J-A23018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    RONELL MICHAEL MURRAY,

                             Appellant                No. 1666 WDA 2018


        Appeal from the Judgment of Sentence Entered October 24, 2018
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0009537-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED DECEMBER 16, 2019

        Appellant, Ronell Michael Murray, appeals from the judgment of

sentence of 3-12 years’ incarceration, imposed following his conviction for

possession with intent to deliver (“PWID”) and possession of a controlled

substance.1     Appellant challenges the trial court’s denial of his motion to

suppress, as well as the admission of hearsay evidence during the suppression

hearing. After careful review, we affirm.

               At the suppression hearing, Pittsburgh Police Detective John
        Henson testified that on April 10, 2017, he received a telephone
        call from Allegheny County Detective Romano and three FBI
        special agents requesting that Detective Henson go to Magee
        Hospital to pick up Appellant. [N.T. Suppression, 8/2/18, at 4-5.]
        Detective Henson testified that Detective Romano told him
        Appellant “had an active state parole violation warrant for his
        arrest.” [Id. at 5.] Detective Romano informed Detective Henson
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1   35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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      that [he] had searched NCIC, an electronic database widely used
      by law enforcement personnel, and [that] the database confirmed
      that Appellant had a state parole violation warrant. [Id. at 5-6.]
      Detective Henson arrested Appellant and found heroin, cash and
      a cell phone on a search incident to arrest. [Id. at 7.] Next, the
      Commonwealth produced Exhibit One, which Detective Henson
      identified as the active warrant for Appellant’s arrest filed through
      the Pennsylvania State Correctional Institution and submitted to
      NCIC. [Id. at 7-8.] Detective Henson testified that NCIC would
      not show a probation violation that did not include an arrest
      warrant. [Id. at 10.]

Trial Court Opinion (“TCO”), 4/15/19, at 3.

      The   Commonwealth       charged    Appellant   with   PWID-heroin      and

possession of heroin on October 2, 2017. He filed a timely suppression motion

on May 16, 2018. Following a hearing held on August 2, 2018, the trial court

denied Appellant’s motion to suppress. The parties proceeded to a stipulated,

non-jury trial that began on October 22, 2018. On October 24, 2018, the trial

court convicted Appellant on both counts. The court sentenced him to 36-144

months’ incarceration for PWID-heroin, and to no further penalty for the

possession offense.

      Appellant filed a timely notice of appeal, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement. On April 15, 2019, the trial court issued its Rule

1925(a) opinion.      Appellant now presents the following questions for our

review:

      I. Under the Federal and Pennsylvania Constitutions, police must
      have a valid warrant at the time they arrest an individual. The
      Commonwealth did not present any physical evidence that a
      warrant existed before [Appellant]’s arrest, and there was no
      evidence to support an exception to the warrant requirement.
      Accordingly:



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       Did the Commonwealth’s testimony that a non-testifying detective
       heard that a warrant existed fail to establish probable cause to
       arrest [Appellant]?

       II. The Commonwealth presented a detective’s testimony
       concerning a statement by another, non-testifying detective about
       information received by phone about the existence of an arrest
       warrant for [Appellant] prior to his arrest. Accordingly:

       Did the trial court abuse its discretion since such testimony was
       inadmissible hearsay as it exceeded the scopes of course of
       conduct and present sense impression testimony?

Appellant’s Brief at 5.

       Essentially, Appellant argues that the Commonwealth failed to establish

at the suppression hearing that a warrant to arrest Appellant existed prior to

his arrest by Detective Henson. Because Pennsylvania does not recognize a

good faith exception to the warrant requirement,2 Appellant contends that the

fruit of that ostensibly illegal arrest, i.e., the seized heroin, should have been

suppressed, even if Detective Henson had reasonably relied on the information

he received from Detective Romano. Alternatively, Appellant contends that

the only evidence of the existence of the warrant—Detective Henson’s

testimony regarding the information he received from Detective Romano—was

inadmissible hearsay.

       We begin by noting:

       Our standard of review in addressing a challenge to a trial court’s
       denial of a motion to suppress is limited to determining whether
       the factual findings are supported by the record and whether the
       legal conclusions drawn from those facts are correct. Because the
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2 “Article I, Section 8 of the Pennsylvania Constitution does not incorporate a
‘good faith’ exception to the exclusionary rule.”         Commonwealth v.
Edmunds, 586 A.2d 887, 905–06 (Pa. 1991).

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      prosecution prevailed in the suppression court, we may consider
      only the evidence of the prosecution 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 record supports the
      factual findings of the suppression court, we are bound by those
      facts and may reverse only if the legal conclusions drawn from
      them are in error.

Commonwealth v. Bell, 871 A.2d 267, 271 (Pa. Super. 2005) (citations

omitted).

      In addition, “[i]t is within the suppression court’s sole province as
      factfinder to pass on the credibility of witnesses and the weight to
      be given their testimony.” Commonwealth v. Elmobdy, 823
      A.2d 180, 183 (Pa. Super. 2003). The suppression court is also
      entitled “to believe all, part or none of the evidence presented.”
      Commonwealth v. Benton, … 655 A.2d 1030, 1032 ([Pa.
      Super.] 1995).         Finally, at a suppression hearing, the
      Commonwealth has the burden of “establish[ing] by a
      preponderance of the evidence that the evidence was properly
      obtained.” Commonwealth v. Culp, … 548 A.2d 578, 581 ([Pa.
      Super.] 1988).

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011).

      Instantly, Appellant argues:

      [Detective] Henson lacked personal knowledge about state parole
      warrants and relied on the statement of a non-testifying witness
      who had received information over the phone that a warrant
      existed. This testimony amounts to nothing more than a good
      faith belief that a warrant existed prior to arrest. As such, the
      Commonwealth failed to establish that police had an arrest
      warrant or an applicable exception to detain [Appellant], and the
      trial court’s order denying suppression must be reversed.

Appellant’s Brief at 11.

      The trial court determined that a valid warrant existed prior to

Appellant’s arrest:

      This [c]ourt found the Detective’s testimony credible that
      Appellant had an active warrant.  The undisputed evidence

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        indicates that Appellant had an active warrant but the officer who
        looked at NCIC personally was not called as a witness. Appellant’s
        argument that this testimony is required is incorrect. The officer’s
        testimony was more than sufficient to support a finding that the
        officer knew that a warrant was outstanding for Appellant’s arrest.

TCO at 4. The Commonwealth agrees with the trial court, adding that “the

prosecution not only offered testimony from Detective John Henson, the

arresting officer, that established that he had knowledge of the outstanding

warrant at the time of arrest, but it also produced a copy of the warrant itself.”

Commonwealth’s Brief at 7.

        At the suppression hearing, the Commonwealth’s burden was to

establish that the arrest was lawful by a preponderance of the evidence. See

Culp, 548 A.2d at 581. A copy of the warrant issued by the Commonwealth

of Pennsylvania Board of Probation and Parole was entered into evidence at

the suppression hearing as Commonwealth Exhibit 1. N.T., 8/2/18, at 7-8.3

The warrant is dated April 10, 2017, the date of Appellant’s arrest.             The

document is time-stamped 8:10 p.m., which was when it was faxed to

Detective Henson. However, the document does not specifically indicate a

time when it was issued. Thus, Appellant argues that it is possible that the

warrant could have been issued after he was arrested.

        Detective Henson testified, however, that the only way Appellant would

show up in the NCIC system is if a warrant had, in fact, already been issued.

Id. at 9-10. The trial court found this evidence credible based on its own

experience with the NCIC system.               Id. at 14.   Moreover, the trial court
____________________________________________


3   Appellant provides a copy of the warrant as Appendix D to his brief.

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J-A23018-19



necessarily found Detective Henson’s testimony credible that he only

effectuated the arrest warrant after learning of its existence in the NCIC

system from Detective Romano.

       We agree with the trial court that this evidence was sufficient to satisfy

the Commonwealth’s burden of proof. A warrant was issued on the day of

Appellant’s arrest, and Detective Henson received word that Appellant was in

the NCIC system, therefore demonstrating that a warrant had already been

issued. While it is possible that Detective Henson was mistaken or lying, the

trial court was free to find instead that his testimony was credible.       See

Elmobdy, 823 A.2d at 183. Furthermore, while the Commonwealth failed to

produce absolute proof of the warrant’s existence prior to Appellant’s arrest,

we ascertain no abuse of discretion in the trial court’s determination that it

was more probable than not that it had been, in the circumstances of this

case. See Commonwealth v. $6,425.00 Seized From Esquilin, 880 A.2d

523, 529 (Pa. 2005) (“A preponderance of the evidence [standard] is

tantamount to a ‘more likely than not’ standard.”). Accordingly, we conclude

that Appellant’s first claim lacks merit.4
____________________________________________


4 Appellant asserts that our decision to affirm under the facts of this case
“would all but eviscerate the warrant requirement under the Pennsylvania and
Federal Constitutions as the Commonwealth, in lieu of producing the warrant,
could merely present a witness who heard another claim to know of … a
warrant for the defendant’s arrest at some unspecified time prior to a search
or arrest.” Appellant’s Reply Brief at 4 (footnote omitted). We disagree.
Here, the Commonwealth produced an arrest warrant issued on the same day
of Appellant’s arrest. Thus, the trial court did not solely rely on Detective



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       Next, Appellant contends that the trial court erred when it overruled his

hearsay     objection     to   Detective       Henson’s   testimony   regarding   the

communication he received from Detective Romano.

       In reviewing a trial court’s ruling on the admissibility of evidence,
       our standard of review is one of deference. Questions concerning
       the admissibility of evidence are within the sound discretion of the
       trial court, and its discretion will not be reversed absent a clear
       abuse of discretion. An abuse of discretion is not merely an error
       of judgment, but is rather the overriding or misapplication of the
       law, or the exercise of judgment that is manifestly unreasonable,
       or the result of bias, prejudice, ill-will or partiality, as shown by
       the evidence of record. Furthermore, if in reaching a conclusion
       the trial court overrides or misapplies the law, discretion is then
       abused and it is the duty of the appellate court to correct the error.

Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014)

(cleaned up).

       “Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted in the statement.”             Commonwealth v. Laich, 777 A.2d

1057, 1060 (Pa. 2001). Hearsay is inadmissible, see Pa.R.E. 802, unless an

exception applies, see e.g., Pa.R.E. 803, 803.1, 804.

       The trial court admitted Detective Henson’s testimony as non-hearsay

and/or under the presence-sense-impression exception to the hearsay


____________________________________________


Henson’s testimony or the hearsay elements contained therein in determining
that the warrant existed. Instead, the court relied on Henson’s testimony in
conjunction with the warrant to establish the additional fact that it was more
likely than not that the warrant was issued prior to Appellant’s arrest. We do
not suggest by our decision today that we would reach the same conclusion
had the Commonwealth failed to produce a warrant at the suppression
hearing, or if the warrant clearly evidenced that it had been issued after the
arrest.

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requirement.   See TCO at 4; Pa.R.E. 803(1) (“A statement describing or

explaining an event or condition, made while or immediately after the

declarant perceived it.”).   However, we find it unnecessary to address the

admissibility of Detective Henson’s testimony regarding his conversation with

Detective Romano in the circumstances of this case, as it is clear that, even if

inadmissible to prove the existence of the warrant, we agree with the

Commonwealth that any error was harmless because the warrant itself was

introduced at the suppression hearing.

      Harmless error exists if the state proves either: (1) the error did
      not prejudice the defendant or the prejudice was de minimis; or
      (2) the erroneously admitted evidence was merely
      cumulative of other untainted evidence which was
      substantially similar to the erroneously admitted evidence;
      or (3) the properly admitted and uncontradicted evidence of guilt
      was so overwhelming and the prejudicial effect of the error was
      so insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017) (cleaned up)

(emphasis added).

      The Commonwealth argues:

      [I]t should be noted that where the result at a suppression hearing
      would have been the same with or without the inadmissible
      evidence, the error in admitting the evidence is deemed to be
      harmless. Here, Judge Rangos, immediately upon announcing her
      decision that she was denying suppression, indicated that she
      found significant “the fact that the warrant is dated on the day
      that [Appellant] was arrested” [N.T. Suppression at 19]. The
      Commonwealth would submit that, even absent Detective
      Romano’s statement made prior to [Appellant]’s arrest that there
      was an active warrant for him, there was sufficient proof of the
      warrant’s existence-namely, the warrant itself dated April 10,
      2017, which, as established previously, the prosecution entered

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      into evidence at the hearing. Thus, because suppression would
      not have been proper even without the at-issue statement, any
      error in admitting it would have been harmless.

Commonwealth’s Brief at 16-17.

      We agree with the Commonwealth.         The at-issue hearsay testimony

about the warrant was largely duplicative of the evidence of the warrant itself.

Moreover, hearsay testimony is generally admissible to prove that an officer

had probable cause to arrest, because

      [t]here is a vast difference between the sufficiency of hearsay
      information necessary to show probable cause for an arrest and
      the factors relating to admissibility of hearsay evidence to prove
      an accused’s guilt at trial. The test for probable cause to arrest is
      not one of certainties, but rather of probabilities dealing with the
      considerations of everyday life.

Commonwealth v. Jenkins, 431 A.2d 1023, 1025 (Pa. Super. 1981)

(quotation marks omitted).

      This reasoning applied in Jenkins regarding hearsay evidence tending

to support a showing of probable cause also applies to the evidence of the

existence of a warrant in the context of the Commonwealth’s burden of proof

at a suppression hearing.    Thus, the Commonwealth was only required to

prove that it was more likely than not that the warrant existed prior to

Appellant’s arrest. To the extent that the at-issue testimony was admitted for

the truth of the matter asserted as Appellant contends, any such error was

harmless where, here, the actual warrant for Appellant’s arrest was also

admitted at the suppression hearing and was “substantially similar to the




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erroneously admitted evidence.”5 Burno, 154 A.3d at 787. Accordingly, we

deem any error in the admission of the hearsay testimony regarding the

warrant to be harmless.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2019




____________________________________________


5 We acknowledge that the admitted warrant did not specify the time when it
was issued. However, Appellant has failed to provide any case law suggesting
that such specificity is required beyond a date of issuance, the presence of
which is undisputed in this case. Moreover, the warrant did not contain a time
or date of issuance that was at odds with Detective Henson’s testimony, as
the 8:10 p.m. transmission time was not inconsistent with the warrant itself
having been issued prior to Appellant’s arrest. Accordingly, the physical
evidence—the warrant—was substantially similar to the evidence of the same
provided by Detective Henson’s testimony.

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