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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :         IN THE SUPERIOR COURT OF
                                              :               PENNSYLVANIA
                     v.                       :
                                              :
ANDREW JAMES MILLER,                          :            No. 1624 WDA 2014
                                              :
                          Appellant           :


          Appeal from the Judgment of Sentence, September 8, 2014,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0014034-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED FEBRUARY 19, 2016

        Andrew    James    Miller   appeals       the    judgment   of   sentence   of

September 8, 2014, following his convictions of invasion of privacy and

criminal attempt, invasion of privacy.1 We affirm.

        The trial court recited the following facts:

                    This matter arises out of [appellant’s] arrest
              for taking or attempting to take photographs, using
              his cell phone, up the skirt of a woman in a
              supermarket and several other women at his place of
              work.     [Appellant] filed a Motion to Suppress
              evidence obtained from his cell phone alleging that
              the search warrant authorizing the seizure of his cell
              phone, on which various pictures and videos were
              found, was not supported by probable cause. In
              addition, [appellant] alleged that the warrant lacked
              the required specificity describing the phone to be
              searched and seized.


1
    18 Pa.C.S.A. §§ 7507.1 and 901, respectively.
J. S71005/15


                The search warrant application of May 29,
          2013 alleged that on Wednesday, May 22, 2013 the
          victim reported that while she was shopping at a
          grocery store “a male followed her and on three
          occasions he was in such position, crouched down, to
          take a photograph up her skirt with his cell phone.”
          The warrant further alleged that in a personal
          interview with the victim on May 24, 2013, she
          described the following occurring in the supermarket
          over a 30 to 40 minute period:

               While inside she noted the male seemed
               to be following her. She first noticed the
               male while in the isle [sic] where pasta
               products were. She did not know or
               recognize the male. She described him
               as being “really tall.” The male “invaded
               her space” a total of three times. She
               expounded by explaining the male came
               unusually close to her when she would
               stop or look for items on the shelf. The
               third incident was the most egregious.
               (She) recalled being in the cereal aisle.
               She stopped to look at an item on the
               shelf. She was standing facing the shelf
               when she sensed someone close to her.
               She immediately reacted by moving.
               When she did, her left foot bumped the
               right hand of the male. This indicated
               that the male’s right hand was close to
               the floor and directly behind her foot.
               She was startled and quickly walked
               away from the area. She looked back
               and saw the male crouched down, facing
               the shelf. His cell phone was in his right
               hand resting on his thigh. She believed
               the male may have taken a picture up
               her skirt with his cell phone. It should
               be noted that (the victim) was wearing a
               short skirt at the time. If the male took
               a photograph from where his hand was,
               [it] would be conceivable that her
               buttocks, genital and pubic area would
               have been captured in the photo.


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                The search warrant further described that the
          victim then went to a self checkout lane and
          [appellant] got in line behind her even though other
          lanes were open and available. An employee advised
          [appellant] that other lanes were available, but he
          indicated that he wanted to remain in that lane, but
          eventually moved to another lane. Later, she saw
          [appellant] standing in the lobby area and he then
          reentered the store. The victim had an employee of
          the store escort her to her vehicle to load her
          groceries and as she completed loading the groceries
          she saw [appellant] sitting in a vehicle two spaces
          away from her. She then noted that [appellant’s]
          vehicle was following her as she proceeded through
          the parking lot to the exit. At the exit she waited
          until approaching cars were so close before she
          pulled out so that [appellant’s] vehicle would not be
          able to pull out directly behind her.

                Detective Brace’s affidavit indicated that he
          reviewed surveillance footage from the supermarket
          which showed the victim at the checkout counter as
          she described and [appellant] following her to the
          same lane, standing behind her.          The affidavit
          further states “it appears the male is holding
          something in his right hand (presumably his cell
          phone).”       The affidavit further sets forth
          Detective Brace’s review of additional footage from
          the supermarket surveillance video which was
          consistent with the victim’s description of [appellant]
          following her to the checkout lane and also describes
          him being seen in the lobby “manipulating his cell
          phone in his hands while waiting.” The affidavit
          requests a warrant to search the “cell phone used by
          [appellant] while at Giant Eagle at Moon Township on
          May 21, 2013.”

               The search warrant was issued and executed
          on [appellant] at his residence on May 29, 2013
          where his phone was seized and examined. There
          were no videos or images of the woman in the
          supermarket, however, several videos were found
          showing other females’ genital areas which were


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            recorded at [appellant’s] place of employment.
            Further investigation, including review of surveillance
            video from [appellant’s] place of employment,
            revealed six different occasions when [appellant]
            could be observed putting himself in a position where
            he could record co-employees’ intimate parts by
            placing his cellular phone under their skirts.

Trial court opinion, 7/7/15 at 2-4.

      Appellant was convicted of the aforementioned charges following a

non-jury trial on June 10, 2014.      On September 8, 2014, the trial court

sentenced appellant to an aggregate of seven years’ probation, and

appellant was also ordered to register under SORNA for 15 years. Appellant

filed notice of appeal on October 3, 2014.     On October 8, 2014, the trial

court ordered appellant to produce a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant complied on

December 18, 2014.        The trial court has filed an opinion pursuant to

Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Did the lower court err in denying the motion to
            suppress insofar as the search warrant used to
            obtain the appellant’s cell phone, and ultimately, the
            photographic/video evidence, was not supported by
            probable cause when solely considering the four
            corners of the affidavit of probable cause?

Appellant’s brief at 5.

      When reviewing the denial of a defendant’s motion to suppress

evidence, we are held to the following standard:




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            [An appellate court’s] standard of review in
            addressing a challenge to the denial of a suppression
            motion is limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.            Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth 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
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous. Where . . . the appeal of
            the determination of the suppression court turns on
            allegations of legal error, the suppression court’s
            legal conclusions are not binding on an appellate
            court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of law of the courts
            below are subject to [ ] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015),

quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010),

cert. denied, 562 U.S. 832 (2010) (internal citations and quotation marks

omitted).

     Both the United States and Pennsylvania Constitutions guarantee that

individuals shall not be subject to general investigative search warrants

lacking in probable cause and specificity of the items to be searched. See

Commonwealth v. Rega, 933 A.2d 997, 1011 (Pa. 2007), cert. denied,

562 U.S. 832 (2010).

            The right of the people to be secure in their persons,
            houses, papers, and effects, against unreasonable
            searches and seizures, shall not be violated, and no


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            Warrants shall issue, but upon probable cause,
            supported by Oath or affirmation, and particularly
            describing the place to be searched, and the persons
            or things to be seized.

U.S. Const. amend. IV.

            The people shall be secure in their persons, houses,
            papers and possessions from unreasonable searches
            and seizures, and no warrant to search any place or
            to seize any person or things shall issue without
            describing them as nearly as may be, nor without
            probable cause, supported by oath or affirmation
            subscribed to by the affiant.

Pa. Const. Art. I, § 8.

      A recent decision of this court explained our standard for determining

whether probable cause exists:

            With regard to the somewhat elusive concept of
            probable cause, we have explained as follows:

                   “[P]robable cause does not involve
                   certainties, but rather ‘the factual and
                   practical considerations of everyday life
                   on which reasonable and prudent men
                   act.’” Commonwealth v. Wright, 867
                   A.2d 1265, 1268 (Pa.Super. 2005)
                   (quoting Commonwealth v. Romero,
                   449 Pa.Super. 194, 673 A.2d 374, 376
                   (Pa.Super. 1996)).       “It is only the
                   probability and not a prima facie showing
                   of criminal activity that is a standard of
                   probable cause.”      Commonwealth v.
                   Monaghan, 295 Pa.Super. 450, 441
                   A.2d 1318 (Pa.Super. 1982) (citation
                   omitted); see also Illinois v. Gates,
                   462 U.S. 213, 238, 103 S.Ct. 2317, 76
                   L.Ed.2d 527 (1983) (holding that
                   probable cause means “a fair probability
                   that contraband or evidence of a crime
                   will be found.”); Commonwealth v.


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                 Lindblom,     854    A.2d     604,   607
                 (Pa.Super. 2004) (reciting that probable
                 cause exists when criminality is one
                 reasonable inference, not necessarily
                 even the most likely inference). To this
                 point on the quanta of evidence
                 necessary to establish probable cause,
                 the United States Supreme Court
                 recently noted that “[f]inely tuned
                 standards such as proof beyond a
                 reasonable doubt or by a preponderance
                 of the evidence, useful in formal trials,
                 have no place in the probable cause
                 decision.” Maryland v. Pringle, 540
                 U.S. 366, 371, 124 S.Ct. 795, 157
                 L.Ed.2d 769 (2003) (citations omitted).

Commonwealth v. Freeman, 2015 WL 7756864 at *7 (Pa.Super.

December 2, 2015), quoting Commonwealth v. Dommel, 885 A.2d 998,

1002 (Pa.Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007) (citations

modified).   When determining whether probable cause exists, we must

consider the totality of the circumstances. Commonwealth v. Wallace, 42

A.3d 1040, 1048 (Pa. 2012), quoting Commonwealth v. Coleman, 830

A.2d 554, 560 (Pa. 2003) (citations omitted).

     Here, the police produced sufficient probable cause to justify the

issuance of a search warrant for appellant’s cell phone.     According to the

search warrant application, the victim “noticed a male seemed to be

following her.” (Affidavit of probable cause, 5/29/13 at 3.) The victim told

the police that appellant got “unusually close to her,” three times while

inside the Moon Township Giant Eagle.       (Id.)   As indicated supra, the

victim, after quickly walking away from appellant after their third encounter


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inside the store, noticed that appellant was, “crouched down, facing the

shelf. His cell phone was in his right hand resting on his thigh. She believed

[appellant] may have taken a picture up her skirt with his cell phone.” (Id.)

The affidavit also indicated that at the time of the third encounter between

appellant and the victim, appellant’s left hand was close to the floor and

directly behind the victim’s left foot; the affidavit also notes that the victim

was wearing a short skirt at the time. (Id.)

      Given the totality of the circumstances surrounding the multiple

encounters between appellant and the victim inside the Giant Eagle, the

police have established that one could “reasonably infer” that a criminal act

took place, pursuant to Lindblom. Therefore, appellant’s argument that the

police lacked sufficient probable cause to justify issuing a search warrant for

his cell phone must fail.

      Appellant also makes the argument that the search warrant was

overbroad.     The Pennsylvania Rules of Appellate Procedure require an

appellant to raise an issue with the lower court before raising it on appeal.

Pa.R.A.P. 302(a).    Failure to do so will result in the issue being waived.

Here, appellant avers that the search warrant, which included “any and all

electronically stored data, and/or multimedia phone and related storage

media,” was overbroad.      A careful review of the suppression hearing and

trial transcripts and appellant’s omnibus pretrial motion reveal that appellant




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failed to raise this issue with the trial court. The issue is therefore waived,

and we cannot consider its merits.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




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