J-A03025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

WESLEY TSE

                           Appellant                   No. 418 MDA 2016


        Appeal from the Judgment of Sentence entered February 23, 2016
                 In the Court of Common Pleas of Centre County
                Criminal Division at No: CP-14-CR-0001764-2014


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 23, 2017

        Appellant, Wesley Tse, appeals from the judgment of sentence the

Court of Common Pleas of Centre County entered February 23, 2016. Upon

review, we affirm.

        The trial court, sitting as fact-finder, made the following findings of

fact:

        1.   Officer Hanes [of the State College Police Department]
             conducted an investigation into James Tewell for the alleged
             selling of marijuana, and possibly cocaine and molly, based
             on information he received from a confidential informant.
        2.   Mr. Tewell resided in State College, Pennsylvania at 925
             Bellaire Avenue, Apartment Y213.
        3.   On September 12th, 18th, and 29th of 2014[,] the confidential
             informant made controlled buys of marijuana from Mr.
             Tewell at 925 Bellaire Avenue, Apartment Y213.
        4.   On September 29, 2014, Officer Hanes applied for and was
             granted a sealed search warrant for 925 Bellaire Avenue,
             Apartment Y213. The search warrant was issued by the
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         Honorable Bradley P. Lunsford on September 29th, 2014[,]
         at 3:30 PM.
     5. In the Application for Search Warrant and Authorization[,]
         the daytime search box[, which] states “[t]his Warrant shall
         be served as soon as practicable and shall be served only
         between the hours of 6 AM to 10 PM but in no event later
         than[,]” was checked.       Below the unchecked nighttime
         search box, Judge Lunsford put the expiration time of the
         search warrant as October 1, 2014[,] at 3:30 PM. The
         expiration time applies to whichever box is checked, the
         daytime or nighttime box. Instantly, the daytime box was
         checked and this was a daytime search warrant, not a
         nighttime warrant.
     6. The Search Warrant was issued for the entire apartment at
         925 Bellaire Avenue, Apartment Y213, State College, Centre
         County, Pennsylvania.
     7. Although it appears the residents of Apartment Y213 have
         individual bedrooms, Officer Hanes testified, as is the
         practice of the Drug Task Force, he obtained a search
         warrant for the entire residence due to the fact illegal drug
         contraband can be hidden anywhere in the apartment.
         [Officer] Hanes testified he has had other search warrants
         where items have been hidden in other people’s bedrooms
         and drug transactions have been held in other people’s
         bedrooms, as well as common areas. Officer Hanes based
         his opinion on being involved in over one hundred drug
         cases.
     8. On September 30th, 2014[,] at approximately 7:27 AM, the
         search warrant was executed at 925 Bellaire Avenue,
         Apartment Y213, State College, Pennsylvania.
     9. Upon entry, for safety purposes, the officers secured the
         present individuals, including [Appellant], by handcuffing
         them and taking them to a common area of the apartment
         to be watched over by an officer. Once the location was
         secure[,] they collected biographical information of the
         present individuals.
     10. The officers searched the bedrooms, including [Appellant]’s
         room and the common areas.
     11. During the interview of Mr. Tewell, he disclosed [Appellant]
         was his source of marijuana and the marijuana was located
         in [Appellant]’s room in the closet.
     12. A search of [Appellant]’s room yielded approximately 11.45
         pounds of marijuana, approximately 60 grams of molly,


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              about 17 grams of mushrooms, about 14 grams of cocaine,
              $28,000 of U.S. currency, and drug paraphernalia.
        13.   During the search of [Appellant]’s room the officers seized
              items from a safe in [Appellant]’s closet. Upon locating the
              safe, the officers noticed the safe door was ajar. Due to the
              safe being ajar, officers did not need a code or key to access
              the safe.
        14.   During the search of [Appellant]’s room the officers seized
              as evidence an iPhone as belonging to [Appellant]. The
              iPhone was searched later pursuant to another search
              warrant.
        15.   Officers have the forensic utilities to bypass a phone’s
              passcode and extract data from a phone.             Also, law
              enforcement can send a seized phone to a manufacturer or
              cell phone provider to assist in unlocking and accessing a
              phone.
        16.   [Appellant] was handcuffed and [mirandized][1] and did not
              give any statements.
        17.   Officer Joshua Martin did ask [Appellant] for his passcode[,]
              explaining that law enforcement would be able to access the
              data on the phone by sending the phone to the
              manufacturer or by conducting an extraction process.
              Officer Martin further explained that if [Appellant] provided
              the passcode his phone would most likely be returned to him
              sooner. [Appellant] then provided Officer Martin with the
              passcode to the phone.

Trial Court Opinion, 7/10/15, at 2-4.

        Appellant was charged with three counts of possession with intent to

distribute, one count of criminal conspiracy, three counts of possession of

controlled substances, and one count of possession of drug paraphernalia.

After the matter was bound over to the trial court, Appellant filed a motion

to suppress and a motion to dismiss, challenging the search and seizures of

Appellant’s bedroom.         The trial court, following a hearing, denied both
____________________________________________


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



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motions.    Subsequently, Appellant filed a motion seeking to compel

discovery, including disclosure of the Commonwealth’s informant’s identity.

Likewise, the trial court denied this motion.    Upon learning of the second

extraction, Appellant filed another motion to suppress any evidence

produced by the second extraction.       Following a hearing, the trial court

denied the motion to suppress.

      A stipulated non-jury trial followed on November 30, 2015, after which

the trial court found Appellant guilty of all charges, sentencing him to 11½

to 23 months’ incarceration, followed by 3 years’ probation.       This appeal

followed.

      Appellant first argues the warrant allowing for a search of his

apartment was defective and/or overbroad because (i) it did not specify the

room to be searched, and (ii) it allowed nighttime search of the same

without adequate support for it.

      Regarding ground (i), Appellant relies on In the Interest of Wilks,

613 A.2d 577 (Pa. Super. 1992), for the proposition that a “warrant directing

a search of more than one living unit is valid only if there is a probable cause

that all are being used for the unlawful purposes involved.” Appellant’s Brief

at 14 (quoting Wilks, 613 A.2d at 579).          This argument was recently

rejected by this Court in Commonwealth v. Korn, 139 A.3d 249 (Pa.

Super. 2016):

      When discussing relevant case law in Wilks, this Court cited to
      our Supreme Court’s previous decision in Commonwealth v.

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      Carlisle, [534 A.2d 469, 471 (Pa. 1987)], for the proposition
      that “[a] search warrant directed against an apartment house, or
      other multiple-occupancy structure will be held invalid for lack of
      specificity if it fails to describe the particular room or subunit to
      be searched with sufficient definiteness to preclude a search of
      other units.” Wilks, 613 A.2d at 579 (emphasis added). This
      reference to a particular room must, however, be read in
      context. In Carlisle, our Supreme Court cited with approval this
      Court’s quoting the general requirement of particularity found in
      68 Am.Jur.2d Searches and Seizures § 77 (1973). Carlisle, 534
      A.2d at 471. Despite the mention of “room” in that treatise, our
      Supreme Court in Carlisle held the search warrant at issue
      described the premises to be searched with sufficient
      particularity even though the affidavit that accompanied the
      warrant designated only the specific apartment to be searched.
      See Carlisle, 534 A.2d at 471–72 [] (explaining that [] the “evil
      to be prevented is the search of other apartments where there is
      no legal basis for police intrusion.”)

Id. at 255 (emphasis in original) (footnote omitted). Thus, Wilks cannot be

read to preclude the search of all rooms inside a single apartment if there is

probable cause to believe contraband is located in any room of the

apartment.

      In fact, Article 1, Section 8 of the Pennsylvania Constitution has
      been held not to preclude a search of the entire residence where
      there is probable cause to believe that contraband is located
      within any particular room of a single living unit. In
      Commonwealth v. Waltson, [724 A.2d 289 (Pa. 1998)], the
      Pennsylvania State Police responded to a domestic dispute and
      were informed by the defendant’s alleged girlfriend that the
      defendant was growing marijuana in the basement. Thereafter,
      a search warrant was issued, which described the premises to be
      searched by house number.            Upon searching the entire
      residence, the police found not only ten marijuana plants
      growing in one room of the basement, but also found other
      drugs and drug paraphernalia throughout the rest of the house.

      Following his conviction on various drug charges, the defendant
      filed a timely appeal to this Court, in which he challenged the
      trial court's denial of his suppression motion. We rejected his

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     challenge to the trial court's suppression ruling and affirmed the
     defendant’s judgment of sentence. See Commonwealth v.
     Waltson, 703 A.2d 518, 521 (Pa. Super. 1997) (concluding that
     “when there is probable cause to believe criminal activity is afoot
     in one room of a single unit household, a warrant to search the
     entire unit is not overbroad.”) Our Supreme Court granted the
     defendant's petition for allowance of appeal “in order to address
     whether a search warrant is overbroad where it authorizes a
     search of an entire residence, where probable cause underlying
     the warrant relates to only a particular room of the house.”
     Waltson, 724 A.2d at 290–91.

     The high court held that, “where there is probable cause to
     believe that contraband is located within a particular room of a
     single unit house, Article 1, Section 8 does not preclude a search
     of the entire residence.” Id. at 290. In doing so, our Supreme
     Court rejected the defendant’s contention that the “Pennsylvania
     Constitution’s enhanced privacy rights limit the scope of a lawful
     search of a single unit residence more than the Fourth
     Amendment.” Id. at 291. The Waltson court then concluded
     the following:

           [W]here a search warrant adequately describes the
           place to be searched and the items to be seized the
           scope of the search “extends to the entire area in
           which the object of the search may be found and
           properly includes the opening and inspection of
           containers and other receptacles where the object
           may be secreted.”

     Id. at 292 (quoting Commonwealth v. Reese, 520 Pa. 29, 549
     A.2d 909, 911 (1988)) (footnote omitted).

Korn, 139 A.3d at 255-56.

     Thus, to the extent Appellant relies on Wilks to challenge the validity

of the warrant, such reliance is misplaced. See Korn, 139 A.3d at 255-56.

In Waltson our Supreme Court specifically stated that when officers can

articulate probable cause to search one room in a single unit, as they did

here, see Trial Court Opinion, 7/10/16, at 2-4, a search warrant allowing for

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the search of the entire unit is not overbroad. See Waltson, 724 A.2d at

290–92.

      Next, Appellant argues the warrant is defective because it allowed

nighttime search despite the supporting affidavit of probable cause not

providing any reason for that provision.       A review of the record belies

Appellant’s claim.   The issuing authority authorized a daytime search by

checking the daytime box option for the execution of the search. Appellant’s

failure to acknowledge this much is confusing.

      Addressing Appellant’s contention that the entry of the expiration time

for the search in the nighttime search option box turned the instant daytime

search into a nighttime search, the trial court noted that “[t]he expiration

time applies to whichever box is checked, the daytime or nighttime box.

Instantly, the daytime box was checked and this was a daytime search

warrant, not a nighttime warrant.” Trial Court Opinion, 7/10/16, at 2. In

light of the foregoing, we conclude the claim is meritless.

      Appellant next argues the trial court erred in not suppressing the

statement proffered by Appellant following a violation of his Miranda rights.

Specifically, Appellant argues that after he invoked his right to remain silent,

the officer’s request for Appellant to disclose the phone password constituted

a custodial interrogation in violation of Miranda, which should result in the

suppression of the statement, and any other evidence obtained from that

violation. We disagree.


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      We need not determine whether the officer’s request for the cell phone

password amounted to interrogation because, even if we were to agree with

Appellant’s characterization of the issue, Appellant would not be entitled to

suppression of the statement proffered in response to the officer’s request.

We find the inevitable discovery rule applies. The inevitable discovery rule

provides as follows:

      [I]f the prosecution can establish by a preponderance of the
      evidence that the illegally obtained evidence ultimately or
      inevitably would have been discovered by lawful means, the
      evidence is admissible. The purpose of the inevitable discovery
      rule is to block setting aside convictions that would have been
      obtained without police misconduct.

Commonwealth v Bailey, 986 A.2d 860, 862 (Pa. Super. 2009) (citation

omitted). “Instantly, law enforcement would have obtained the information

contained   on   the   legally   seized   iPhone    through   forensic   utilities,

manufacturer or cell phone provider assistance.”          Trial Court Opinion,

7/10/16, at 5; see also id. at 3-4.        Therefore, we agree with the trial

court’s denial of Appellant’s motion to suppress.

      Next, Appellant argues the trial court erred in not suppressing the

evidence obtained from the second extraction of Appellant’s cell phone.

According to Appellant, the Commonwealth needed another warrant to

access his cell phone for the second extraction.       In support of his claim,

Appellant principally relies on Riley v. California, 134 S.Ct. 2473 (2014)

(for the proposition that the warrantless search of a cellular phone




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conducted incident to an arrest is unconstitutional), and Commonwealth v.

Stem, 96 A.3d 407 (Pa. Super. 2014) (same). We disagree.

      After the Commonwealth obtained a proper search warrant, Detective

Aston of the Pennsylvania State Police conducted a full extraction of

Appellant’s phone, and prepared a report.         On the eve of trial, the

Commonwealth learned of Detective Aston’s inability to testify.          The

Commonwealth then asked Detective Paul of the Pennsylvania State Police

to conduct the same full extraction of Appellant’s cell phone.           The

Commonwealth asked Appellant to stipulate to Detective Aston’s report, but

Appellant refused. At the hearing held on Appellee’s motion to suppress the

second report, the Commonwealth represented that the extraction report

prepared by Detective Paul was substantially identical to the report prepared

by Detective Aston. N.T. Hearing, 11/24/15, at 7-9. At the same hearing,

Appellant noted that the second report provided data explanations, which

the first one did not.   Id. at 9-10.     Appellant, however, could not tell

whether there were any substantive differences between the two reports.

Id.   Eventually, Appellant stipulated to the admission and accuracy of the

second extraction report. Stipulation of Counsel, 11/30/15, at 1-2.

      On appeal, Appellant again argues that the second extraction

constituted a new search because it “could” potentially reveal new and/or

different information from the first search.   On appeal, as at the hearing,

Appellant fails to state if indeed there was any substantive difference


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between the two reports.2            Regardless of any deficiency in Appellant’s

argument, we need not address the merits of this contention because

Appellant stipulated to the admission and accuracy of the second report,

without any reservation.        The claim was, therefore, abandoned below and

cannot be raised on appeal. See Pa.R.A.P. 302(a).

       Even if we were to conclude that the issue is preserved for our review,

we would, nonetheless, conclude that it has no merit. It is uncontested that

Appellant’s cell phone was in the Commonwealth’s custody and had been

since it was seized under the first warrant. Additionally, the same reasons

for the issuance of the first search warrant were present and would have

justified the issuance of a second search warrant.        Had a second warrant

been obtained, the search would have inevitably resulted in the discovery of

the same information contained in the second report.         The second report,

therefore, would have been admissible under the inevitable discovery rule.

See Trial Court Opinion, 4/1/16, at 3.


____________________________________________


2
   Appellant cites to Pa.R.Crim.P. 581(H) for the proposition that the
Commonwealth has the burden of establishing by preponderance of evidence
that the challenged evidence was not obtained in violation of his rights.
Appellant, however, neglects to mention that the Commonwealth’s burden is
triggered by a motion to suppress stating “specifically and with particularity
the evidence sought to be suppressed, the grounds for suppression, and the
facts and events in support thereof.” Pa.R.Crim.P. 581(D). Regardless of
deficiencies, if any, in Appellant’s motion to suppress, the legality of the
second extraction issue is nonetheless waived as Appellant stipulated to the
admission and accuracy of the challenged report.



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      Finally, Appellant argues the trial court abused its discretion in denying

his motion to compel disclosure of the confidential informant and open

charges against the same. We disagree.

      “Our standard of review of claims that a trial court erred in its

disposition of a request for disclosure of an informant’s identity is confined to

abuse of discretion.” Commonwealth v. Washington, 63 A.3d 797, 801

(Pa. Super. 2013).

      Rule of Criminal Procedure 573 provides that a trial court has the

discretion to require the Commonwealth to reveal the names and addresses

of all eyewitnesses, including confidential informants, where a defendant

makes a showing of material need and reasonableness:

      (a) In all court cases, except as otherwise provided in Rule 230
      (Disclosure of Testimony Before Investigating Grand Jury), if the
      defendant files a motion for pretrial discovery, the court may
      order the Commonwealth to allow the defendant's attorney to
      inspect and copy or photograph any of the following requested
      items, upon a showing that they are material to the preparation
      of the defense, and that the request is reasonable:

            (i) the names and addresses of eyewitnesses.

            ....

Pa.R.Crim.P. 573(B)(2)(a)(i).

      The Commonwealth enjoys a qualified privilege to withhold the
      identity of a confidential source. In order to overcome this
      qualified privilege and obtain disclosure of a confidential
      informant’s identity, a defendant must first establish, pursuant
      to Rule 573(B)(2)(a)(i), that the information sought is material
      to the preparation of the defense and that the request is
      reasonable. Only after the defendant shows that the identity of
      the confidential informant is material to the defense is the trial

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      court required to exercise its discretion to determine whether the
      information should be revealed by balancing relevant factors,
      which are initially weighted toward the Commonwealth.

      In striking the proper balance, the court must consider the
      following principles:

            A further limitation on the applicability of the
            privilege arises from the fundamental requirements
            of fairness. Where the disclosure of an informer’s
            identity, or of the contents of his communication, is
            relevant and helpful to the defense of an accused, or
            is essential to a fair determination of a cause, the
            privilege must give way. In these situations[,] the
            trial court may require disclosure and, if the
            Government withholds the information, dismiss the
            action.

            [N]o fixed rule with respect to disclosure is
            justifiable. The problem is one that calls for
            balancing the public interest in protecting the flow of
            information against the individual’s right to prepare
            his defense.    Whether a proper balance renders
            nondisclosure erroneous must depend on the
            particular circumstances of each case, taking into
            consideration the crime charged, the possible
            defenses, the possible significance of the informer's
            testimony, and other relevant factors.

Commonwealth v. Marsh, 997 A.2d 318, 321-22 (Pa. 2010) (internal

citations omitted) (alteration in original).

      Here, Appellant argues that the identity of the informant should be

disclosed so that he/she could be questioned about issues material to

Appellant’s defense; however, it is unclear to as what defense it would be

material.   Appellant argues that the informant could provide evidence that

exculpates him given that the informant did not know Appellant, could not

identify Appellant, and had no dealings with Appellant. Appellant’s Brief at

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J-A03025-17


24.   Appellant, however, does not argue the informant misidentified him.

Additionally, Appellant argues that the disclosure of the informant’s identity

is reasonable because the sole basis for the investigation that resulted in the

search and seizure of Appellant’s residence was information from the

informant about Appellant’s roommate’s illegal activities. Id. at 25.

      The trial court dismissed the claim, noting that

      the charges against [Appellant] arose from the search of
      [Appellant]’s dwelling, not from the controlled buys that the
      confidential informant was part of.       The only attenuated
      connection between the confidential informant and [Appellant] is
      that the search warrant that resulted in [Appellant]’s charges
      was based in part on information from the confidential informant
      regarding [Appellant]’s roommate and the confidential
      informant’s controlled buys from [Appellant]’s roommate.

Trial Court Opinion, 9/1/15, at 3-4. We agree with the trial court’s analysis

and conclusion.

      We also note that disclosure of the identity of the informant is relevant

and material to a defendant “if it tends to show that a specific crime of which

a defendant stands accused was committed by someone else.          The record

must disclose a reasonable possibility that the information sought will

materially aid the defendant in presenting his defense and is not obtainable

from another source.”    Commonwealth v. King, 932 A.2d 948, 953 (Pa.

Super. 2007). As noted, Appellant does not allege or argue that someone

else committed the crimes with which he has been charged.            Similarly,

Appellant does not argue, let alone demonstrate, that there is a reasonable




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J-A03025-17


possibility   the    informant’s     testimony     would   exonerate   him.   See

Commonwealth v. Withrow, 932 A.2d 138, 141 (Pa. Super. 2013).

       Additionally, we note that the identity of the informant is immaterial to

Appellant’s trial because his charges arose from the execution of a search

warrant, not a controlled purchase. The informant was not an eyewitness to

the crimes with which Appellant is charged, and the informant was not

present at the time of the search. See, King, 932 A.2d at 953.3

       In light of the foregoing, we conclude that Appellant failed to

demonstrate that testimony from the informant would tend to show that

someone other than Appellant committed the offense at issue. See id.

Moreover, Appellant failed to demonstrate that the informant’s testimony

would otherwise tend to exonerate him. See Withrow, 932 A.2d at 141.

Therefore, the trial court properly denied Appellant’s request for disclosure

of the informant’s identity.




____________________________________________


3
  In King, we concluded that informant’s identity should not be revealed
where defendant’s “charges arose from the execution of the search warrant,
not from the controlled buy;” the informant “was not an eyewitness to the
crimes charged, which arose strictly out of the execution of the search
warrant inside the house;” informant was not present at the time of the
search; and defendant did not challenge the validity of the search warrant.
King, 932 A.2d at 953.



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J-A03025-17


     In light of the foregoing, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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