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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRUCE M. REESE, :
:
Appellant : No. 52 EDA 2013
Appeal from the Judgment of Sentence November 20, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013539-2011
BEFORE: BENDER, P.J.E., WECHT, and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED AUGUST 06, 2014
the evidence is meritless. Howeve
respectfully dissent.
Reese presents only one argument in support of his claim that the trial
court erred by denying his motion to
is insufficient evidence to show that [he] resided at the residence for which
the [search] warrant was issued because the magistrate was not informed,
and the affirming detective did not so inform him, that [Reese] had a more
-10. According to Reese, the
* Retired Senior Judge assigned to the Superior Court.
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rejects this argument. Trial Court Opinion, 7/31/2013, at 14-15.
es
Majority Memorandum at 15. To the extent that Reese presented this
argument to the trial court, he abandoned it on appeal. I, therefore, do not
believe that such an argument should be the basis for granting Reese
appellate relief. Moreover, assuming arguendo that Reese had presented
decision in Commonwealth v. Hutchinson, 434 A.2d 740 (Pa. Super.
1981), renders such an issue meritless.
In Hutchinson, a man wearing a blue checked shirt robbed a medical
center at gunpoint. The man stole credit cards, six car wash slips, and
approximately eight hundred dollars. Two of the victims identified
Hutchinson as the perpetrator.
home. The affidavit of probable cause noted that a gunpoint robbery had
occurred, that the perpetrator had stolen certain property, and that two of
the victims had identified the perpetrator as Hutchinson from photos. When
inter alia, a blue checked
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shirt and a .22 caliber pellet gun. Those items were admitted into evidence
On appeal, Hutchinson argued
inadmissible because the search warrant affidavit failed to aver that
evidence could be found in his home and therefore did not establish probable
Hutchinson, 434 A.2d at 743. This Court
employed
The affidavit of probable cause must contain sufficient facts to
permit a neutral and detached magistrate to conclude with
reasonable certainty that a crime has been committed and that
evidence or fruits thereof may be found on the premises to be
searched. In United States v. Ventresca, 380 U.S. 102, 108,
85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the United States
Supreme Court held that such applications should be read in a
court that the facts contained in the present affidavit formed a
sufficient basis for the issuing authority to conclude that
evidence from the robbery would
home. The affidavit stated that [Hutchinson] had been positively
identified by two of the victims. Moreover, the items seized, a
shirt and a gun, were each of a type reasonably likely to be
found in the perpetrator's home, especially given the short
period of time between the commission of the crimes and the
application for the search warrant. In similar circumstances,
courts have held it reasonable for an issuing authority to
conclude that evidence would be found in the homes of suspects.
Consequently, the lower court properly concluded that the
search warrant was supported by probable cause and that the
shirt and gun were admissible.
Hutchinson, 434 A.2d at 742-43 (citations and footnote omitted).
Here, the affidavit of probable cause indicates that, at 12:20 a.m. on
November 11, 2011, D.H., I.W., and B.S. were robbed at gunpoint by two
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men. The men stole from B.S., inter alia, three dollars and a Wells Fargo
debit card. They took from D.H. approximately eighty dollars and from I.W.
fifteen dollars and a SEPTA pass. K.R. was with the victims, but the two
perpetrators did not take anything from him.
During the course of the robbery, D.H. and K.R. recognized the
perpetrator who brandished the gun during the incident. K.R. asked that
Search Warrant #161856, 11/14/2011, at 1. D.H. stated that, during the
robbery, the gunman identified himself as Bruce. The affidavit then
describes the two perpetrators. According to the affidavit, on November 13,
2011, D.H. and I.W. identified Reese as the gunman from a photo array, and
the following day, B.S. did the same. K.R. was uncooperative during the
investigation.
The Majority quotes most of the last paragraph of the affidavit.
Majority Memorandum at 15. However, the Majority omits the final sentence
search and seizure warrant be granted for 413 N Edgewood Street to look
for any fi
Id. The
search warrant was issued and executed on November 14, 2011.
After examining the totality of the circumstances, in my view, a
commonsense and reasonable reading of the affidavit of probable cause
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reveals that it contained sufficient facts to permit the issuing authority to
conclude with reasonable certainty that Reese committed a crime and that
evidence or fruits of that crime might be found in his residence. The
affidavit stated that the three cooperative victims of the robbery positively
identified Reese as the gunman in the robbery. Moreover, the police sought
ed during the
commission of the robbery and the items stolen during that same robbery.
perpetrator's home, especially given the short period of time between the
commission of the
Hutchinson, 434 A.2d at 743.
For these reasons, I conclude that the trial court properly determined
that the search warrant was supported by probable cause. I, therefore,
would affirm the judgment of sentence.
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