.

      At Postie’s sentencing hearing, after considering argument from both

parties concerning the disputed time, the sentencing court determined that

Postie was not entitled to have the disputed time credited toward the

sentence imposed in this case because he had served the disputed time,

                                   -7-
J-S78042-14

outside of Schuylkill County, toward a sentence imposed on another case.

See N.T., 12/6/14, at 8-9; see also Amended Trial Court Opinion, 5/30/14,

at 3 (stating that “[Postie] had no credit for the instant case[,] as he had

been serving a Carbon County sentence during his period of incarceration.”).

Accordingly, there is no merit to Postie’s claim for credit regarding the

disputed time. See 42 Pa.C.S.A. § 9760(4) (providing that credit for time

served on a sentence can only be granted when it has not already been

credited toward another sentence); see also Commonwealth v. Pardo, 35

A.3d 1222, 1231 n.14 (Pa. Super. 2011) (applying section 9760(4) and

concluding that the appellant was not entitled to credit for time that had

already been credited toward a sentence imposed in a different jurisdiction).

     Also in his fourth issue, Postie contends that the sentencing court

erred in sentencing him for his two burglary convictions, graded as

first-degree felonies, because the burglarized buildings in question do not

meet the statutory definition of an “occupied structure.”      See Brief for

Appellant at 48-51, 52-54. According to Postie, “[t]he facts only support a

finding of unoccupied structures in which no individual was present,

consistent with a charge of second-degree felonies.” Id. at 54.7

     At the time that Postie was charged, the Crimes Code defined the




7
  We observe that Postie does not challenge the sufficiency of the evidence
supporting the burglary convictions.

                                 -8-
J-S78042-14

offense of burglary,8 and set forth the grading of the offense, as follows:

      (a) Offense defined.-- A person is guilty of burglary if he
      enters a building or occupied structure, or separately secured or
      occupied portion thereof, with intent to commit a crime therein,
      unless the premises are at the time open to the public or the
      actor is licensed or privileged to enter.

      ***

      (c) Grading.—

          (1) Except as provided in paragraph (2), burglary is a
          felony of the first degree.

          (2) If the building, structure or portion entered is not
          adapted for overnight accommodation and if no individual
          is present at the time of entry, burglary is a felony of the
          second degree.

18 Pa.C.S.A. § 3502(a), (c); see also 18 Pa.C.S.A. § 3501 (defining

“occupied structure” as “[a]ny structure, vehicle or place adapted for

overnight accommodation of persons, or for carrying on business therein,

whether or not a person is actually present.”).

      With this in mind, our review discloses that the trial court addressed

this claim in its Pa.R.A.P. 1925(a) Opinion and properly rejected it.         See

Trial Court Opinion, 3/25/14, at 8. We affirm with regard to this claim based

on the trial court’s rationale. See id.

      Additionally, Postie challenges the language of section 3502(c),

asserting that the phrase “adapted for overnight accommodation” is

unconstitutionally ambiguous. See Brief for Appellant at 48-53; see also 18


8
  The burglary statute was amended after the charges were filed against
Postie.

                                  -9-
J-S78042-14

Pa.C.S.A. § 3502(c)(2). Postie has waived this challenge, since he did not

raise it in his court-ordered Rule 1925(b) Concise Statement.              See

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that

“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”);

see also Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in

the [Concise] Statement … are waived.”). Likewise, Postie has waived his

challenge to the trial judge’s jury instruction concerning the burglary statute

and the phrase “occupied structure,” see Brief for Appellant at 53-54, since

he did not raise this challenge in his Concise Statement. See Lord, supra.

      Postie next contends that the sentencing court erred in imposing

separate sentences on his two convictions of conspiracy to commit burglary:

one, a first-degree felony for the burglary of 714 Claremont Avenue; and the

other, a second-degree felony for the burglary of 716 Claremont Avenue.

See Brief for Appellant at 44-45 (arguing that “[s]ince it would be illogical to

assume [that] these two separate conspiracies to burglarize both buildings

occurred at separate times[,] when the crimes themselves happened

simultaneously, they should be viewed as a single conspiracy to burglarize

both buildings.”). We disagree. The trial court properly sentenced Postie on




                                 - 10 -
J-S78042-14

both of his conspiracy convictions,9,   10
                                             since the convictions concerned two

separate conspiracies, and burglaries of two different properties, which

occurred at different times. See, e.g., Commonwealth v. Andrews, 768

A.2d 309, 316 (Pa. 2001) (holding that the appellant was properly convicted

of, and sentenced on, two separate counts of conspiracy to commit robbery

where “the crimes involved different victims, were carried out at different

apartment buildings, in different parts of the city, and were separated by

three hours. In addition, the crimes were not interdependent, as where one

offense is a ‘necessary intermediate step’ to committing a later offense.”

(citation omitted)).

      Finally, Postie argues that the sentencing court erred in failing to

merge his sentences for burglary with his sentences for criminal trespass,

since criminal trespass was the object of the burglaries.         See Brief for

Appellant at 47-48;11 see also 18 Pa.C.S.A. § 3502(d) (providing that “[a]


9
   Postie does not raise a challenge to the sufficiency of the evidence
supporting his separate conspiracy convictions.         See Pa.R.A.P. 302(a)
(stating that a claim cannot be raised for the first time on appeal); see also
Lord, supra.
10
  We additionally observe that the sentencing court ordered the sentence
imposed on Postie’s second count of conspiracy to run concurrently with the
sentence imposed on the first count.
11
    Postie has failed to develop this claim in any meaningful fashion. See
Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (stating
that “[t]his Court will not become the counsel for an appellant, and will not,
therefore, consider issues which are not fully developed in the brief. … An
issue that is not properly briefed … is considered waived ….” (citations
omitted)). Nevertheless, we decline to deem this claim waived because the
trial court concisely addressed it in its Pa.R.A.P. 1925(a) Opinion.

                                 - 11 -
J-S78042-14

person may not be sentenced both for burglary and for the offense which it

was his intent to commit after the burglarious entry or for an attempt to

commit that offense, unless the additional offense constitutes a felony of the

first or second degree.”).

      The trial court concisely addressed this claim in its Pa.R.A.P. 1925(a)

Opinion and properly rejected it.    See Trial Court Opinion, 3/25/14, at 8.

We affirm with regard to this claim based on the trial court’s rationale. See

id.

      In his fifth issue, Postie argues that the sentencing court committed

reversible error by relying upon a “deficient” pre-sentence investigation

report (hereinafter “PSI”), which was prepared without his having been

interviewed,12 and did not contain mitigating information concerning his

background. See Brief for Appellant at 55-59. Specifically, Postie contends

that the sentencing court failed to consider the following mitigating factors:

      [Postie] is not a career criminal[;] Postie’s prior record score is a
      one; he holds a Master Certification in automobile repair from
      the Automotive Service Excellence Group; at the time of his
      incarceration[,] he owned and operated his own small business
      …; he is married and supported a family for more than 18 years;
      he was currently completing his degree in Psychology[; and
      Postie] is an avid volunteer in his community[.]

Id. at 56. Postie additionally asserts that the sentencing court abused its

discretion by failing to adequately state its reasons for the sentence imposed

on the record. Id. at 55, 58.


12
  The record confirms Postie’s assertion that he was not interviewed before
the PSI was filed. See N.T. (sentencing), 12/6/14, at 21.

                                  - 12 -
J-S78042-14

        Postie’s claim essentially raises a challenge to the discretionary

aspects of his sentence, from which there is no absolute right to appeal.

See Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather,

where the appellant has preserved the discretionary sentencing claim for

appellate review by raising it at sentencing or in a timely post-sentence

motion, the appellant must (1) include in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that

there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code. Hill, 66 A.3d at 363-64.

        Here, Postie included a Rule 2119(f) concise statement in his brief.

However, he has waived his claim that the sentencing court failed to set

forth adequate reasons on the record for the sentence imposed because he

failed to preserve it either at sentencing or in a post-sentence motion. See

Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 2009)

(stating that “[i]ssues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.          Absent such efforts, an

objection to a discretionary aspect of a sentence is waived.”).

        Concerning Postie’s allegation that the sentencing court erred by

relying upon a “deficient” PSI,13 and failing to consider certain mitigating

factors, such a claim does not necessarily raise a substantial question. See

13
     Postie preserved this claim by raising it at sentencing.

                                    - 13 -
J-S78042-14

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (noting

that a claim that the sentencing court failed to consider certain mitigating

factors   generally   does   not   raise     a   substantial   question);   see also

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (stating that,

where the sentencing court had the benefit of a PSI, an appellate court can

“presume that the sentencing judge was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.”). However, in the instant case, we deem

that Postie’s claim presents a substantial question, given that he was not

interviewed prior to preparation of the PSI to provide mitigating information.

See, e.g., Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724-25 (Pa.

Super. 2013) (holding that an appellant’s claim that the sentencing court

abused its discretion by imposing sentence without ordering a PSI, or failing

to give a reason on the record for not ordering a PSI, presents a substantial

question).

      Accordingly, we will address the merits of Postie’s claim, mindful of our

standard of review: “Sentencing is a matter vested in the sound discretion

of the sentencing judge, and a sentence will not be disturbed on appeal

absent a manifest abuse of discretion.”           Commonwealth v. Bricker, 41

A.3d 872, 875 (Pa. Super. 2012) (citation omitted).

      A review of the transcript from Postie’s sentencing hearing reveals that

Postie’s defense counsel, in fact, brought many of the above-mentioned

mitigating factors to the attention of the sentencing judge.                See N.T.,

                                    - 14 -
J-S78042-14

12/6/14, at 5-6, 8-12, 25-26. Moreover, both Postie and his wife testified at

the sentencing hearing and presented mitigating information. See id. at 15-

25. Additionally, Postie stated his opinion to the sentencing judge that the

PSI “was a completely negative report done without my knowledge[,]” id. at

20, and, in response, the judge gave Postie an opportunity to offer any

mitigating information and/or contest anything in the PSI that he considered

erroneous.   See id. at 20-25.    In the trial court’s Amended Rule 1925(a)

Opinion, the court stated that “[t]he [sentencing] court considered all of the

material produced at the sentencing hearing prior to promulgating the

sentence that it did. None of the discrepancies [that Postie] identified in the

[PSI] played any part in his sentence.”       Amended Trial Court Opinion,

5/30/14, at 2. Accordingly, we discern no abuse of discretion by the court in

sentencing Postie.

      Finally, Postie argues that his due process rights were violated because

the Commonwealth failed to provide him with a copy of the video recording

of his confession to the interviewing officers. See Brief for Appellant at 60-

61;14 see also Trial Court Order, 5/30/13 (ordering the Commonwealth to

provide to Postie a copy of any recording of the police interview of Postie

conducted on February 28, 2012, if such recording existed).


14
   Postie concedes, however, that “this [C]ourt [has] determined that ‘the
Pennsylvania Constitution does not require contemporaneous recording of
statements and that the adoption of a rule requiring contemporaneous
recording of custodial interrogation should be left to the Pennsylvania
Supreme Court or the General Assembly[.]’” Brief for Appellant at 61
(quoting Commonwealth v. Harrell, 65 A.3d 420, 429 (Pa. Super. 2013)).

                                 - 15 -
J-S78042-14

          The trial court addressed this claim in its Amended Rule 1925(a)

Opinion as follows: “[N]o such video tape was entered into evidence at trial,

and no such video tape exists because the machinery used to attempt to

produce such a video malfunctioned.            It was not possible to produce

something that did not exist.” Amended Trial Court Opinion, 5/30/14, at 3-

4; see also Trial Court Opinion, 3/25/14, at 9 (stating that “[t]his matter

was addressed at the suppression hearing[,] at which [one of the police

officers who interviewed Postie] testified that, although there were signs

informing individuals that interview sessions would be recorded, the tape

recording system was not functioning properly.”). Our review discloses that

the trial court’s rationale is supported by the record, and we therefore affirm

on this basis in determining that Postie’s final issue does not entitle him to

relief.     See Amended Trial Court Opinion, 5/30/14, at 3-4; Trial Court

Opinion, 3/25/14, at 9.

          For the foregoing reasons, we discern no abuse of discretion or error of

law by the trial court, and we therefore affirm Postie’s judgment of sentence.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2015




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    IN THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY--CRIMINAL


COMMONWEALTH OF PENNSYLVANIA                          NO.    1119-2012

                    vs.                                                                      ..)
                                                                                            ,   -,-
                                                                              :"r:
                                                                              c::
FREDERICK ANDREW POSTlE

                                                                             r-      ,-,j

      Jennifer Lehman, Esq., Assistant District Attorney - for the CommonV'(~-alth 0
            Christopher Hobbs, Esq., Public Defender - for the Defendant .:::      U

                                 OPINION OF COURT

DOMALAKES, J.

      The Defendant is charged with fifty-one (51) counts, including Burglary, Criminal

Trespass, Theft by Unlawful Taking, Receiving Stolen Property, Criminal Mischief, and

Loitering and Prowling at Nighttime, which involved a series of burglaries in Rush

Township, Schuylkill County, Pennsylvania. He was also charged with a series of

burglaries in Carbon County. Defendant filed an Omnibus Pretrial Motion seeking

suppression of evidence found pursuant to a search warrant and also seeking

suppression of evidence seized as a result of a consensual search of the premises of

Kerry Hoffman and Michael Christman in Nesquehoning, Carbon County, Pennsylvania,

and is seeking suppression of verbal and written inculpatory statements given by him to

police. Defendant has also raised an issue in a pretrial request that his case be

severed from cases involving his Co-Defendants in this case. A hearing on his Motion

was held as scheduled on April 1, 2013, at which Kerry Hoffman and Michael

Christman, who are occupants of the premises at 68 West Center Street,

Nesquehoning, Carbon County, Pennsylvania; Lori Leinhard, a police officer with the
                                                                         Circulated 01/08/2015 04:11 PM




Summit Hill Police Department; Timothy Wuttke, a police officer for the Nesquehoning

Police Department; Sergeant Duane Frederick, of the Rush Township Police

Department; and the Defendant all testified. The parties requested until May 1, 2013, to

file briefs. The Court granted the request. Both requested an extension of time for the

briefing schedule, to May 16, 2013, which extension was granted by the Court. Both

parties have filed same. The Court has reviewed the relevant record and the foregoing,

and the matter is now ripe for disposition.

       The first issue raised by Defendant is that all evidence seized from the property

located at 626 Fairview Street, Tamaqua, Schuylkill County, Pennsylvania, pursuant to

Sgt. Frederick's February 21,2012, Search Warrant should be suppressed. The Court

finds, as relevant credible evidence on this issue, that a Search Warrant was issued

pursuant to an Affidavit of Probable Cause on February 21,2012, and that the search

was performed that particular day. The justification for the Search Warrant consisted of

statements Defendant himself had given to Sgt. Frederick specifically describing items

that had been stolen during the rash of burglaries. Prior to questioning, the Defendant

had been given his Miranda warnings. The questioning occurred when the Defendant

had been subject to a vehicle stop and had attempted to flee. During the conversation

with Sgt. Frederick, the Defendant had been bragging about his participation in the

burglaries and how he had gotten away with stealing so many items. Officer Frederick

testified that this conversation took place prior to February 21,2012, when he had an

opportunity to talk with the Defendant. One of those conversations was at the police

department in Rush Township. He said it was maybe a week or two or maybe even a

couple of weeks before a subsequent interview with Defendant at the Summit Hill Police




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Department on February 28,2012. He had picked Defendant up on a warrant from

another county. Defendant told Officer Frederick about burglaries. Officer Frederick did

not believe him at first, but then Defendant told Officer Frederick of specific items that

were stolen during the burglaries he was investigating. Defendant told Frederick that he

was involved with burglaries and fencing items, and it would go through one, two, three,

four, or five people, so the items could not be traced. He was in custody at the time

based on a retail theft warrant from Northumberland County. He was given his Miranda

rights prior to the police officer talking to him. Commonwealth's Exhibit #4 in the record

is the application for the search warrant of Defendant's residence at 626 Fairview

Street, Tamaqua, Pennsylvania. In the Affidavit of Probable Cause supporting that

application, Officer Frederick affirmed that, on February 20 th , he had spoken with

Defendant at the Rush Township Police Station. Defendant voluntarily gave Officer

Frederick information of which the public was unaware in reference to burglaries

committed in Rush Township. Defendant told Officer Frederick that he knew where

stolen items were from the burglaries. This is exactly what Officer Frederick had

testified to at the time of the hearing. The Affidavit of Probable Cause further contains

information that Frederick went to a 36 E. Ludrow Street, Apartment 2, Summit Hill,

Pennsylvania, where he spoke with one Kerry L. Frank. Frank did allow the officer to

search that residence. Frederick found a PP&L power meter in the basement where

Defendant stated it would be. Kerry Frank told Officer Frederick that Defendant did

bring the power meter to his apartment. Kerry Frank did further tell the officer that

Frank saw other stolen items from a burglary in Rush Township in his basement that

were brought and removed by the Defendant. The Affidavit of Probable Cause also




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contains information that Officer Frederick went to 68 West Center Street,

Nesquehoning, where he spoke to Michael Christman who told Officer Frederick that

Defendant had brought him a hot water heater and then dropped off copper pipes at a

later time. Officer Frederick had discovered, during the course of his investigation, that

the water heater was stolen from a burglary in Rush Township, and there were several

different sizes of copper pipes seized from his residence. Officer Frederick affirmed

that, in the evening hours of February 20, 2012, he and another officer tried to make

contact with Annette Postie by knocking at the front door. They knocked to no avail.

Then they knocked at the back door where they saw, in plain view, copper pipes that

were laying in the grass. At this point, they left the residence.

       In reviewing the validity of an affidavit to determine if there was probable cause in

support of a search warrant, the viewing court does not look at each individual

circumstance but rather looks to the circumstances as a whole. Under that standard, 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 the

knowledge of the person supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place. Commonwealth v.

Hawkins, 45 A.3d 1123, appeal denied 53 A.3d 756 (Pa. Super. 2012). An affidavit

stating that police had been personally informed by a participant in the criminal act, as

to involvement of the defendant and location or storage place of fruits of illegal conduct

and specifically describing the premises to be searched supply probable cause for

issuance of the search warrant. Commonwealth v. Yohn, 414 A.2d 883 (Pa. Super.

1979). The Court concludes that the Affidavit of Probable Cause is adequate to support




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issuance of the search warrant. The information that had been received was from the

Defendant himself giving information about the burglaries of which the public was

unaware. The Defendant told Officer Frederick that one of the stolen items from the

burglaries would be a PP&L power meter, and, when Officer Frederick went to the home

in question, that of Kerry Frank, such an item was there. Frank, who was not an

informant in this case, but who is an independent witness, also told Officer Frederick

that Frank saw other stolen items from a burglary in Rush Township in his basement

that were brought and removed by the Defendant. The Affidavit also contains the

information from Michael Christman, who is an independent source and not an

informant, that Defendant is the one who brought him a hot water heater that had been

stolen, and dropped off copper pipes which had been stolen. The officer also personally

observed copper pipes at the residence of Defendant. This is sufficient, under the

applicable standards, to establish probable cause. However, the Search Warrant in this

particular case is attacked on another basis - that being a technical one - that the items

to be searched for and seized were not specifically identified in the Search Warrant.

Defendant is correct on this issue. The application for the warrant simply stated that

they were searching for "stolen items from several burglaries in Rush Township". The

Commonwealth in its Brief has agreed that the items were not identified specifically.

Pa. R.Crim.Proc. 215 does require that the applicant specifically identify the property to

be searched and seized, and appellate court decisions have consistently held that a

warrant can be held to be unlawful if this requirement is not met. See Illinois v. Gates,

467 U.S. 213 (1983); Roe v. Ramirez, 540 U.S. 51,124 Supreme Ct. 1284, 157 L.Ed.

2d 1068.




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       The next issue raised by Defendant is that all statements, both verbal and

written, given to the members of the Rush Township Police Department, Nesquehoning

Police Department, and Summit Hill Police Department on or about February 28, 2012,

should be suppressed. On this issue, the Court finds the following information as

immediately hereinafter set forth as credible.

       On February 28, 2012, Officer Leinhard and Sgt. Frederick drove to the

Northumberland County Prison to interview Defendant about a series of burglaries.

They had information on these burglaries from the Defendant, from a co-conspirator,

and from independent sources - that is people who had received stolen items from

Defendant. When the police officers arrived at the Northumberland County Prison, they

were told that the Defendant was attending another hearing. They waited for his return

to the prison. During their wait, they were informed that a Carbon County bench

warrant had been issued for Defendant's apprehension, and they had been requested

by Carbon County officials to transport him to the Carbon County jail. When he was

returned from the hearing, Defendant was informed of the bench warrant, handcuffed,

and placed into the rear of the police cruiser. He was not questioned about the

burglaries at this time, though he began to offer statements about them. Officer

Leinhard had testified that she advised him about the bench warrant in Carbon County

and advised him that she wanted to speak to him in reference to burglaries that

occurred in Carbon County and Schuylkill County (Hrg. Transcript 4/1/13, p. 20). The

Defendant told her that he'd answer any questions she wanted, and he'd be honest. In

the police car, he started to talk about things, and she told him she didn't conduct

interviews in police cars and that they'd wait until they got back to the station.




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Defendant was then transported to the Summit Hill Police Department interview room

which is located in Carbon County - approximately one hour and forty (40) minutes from

the Northumberland County Prison. Before being questioned, he was provided with the

Miranda warnings. He was interviewed about the series of burglaries and related

crimes by Officer Leinhard and Sergeant Frederick. He was not threatened nor coerced

in any manner. During the interView, he was brought pizza and soda, which he

consumed, and was permitted to repair his glasses. Defendant waived his Miranda

rights and executed a written waiver of same. (See Commonwealth's Exhibit #1.)

During the interview, he admitted to participating in the burglaries in Summit Hill and

Nesquehoning, Pennsylvania, both of which are in Carbon County, and burglaries in

Rush Township, Schuylkill County. The interview took approximately four (4) hours. At

some point during the interview, the Defendant was left alone in the interview room and

wrote a written statement in his own handwriting. Although he testified that he made

"vague" references to a lawyer during the interview, the Court finds the testimony of the

officers credible and does not credit the testimony of the Defendant. The officers

testified that he never requested counsel nor indicated that he wanted the interview to

stop. After the interview, Defendant was transported to the Carbon County Prison on

the bench warrant. It is noted that Defendant's written statement is in his own
                                      ,
handwriting, and he admitted signing it.

       The testimony also established that there were signs posted in and about the

interview room informing individuals that the interview would be taped. Officer Leinhard

testified that there have been technical problems with the taping system. The Court

directs that a copy of the tape be provided to Defendant's counsel, if the tape exists.




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       Defendant argues on this issue that all statements, both verbal and written, on

February 28, 2012, were obtained without probable cause and as a result of the

Defendant's illegal detention. Furthermore, such statements were obtained as a direct

result of the police wanting to question the Defendant based on the results of the illegal

search of Defendant's residence, thus are tainted and must be excluded. The

Defendant also argues that he only gave the statement to the police officers on

February 28,2012, because they told him they had found evidence at his residence as

a result of the search of February 21. The Defendant argues, therefore, that, since that

search was unlawful, his statement was the "fruit of the poisonous tree". The Defendant

also argues that he was made a promise of leniency by the police in return for giving his

statement. The Court finds that the verbal and written statements were not obtained

without probable cause because of any illegal detention. Before the police officers went

to Northumberland County Prison to retrieve the Defendant and to talk to him about the

burglaries in Nesquehoning, Rush Township, and Summit Hill, they had credible

information that he was involved in these burglaries from what they referred to as

"knock and talk" investigations as to the burglaries where they would go to different

homes, knock on the door, and then talk to the people about stolen items. This was

done in the case of Christman and Kerry Hoffman at 68 West Centre Street in

Nesquehoning, Carbon County, on February 20 or 21 st where a stolen water meter was

uncovered, and the owners and one of the residents, Mike Christman, told them that

Defendant is the one who brought the stolen water meter to that residence. The

information gathered from this home was with the consent of both Christman and

Hoffman, and Defendant has no standing to attack that search as will be hereinafter




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discussed. It was not an illegal search. The police officers testified that they had gone

to the residence of a Stephanie Keck and received a consent search for this residence.

This was located at 36 East Ludlow Street. Officer Frederick of Rush Township was

with Leinhard when the search was conducted. Officer Frederick had indicated to

Leinhard that some of the items found at the Keck and Kerry residence were items

missing from a Rush Township home burglary. Officer Frederick, of course, prior to

going to Northumberland County, also had the information that, from the February 20,

2012, contact with Defendant, that Defendant had information concerning the burglaries

committed in Rush Township which was confirmed to be accurate. Officer Frederick

had been told by Kerry Frank that Defendant brought a stolen power meter from a

burglary to the address at 36 East Ludlow, and that is what Defendant himself had told

the officer. Christman also said that Defendant brought him copper pipes to his

residence at 68 West Center Street, which pipes had been stolen from burglaries.

There certainly was sufficient information supplied to the police that they had reasons,

independent of any search at his home, to talk to him about these burglaries.

      The statements therefore were not obtained as a direct result of the police

wanting to question the Defendant based on the results of an illegal search of the

Defendant's residence (emphasis added). The statements were obtained because the

police wanted to question the Defendant based on information independent of any

illegal search of the Defendant's residence that he was involved in these

burglaries. Officer Leinhard specifically testified (see pp. 29 and 30 hearing transcript)

that she did not go to the Northumberland County Prison to talk to Defendant based on

information received pursuant to the search of the Defendant's residence but on




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independent evidence that she had from Sgt. Frederick and from her own investigation

that he was involved in these burglaries. She testified Officer Frederick gave her

information about Defendant's involvement, but it was not solely based on this

information that she went to the Northumberland Prison to talk to him. She had not

received information from Officer Frederick that there were stolen items seized from

Defendant's residence. This was not the reason they were going to talk to him. She

had information that stolen items were in Summit Hill. She went to that residence,

conducted a consent search and found stolen items from thefts in Schuylkill and Carbon

Counties. This was at the Stephanie Keck and Kerry Frank residences.

       Miranda warnings are required to be given by the police in the situation where

there is custodial interrogation. Commonwealth v. Gwinn, 723 A.2d 143;

Commonwealth v. Bess, 789 A.2d 757. In this case, the record supports a finding that

there was custodial interrogation. However, the Miranda rights accorded to a person

can be waived by the defendant. "It is the Commonwealth's burden to establish

whether the defendant knowingly and voluntarily waived his Miranda rights. In order to

do so, the Commonwealth must demonstrate the proper warnings were given and that

the accused manifested an understanding of these warnings." Commonwealth v.

Eichinger, 915 A.2d 1122 (2007), cited in Commonwealth v. Biez, 21 A.3d 1280 (Pa.

Super. 2011). In Biez supra., our Superior Court reviewed the case of Commonwealth

v. Bomar, 826 A.2d 831 (2003). In that case, before interrogating the defendant, the

police read the defendant the Miranda warnings. While the officer was administering

the warnings, the defendant interrupted him and told the officer that he understood his

rights. The officer explained that, he nevertheless, had to advise him of his rights. The




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officer proceeded to recite the warnings in their entirety from the start, and he did so.

He asked the defendant if he understood his rights. The defendant responded he

understood his rights, after which the officer then began to question the defendant. The

defendant never declined to speak with the officer nor did he request an attorney. The

Bomar court found that the defendant had manifested a desire to waive his Miranda

rights. The Biez court/ollowing Bomar]held that, after a defendant is given his Miranda

rights, a statement by the defendant that he understands those rights followed by the

answering of questions posed by the police constitute a sufficient manifestation of

defendant's intent to waive those rights as to satisfy state constitutional protection. The

Biez court also concluded this was so even though the defendant did not execute a

written waiver. In this case, the Court has found that the Defendant voluntarily executed

an acknowledgement that he had been given his Miranda rights and was waiving those

rights. On the question of the voluntariness of his statements, the burden is on the

Commonwealth to demonstrate that the will of the accused was not overborne - either

through physical or mental pressure in obtaining a confession and that it issued from

free choice. Commonwealth v. Jones, 322 A.2d 119 (Pa. 1974). Evidence showing,

inter alia, that a defendant was advised of his constitutional rights and that he stated

that he understood those rights and was willing to answer questions of his own free will

establish that the statements so made to the police were voluntary and, thus,

admissible. U.S. v. Glover, 394 F.Supp. 253, affirmed U.S. v. Choice, 523 F.2d 1051.

A confession will not be ruled involuntary where a suppression court's decision to credit

testimony of the officer whose version of the circumstances directly contradicted the




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version of the defendant was supported by the record. Commonwealth v. Subler, 436

A.2d 1376 (Pa. 1981).

       On this issue of his voluntariness of verbal and written statements, the Defendant

argues that he only gave the statements because he was confronted with the illegally

seized evidence from his residence. In questioning the Defendant, Officer Leinhard did

not mention to him anything about the search of his own home. She did confront him

with evidence from independent sources of his involvement in burglaries and thefts she

had investigated, and, after that, he admitted his involvement in those. Officer Frederick

did state that, on one occasion during the questioning of Defendant, he mentioned that

stolen items had been recovered from Defendant's home. The relevant Pennsylvania

appellate court decisions on whether an illegal intrusion on the rights of a person taints

a subsequent confession by that person have laid out four (4) factors to be considered

by the courts in reviewing this issue. The cases deal mostly with illegal arrests, but the

principals enunciated are the same. Whether confessions or admissions secured from

an illegally arrested person are admissible depends on the facts in each case,

considering the following factors: (1) whether Miranda warnings were given; (2) the

temporal proximity of the arrest and confession; (3) the presence of intervening

circumstances; and (4) the purpose and flagrancy of the official misconduct.

Commonwealth v. Smith, 995 A.2d 1143,606 Pa. 127, certiorari denied, Smith v.

Pennsvlvania, 131 S.Ct. 518, 178 L.Ed. 2d 382. In the case at bar, the Court finds that

Miranda warnings were given. The illegal search was a week before the statement was

given by the Defendant. The intervening circumstances were the Defendant's own

actions and words. He wanted to talk about the burglaries in the automobile on the way




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to being interviewed and told police he would tell them the truth. They declined to

interview him in the car. He was confronted in questioning by Leinhard, not with

evidence seized from his own home, but with evidence from other burglaries. After he

was told this by Officer Leinhard, he confessed to those burglaries. When he was told

that items were taken from his own home that were stolen, his attitude was not of a sort

as if to say "Oh, my God, I am caught now", but, rather, wasn't "I clever in planning and

executing these thefts." Additionally, the Defendant expressed an interest in securing a

deal of some kind in the form of concurrent sentences. Finally, the search of the

Defendant's home was not one that was illegal because the Search Warrant lacked

probable cause in the Affidavit for it but, rather, that it was not sufficiently specific in

identifying items it sought. The "misconduct" of the police was failing to be specific.

They were not attempting to circumvent the probable cause requirements needed to

secure a search warrant. In fact, they complied with those requirements. This Court

finds that their purpose was not nefarious in any way nor was their conduct in any

manner to be described as flagrant. In the case of Commonwealth v. Wright, 332 A.2d

809 (Pa. 1975), it was held that statements following an illegal arrest must be excluded

from evidence only if they are causally related to an invasion of a suspect's rights, and,

if the statement is sufficiently an act of free will to purge the primary taint of unlawful

invasion or if the connection between the arrest and the statement is so attenuated as

to dissipate the taint, the statement need not be excluded. This Court finds, based on

credible evidence in the record, that the Defendant's statement to the police at the

Summit Hill Police Station was sufficiently an act of his own free will, and the connection




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                                                          "\




between the statement and any illegal search of his home was so attenuated as to

dissipate any taint from that search.

       On this issue, the Defendant also argues that he was made a promise in return

for his confession in this case concerning his sentence. The Court finds that he was

made no such promise. What Officer Leinhard had indicated to him was that, if he was

offered concurrent sentences by the prosecutor from the District Attorney's Offico/. she

would not oppose that. That is not an offer of leniency coming from her. A promise

that, if he were given a concurrent sentence, the officer would not have any problem

with that is not a promise of leniency. Again, the Court finds that Defendant's

confession was not induced by any promise. In the case of Commonwealth v. Templin,

795 A.2d 959 (Pa. 2002), a defendant's obligation that, before he confessed to sexual

contact with a child, the officer had promised to recommend a release on recognizance

bail at arraignment, did not automatically invalidate defendant's confession as being

involuntary-rather involuntariness would be determined from the totality of the

circumstances.

       The third issue raised by the Defendant is that all evidence seized from the home

of Michael Christman and Kerry Hoffman on or about February 21,2012, should be

suppressed. On this issue, the Court finds that the credible evidence produced at the

hearing on April 1, 2013, established that, on February 20,2012, Michael Christman

was the owner/occupier of the Nesquehoning residence where he resided with his

girlfriend, Kerry Hoffman, their child, and another child of Ms. Hoffman. On that date,

officers asked for permission to search the premises because they were looking for

stolen items. Christman and Hoffman gave permission to search the home. A stolen




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hot water heater was discovered in the basement. Neither Ms. Hoffman nor Mr.

Christman were threatened or coerced in any way into granting consent to search their

home. There was no evidence that Defendant had any interest in the property.

Therefore, he has no standing to object to the owner/occupier's consent to search.

Commonwealth v. Maldanado, 14 A.3d 910 (Pa. Super. 2012); Commonwealth v.

Peterkin, 513 A.2d 373 (Pa. 1986). An individual who lacks a reasonable expectation of

privacy in the place searched is foreclosed from invoking the protection on the Fourth

Amendment. U.S. v. Scott, 673 F.Supp. 331 (Middle Dist. 2009). Before a defendant

can challenge the seizure of physical evidence, he must demonstrate that he had both

the possessory interest in the evidence and a legally cognizable expectation of privacy

in the area where the evidence was seized. Commonwealth v. Bird, 987 A.2d 786 (Pa.

Super. 2009).

      The next issue raised by Defendant is that all evidence seized from his cell

phone, including the phone itself, pursuant to Patrolman Wuttke's February 27,2012,

search warrant;should be suppressed. Officer Wuttke included the following information

in the affidavit of probable cause for the search warrant concerning Defendant's cell

phone. He noted that, in November and December of 2011, complaints of copper theft

were coming into the police departments of Carbon and Schuylkill County. On

November 25, Officer Blizzard of Nesquehoning handled the investigation of a burglary

of a vacant home at 134 Stock Street, Nesquehoning Borough. Blizzard had found that

the front door was kicked in, the PP&L meter wires were cut, and the alarm system was

smashed. During this burglary, copper piping and wiring from the downstairs basement

portion of the home were removed. On December 3, Officer Wuttke himself handled




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another burglary in the same home and found copper piping was removed from the

home. On February 20, Sergeant Frederick of the Rush Township Police Department

told Officer Wuttke that he had taken Defendant into custody on a warrant, and

Defendant had given him information on burglaries in the area, including the

Nesquehoning burglaries. On February 23, Officer Frederick of Rush Township told

Officer Wuttke that he had interviewed Stephanie Keck at the Schuylkill County Prison)

who was intimately involved with Defendant who was a suspect in the copper wire

thefts. Keck had information on the burglaries that occurred in Nesquehoning. Wuttke

went personally to the Schuylkill County Prison and spoke with Keck. Keck told Officer

Wuttke that Defendant committed the burglaries in Nesquehoning and gave detailed

information on them, including the smashed alarm system, the PP&L meter being cut,

the copper piping being taken, as well as other items, and the fact that he had to go

back on another day to remove the rest of the piping)las Defendant did not have enough

room to take everything in one trip. Keck also advised that she is the one that turned

the copper from the Nesquehoning burglaries into the scrap yard. She further stated

that Defendant wrote her a letter in prison, and, in one letter, he said "I wish we were

using this nice weather to add more homes to my list." She explained that Defendant

keeps a list of homes he "hit" on his phone. She advised that Defendant took pictures

on 'his cell phone of the inside of the home at 134 Stock Street, and she received text

messages from Defendant about the home while he was inside of it. He has an Apple

iphone. Defendant was going to go back into the home at 134 Stock Street, but found

the police at the home and took pictures of the patrol cars in the driveway with his cell

phone. On February 24, Wuttke spoke to Frederick and asked if Defendant had a cell




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phone on his person. Frederick said that he did when he was arrested and identified it

to be an Apple iphone, but it was in the custody of the Coal Township Police

Department. So, from this Affidavit, we can deduce that Wuttke knew from a police

officer that there had been a burglary at Stock Street; that PP&L metal wires were cut;

and copper piping and wiring from the downstairs basement portion of the home was

removed. When Wuttke talked to Keck in the prison, she gave him information that she

had received from Defendant that there was a smashed alarm system; that the PP&L

meter was cut; and that copper piping was taken. All of this was confirmed by the

independent information from Officer Blizzard. It has been held that for purposes of

establishing an informant's veracity)more than corroboration of a few minor elements of

the story is necessary, but police need not corroborate every detail of an informant's

report to establish sufficient evidence of veracity. U.S. v. Bush, 647 F.2d 357 (Ct. of

Appeals of 3 rd Circ. Pa. 1981). In that case, it was held that an informant's legitimate

basis of knowledge means in general that the informant either directly observed critical

facts or that he obtained those facts directly from one of the participants in the criminal

enterprise who, by revealing those facts, made admissions against penal interests.

U.S. v. Bush, 647 F.2d 357. An accomplice's statements which were used as the basis

for the affidavit for a search warrantJpursuant to which blood, hair, and spittle samples

were taken from the defendant, constitute declarations against the accomplice's penal

interest and were sufficient to ensure its reliability. Commonwealth v. Chumley, 394

A.2d 497, certiorari denied Chumlev v. Pennsylvania, 99 Supreme Ct. 1515 (Pa. 1978).

In this case, Stephanie Keck admitted that she took stolen copper secured by




                                             17
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Defendant from the Nesquehoning burglaries to a scrap yard. That is definitely a

statement against her penal interests.

       The last issue raised by the Defendant, Defendant, is that the instant matter be

severed from the cases involving the Defendant's Co-Defendants. The Court does find

that the Defendant may be prejudiced by the trying of his case with that of his Co-

Defendants. The Defendant's Co-Defendants implicate him in the crimes charged

against them. Any statements they gave to the police, if admitted against them, would

also implicate him. Pursuant to the case of Commonwealth v. Bruton, 391 U.S. 123,8

S.Ct. 1620,20 L.Ed 2d 476 (1968), a joint trial of all the defendants under the foregoing

circumstances would be generally prohibited. A redaction of the statements is, at times,

permitted, but, in this case, a joint trial, especially one before a jury, could be highly

prejudicial, for it would be very difficult, if not impossible, for the fact finders to only

consider the statements of co-defendants given to police against that co-defendant

when they also implicated the defendant.




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