J-S52028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FLINT ANDREW STATON

                            Appellant                No. 2085 EDA 2015


        Appeal from the Judgment of Sentence Entered March 31, 2015
                In the Court of Common Pleas of Lehigh County
    Criminal Division at Nos: CP-39-CR-0000671-2013; CP-39-CR-0000681-
                                     2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 25, 2016

        Appellant, Flint Andrew Staton, appeals from the March 31, 2015

judgment of sentence imposing 18 years and 6 months to 43 years of

incarceration for stalking, unlawful possession of a firearm, terroristic

threats, harassment, possession of an instrument of crime, and possession

of a prohibited offensive weapon. We affirm.

        The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

              Anne Staton and [Appellant] were married in 2002.
        During the course of their marriage, Anne suffered from various
        forms of abuse and, in 2010, she left the marital home in
        Perkiomenville, Montgomery County, Pennsylvania. At the time,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Anne was pregnant with their daughter, Evelyn, and she and the
     couple’s 2 year old daughter, Grace, stayed at a women’s shelter
     in Allentown for approximately two weeks. After staying with a
     family friend, Anne returned to the marital home. In November
     of 2011, the couple got into a physical fight in front of the
     children. According to Anne, [Appellant] ‘manhandled’ her and
     punched her in the head while she was in the fetal position.
     Anne went to the police the next day. At the suggestion of
     police, Anne sought and received a temporary protection from
     abuse (PFA) order in Montgomery County. Anne again left the
     home with the children and stayed at her mother’s home in
     Emmaus, Lehigh County, Pennsylvania. Though the couple was
     still apart in December 2011, they spent Christmas day together.
     Anne planned to have brunch with [Appellant] and then take the
     children to her grandfather’s house.      An argument ensued
     because [Appellant] wanted to go along with them, but Anne
     explained she was just taking the children. [Appellant] told
     Anne if he was not going, then nobody was going, and he took
     Anne’s cell phone and car keys away from her. After brunch,
     Anne took Evelyn upstairs for a nap, and [Appellant] followed
     her. Anne got Evelyn to fall asleep, but [Appellant] would not
     allow Anne to leave the bedroom. [Appellant] forced Anne to
     bend over the bed, twister her arm up behind her back, took her
     clothes off, and forced her to have sex with him. [Appellant]
     pushed Anne’s face into the mattress and hooked his finger in
     her mouth in an attempt to prevent her from screaming.
     Following this incident, Anne and [Appellant] went back
     downstairs to open presents with Grace.          At some point,
     [Appellant] grabbed a roll of duct tape and said to Grace,
     ‘wouldn’t it be funny if we taped up mommy.’

           Several hours went by and [Appellant’s] brother, Matt,
     arrived at his house. Anne relayed to Matt while he was outside
     that [Appellant] would not allow her to leave the house. Matt
     gained access to the house and helped Anne get her car keys.
     Anne and the children exited the home, and got in her car.
     [Appellant] followed and entered the back seat of Anne’s car.
     Anne exited her car and entered Matt’s car. Eventually, Anne
     was able to get back in her car without [Appellant]. She started
     to pull away and [Appellant] punched at her driver’s side
     window, causing it to shatter. Anne went to her grandfather’s
     house and called the police.




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           In January 2012, Anne was living with her mother in
     Emmaus. She and Grace were in a second story bedroom
     watching TV when they observed what appeared to be a cell
     phone attached to a pole slowly pan across the window. At the
     time, a temporary PFA order was in effect preventing [Appellant]
     from contacting Anne. On February 15, 2012, Anne received an
     envelope in her mailbox, which contained three Walmart gift
     cards. The envelope had Anne’s name and address written on it,
     but did not have a stamp on it. Anne recognized the handwriting
     as Appellant’s. On March 20, 2012, a final PFA order was
     entered in Montgomery County prohibiting [Appellant] from any
     verbal or physical contact with Anne. [Appellant] was permitted
     to contact Anne in writing regarding the children only, but he
     consistently texted and emailed Anne regarding personal
     matters. Based on statements made by [Appellant] in some of
     the messages, it appeared as though he knew various places
     Anne had visited.

            [Appellant] continued to contact Anne, despite the PFA,
     and based on some of his actions, Anne sought and received a
     PFA on behalf of her daughter Grace in November 2012. The
     order prevented [Appellant] from contacting Grace and
     prevented him from possessing any firearms. Around this same
     time, Anne was taking classes at Northampton Area Community
     College.    One evening, around 8:30-9:00 p.m., when she
     finished class and went to her car, Anne saw an “X” drawn on
     her driver’s side window. It appeared to be written with Chap
     Stick. Anne left and was driving on Route 22 when she realized
     a car had followed her from the school. She proceeded to
     Boscov’s at the Lehigh Valley Mall and parked. The same car
     she saw following her on Route 22, a dark sedan, followed her
     and also parked. She entered the store and within a few
     minutes, Anne saw [Appellant]. He immediately turned around
     and walked quickly away. Anne advised a sales associate that
     she had a PFA order against a person that just followed her into
     the store. Security was alerted, and subsequently the police
     were called. Anne viewed video surveillance footage and saw
     [Appellant] enter the store soon after she entered.

            [Appellant] continued to text and email Anne for the next
     few months. On January 31, 2013, sometime between 5:00-
     6:00 a.m., Anne left her apartment to go to work, and she
     observed a dark sedan following her. Anne made several turns
     until she was perpendicular with the vehicle, and she observed


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     [Appellant] driving the vehicle.    [Appellant] was wearing a
     baseball cap and glasses. Anne called 911 and reported what
     was happening. Anne was directed by dispatch to drive to the
     police station, where she was met by Sergeant Timothy Hoats.
     No vehicles followed Anne to the police station. Hoats advised
     Anne to stagger her route to work in the future. Subsequently,
     [Appellant] was charged with stalking and an arrest warrant was
     issued.

          The next morning, February 1, 2013, Sergeant Hoats
     parked his vehicle near Anne’s apartment at around 4:30 a.m.
     From his vantage point, he could see her entranceway and
     where her car was parked. Hoats observed Anne leave her
     apartment around 5:10 a.m. and enter her vehicle. She pulled
     away going east on Main Street and staggered her route as
     Hoats had suggested. He paralleled her and followed her for
     approximately ¼ to ½ mile, but did not see anyone following
     Anne that day.

            On the morning of February 4, 2013, Sergeant Hoats again
     parked his patrol vehicle near Anne’s apartment. Around 5:12
     a.m., he observed Anne exit her apartment and eventually saw
     her vehicle pull out onto Main Street, this time heading west. At
     that time of day, there was virtually no traffic jam on the street,
     but Hoats saw a dark sedan following behind Anne. The driver of
     the sedan was a male wearing glasses and a baseball hat. Hoats
     pulled out behind the vehicle and accelerated to catch up with
     the car. When he caught up, the driver hit the brakes and made
     an abrupt right turn onto 3rd Street without signaling. Hoats
     followed and entered the license plate into his mobile computer.
     The registration came back to [Appellant]. Hoats was aware of
     the outstanding arrest warrant, so he radioed for another patrol
     unit.   Officer Bryan Hamscher received Hoats’ call.         Hoats
     advised Hamscher that he was following a car with a possible
     wanted person and that they were heading towards Hamscher’s
     location. Hamscher and Hoats conducted a vehicle stop of
     [Appellant].

           Sergeant Hoats approached the vehicle and spoke with
     [Appellant]. Hoats advised Appellant of the warrant, and took
     [Appellant] into custody. Based on the location of [Appellant’s]
     vehicle, it needed to be towed. Pursuant to Emmaus Police
     Department policy, the vehicle was inventoried before being
     towed. During the inventory search, Officer Hamscher located a


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       wallet, a pocketknife, a folding butterfly knife, and stun baton in
       the center console. Hamscher opened the trunk and found a
       large kitchen knife in plain view.       At this point, Hamscher
       stopped the inventory search and contacted Hoats.            Hoats
       decided to secure the vehicle and apply for a search warrant.

              [Appellant] was transported to the police station and
       placed in a holding cell.       At the station, Sergeant Hoats
       performed a search of [Appellant] and discovered he was
       wearing a bulletproof vest. Additionally, Hoats found a balaclava
       style ski mask and a Samsung cell phone. Officer Kevin Schmidt
       spoke to [Appellant] in the holding cell and asked him if he was
       willing to talk to the police; [Appellant] agreed. Schmidt read
       [Appellant] a Miranda[1] rights and waiver form, and [Appellant]
       signed the form.         Schmidt interviewed [Appellant] for
       approximately three hours.

             [Appellant] told Officer Schmidt he was coming from
       Allentown, but when asked, [Appellant] could not tell Schmidt
       where in Allentown. He also indicated he was dropping someone
       named ‘Sam’ off, but said he did not know Sam’s last name.
       [Appellant] indicated he was randomly driving through Emmaus
       and did not know he was behind Anne. He also stated he always
       wears body armor. [Appellant] inquired about his car, and when
       Schmidt asked if there was something in there that should not
       be, [Appellant] said he did not know if there was a gun in there.

              Police subsequently obtained a search warrant for
       [Appellant’s] vehicle.     During the search, police discovered
       numerous items, including a loaded .40 caliber Walther P990
       handgun, rubber gloves, wigs, a camouflage mask, walkie-
       talkies, a Kevlar military helmet, a shoulder holster, a crowbar, a
       stun gun, duct tape, nylon cable restraints, binoculars, a planner
       belonging to Anne Staton, a Valentine’s Day card that read ‘A
       Promise For My Wife,’ a Motorola Razr flip phone, a Cannon [sic]
       digital camera, a Dell laptop, brass knuckles, a handcuff key, OC
       spray, a large machete with a sheath, various knives, and a copy
       of the PFA order against [Appellant]. There were also several
       items related to the family seafood business, including some of
       the knives.
____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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           Sergeant Hoats also secured search warrants for the cell
     phones and digital camera. The photographs recovered from the
     camera depicted Anne’s apartment entrance, her license plate,
     her grandfather’s home, her mother’s partner’s license plate,
     doors at Northampton Community College, and Anne at different
     stores and gas stations. Anne was unaware these photos were
     taken. Phone records showed various threatening texts [sic]
     messages from [Appellant] to Anne. […]

            [Appellant] testified at his trial, and denied the allegations
     of abuse made by Anne. According to [Appellant], Anne abused
     him. [Appellant] also contradicted Anne’s version of the incident
     that occurred on Christmas day 2011: he indicated the sexual
     encounter was consensual; that Anne was free to leave, but
     refused to leave the house; that Anne indicated she was coming
     back home for good; and that Anne hit him with her car, causing
     him to put his hands up, which in turn broke the window.
     [Appellant] denied following Anne on January 31, 2013, and said
     he was just driving home through Emmaus from a bar in
     Allentown when he was pulled over on February 4, 2013. He
     also indicated that he believed Anne, Sergeant Hoats, and Officer
     Schmidt set him up that day. [Appellant] testified that Hoats
     and Schmidt both lied under oath at trial.

Trial Court Opinion, 10/21/15, at 2-8.

     The case proceeded to a jury trial on February 25, 2015, at the

conclusion of which the jury found Appellant guilty of the aforementioned

offenses.   The trial court imposed its sentence on March 31, 2015, and

Appellant filed a timely post-sentence motion on April 2, 2015.        The trial

court denied Appellant’s post-sentence motions on June 24, 2015.             This

timely appeal followed.

     Appellant asserts that the trial court abused its sentencing discretion in

imposing sentences above the aggravated range or at the statutory

maximum. Appellant also argues the trial court erred in denying his pretrial



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motions to suppress evidence. Finally, Appellant also argues his convictions

are contrary to the weight of the evidence. Appellant’s Brief at 4-8. We will

address these arguments in turn.

      To preserve a challenge to the trial court’s sentencing discretion, an

appellant must include in the appellate brief a Pa.R.A.P. 2119(f) statement

explaining why the appeal raises a substantial question that the sentence is

in appropriate.   42 Pa.C.S.A. § 9781(b); Commonwealth v. Harvard, 64

A.2d 690, 701 (Pa. Super. 2013), appeal denied, 77 A.3d 636 (Pa. 2013).

            A substantial question requires a demonstration that the
      sentence violates either a specific provision of the sentencing
      scheme set forth in the Sentencing Code or a particular
      fundamental norm underlying the sentencing process.              This
      Court’s inquiry must focus on the reasons for which the appeal is
      sought, in contrast to the facts underlying the appeal, which are
      necessary only to decide the appeal on the merits. Whether a
      substantial question has been raised is determined on a case-by-
      case basis; the fact that a sentence is within the statutory limits
      does not mean a substantial question cannot be raised.
      However, a bald assertion that a sentence is excessive does not
      by itself raise a substantial question justifying this Court’s review
      of the merits of the underlying claim.

Id.   Appellant asserts that the trial court relied on matters outside the

record and that the court imposed aggravated range sentences based on

findings that the guidelines already account for. This Court has held that a

trial court’s alleged reliance on matters outside the record raises a

substantial question. Commonwealth v. Rhodes, 990 A.2d 732, 745 (Pa.

Super. 2009). An allegation that the trial court enhanced a sentence based

on factors accounted for in the guidelines also raises a substantial question.



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Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000). We therefore turn to the

merits.

      We review a challenge to the trial court’s sentencing discretion as

follows:

             [T]he proper standard of review when considering whether
      to affirm the sentencing court’s determination is an abuse of
      discretion. ...[A]n abuse of discretion is more than a mere error
      of judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment
      exercised was manifestly unreasonable, or           the result of
      partiality, prejudice, bias or ill-will. In more expansive terms,
      our Court recently offered: An abuse of discretion may not be
      found merely because an appellate court might have reached a
      different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.

             The rationale behind such broad discretion and the
      concomitantly deferential standard of appellate review is that the
      sentencing court is in the best position to determine the proper
      penalty for a particular offense based upon an evaluation of the
      individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169–70 (Pa. Super. 2010).

Several of Appellant’s sentences fall within the top of the aggravated

guideline range, and several are above the aggravated guideline range. We

may vacate a sentence within the guideline range only if it is “clearly

unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). We may vacate a sentence that

falls outside the guideline range if it is “unreasonable.”      42 Pa.C.S.A.

§ 9781(c)(3).

      Section 9781 also governs our review of the record:


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      (d) Review of record.--In reviewing the record the appellate
      court shall have regard for:

            (1) The nature and circumstances of the offense and the
      history and characteristics of the defendant.

           (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

            (3) The findings upon which the sentence was based.

            (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

      At Appellant’s sentencing hearing, the trial court provided a dozen

reasons supporting his decision to sentence Appellant at or above the top of

the aggravated guideline range.      In summary:     1) Appellant shows no

contrition for his offenses; 2) Appellant is a danger to society; 3) Appellant

inflicted mental cruelty on the victim; 4) a lesser sentence would not

sufficiently protect the victim; 5) Appellant had a prior conviction involving

the victim; 6) Appellant’s victimization of the victim extended over a period

of 2½ to 3 years; 7) Appellant exhibited elevated sophistication in how he

committed the offenses; 8) Appellant has an exceptional proclivity for using

firearms and other weapons; 9) Appellant blames the victim; 10) Appellant’s

“undeterrable” persistence in contacting the victim after she obtained

protection under the Protection From Abuse Act; 11) Appellant has low

potential for rehabilitation; and 12) Appellant’s offense had an extreme

impact on the victim.     N.T. Sentencing, 3/31/15, at 139-41; N.T. Post-

Sentence Motion Hearing, 6/24/15, at 19.


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      Appellant asserts that the record does not support findings that a

lesser sentence would not protect the victim; that his persistence in

contacting the victim is undeterrable, or that his potential for rehabilitation is

very low. We will consider these matters in turn. Concerning the protection

of the victim, the record supports the trial court’s findings that Appellant’s

conduct persisted over 2½ to 3 years, that Appellant persistently followed

and photographed the victim and her whereabouts, that he had a prior

conviction involving her, and that he was heavily armed when police

apprehended him, including unlawful possession of firearms, possession of

brass knuckles, and possession of a stun baton.        Given the persistence of

Appellant’s unlawful conduct and given the potential threat to the victim

arising from Appellant’s weaponry, we discern no abuse of discretion in the

trial court’s decision to impose a lengthy sentence in order to protect the

victim.

      Next, we consider the trial court’s finding that Appellant’s persistence

in contacting the victim is undeterrable.      As the court noted, Appellant’s

unlawful conduct persisted for several years, including after the victim

obtained a PFA against him. At sentencing, Appellant accused the victim of

lying under oath about his abusive behavior. N.T. Sentencing, 3/31/15, at

113. Again, the record supports the trial court’s findings, and we discern no

abuse of sentencing discretion. Finally, we consider Appellant’s potential for

rehabilitation. In addition to the aforementioned facts, Appellant insinuated


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at sentencing that the prosecutor was manipulative and had a personal

vendetta against Appellant.      Id. at 113-14.      Given the persistence of

Appellant’s unlawful conduct, his lack of contrition, and his comments

blaming the victim and the prosecutor, the record supports the trial court’s

finding that Appellant is not amenable to rehabilitation.

      Appellant also argues the trial court imposed sentences at or above

the aggravated range based solely on the gravity of his offenses. Appellant

notes that the sentencing guidelines account for the gravity of each offense.

The record fails to support Appellant’s argument. As noted above, the trial

court provided twelve reasons for imposing a sentence at or above the

aggravated guideline range.      The trial court did not rely merely on the

gravity of the offense, but on the unique facts of this case. Finding no abuse

of sentencing discretion, we reject Appellant’s first assertion of error.

      Next, Appellant argues the trial court erred in denying Appellant’s pre-

trial motions to suppress evidence.

            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 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

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

      First, Appellant argues that his wallet, pocketknife, butterfly knife, and

stun baton were the fruits of an unlawful vehicle inventory search. Appellant

develops no legal argument regarding the inventory search, and we could

deem this issue waived on that basis. Pa.R.A.P. 2119(b); Commonwealth

v. Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008).           Nonetheless, we

conclude that the trial court’s April 11, 2014 opinion accurately addresses

the merits. Trial Court Opinion, 4/11/14, at 12-14.

      Next, Appellant challenges the admissibility of inculpatory statements

he made to the police. Appellant asserts that he was coerced into talking to

police, and that police continued the interview after he asked for an attorney

and that the interview continued after he asked for it to stop.             The

voluntariness of a confession is a question of law, and our review is plenary.

Commonwealth v. Nester, 790 A.2d 879, 881 (Pa. 1998). Instantly, the

voluntariness of Appellant’s statements depended entirely on the trial court’s

resolution of the conflicting testimony offered by Appellant and Patrolman

Kevin Schmidt. Indeed, Appellant’s brief concedes that this argument “can

only be resolved with a credibility determination between [Appellant] and

Officer Schmidt.” Appellant’s Brief at 27.

      The trial court found as follows:

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             Officer Schmidt credibly testified that he read [Appellant] a
      Miranda rights and waiver form, that [Appellant] agreed to
      speak with him, and that [Appellant] signed the form. Schmidt
      stated [Appellant] appeared to understand his rights and did not
      appear to be under the influence. Schmidt also testified that
      [Appellant] never asked to stop the interview and did not ask for
      an attorney. [Appellant] does not deny he signed the Miranda
      waiver form, but rather alleges he did not know what the form
      was, and felt threatened and coerced into signing it.
      Specifically, [Appellant] testified Schmidt asked him about dead
      bodies and about sexual matters involving Anne Staton.
      [Appellant] also stated he asked for an attorney multiple times.
      I find [Appellant’s] testimony incredible.

Trial Court Opinion, 4/11/14, at 14-15.

      Thus, the record contains evidence—Officer Schmidt’s testimony—

supporting the trial court’s findings. As noted above, the standard of review

permits our consideration of the Commonwealth’s evidence and only so

much of Appellant’s evidence as is uncontradicted. Jones, 988 A.2d at 654.

Here, Appellant relies on his own testimony, which the Commonwealth

witnesses contradicted and which the trial court deemed not credible.

Viewing the evidence in accordance with our standard of review, the record

supports the trial court’s finding that Appellant made a voluntary statement

to the police.   The trial court did not err in denying Appellant’s motion to

suppress his statement.

      Next, Appellant argues the trial court should have suppressed items

that police seized from his car pursuant to a search warrant.         Appellant

argues the affidavit of probable cause did not support issuance of the

warrant. Appellant’s argument depends on the success of his challenges to



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the inventory search and to his statement, as the affidavit of probable cause

referred to both. Appellant argues we must analyze the affidavit of probable

cause without reference to any unlawfully obtained evidence.           We have

found no error in the trial court’s refusal to suppress the inventory search or

his statement, and therefore have no reason to conclude that the affidavit of

probable cause contained tainted evidence.         Appellant’s argument lacks

merit.2

       Appellant next argues the trial court erred in denying his motion to

suppress data retrieved from a Samsung cell phone, a Motorola cell phone,

and a Dell laptop computer because police lacked probable cause to obtain

the search warrant.       Appellant also argues the scope of the warrant was

overbroad, in that it permitted retrieval of data other than text messages,

emails, or phone calls.

       The record reveals that the Motorola cell phone and the Dell laptop did

not yield any evidence. We therefore confine our analysis to the Samsung

cell phone.

             The legal principles applicable to a review of the sufficiency
       of probable cause affidavits are well settled. Before an issuing
       authority may issue a constitutionally valid search warrant, he or
____________________________________________


2
   Appellant also argues that the firearm should be suppressed, as there is
no evidence he told police that a firearm was in the vehicle. Appellant
recognizes, correctly, that his argument depends on the trial court crediting
his testimony over that of Patrolman Schmidt. As noted above, the trial
court credited Patrolman Schmidt’s testimony, and we can consider
Appellant’s evidence only insofar as it is uncontradicted.



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     she must be furnished with information sufficient to persuade a
     reasonable person that probable cause exists to conduct a
     search. The standard for evaluating a search warrant is a
     totality of the circumstances[.] 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 knowledge of persons supplying hearsay
     information, there is a fair probability that contraband or
     evidence of a crime will be found in a particular place. The
     information offered to establish probable cause must be viewed
     in a common sense, non-technical manner. Probable cause is
     based on a finding of the probability, not a prima facie showing
     of criminal activity, and deference is to be accorded a
     magistrate’s finding of probable cause.

Commonwealth v. Ryerson, 817 A.2d 510, 513–14 (Pa. Super. 2003)

(internal citations and quotation marks omitted).

     Appellant also relies on Commonwealth v. Grossman, 555 A.2d 896

899 (Pa. 1989).

           Although some courts have treated overbreadth and
     ambiguity as distinct defects in warrants, […] both doctrines
     diagnose symptoms of the same disease: a warrant whose
     description does not describe as nearly as may be those items
     for which there is probable cause.         Consequently, in any
     assessment of the validity of the description contained in a
     warrant, a court must initially determine for what items probable
     cause existed. The sufficiency of the description must then be
     measured against those items for which there was probable
     cause. Any unreasonable discrepancy between the items for
     which there was probable cause and the description in the
     warrant requires suppression.       An unreasonable discrepancy
     reveals that the description was not as specific as was
     reasonably possible.

Id. at 899-900.

     As is evident from the recitation of facts above, police knew that

Appellant continued to contact the victim via phone call, text message, and



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email, even after she obtained a PFA against him. The affidavit of probable

cause set forth several of the unwanted messages. Plainly, the police had

sufficient probable cause to get a warrant for a cell phone found in

Appellant’s possession and for which he had the passcode. Appellant argues

the warrant was flawed in that it permitted police to search for all user-

generated data that may be relevant to the investigation, rather than just

emails, text messages, and phone calls. Whatever the merit of Appellant’s

argument, his brief fails to specify precisely whether police retrieved any

evidence from the Samsung cell phone other than emails, text messages, or

phone calls. Likewise, Appellant’s brief does not address the law governing

search warrants for digital information.    In Commonwealth v. Orie, 88

A.3d 983, 1009 (Pa. Super. 2014), this Court noted that warrants

authorizing seizure of all information found in a computer are overbroad, but

warrants authorizing seizure of information relevant to the criminal

investigation are valid. Indeed, a warrant must provide enough guidance for

the executing police officers to distinguish items of evidentiary value from

items of no evidentiary value.       See United States v. Wecht, 619

F.Supp.2d 213, 229 (W.D.Pa. 2009).

     In summary, the warrant was limited to data recovered from devices

found in Appellant’s car among all the other paraphernalia he used in

commission of the offenses at issue. Likewise, Appellant acknowledges that

the warrant authorizes seizure only of data relevant to the investigation.


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Ultimately, Appellant’s overbreadth argument is underdeveloped. He argues

the warrant should have been limited to email, phone call, and text message

data, but he fails to describe whether police seized any other data or why

the warrant did not authorize that seizure.   We therefore discern no basis

upon which to disturb the suppression court’s order.

     Appellant’s final argument is that the jury’s verdict is contrary to the

weight of the evidence.

           A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. A new trial should not be granted
     because of a mere conflict in the testimony or because the judge
     on the same facts would have arrived at a different conclusion.
     Rather, the role of the trial judge is to determine that
     notwithstanding all the facts, certain facts are so clearly of
     greater weight that to ignore them or to give them equal weight
     with all the facts is to deny justice. It has often been stated that
     a new trial should be awarded when the jury’s verdict is so
     contrary to the evidence as to shock one’s sense of justice and
     the award of a new trial is imperative so that right may be given
     another opportunity to prevail.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

            Appellate review of a weight claim is a review of the
     exercise of discretion, not of the underlying question of whether
     the verdict is against the weight of the evidence. Because the
     trial judge has had the opportunity to hear and see the evidence
     presented, an appellate court will give the gravest consideration
     to the findings and reasons advanced by the trial judge when
     reviewing a trial court’s determination that the verdict is against
     the weight of the evidence. One of the least assailable reasons
     for granting or denying a new trial is the lower court’s conviction
     that the verdict was or was not against the weight of the
     evidence and that a new trial should be granted in the interest of
     justice.


                                    - 17 -
J-S52028-16


Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (emphasis in

original; citations omitted).

      Appellant argues that many of the items recovered from his vehicle

are innocuous. The knives, according to Appellant, were used in his family

seafood business. Appellant’s Brief at 35. Appellant also states that both he

and the victim collected guns, knives and ammunition during their marriage.

Appellant   claims   other      items,   including   the   camouflaged   facemask,

arrowheads and orange rubber gloves are consistent with hunting. Id. He

claims he obtained body armor after he was robbed at gunpoint. Id. at 36.

He claims his statement to police does not support his conviction because

police did not create an audio or video record and because Appellant did not

sign the statement. Id. Appellant claims there was no evidence he knew of

or possessed the firearm found in his vehicle.             Id. at 36-37.   Finally,

Appellant argues that he had permission to contact his child, and that this is

a domestic relations case rather than a criminal case, and that the victim is

at fault for failing to abide by a governing custody and visitation order. Id.

at 38-40.

      The trial court explained its discretionary decision as follows:

             The verdict in this case does not shock one’s sense of
      justice.   As summarized above, [Appellant] was secretly
      following Anne and taking pictures of her, her school, her
      vehicle, and her family and friend’s vehicles; he contacted her
      via text messages, emails, and phone calls, in violation of an
      active PFA; he made various threats toward Anne via text
      messages, emails, and phone calls; he was caught following
      Anne, in violation of the PFA; he was found in possession of a

                                         - 18 -
J-S52028-16


      firearm for which he did not possess a license, and which was
      also in violation of the PFA; and he was found in possession of
      body armor, brass knuckles, and a stun baton. There was
      overwhelming evidence presented to find [Appellant] guilty of
      the crimes charged. Although [Appellant] testified and denied all
      the allegations, the jury was free to believe all, part, or none of
      his testimony. The jury evidently chose to believe the version of
      events that proved [Appellant’s] guilt, and in doing so, rendered
      a verdict that was consistent with the weight of the evidence.

Trial Court Opinion, 10/21/15, at 11.

      Appellant would have us view various pieces of evidence in isolation.

While many of the items retrieved from Appellant’s car have lawful uses,

Appellant’s argument fails to account for the presence of all of these items

together in his car while he was surreptitiously following the victim. Viewing

the record as a whole, we find no abuse of discretion in the trial court’s

denial of Appellant’s motion for a new trial based on the weight of the

evidence.

      In summary, we have found no merit to any of Appellant’s assertions

of error. We therefore affirm the judgment of sentence. We direct that a

copy of the trial court’s April 11, 2014 opinion be filed along with this

memorandum.

      Judgment of sentence affirmed.




                                    - 19 -
J-S52028-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




                          - 20 -
                                                                            Circulated 09/29/2016 12:10 PM
                          )                                       )


   IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                        CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA                               No.   671-2013
                                                                 681-2013
                 vs.

FLINT ANDREW STATON,

                           Defendant
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                                                                                           I                 ,;,


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APPEARANCES:                                                                      --
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Robert W. Schopf, Esquire, Assistant District Attorney,
      For the Commonwealth
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Carol Marciano, Esquire, Assistant Public Defender,                               :-< .-                  N
                                                                                  --T"l-1
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      For the Defendant                                                           :::.--       J.l        o,

                                      **   ********

                                           OPINION
James T. Anthony, Judge:

      The defendant is charged in the above-captioned cases with firearms not to be

carried without a license, persons not to possess a firearm, four counts of stalking, two

counts of terroristic threats, three counts of harassment, two counts of possessing an

instrument of crime, and two counts of prohibited offensive weapon. On September 9,

2013, the defendant filed an Omnibus Pre-Trial Motion consisting of ( 1) Petition for Writ

of Habeas Corpus and/or Motion to Dismiss charges for Failure to Establish Prima

Facie Case, (2) Motion to Suppress, (3) Motion to Compel Discovery, and (4) Motion to

Allow Additional Pre-Trial Motions. A hearing was held on October 22, 2013 and

November 6, 2013. Following the hearing, I took the motions under advisement, and the

parties submitted briefs. This opinion follows.




                                           1
                                        Findings of Fact

       Anne Staton and the defendant, Flint Staton, were married in 2002. In October

2010, the couple began having marital issues, and Anne left their home in

Perkiomenville1 and stayed at a women's shelter with her 2 year old daughter, Grace. At

the time, Anne was pregnant with their daughter Evelyn. Anne left the shelter after two

weeks and went to stay with a friend. Anne eventually returned to the marital home, but

problems continued when she confronted the defendant about having an affair. In

November of 2011, the couple got into a physical fight in front of the children where the

defendant "man-handled" Anne and punched her in the head.2 Anne again left the home

and began staying at her mother's home with the children.3 At the suggestion of the

State Police, Anne sought and received a temporary protection from abuse (PFA) order

against the defendant in Montgomery County.

       The couple was still apart in December 2011, but spent Christmas day together.

Anne planned to have brunch with the defendant and then take the children to her

grandfather's house. An argument ensued because the defendant wanted to go along

with them, but Anne explained she was just taking the children. The defendant told

Anne if he was not going, then nobody was going. At some point, the defendant took

Anne's cell phone and car keys away from her. After brunch, Anne took Evelyn upstairs

for a nap, and the defendant followed her. Anne got Evelyn to fall asleep, but the

defendant would not allow Anne to leave the bedroom. The defendant forced Anne to

bend over the bed, twisting her arm up behind her back, and forced her to have sex.

The defendant put a pillow over Anne's head to prevent her from screaming. Following

1
  Perkiomenville is located in Montgomery County, Pennsylvania.
2
  Notes of Testimony, October 22, 2013, p. 70.
3
  Anne's mother lived in Emmaus, Lehigh County, Pennsylvania.


                                              2
this incident, Anne and the defendant went back downstairs to open presents with

Grace. Anne did not attempt to leave because the defendant had her phone and car

keys, and she did not want to leave the children with him.

      Several hours went by and the defendant's brother, Matt, arrived at the house.

Anne told Matt that the defendant would not allow her to leave the house. Matt entered

the house and helped Anne get her car keys. Anne took the children, exited the home,

and got in her car. The defendant followed and entered the back seat of Anne's car.

Anne exited her car and entered Matt's car. Eventually, Anne was able to get back in

her car without the defendant. She started to pull away and the defendant punched at

her driver's side window, causing it to shatter. Anne went to her grandfather's house

and called the police. She was taken to Abington Memorial Hospital to have a rape kit

done, and she eventually went to the State Police barracks to give a statement.

       In January 2012, Anne was living with her mother in Emmaus. She and Grace

were in a second story bedroom watching TV when they observed a cell phone

attached to a pole slowly pan across the window. At the time, a temporary PFA order

was in effect preventing the defendant from contacting Anne. Around this same time,

Anne discovered two flat tires on her car and contacted the police. Officer Alfred Kloss

of the Emmaus Police Department was dispatched for the incident and made a report.

Kloss was made aware of the PFA, but told Anne that he could not do anything more

without a witness as to who slashed her tires.

       On February 15, 2012, Anne received an envelope in her mailbox, which

contained three Walmart gift cards. The envelope had Anne's name and address written




                                         3
on it, but did not have a stamp on it. Anne recognized the handwriting as the

defendant's.

       On March 20, 2012, a final PFA order was entered in Montgomery County

prohibiting the defendant from any verbal or physical contact with Anne. The defendant

was permitted to contact Anne in writing regarding the children only. Despite the PFA,

the defendant texted and emailed Anne regarding personal things not related to the

children. The text messages continued, and on July 7, 2012, Anne contacted the police

again, and Officer Kloss filed a PFA violation against the defendant. Kloss spoke to the

defendant on the phone and he agreed to turn himself in. However, the defendant never

showed up, and an arrest warrant was issued.

       On Halloween 2012, Anne was with the children at her sister's house, and Grace

went upstairs to have a phone call with the defendant. Grace came back downstairs

quickly, and when Anne asked her what happened, Grace said the defendant had

threatened to kill her and put her in a plastic bag. Thereafter, Anne sought a PFA order

on behalf of her daughter. A final PFA order for Grace was entered on November 15,

2012, preventing the defendant from contacting Grace and preventing him from

possessing any firearms.

       Around Thanksgiving of 2012, Anne was taking classes at Northampton Area

Community College. One evening, around 8:00 PM, Anne finished a class and went to

her vehicle in the parking lot. When she approached her car, she saw an "X" drawn on

her driver's side window. It appeared to be written with chapstick. Anne left and was

driving on Route 22 when she realized a car had followed her from the school. She

proceeded to drive to Boscov's at the Lehigh Valley Mall and park. The same car, a




                                        4
dark sedan, followed her and also parked. She entered the store and began shopping.

Within about five minutes, Anne was walking around a display when she saw the

defendant come into her view. He immediately turned around and walked quickly away.

Anne advised a sales associate that she had a PFA order against a person that just

followed her into the store. Security was alerted, and subsequently the police were

called. Anne viewed video surveillance and it showed the defendant in the store.

       The defendant continued to text and email Anne threatening messages. On

several occasions, Anne went to the Emmaus Police Department to inform them of the

messages. On January 31, 2013, around 5:30 am, Anne left her apartment to go to

work, and she observed a dark sedan with its headlights off following her on Main

Street. Anne made several turns until she was perpendicular with Main Street, and she

saw the same vehicle driving in the opposite direction on Main Street. The defendant

was the driver of the car. Anne called 911 and reported what was happening.

       Sergeant Timothy Hoats was working the night shift and received the 911

dispatch at the station. Hoats was advised that a caller was on the phone indicating she

was being followed by her estranged husband, against whom she had an active PFA

order. Dispatch advised Anne to drive to the police station, so Hoats went outside to

wait for her. In the meantime, a patrol officer attempted to intercept the defendant, but

was unable to do so. Hoats observed Anne arrive at the station, but no vehicles were

following her at that time. Hoats spoke with Anne, and she said the defendant was

following her in a green sedan, wearing a baseball cap and glasses. Hoats advised




                                         5
Officer Kloss about the incident. Kloss subsequently contacted the District Attorney's

office and filed stalking charges against the defendant on February 1, 2013.4

         Sergeant Hoats advised Anne to stagger her route to work and to call 911

immediately if she saw the defendant following her again. The next morning, Hoats

parked near Anne's apartment at around 4:30 am. From his vantage point, he could see

her entranceway and where her car was parked. Hoats observed Anne leave her

apartment around 5:10 am and enter her vehicle. She pulled away going east on Main

Street and staggered her route as suggested by Hoats. He paralleled her and saw her

drive on 5th Street to Chestnut Street. He followed for approximately X to Y2 mile, but did

not see anyone following her that day.

         On the morning of February 4, 2013, Sergeant Hoats again parked his patrol

vehicle near Anne's apartment. Around 5:12 am, he observed Anne exit her apartment

and eventually saw her vehicle pull out onto Main Street, this time heading west. At that

time of day, there was virtually no traffic on the street, but Hoats saw a vehicle follow

Anne soon after she left. The vehicle, a dark sedan, passed directly in front of Hoats's

vehicle, and the driver was wearing glasses and a baseball hat. Hoats pulled out behind

the vehicle and accelerated to catch up with the car. When he caught up, the driver

looked in the rearview mirror and made an abrupt right turn onto 3rd street without

signaling. Heats followed and entered the license plate into his mobile computer. The

registration came back to the defendant, Flint Staton. Heats was aware of the

outstanding arrest warrant from the PFA violation, so he radioed for another patrol unit.

         Officer Bryan Hamscher was parked in the area of State Avenue and Harrison

Street and received a call from Sergeant Hoats advising that he was following a car with
4
    CP-39-CR-671-2013


                                          6
a possible wanted person and was heading towards Hamscher's location. Hamscher

observed the vehicles driving directly towards him, and along with Hoats, he conducted

a vehicle stop of the defendant on Harrison Street.

       Sergeant Hoats approached the vehicle and spoke with the defendant. The

defendant said he was coming from Allentown and was on his way home. Heats asked

the defendant to exit the vehicle and put his hands on the roof. Hoats patted down the

defendant and told him there was a warrant out for his arrest. Hoats handcuffed the

defendant and placed him in the back of his patrol car. Because the vehicle was not

legally parked and was in the lane of traffic, it needed to be towed. Per Emmaus Police

Department policy, an inventory search of the vehicle was performed by Officer

Hamscher.

       Officer Hamscher initially observed some electronic devices inside boxes located

on the back seat of the defendant's car. Hamscher started the inventory search and

located a wallet, a pocket knife, a folding butterfly knife, and stun baton in the center

console. Hamscher then opened the trunk and found a large kitchen knife inside. Based

on the various knives found, Hamscher stopped the inventory search. He contacted

Hoats, and the police subsequently obtained a search warrant for the vehicle. During

the search, police discovered numerous items including, a loaded .40 caliber Walther

P990 handgun, gloves, a wig, a camouflage mask, arrows, a Kevlar military helmet, a

shoulder holster, a crowbar, a stun gun, duct tape, nylon cable restraints, binoculars, a

calendar book belonging to Anne Staton, a Valentine's Day card that read "A Promise

for My Wife," a Motorola Razr flip phone, a Cannon digital camera, a Dell laptop, brass




                                          7
knuckles, a handcuff key, OC spray, a large machete with a sheath, various knives, and

copies of the PFA orders against the defendant.

       The defendant was transported to the police station and placed in a holding cell.

At the station, Sergeant Hoats performed a more thorough search of the defendant and

discovered he was wearing a bullet proof vest. Additionally, Hoats found a balaclava

style ski mask in the defendant's coat pocket and a Samsung cell phone. Officer Kevin

Schmidt spoke to the defendant in the holding cell and asked him if he was willing to

talk to the police; the defendant agreed. Schmidt read the defendant a Miranda rights

and waiver form, and the defendant signed the form.5 The defendant appeared to

understand the form and did not appear to be under the influence. Schmidt interviewed

the defendant for almost four hours. The defendant never asked to stop the interview

and did not ask for an attorney. A narrative of the interview was prepared by Schmidt

and entered into evidence.6

       Sergeant Hoats secured search warrants for the cell phones, digital camera, and

laptop. Some of the photographs recovered depicted Anne's apartment entrance, her

license plate, her grandfather's home, doors at Northampton Community College, and

Anne and her daughter shopping. Phone records showed various texts messages from

the defendant to Anne that were threatening in nature. The Walther P990 handgun was

submitted to the Pennsylvania State Police and was deemed functional. Hoats

contacted the District Attorney's Office, and along with Officer Schmidt, filed additional

charges against the defendant on February 7, 2013.7



5
  A copy of the form was admitted into evidence as Commonwealth's Exhibit 9.
6
  Commonwealth's Exhibit 10.
7
  CP-39-CR-681-2013


                                              8
        The defendant testified at his pretrial hearing. According to the defendant, the

police said they wanted to talk to him, put a piece of paper in front of him, and told him

to sign it. The defendant said he did not know what the paper was, and did not read it.

He testified that he was never read his Miranda rights. When asked why he spoke to the

police, the defendant said he felt threatened and coerced. He testified that Officer

Schmidt asked him if he knew anything about dead bodies and asked him personal

questions regarding sex with Anne. The defendant said he asked to speak with an

attorney three times and told Schmidt more than once that he did not want to answer

any more questions. The defendant testified that he felt like he was under the influence

of alcohol because he drank the night before. However, he stated he drank five beers

and had the last one approximately five hours before he was interviewed. Finally, the

defendant said the police fabricated information to put in their reports just so they could

secure search warrants.

                                        Discussion


   I.   Petition for Writ of Habeas Corpus

        The Court's sole determination during a habeas hearing is to determine whether

the Commonwealth has set forth a prima facie case with respect to each element of the

crimes charged. Commonwealth v. Miller, 810 A.2d 178, 180 (Pa.Super.2002). A prima

facie case consists of evidence, read in the light most favorable to the Commonwealth,

that establishes that a crime has been committed and that the defendant is probably the

one that committed the crime. Id. In other words, the Commonwealth must produce

evidence that, if accepted as true, would warrant the case going to a jury.

Commonwealth v. Austin, 575 A.2d 141, 143 (Pa.Super.1990); Miller, 810 A.2d at 180.



                                          9
This does not require the Commonwealth to prove guilt beyond a reasonable doubt nor

that evidence is available for trial to prove guilt beyond a reasonable doubt. Austin, 575

A.2d at 143.8

        a. Prohibited Offensive Weapons

        "A person commits a misdemeanor of the first degree if, except as authorized by

law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive

weapon." 18 Pa.C.S.A. § 908(a). An offensive weapon includes metal knuckles. 18

Pa.C.S.A. § 908(c).

        Officer Schmidt testified he recovered brass knuckles from the defendant's glove

compartment. It is the defendant's contention that the item was meant to be utilized as a

belt buckle. I reviewed a photograph of the item, and while it is contained in a box

labeled "Heavy Duty Belt Buckle," there is nothing depicted to show how it could be

utilized as a belt buckle. To the contrary, the item appears to be exactly what it is

alleged to be - metal knuckles - an offensive weapon specifically prohibited by statute.

Furthermore, even if I were to find the knuckles could be fashioned into a belt buckle,

they would still be prohibited by law. 'The statute does not prohibit only items with no

Conceivable lawful purpose, but, more broadly, items with no Common lawful purpose."

Commonwealth v. Fisher, 400 A.2d 1284, 1288 (Pa. 1979). As such, the defendant's

allegation is without merit.9




6
  The defendant initially challenged several counts in case 671-2013 as being duplicative of counts in
case 681-2013, but withdrew the claim after the Commonwealth amended the criminal informations, and
due to the holding in Commonwealth v. Leach, 729 A.2d 608 (Pa.Super. 1999).
9
  The defendant has offered no evidence from which I could find that he possessed the weapons solely as
a curio. See 18 Pa.C.S.A. § 908(b)(1 ).


                                              10
       b. Possessing Instruments of Crime

       "A person commits a misdemeanor of the first degree if he possesses any

instrument of crime with intent to employ it criminally." 18 Pa.C.S.A. § 907(a). An

instrument of crime includes "[a]nything specifically made or specifically adapted for

criminal use" or "{a]nything used for criminal purposes and possessed by the actor

under circumstances not manifestly appropriate for lawful uses it may have." 18

Pa.C.S.A. § 907(d).

       The defendant alleges the possessing instruments of crime (PIC) charge cannot

stand pursuant to Commonwealth v. Williams, 808 A.2d 213 (Pa.Super. 2002). In

Williams, the defendant was convicted of PIC when he utilized a walkie-talkie to

facilitate a drug sale by directing people into a nearby house. In reversing that

conviction, the Superior Court held that the walkie-talkie was not an instrument of crime

since it was not used in the crime itself, but rather only facilitated the crime.

       The instant case is easily distinguishable from Williams. In that case, the

defendant used the walkie-talkie as it was meant to be used, and that action did not

constitute a crime. Here, however, the defendant adapted the cell phone by attaching it

to a pole in order to spy on Anne Staton, which itself was a crime since a PFA was in

effect preventing the defendant from having any contact with Anne."

       Read in the light most favorable to the Commonwealth, the evidence establishes

that a crime was committed and that the defendant was likely the one that committed

the crime. As such, the defendant's motion must fail.




10
   I also find the circumstances under which the defendant possessed the cell phone were not manifestly
appropriate for its lawful use, and thus find the Commonwealth presented prima facie evidence under
either definition.


                                              11
   II. Motion to Suppress

      When deciding a motion to suppress, the court is required to make findings of

fact and conclusions of law in order to determine whether the challenged evidence was

legally obtained. Pa.R.Crim.P. Rule 581(H); Commonwealth v. Wilmington, 729 A.2d

1160, 1162 (Pa.Super. 1999). It is the Commonwealth that bears the burden of

establishing, by a preponderance of the evidence, that the challenged evidence was not

obtained in violation of the defendant's rights. Pa.R.Crim.P. Rule 581 (H);

Commonwealth v. Smith, 784 A.2d 182, 186 (Pa.Super. 2001). Any determinations of

witness credibility and what weight should be afforded their testimony are within the

exclusive province of the suppression court. Commonwealth v. Fitzpatrick, 666 A.2d

323, 325 (Pa.Super. 1995).

      a. Inventory Search

       Inventory searches are a well-defined exception to the warrant requirement.

Commonwealth v. Hennigan, 753 A.2d 245, 254 (Pa.Super. 2000) (citing Colorado v.

Bertine, 479 U.S. 367, 371 (1987)). The purpose of such searches is not to discover

criminal evidence, but rather to safeguard an individual's property while in police

custody and to protect the police against claims of lost or stolen property. Hennigan

753 A.2d at 255.

            A warrantless inventory search of an automobile is different from a
      warrantless investigatory search of the same. An inventory search of an
      automobile is permitted where: ( 1) the police have lawfully impounded the
      automobile; and (2) the police have acted in accordance with a
      reasonable, standard policy of routinely securing and inventorying the
      contents of the impounded vehicle. [South Dakota v. Opperman, 428 U.S.
      364, 368-372 ( 1976)]....

               In determining whether a proper inventory search has occurred, the
      first inquiry is whether the police have lawfully impounded the automobile,



                                        12
        i.e., have lawful custody of the automobile. Opperman, 428 U.S. at 368,
        96 S.Ct. 3092. The authority of the police to impound vehicles derives
        from the police's reasonable community care-taking functions. Id. Such
        functions include removing disabled or damaged vehicles from the
        highway, impounding automobiles which violate parking ordinances
        (thereby jeopardizing public safety and efficient traffic flow), and protecting
        the community's safety. Id. at 368-369, 376 n. 10, 96 S.Ct. 3092.

                The second inquiry is whether the police have conducted a
        reasonable inventory search. Id. at 370, 96 S.Ct. 3092. An inventory
        search is reasonable if it is conducted pursuant to reasonable standard
        police procedures and in good faith and not for the sole purpose of
        investigation. See Bertine, 479 U.S. at 374, 107 S.Ct. 738 .... Said another
        way, the inventory search must be pursuant to reasonable police
        procedures, and conducted in good faith and not as a substitute for a
        warrantless investigatory search.

Hennigan, 753 A.2d at 255.

        There is no doubt the police had lawful custody of the defendant's vehicle,11 and

it appears the defendant is not specifically challenging that fact. Rather, the defendant

claims the police conducted a warrantless investigatory search instead of an inventory

search. The defendant's allegation is without merit.

        It is the policy of the Emmaus Police Department to conduct vehicle inventories

in order "to protect motor vehicles and their contents while in police custody; the agency

against claims of lost, stolen or damaged property; and to protect departmental

personnel and the public against injury or damaged property due to hazardous materials

or substances that may be in the vehicle."12 There is no evidence that the police

searched the vehicle in bad faith or as a substitute for a warrantless investigatory

search. Id. Officer Hamscher would have been justified in continuing his inventory


11
   There was an active arrest warrant for the defendant, and his vehicle was stopped in the lane of traffic
and in an area where there was no legal parking.
12
   Emmaus Police Department, Procedure No. 18, Motor Vehicle Inventories. A copy of the policy was
admitted into evidence as Commonwealth's Exhibit 3 at the hearing on November 6, 2013. Note: There
was another Commonwealth's Exhibit 3 - a copy of a Final PFA of 11 /15/12 - entered into evidence at
the hearing on October 22, 2013.


                                                13
search, regardless of whether he found possible evidence of a crime. The fact that he

stopped his search upon discovering criminal evidence only supports the conclusion

that he was acting in good faith in conducting an inventory search. As such, the search

of the vehicle was lawful and suppression is not warranted.

       b. Defendant's Statements

       When a defendant challenges inculpatory statements given to the police, a

totality of the circumstances test is employed to determine the voluntariness of the

confession and whether the accused knowingly and intelligently waived his or her rights.

Commonwealth v. Jones, 683 A.2d 1181, 1189 (Pa. 1996) (citing Commonwealth v.

Edmiston, 634 A.2d 1078 (Pa. 1993)). Factors to be considered include: the duration

and means of interrogation; the defendant's physical and psychological state; the

conditions attendant to the detention; the attitude exhibited by the police during the

interrogation; and any other factors which affect a person's power to resist suggestion

and coercion. Id. The defendant contends he gave statements to the police without

being advised of his Miranda rights or waiving said rights. I find this allegation to be

without merit.

       Officer Schmidt credibly testified that he read the defendant a Miranda rights and

waiver form, that the defendant agreed to speak with him, and that the defendant signed

the form. Schmidt stated the defendant appeared to understand his rights and did not

appear to be under the influence. Schmidt also testified that the defendant never asked

to stop the interview and did not ask for an attorney. The defendant does not deny he

signed the Miranda waiver form, but rather alleges he did not know what the form was,

and felt threatened and coerced into signing it. Specifically, the defendant testified




                                          14
Schmidt asked him about dead bodies and about sexual matters involving Anne Staton.

The defendant also stated he asked for an attorney multiple times. I find the defendant's

testimony incredible.

         Aside from the defendant's testimony, there was no evidence that the police

acted inappropriately or coerced the defendant into giving statements. Based on a

totality of the circumstances, I find the defendant knowingly, intelligently, and voluntarily

waived his Miranda rights and spoke with the police. The defendant's motion is without

merit.

         c. Search Warrants

         In determining whether a search warrant is based on probable cause, a totality of

the circumstances approach is utilized. Commonwealth v. Torres, 764 A.2d 532 (Pa.

2001) (citing Illinois   v. Gates,   462 U.S. 213 (1983)). "This determination must be based

on facts described within the four corners of the supporting affidavit." Commonwealth       v.
Dukeman, 917 A.2d 338, 341 (Pa.Super. 2007). An affidavit of probable cause does not

require a prima facie showing of criminal activity on the part of the occupants of the

place to be searched, but rather that "the totality of the circumstances demonstrates 'a

fair probability that contraband or evidence of a crime will be found in a particular place.'

"Id.

         In reviewing a search warrant, a suppression court cannot conduct a de novo

review to determine whether the warrant was supported by probable cause, but rather is

limited to determining whether there was a substantial basis for the issuing authority's

finding of probable cause. Commonwealth v. Cramutola, 676 A.2d 1214 (Pa.Super.

1996). A reviewing court must give great deference to the issuing authority's finding of




                                              15
probable cause, and must view the information in the affidavit in a common-sense,

nontechnical manner. Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010) (citations

omitted).13

        I find there was a substantial basis for the magistrate's finding of probable cause

to issue a search warrant for the defendant's vehicle.14 The information within the four

corners of the affidavit established the following: the defendant made a statement to

Officer Schmidt that a handgun may be found in his vehicle; during an inventory search,

police discovered several knives and a stun baton; the defendant was wearing body

armor when he was taken into custody; the defendant had an active PFA order against

him prohibiting him from possessing any firearms;15 the defendant had previously

violated his PFAs; there was an active arrest warrant for the defendant; Anne Staton

reported being followed by the defendant; and the defendant was stopped by police

after being observed following Anne in his vehicle. Based on a totality of the

circumstances, there was a fair probability that contraband or evidence of a crime would

be found in the defendant's vehicle.

        I also find there was a substantial basis for the magistrate's finding of probable

cause to search the Samsung and Motorola cell phones, the Dell laptop, and the

Cannon digital camera.16 The affidavits of probable cause established Anne Staton was



13
   For reasons stated previously, I do not find any of the evidence in this case was obtained unlawfully.
Therefore, redaction is unnecessary, and I have reviewed the affidavits of probable cause in their entirety.
14
   A copy of the search warrant was admitted into evidence as Commonwealth's Exhibit 11.
15
   The affidavit mistakenly indicates both active PFAs prohibited the defendant from possessing firearms.
However, I do not find this misstatement to be deliberate or material. See Commonwealth v. Baker, 24
A.3d 1006 (Pa.Super. 2011).
16
   Copies of the search warrants for the cell phones were admitted into evidence as Commonwealth's
Exhibits 4 and 5. The affidavits of probable cause were identical except for the descriptions of the
phones. A copy of the Cannon digital camera search warrant was admitted into evidence as
Commonwealth's exhibit 6 and a copy of the laptop search warrant was admitted into evidence as
Commonwealth's Exhibit 7.


                                                16
receiving unwanted text messages from the defendant despite an active PFA order

prohibiting him from contacting her; the defendant was caught by police following Anne

on her way to work; when the defendant was arrested, he was wearing body armor and

was found in possession of a ski mask and a Samsung cell phone; the defendant knew

the pass code for the Samsung phone; and during a search of the defendant's vehicle,

police recovered restraints systems, OC spray, wigs, knives, incapacitation devices,

drawings depicting violence, a Motorola cell phone, a Dell laptop, and a Cannon digital

camera. Given all this, and the charges in this case, specifically stalking and

harassment, each affidavit demonstrated a fair probability that evidence would be found

on the electronic devices recovered from the defendant and his car. As such, the

defendant's motion must be denied.


April 11, 2014




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