J-A03045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    SHAHEED SMITH,

                             Appellant                No. 3884 EDA 2016


           Appeal from the Judgment of Sentence November 21, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0007787-2014


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED APRIL 16, 2018

        Appellant, Shaheed Smith, appeals from the judgment of sentence

imposed following his jury conviction of aggravated assault, robbery,

kidnapping, arson, possession of an instrument of a crime, and three counts

of criminal conspiracy.1 We affirm.

        This case arises from the brutal robbery of Kevin Slaughter by Appellant

and his four co-defendants, Timothy Gooden, Kylieff Brown, Christopher

Cooley, and Kareem Cooley, after a chance meeting between Slaughter and

Brown at the SugarHouse Casino. We take the relevant facts and procedural




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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702, 3701, 2901, 3301, 907, and 903 respectively.
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history from the trial court’s April 17, 2017 opinion and our independent

review of the certified record.

       On December 8, 2013, at approximately 8:00 p.m., Slaughter ran into

Brown, whom he knew from prison, at the casino. Brown and his cohorts set

into motion an elaborate scheme to steal Slaughter’s approximately $4,000.00

in winnings.     During the protracted episode, they shot Slaughter multiple

times, threw him into a van, beat him, contacted his wife to extract ransom,

and set the van used in the incident on fire.

       Police learned that Jeffrey Gray, Appellant’s cousin, owned the subject

van, a cleaning company vehicle with Soft Touch Carpet Cleaning written on

the side of it. Gray gave a statement to police on the morning of December

9, 2013, and advised that he had observed Appellant driving the van the night

before. Gray provided two cellphone numbers for Appellant: (267) 307-2119;

and (215) 586-0759, a number to a phone Appellant had lost. While Gray

was at the police station, he received a call from Appellant, who repeatedly

asked him to report the van stolen.2

       Police obtained search warrants for the defendants’ cellphone records,

which showed frequent contact between them immediately before, during, and




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2Police did not contemporaneously document the phone number from which
Appellant placed this call. (See N.T. Suppression, 2/20/15, at 13, 21-23, 33).




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after the crime.3      The Federal Bureau of Investigation (FBI) was able to

reconstruct the conspirators’ approximate locations throughout the crime

using historical cell site data.4 Appellant was arrested on June 5, 2014.

        On February 12, 2015, Appellant filed a motion to suppress the

cellphone records pertaining to phone number (267) 307-2119, alleging that

the affidavit of probable cause supporting the search warrant contained a

material misstatement of fact, and that without this misstatement, there was

no probable cause.          (See Amended Motion to Suppress, 2/12/15, at

unnumbered pages 1-2). The affidavit of probable cause states, in pertinent

part:

               [The van involved in the incident] was registered to [Jeffrey]
        Gray. [During his police interview he] relayed in summary that
        on 12/08/13, a family member by the name of [Appellant] was in
        possession of this van. Gray observed [Appellant] with the van at
        Gray’s residence between 10 and 11 pm on 12/8. [Appellant]
        tried to park the vehicle at that location but was instructed to take
        the vehicle to its normal parking lot[.] . . . [Appellant], who was
        in the vehicle with another unknown black male left with another
____________________________________________


3Cellphone records showed that, during the relevant time period, Cristopher
Cooley’s phone had ten contacts (calls or text messages) with a phone
associated with Appellant (the number ending in 2119); Timothy Gooden’s
phone had nine contacts with the 2119 number and four contacts with the
second phone number associated with Appellant. (See N.T. Trial, 5/24/16, at
131-33, 165, 168).

4 Special Agent William B. Shute of the FBI testified that historical cell site
analysis is when investigators take the information contained in a phone’s call
detail records, which are generated as a result of its calls, and analyze the
calls and depict them onto a map. (See N.T. Trial, 6/01/16, at 40). The
analysis showed that the phone with the 2119 number associated with
Appellant was at the approximate sites of the crime scenes. (See id. at 78-
80, 84-86).

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      vehicle following. While speaking with Det. [Robert] Schill,
      [Appellant] called Gray and told him to report the van stolen. The
      phone number [Appellant] called from was 267-307-2119
      which was found to be a T-Mobile phone number. Gray
      identified [Appellant as the person] he observed in possession of
      the [v]an utilized to abduct the complainant during the time period
      the complainant was held captive. This van was subsequently
      located . . . on 12/09/13 at approximately 5 am. The vehicle was
      set ablaze by an unknown person. The fire was declared arson by
      the fire marshal.

(Affidavit of Probable Cause, 12/09/13, at 2-3) (emphasis added to identify

contested statement).

      The trial court held a hearing on the matter on February 20, 2015.

Detective Robert Daly testified that phone records from T-Mobile for phone

number (267) 307-2119 did not have any subscriber name or billing address

associated with it; it was registered to no one. (See N.T. Suppression, at 37-

38). Additionally, the phone records did not show a call from (267) 307-2119

to Jeffrey Gray during the time-period police interviewed him on the morning

of December 9, 2013. (See id. at 38, 43). Defense counsel argued that,

because the phone records did not show a call from (267) 307-2119 to Gray

during this time-period, there was a material misstatement of fact in the

affidavit of probable cause.      (See id. at 41, 47, 50-52, 54).           The

Commonwealth countered that Appellant failed to establish that he had a

reasonable expectation of privacy in a phone number not registered to him,

and that there were no intentional misstatements of fact in the affidavit. (See

id. at 55, 57). The trial court denied the suppression motion, based on its

findings that Appellant lacked a reasonable expectation of privacy in the



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J-A03045-18



cellphone number, and that issuance of the warrant was proper. (See id. at

60).

       On June 13, 2016, a jury found Appellant guilty of the above-listed

offenses.    On November 21, 2016, the trial court sentenced him to an

aggregate term of not less than fifteen nor more than thirty years’

incarceration, followed by seven years of probation. On December 23, 2016,

the court denied Appellant’s timely post-sentence motion without a hearing.

Appellant timely appealed.5            He filed a timely, court-ordered concise

statement of errors complained of on appeal on February 22, 2017, and the

trial court entered an opinion on April 17, 2017. See Pa.R.A.P. 1925.

       Appellant raises one question for our review: “Whether the [trial] court

erred in failing to grant the motion to suppress the physical evidence?”

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).          Appellant

argues that the statement at issue in the affidavit of probable cause, regarding

Gray’s receipt of a phone call from (267) 307-2119 during his police interview,

was a material misstatement of fact rendering the search warrant invalid.

(See id. at 11-12, 14). This issue does not merit relief.

             [O]ur standard of review in addressing a challenge to a trial
       court’s denial of a suppression motion is limited to determining
       whether the factual findings are supported by the record and
       whether the legal conclusions drawn from those facts are correct.
       We are bound by the suppression court’s factual findings so long
       as they are supported by the record; our standard of review on
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5 Appellant filed his notice of appeal prior to the court’s disposition of his post-
sentence motion. Although the notice was premature when filed, we will
regard this appeal as timely. See Pa.R.A.P. 905(a)(5).

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     questions of law is de novo. Where, as here, the defendant is
     appealing the ruling of the suppression court, we may consider
     only the evidence of the Commonwealth and so much of the
     evidence for the defense as remains uncontradicted. Our scope
     of review of suppression rulings includes only the suppression
     hearing record and excludes evidence elicited at trial.

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa. Super. 2017) (citations

omitted).

          To prevail on a motion to suppress, the defendant must
     show that he has a privacy interest which has been infringed upon.
     ...

            . . . A defendant moving to suppress evidence has the
     preliminary burden of establishing . . . a legitimate
     expectation of privacy. . . . A defendant must separately
     establish a legitimate expectation of privacy in the area searched
     or thing seized. Whether defendant has a legitimate expectation
     of privacy is a component of the merits analysis of the suppression
     motion. The determination whether defendant has met this
     burden is made upon evaluation of the evidence presented by the
     Commonwealth and the defendant.

Commonwealth v. Benson, 10 A.3d 1268, 1272 (Pa. Super. 2010), appeal

denied, 24 A.3d 863 (Pa. 2011) (citations omitted; emphasis added).

           An expectation of privacy is present when the individual, by
     his conduct, exhibits an actual (subjective) expectation of privacy
     and that the subjective expectation is one that society is prepared
     to recognize as reasonable. The constitutional legitimacy of an
     expectation of privacy is not dependent on the subjective intent
     of the individual asserting the right but on whether the
     expectation is reasonable in light of all the surrounding
     circumstances.

Commonwealth v. Newman, 84 A.3d 1072, 1076-77 (Pa. Super. 2014),

appeal denied, 99 A.3d 925 (Pa. 2014) (citation omitted).

     With regard to the parties’ respective burdens, our Supreme Court has

explained:

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J-A03045-18


           To be sure, under our jurisprudence, the defendant bears
     the burden of persuasion with respect to his privacy
     interest. However, the defendant’s ability to meet this burden is
     not a prerequisite to the Commonwealth’s initial burden of
     production, a burden it must satisfy in all cases. See Pa.R.Crim.P.
     581 cmt. Rule 581(H) clearly states it is the Commonwealth’s
     burden to present evidence that the defendant’s constitutional
     rights were not infringed. The Commonwealth may concede the
     privacy interest, choosing to contest only the legality of police
     conduct; if it does so, the defendant’s “reasonable expectation of
     privacy” need not be established. However, if the evidence of
     the Commonwealth, the party with the burden of
     production, shows the defendant lacked such a privacy
     interest, the burden of establishing the contrary is on the
     defendant.

     . . . [I]n analyzing the merits of a suppression motion, the trial
     court may, indeed, treat the defendant’s privacy interest as a
     “threshold” or “preliminary” matter. That is to say, if the
     evidence shows there was no privacy interest, the
     Commonwealth need prove no more; in terms of the court’s
     review, it need go no further if it finds the defendant has
     not proven a reasonable expectation of privacy. However,
     as it relates to the parties’ presentation of evidence, our cases and
     the Rules of Criminal Procedure make clear that the
     Commonwealth has the burden of production, to give the court
     evidence allowing that conclusion. Once it places the issue before
     the court, as a basis for denying suppression, the defendant may
     prove the contrary. If that proof is found to meet defendant’s
     burden, then the search itself may be examined with the burden
     on the prosecution to show it was not unconstitutional.

Commonwealth v. Enimpah, 106 A.3d 695, 701-02 (Pa. 2014) (footnotes

and some citations omitted; emphases added).

     This Court’s decision in Benson, supra is instructive. In that case, the

defendant sought to suppress records related to a cellphone owned by his

then-girlfriend and primarily used by him. See Benson, supra at 1271-72.

The Court concluded:


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     . . . While appellant had use of the telephone, the bills in question
     were not his telephone bills. . . . Appellant had no legal right to
     request or control access to the information from the telephone
     company because he was not the owner of the telephone. He had
     no legitimate expectation of privacy in them.

     . . . We hold that appellant has no legitimate expectation of
     privacy under either the United States Constitution or the
     Pennsylvania Constitution in the cellular telephone records for a
     telephone used by him but owned by a third party. Thus, there is
     no merit to appellant’s claim that the trial court erred in failing to
     suppress the telephone records.

Id. at 1273-74 (some capitalization adjusted; emphasis omitted).

     Here, at the suppression hearing, Detective Daly testified as follows on

direct examination:

           Q. . . . [D]id you receive back phone records from T-Mobile
     for the phone number 267-307-2119?

           A. That’s correct.

          Q. Okay. And when you received back the results of
     that search warrant, did it come back as the subscriber
     information to [Appellant]?

           A. It did not.

          Q. Okay. Did it come back the subscriber information to
     anyone?

           A. It did not.

           Q. Okay. There was no name at all?

           A. There was no name.

           Q. No address?

           A. No billing address and no name.

(N.T. Suppression, at 37-38) (emphases added).


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       After this exchange, which showed that Appellant lacked a privacy

interest in the cellphone records, Appellant made no attempt to establish the

contrary. See Enimpah, 701-02. He presented no evidence demonstrating

his reasonable expectation of privacy in the cellphone or associated records.

Therefore, we conclude that Appellant failed to meet his threshold burden with

respect to establishing his privacy interest in a phone not registered to him.

See id.; see also Benson, supra at 1272, 1274. Therefore, Appellant’s sole

issue on appeal does not merit relief.6 Accordingly, we affirm the judgment

of sentence.

       Judgment of sentence affirmed.




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6 Moreover, even if Appellant had demonstrated a legitimate expectation of
privacy in the phone records, his claim would fail. We agree with the trial
court that the misstatement in the affidavit of probable cause was immaterial
in light of other information contained in the affidavit, and that there was no
showing that the misstatement was deliberate. (See Trial Court Opinion,
4/17/17, at 30-32 (stating Detective Daly made reasonable inference from
information provided by Mr. Gray that Appellant had two phones (numbers
(267) 307-2119 and (215) 586-0759), and had lost the 0759 number)); see
also Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa. Super. 2011), aff’d,
78 A.3d 1044 (Pa. 2013) (every inaccuracy in an affidavit of probable cause
does not justify exclusion of evidence; misstatements of fact will invalidate
search warrant only if they are deliberate and material).


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J-A03045-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/18




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