J. S36045/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
CARL WALLACE,                               :          No. 2353 EDA 2016
                                            :
                          Appellant         :


             Appeal from the Judgment of Sentence, June 17, 2016,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0004619-2015


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED JULY 07, 2017

        Carl Wallace appeals from the judgment of sentence of June 17, 2016,

following his conviction of one count of persons not to possess firearms.1

We affirm.

        The trial court has set forth the facts of this case as follows:

                    On July 23, 2015, Detective [Phillip] Nordo and
              Detective Williams of the Philadelphia Homicide Unit,
              Detective [Joseph] Houghton of the Yeadon Borough
              Police Department, and Police Officers of the
              Philadelphia Police Department and Yeadon Borough
              Police Department, arrived with a Search Warrant at
              [appellant]’s residence on 115 Norma Road, Yeadon,
              Delaware County, PA, to continue their investigation
              of a homicide that had occurred earlier that month in
              Philadelphia County. The Philadelphia Homicide Unit
              Detectives believed that [appellant] had in his
              possession crucial information related to the

1
    18 Pa.C.S.A. § 6105(a)(1).
J. S36045/17


          homicide they were investigating and that that
          information would be found in [appellant]’s
          residence.    During their search, [appellant], a
          convicted felon, admitted to having a firearm in the
          residence and the Police Officers found the firearm.

                 Earlier in July, 2015, Philadelphia Homicide
          Unit Detectives began investigating a shooting which
          occurred in Philadelphia County and which resulted in
          the death from gunshot wounds of an individual
          determined by police officers to be Steven Chestnut.
          On July 20, 2015, Detective [Greg] Singleton of the
          Philadelphia Homicide Unit spoke with Pamela Goff,
          the victim’s wife. She stated to Detective Singleton
          that during an in-person conversation with
          [appellant] after her husband’s death, [appellant]
          showed her a picture on his cellular phone of the
          individual who had allegedly arranged for her
          husband to be killed. Ms. Goff stated to Detective
          Singleton that [appellant] was also a longtime friend
          of her husband, the victim.

                 Detectives Singleton, Nordo and Williams of
          the Philadelphia Homicide Unit proceeded to contact
          [appellant] at his residence in Yeadon Borough,
          Delaware County, and to question him regarding the
          picture he had shown the victim’s wife. After letting
          the Detectives in, [appellant] admitted that he was a
          friend of the victim and had indeed spoken to the
          victim’s wife about his murder.           [Appellant],
          however, refused to answer the Detectives’
          questions regarding details he knew about the
          victim’s murder and the alleged picture he had on his
          cellular phone, and asked the Detectives to leave.

                After the unsuccessful attempt to procure from
          [appellant] crucial information related to the
          homicide and believing that [appellant] indeed
          possessed that information in his residence,
          Philadelphia Homicide Unit Detectives requested
          assistance from the Yeadon Borough Police
          Department to secure a Search Warrant for
          [appellant]’s residence. The Philadelphia Homicide
          Unit Detectives requested to search for any and all


                                  -2-
J. S36045/17


            cellular phones and electronic devices in [appellant]’s
            residence that were capable of holding an electronic
            photograph or image, or of providing to a user
            access to social media, as well as other evidence
            related to the homicide. Detective Houghton of the
            Yeadon Borough Police Department provided
            Philadelphia Homicide Unit Detectives the Warrant
            they had requested.

                   Detective Nordo, Detective Williams, Detective
            Houghton, and several police officers entered
            [appellant]’s residence and began searching for
            [appellant]’s cellular phone that contained the
            picture of the individual [appellant] had stated to the
            victim’s wife was involved in the victim’s shooting
            and murder. [Appellant] permitted the Detectives
            and officers to enter his residence only after asking
            them whether they had a Search Warrant and being
            satisfied that they in fact did. Detectives Nordo and
            Williams of the Philadelphia Homicide Unit were the
            lead detectives in the homicide investigation, and
            they asked [appellant] for the location of the cellular
            phone that contained the picture of the individual
            allegedly involved in the homicide.         [Appellant]
            refused to tell the Philadelphia Homicide Unit
            Detectives where his cellular phone was located.

                   When one of the Philadelphia Homicide Unit
            Detectives asked [appellant] whether there were any
            illegal items in the residence that could pose a
            danger to their safety, [appellant] admitted to
            having hid a firearm in one of the rooms. The Police
            Officers    found    and     retrieved   a     loaded
            .40 semi-automatic black handgun. After confirming
            that [appellant] was a convicted felon not allowed to
            possess a firearm, the Yeadon Borough Police
            Officers placed [appellant] under arrest. Detective
            Houghton of the Yeadon Borough Police Department
            charged [appellant] with Person Not To Possess A
            Firearm.

Trial court opinion, 10/18/16 at 1-4 (citations to transcript omitted).




                                     -3-
J. S36045/17


      Appellant filed a pre-trial suppression motion which was denied on

February 4, 2016. On April 11, 2016, appellant was found guilty of persons

not to possess firearms following a stipulated non-jury trial before the

Honorable George A. Pagano. On June 17, 2016, appellant was sentenced to

4½ to 10 years’ imprisonment, and this timely appeal followed.2 Appellant

complied with Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a)

opinion.

      Appellant has raised the following issue for this court’s review,

challenging the trial court’s denial of his pre-trial suppression motion:

            Did the trial court err by failing to grant [appellant]’s
            motion     to    suppress    physical    evidence    and
            statements made by [appellant] as required by the
            Fourth,       Fifth,     Sixth       and      Fourteenth
            Amendements [sic] of the United States Constitution
            and Article I, Section 8 of the Pennsylvania
            Constitution?

Appellant’s brief at 4.3

            Our standard of review in addressing a challenge to a
            trial court’s denial of a suppression motion is
            whether the factual findings are supported by the
            record and whether the legal conclusions drawn from
            those facts are correct. When reviewing rulings of a
            suppression court, we must consider only the
            evidence of the prosecution and so much of the
            evidence for the defense as remains uncontradicted

2
  A timely post-sentence motion was filed on June 27, 2016; however,
before the trial court could rule on it, appellant filed a notice of appeal.
(Trial court opinion, 10/18/16 at 5.)
3
  An additional issue raised in appellant’s Rule 1925(b) statement
challenging the sufficiency of the evidence to sustain the verdict has been
abandoned on appeal.


                                      -4-
J. S36045/17


             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 legal conclusions drawn
             therefrom are in error.

Commonwealth v. Korenkiewicz, 743 A.2d 958, 962 (Pa.Super. 1999)

(citations omitted).

        Appellant argues that the search of his closet for contraband was

outside the scope of the search warrant. (Appellant’s brief at 9.) Appellant

complains that the police did not enter his home to look for contraband

prohibited by the terms of his parole; rather, by the plain terms of the

search warrant, they were supposed to be looking for evidence related to

Chestnut’s murder, particularly any cell phones or electronic devices capable

of storing a photograph or image. (Id.) Appellant contends that police did

not have reasonable suspicion of contraband possession or a violation of the

terms of his supervision and Detective Nordo’s questioning was in violation

of the Constitution. (Id.) Appellant also claims that during the search, his

freedom of movement was restricted and he was not free to leave.        (Id.)

Appellant concludes that his admission to Detective Nordo and the firearm

must be suppressed. We disagree.

        First, appellant was not “in custody” for Miranda4 purposes, nor was

he being interrogated.     Commonwealth v. Williams, 941 A.2d 14, 30

(Pa.Super. 2008) (en banc). Appellant was not a suspect in the homicide


4
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                     -5-
J. S36045/17


investigation   and   had   not   been   charged   with   any   crime.    See

Commonwealth v. Wholaver, 989 A.2d 883, 896-897 (Pa. 2010) (right to

counsel attaches only at or after the initiation of adversary proceedings

against the defendant, and questioning the defendant about soliciting

murder, a crime for which he was not arrested or arraigned, was

permissible). The police believed that appellant was a possible eyewitness

to Chestnut’s murder and had material evidence in his possession. (Notes of

testimony, 2/4/16 at 48-49.) Detective Nordo testified that they wanted to

speak with appellant about the picture in his phone. (Id. at 47.) They were

not there to look for a gun or any other form of contraband. (Id.)

      Second, other than asking appellant to show them where the phone

was, police did not restrict appellant’s freedom of movement in any

significant way. The police asked appellant to sit on the living room couch

during the search, but he was not secured in any way and was allowed to

move around the house. (Id. at 40; notes of testimony, 1/28/16 at 18.) At

one point, they asked appellant to come into his bedroom to show them the

location of the phone. (Notes of testimony, 1/28/16 at 19.) Appellant went

into the bedroom but refused to cooperate with the search.           (Notes of

testimony, 2/4/16 at 41.)

      Obviously, appellant was not “free to leave” in the sense that the

police possessed a valid search warrant for his house. Appellant does not




                                     -6-
J. S36045/17


contest the validity of the warrant. However, appellant was never in custody

and was not being interrogated about Chestnut’s murder or anything else.

      Third, appellant was on state parole.      It is well established that a

parolee has limited Fourth Amendment rights and a diminished expectation

of privacy in exchange for his early release from prison. Commonwealth v.

Curry, 900 A.2d 390, 394 (Pa.Super. 2006) (citations omitted).

      Fourth, and most importantly, it is clear from the suppression hearing

testimony that Detective Nordo’s inquiry was for the purpose of ensuring

officer safety during the search of appellant’s residence.    Detective Nordo

testified,

             I said to [appellant], you are on state parole. He
             replied yes. I said, is there anybody else in this
             house? Just so we know. We’re not going to come
             upon anybody that’s going to be springing out
             because we do have a search warrant for the entire
             house. No, he replied. I says [sic] is there anything
             of contraband in this house that we should be aware
             of that parole would consider contraband? And he
             said, it’s in the closet. And I said, what’s in the
             closet? And he said, what I’m on parole for. And I
             said, I don’t know what that is. What are you talking
             about? And he says, a gun. And they’re – you’re
             talking about a rancher [sic] type home, so it’s not
             like there are bedrooms in rooms away. They’re like
             yards away from where I’m standing.

Notes of testimony, 2/4/16 at 45. “And at that point, I asked him, where is

this gun you’re referring to in this closet? He says, I put it under the towels.

I says [sic], he put it under the towels, I hollered back. And at that point,

they find what they find.” (Id. at 46.)



                                     -7-
J. S36045/17


     Detective Singleton testified that he was searching the linen closet and

overheard appellant state that there was a weapon in the house. (Notes of

testimony, 1/28/16 at 15.)       Detective Singleton recovered a .40 caliber

firearm and a magazine loaded with .9 mm rounds from inside a shaving kit

underneath some towels.    (Id.)    Detective Singleton testified, “I was glad

that I was able to retrieve that gun as [appellant] was moving around and,

you know, the property.   I would like to have that weapon under control,

yes.” (Id. at 15-16.)

     The detectives continued to search for the black cell phone and

eventually found it underneath some clothing in a plastic storage container

in the bedroom closet. (Id. at 16.) After police discovered the firearm and

ammunition, appellant became more cooperative and told them where the

cell phone was located.    (Id.)    Up until that point, appellant had been

uncooperative. (Id. at 16-17.)

     While Detective Nordo did ask appellant, a state parolee, about the

presence of contraband, it is clear that it was in connection with executing

the search and to ensure officer safety. The detectives had a valid warrant

to search appellant’s residence, and they were not there for purposes of

uncovering parole violations. The detectives were aware that appellant was

on state parole, was a material witness to a homicide, was being

uncooperative with the investigation, and took at least 10 minutes to answer

the front door. (Id. at 12.) They reasonably wanted to protect themselves



                                     -8-
J. S36045/17


during the search.    Furthermore, appellant volunteered that there was a

firearm in the house; Detective Nordo had only asked about contraband

generally. (Id. at 21-22; notes of testimony, 2/4/16 at 22-23, 29, 54.)

     Finally, we agree with the Commonwealth that even if there had been

a constitutional violation, which there was not, the inevitable discovery

exception   would     apply   to   allow   admission   of   the   evidence.

Detective Singleton would have recovered the gun from inside the shaving

bag independent of appellant’s admission. Police were searching for a cell

phone or similar electronic device, small enough to hide in a container such

as a shaving bag.    In fact, Detective Singleton was already looking in the

linen closet when appellant revealed that a firearm was hidden there.

Appellant did not begin to cooperate and tell the officers where the cell

phone was located until after they had already found the gun.     Therefore,

even assuming Detective Nordo’s questioning of appellant was somehow

improper, the evidence was admissible. See Commonwealth v. Gonzalez,

979 A.2d 879, 889-890 (Pa.Super. 2009) (explaining the inevitable

discovery rule).   For these reasons, the trial court did not err in denying

appellant’s suppression motion.

     Judgment of sentence affirmed.




                                    -9-
J. S36045/17



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2017




                          - 10 -
