J-A05005-18

                                2018 PA Super 201

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 JOHN MCCLEARY                             :   No. 244 EDA 2017
                                           :
                    Appellee               :

             Appeal from the Order Entered December 7, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0006625-2016


BEFORE:    DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

DISSENTING OPINION BY MURRAY, J.:                       FILED JULY 10, 2018

      I would hold that the Commonwealth failed to meet its burden of proving

that the evidence was obtained lawfully from Appellee. Thus, because I would

affirm the order of the trial court granting suppression, I respectfully dissent.

      Our Supreme Court has stated:

      When the Commonwealth appeals from a suppression order, we
      follow a clearly defined standard of review and consider only the
      evidence from the defendant’s witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court’s
      findings of fact bind an appellate court if the record supports those
      findings. The suppression court’s conclusions of law, however, are
      not binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts.

Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998) (citations




* Former Justice specially assigned to the Superior Court.
J-A05005-18


omitted). “Moreover as factfinder, it is within the suppression court’s sole

province to pass on the credibility of witnesses and the weight to be accorded

their testimony. The factfinder is free to believe all, some, or none of the

evidence presented.” Commonwealth v. Griffin, 785 A.2d 501, 505 (Pa.

Super. 2001) (citation omitted). The voluntariness of a consent to search “is

a question of fact to be determined from the totality of the circumstances and

while knowledge of the right to refuse consent is a factor to consider in

determining whether consent to search was voluntarily and knowingly given,

it is not dispositive.” Commonwealth v. Witman, 750 A.2d 327, 338 (Pa.

Super. 2000).

      Here, the trial court concluded that under the totality of the

circumstances, Appellee’s consent to search was coerced.1      The trial court

considered that the two officers asked Appellee multiple times2 whether they

could search the upstairs bedroom, that Officer Grover told Appellee after the

search that he “could have said no,” and the officers did not advise Appellee

before the search that he had a right to withhold consent, that anything found

could be used against him, and that he could consult an attorney or withdraw

consent. Trial Court Opinion, 4/26/17, at 3. The court also found that Officers


1 The Commonwealth states that it does not challenge the suppression of
Appellant’s statements that the suspected marijuana and crack cocaine were
his, based on a violation of Miranda v. Arizona, 384 U.S. 436 (1966).
Commonwealth’s Brief at 7 n.2.

2 Officers Grover and Baynes each asked Appellee twice if they could search
the bedroom. N.T., 12/7/16, at 22, 37, 66.

                                     -2-
J-A05005-18


Grover and Baynes failed to follow Philadelphia Police Directives (Directives),

which required them to notify a supervisor and obtain signed consent before

conducting a search, and to verify the existence of a protection from abuse

(PFA) order if, during a domestic dispute, one party avers that he has one

against the other.3 The court additionally emphasized that had the officers

properly verified the PFA, they would have known that Shavers should not

have been there and would have immediately removed her from the house,

and it would have been unnecessary to search the upstairs bedroom. Id. at

6-7; N.T. Suppression Hearing, 12/7/16, at 94-95.         Finally, the trial court

recognized that “[i]t is not uncommon for someone who has a PFA against

them to have clothing in the place where they were removed from,” and

specifically found, after observing the officers’ testimony firsthand, that their

reason for searching the upstairs bedroom was “illusory.” N.T., 12/7/16, at

94.

      Accordingly, I would hold, under the totality of the circumstances, that

the trial court did not err in finding that Appellee’s verbal consent was coerced.

Although the original police radio call was for a burglary in process, Officers

Grover and Baynes both testified that they determined, based on Appellee and




3At the suppression hearing, Officer Grover, a 10-year veteran of the force,
and Officer Baynes, a 9-year veteran, both denied familiarity with the
Directives. Furthermore, while Officer Baynes testified that he called a
supervisor and the supervisor arrived after Officer Baynes searched the
upstairs bedroom, Officer Grover testified that he did not consult a supervisor.
Id. at 39, 69.

                                      -3-
J-A05005-18


Shavers’ competing statements, that the dispute was whether Shavers had a

right to be at the house. While the officers’ stated reason for their search was

to verify whether Shavers indeed lived there, neither the absence nor

presence of women’s clothing or items in a bedroom, in itself, would verify

whether she had permission or a legal right to live at the house. In any event,

even if Shavers did technically live there, her right to be at the house would

be secondary to, as Appellee told the officers, the existence of a PFA order

against her.   It was the trial court’s sole province to pass on the officers’

credibility and the weight to be accorded their testimony, and the court was

free to believe all, some, or none of the evidence presented. See Griffin, 785

A.2d at 505.

      Furthermore, while the majority relies on, inter alia, Commonwealth

v. Ruey, 892 A.2d 808 (Pa. 2006) (OAJC), and Witman, supra, I believe

those cases may be distinguished on the facts. In Ruey, there was a defect

in the affidavit of probable for a search warrant — the affiant failed to indicate

the credibility of his source or the reliability of the information received. Ruey,

892 A.2d at 811. A plurality of our Supreme Court held that the defendant

was not prejudiced by these “technical violations,” and thus the evidence was

admissible.4 Id. at 814. In my estimation, the police violations in this case


4 Justice Newman wrote the opinion announcing the judgment of the court,
which was joined by Justice Baer. Justice Castille filed a concurring opinion,
which was joined by Justices Saylor and Eakin. Justice Saylor filed a
concurring opinion, which was joined by Justice Castille. Chief Justice Cappy
issued a dissenting opinion. Former Justice Nigro did not participate.

                                       -4-
J-A05005-18


— the failure to advise Appellee of any of his rights before obtaining consent

to search his home and the failure to follow the Directive to verify the

existence of a PFA — were not mere technical violations.

      Additionally, in Witman, the defendant placed a 911 call for emergency

assistance for his minor brother, who was attacked and killed in their home.

Witman, 750 A.2d at 330. The police established the home as a crime scene,

the parents told police to do what they could to find their son’s killer, and the

police collected evidence from and around the house to investigate the

homicide. Id. at 332-33. After discovering some evidence, the defendant

was charged with killing his brother.5 Id. at 333-34. On appeal, this Court

affirmed the admission of the evidence, holding that “where a defendant has

summoned police and set the tone for the initial investigation,” he has

impliedly consented to a search of his home, and thus a search warrant is not

required. Id. at 335. The defendant in Whitman called the police to report

an attack on his brother and thus a search of the home was necessary to

investigate the homicide. In this case, Appellee requested police assistance

in removing Shavers from his home and then told Officers Grover and Baynes

that he had a PFA order against her. The trial court found, as discussed above,

that had the officers properly followed the Directives and verified that Appellee




5 After the detectives initially discovered some evidence, they obtained a
search warrant and then obtained additional evidence. Witman, 750 A.2d at
334.

                                      -5-
J-A05005-18


had an active PFA order, a search would not have been necessary. Under the

totality of these circumstances, I agree with the trial court that Appellee did

not provide valid consent to a search of his home. See Witman, 750 A.2d at

338.

       For these reasons, I would affirm the order of the trial court granting

Appellee’s motion to suppress. Accordingly, I respectfully dissent.




                                     -6-
