J-S49010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

WARREN LEE,

                            Appellant                 No. 2620 EDA 2013


             Appeal from the Judgment of Sentence of May 6, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0010548-2013


BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                            FILED OCTOBER 24, 2014

        Appellant, Warren Lee, appeals from the judgment of sentence entered

on May 6, 2013, following his bench trial convictions for one count each of

theft and receiving stolen property.1 Upon careful consideration, we vacate

and remand.

        We summarize the facts and procedural history of this case as follows.

On March 16, 2013, Officer Dean Stecklair, a police officer with Amtrak,

arrested Appellant at a train station located at 30th and Market Streets in

Philadelphia, Pennsylvania. The arrest was made pursuant to a stay-away

order issued against Appellant in August 2012, which prohibited Appellant

from entering the station for a period of one year. In a search incident to

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1
    18 Pa.C.S.A. §§ 3921 and 3925, respectively.
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the arrest, police uncovered four business checkbooks in Appellant’s

possession.      Appellant was charged with the aforementioned charges.

Appellant filed a motion to suppress. On May 6, 2013, the municipal court

held a hearing on the motion to suppress, denied relief, and held a

stipulated bench trial wherein it found him guilty of the charges.           The

municipal court sentenced Appellant to three to 12 months of incarceration.

On June 7, 2013, Appellant filed a petition for writ of certiorari with the trial

court, seeking review of the municipal court’s denial of suppression.         On

August 26, 2013, the trial court held a hearing and dismissed the petition

after concluding there was no error of law. This timely appeal resulted.2

       On appeal, Appellant raises a single issue for our review:

         Did not the trial court err as a matter of law in denying
         [A]ppellant’s motion to suppress checkbooks recovered
         during a search incident to an arrest where the arrest was
         made pursuant to an illegal sentence/stay-away term
         because it exceeded the maximum period for which a
         sentence could be imposed on the summary offense (90
         days) and was, therefore, expired and invalid at the time of
         [A]ppellant’s arrest?

Appellant’s Brief at 3.

       Appellant argues that his arrest was illegal and that the checkbooks

recovered as a result of that arrest required suppression. More specifically,
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2
  Appellant filed a notice of appeal on September 12, 2013. On September
24, 2013, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied on October 10, 2013. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on December 4, 2013.



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he asserts that initially he was found guilty on August 31, 2012 of simple

trespass at the train station at issue, a summary offense. Id. at 9. At that

time, the municipal court imposed a one-year stay-away order upon

Appellant.   Id.   Appellant contends that the municipal court judge in the

prior decision “lacked any authority to impose a year[-]long stay-away

condition of sentence on a summary offense.” Id. at 11. He contends that

a summary offense carries a maximum penalty of 90 days.         Id. at 9, 11.

Hence, Appellant maintains that the one-year stay-away order was illegal

and could not serve as the basis for his subsequent arrest.       Id. at 12.

Appellant argues that an illegality of sentence claim cannot be waived and

was subject to correction by the trial court. Id. Accordingly, he avers:

        [Appellant’s] original sentence was illegal. The stay-away
        order was void at its inception. His subsequent arrest for
        allegedly violating an invalid condition of sentence cannot
        be sanctioned by permitting the fruits of what, in fact, was
        an unlawful arrest. The [municipal] court erred in denying
        [Appellant’s] motion to suppress; the [trial] court, upon
        review, erred in denying [Appellant’s] petition for [w]rit of
        [c]ertiorari.

Id. at 15-16.

     Because Appellant challenges an order that denied his motion to

suppress, we review his claims pursuant to the following standard and scope

of review:

        Our 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

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        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, we are bound by these findings
        and may reverse only if the court's legal conclusions are
        erroneous. Where, as here, 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 our plenary review.

Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super. 2012) (citation

omitted).

     Here, the trial court determined:

        In the instant case, neither the stay-away order was ever
        challenged by [] Appellant, although ample opportunity
        existed to do so, nor has a court invalidated the order prior
        to the stop, arrest, and search in question on March 16,
        2013. [Appellant] has never filed a post-sentence motion,
        intervening motion for reconsideration, notice of appeal, or
        argued that he lacked notice of the order.

Trial Court Opinion, 12/4/2013, at 8.

     For the reasons that follow, we disagree. “[C]hallenges to the legality

of sentence are never waived.” Commonwealth v. Berry, 877 A.2d 479,

482 (Pa. Super. 2005). “This means that a court may entertain a challenge

to the legality of the sentence so long as the court has jurisdiction to hear

the claim.”   Id.   In this case, Appellant was not asking the trial court to

vacate the judgment of sentence that followed his simple trespass conviction

based upon illegality. Such a claim had to have been made on direct appeal



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or within the context of a petition under the Post Conviction Relief Act. 3

Rather, Appellant argues that the illegality of his probationary sentence

could not form the basis for his current arrest and, therefore, fruits of the

ensuing search and seizure had to be suppressed.           For the reasons that

follow, we conclude that the trial court had jurisdiction to decide whether the

underlying probationary term was a legal nullity in determining whether

suppression was warranted.

       Initially, Appellant pled guilty to simple trespass pursuant to 18

Pa.C.S.A. § 3503(b)(1)(ii), a summary offense.         On August 31, 2012, the

municipal court sentenced Appellant to stay away from the 30 th and Market

Street Amtrak station for one year.              However, when a defendant is

sentenced on a summary offense, he “may be sentenced to a term of

imprisonment, the maximum of which is not more than 90 days.”                  18

Pa.C.S.A. § 106(c)(2).        The court may impose probation, including “such

reasonable conditions […] as it deems necessary to insure or assist the

defendant in leading a law-abiding life” including those conditions “related to

the rehabilitation of the defendant and not unduly restrictive of his liberty or

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3
   If no direct appeal is filed within 30 days, the trial court loses jurisdiction
and the defendant must seek collateral review under the PCRA.                 See
Pa.R.Crim.P. 901, Comment (“[…T]he [PCRA] Rules are intended to require
that, in a single proceeding, the defendant must raise and the judge must
dispose of all grounds for relief available after conviction and after
exhaustion of the appellate process, either by affirmance or by the failure to
take a timely appeal.”).



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incompatible with his freedom of conscience.” 42 Pa.C.S.A. § 9754(b),

(c)(13). Court imposed conditions, however, cannot “exceed the maximum

term for which the defendant could be confined.” 42 Pa.C.S.A. § 9754(a).

Thus, in entering a stay-away order for over 90 days, the municipal court

entered an illegal sentence.4

       Accordingly, Appellant argues that the underlying stay-away order was

void ab initio5 and could not serve as the basis for his subsequent arrest.

Appellant’s Brief at 13. We agree. We are guided by several decisions that

we find instructive in the present circumstances.

       In Commonwealth v. Millings, 463 A.2d 1172 (Pa. Super. 1983),

Millings was convicted of possession of a controlled substance when police

arrested him on a warrant for retail theft that had been withdrawn.   Millings

“argue[d] that drugs found on his person in a search incident to his arrest

should have been suppressed because the arrest was made pursuant to an

arrest warrant which had been withdrawn following [Milling’s] voluntary

appearance and entry of bail, notwithstanding the fact that the arresting

officer acted in good faith and without knowledge of the withdrawal.”

Millings, 463 A.2d at 1173. This Court agreed, opining:
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4
   The Commonwealth does not defend the legality of Appellant’s original
sentence.
5
  “The term void ab initio means an action that is void from its inception.”
Commonwealth v. Dennis, 695 A.2d 409, 410 n.3 (Pa. 1997) (citation
omitted).



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        Since the arrest warrant provided no authority for
        defendant's arrest and since the arresting officers admitted
        that they had no independent knowledge of facts
        constituting probable cause to arrest him on either retail
        theft or drug charges, we hold that the arrest was illegal.
        Accordingly, the contraband, seized in a search incident to
        and resulting from that arrest, should have been
        suppressed.

Id. at 1175 (internal citation omitted).

      Later, in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), our

Supreme Court examined a matter dealing with an invalid search warrant.

In that case, Edmunds was convicted of various narcotics charges and

criminal conspiracy when police acted upon a search warrant and discovered

a marijuana growing operation. The search warrant, however, “failed to set

forth with specificity the date upon which the anonymous informants

observed the marijuana.”      Edmunds, 586 A.2d at 888.    “[T]he trial court

went on to deny [Edmunds’] motion to suppress the marijuana” by

“look[ing] beyond the four corners of the affidavit [of probable cause in

support of the search warrant], in order to establish that the officers

executing the warrant acted in ‘good faith’ in relying upon the warrant to

conduct the search.”    Id.   Our Supreme Court determined “that probable

cause did not exist on the face of the warrant” and, thus, examined

“whether the Constitution of Pennsylvania incorporates a ‘good faith’

exception to the exclusionary rule, which permits the introduction of

evidence seized where probable cause is lacking on the face of the warrant.”

Id. at 891.


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      After scrutinizing United States Supreme Court precedent, the law of

sister jurisdictions, and policy considerations, the Edmunds Court decided

that the Pennsylvania Constitution affords its citizens greater privacy rights

than the federal Constitution, regarding the prohibition against unreasonable

searches and seizures. Id. at 896-897. Our Supreme Court concluded there

is no “good faith” exception to the Pennsylvania Constitution:

         We have no reason to believe that police officers or district
         justices in the Commonwealth of Pennsylvania do not
         engage in “good faith” in carrying out their duties. What is
         significant, however, is that our Constitution has historically
         been interpreted to incorporate a strong right of privacy,
         and an equally strong adherence to the requirement of
         probable cause under Article 1, Section 8. Citizens in this
         Commonwealth possess such rights, even where a police
         officer in “good faith” carrying out his or her duties
         inadvertently invades the privacy or circumvents the
         strictures of probable cause. To adopt a “good faith”
         exception to the exclusionary rule, we believe, would
         virtually emasculate those clear safeguards which have
         been     carefully  developed     under   the    Pennsylvania
         Constitution over the past 200 years.

Id. at 899. Accordingly, the Edmunds Court determined that “the evidence

seized from [] Edmunds was the product of a constitutionally defective

search warrant” which mandated suppression. Id. at 905-906.

      More recently, our Supreme Court examined Commonwealth v.

Johnson, 86 A.3d 182 (Pa. 2014).        In that case, police arrested Johnson

based upon an arrest warrant that was “no longer valid and should have

been recalled, since it had previously been served on [Johnson] nine days

earlier[.]”   Johnson, 86 A.3d at 184. The Johnson Court concluded:



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        the trial court properly suppressed the physical evidence
        seized by police incident to an arrest based solely on an
        invalid, expired arrest warrant. The courts below granted
        relief based upon the analysis of the Pennsylvania
        Constitution set forth in Edmunds, which rejected the
        federal good faith exception to the exclusionary rule (there,
        in the context of a defective search warrant). Edmunds is
        binding precedent and the Commonwealth has not
        challenged its validity here. Nor has the Commonwealth
        offered any meaningful distinction of Edmunds in
        constitutional terms. The courts below were correct that
        Edmunds controls the outcome in such circumstances.

Id. at 187.

      In the instant case, based upon all of the foregoing, we conclude that

Appellant was entitled to suppression. Upon review of the certified record,

Police Officer Dean Stecklair testified that the sole reason he stopped

Appellant was that the officer knew there was a “stay-away order from the

2955 Market Street area.” N.T., 5/6/2013, at 7.      At the time of Appellant’s

detention in this case, however, the stay-away order at issue had exceeded

the lawful maximum duration for a probationary condition attached to a

summary offense. Hence, the order that served as the basis for Appellant’s

arrest was invalid and illegal. Moreover, Officer Stecklair did not testify that

he witnessed any independent criminal activity that rose to the level of

probable cause; he merely arrested Appellant for a violation of the

probationary order. “Since the [stay-away order] provided no authority for

[Appellant’s] arrest and since the arresting officer[] admitted that [he] had

no independent knowledge of facts constituting probable cause to arrest

[Appellant], we hold that the arrest was illegal. Accordingly, the contraband,



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seized in a search incident to and resulting from that arrest, should have

been suppressed.” Millings, 463 A.2d at 1175. Furthermore, as Edmunds

and Johnson make clear, even if Officer Stecklair believed the order was

valid upon execution, police are not entitled to a good faith exception.

Accordingly, suppression was warranted.

     Judgment of sentence vacated. Order granting suppression reversed.

Case remanded for additional proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




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