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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CURTIS WORMLEY
Appellant No. 1242 EDA 2013
Appeal from the Judgment of Sentence November 14, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010791-2010
CP-51-CR-0011695-2010
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 24, 2015
Appellant, Curtis Wormley, appeals from the judgment of sentence
entered November 14, 2012, by the Honorable Daniel J. Anders, Court of
Common Pleas of Philadelphia County, following the denial of Wormley’s
Motion to Suppress Physical Evidence. We affirm.
We take the underlying facts in this matter from the trial court’s April
3, 2014, opinion.
Philadelphia Police Detectives Don Suchinsky and Steve
Grace were assigned to investigate a kidnapping and shooting
that occurred on July 1, 2010. As part of their investigation, the
detectives interviewed the shooting victim’s two brothers and
cousin who witnessed the shooting. They told the detectives
that an individual known to them as “Q” accused the four men of
stealing ten pounds of marijuana from [“Q’s”] store located at
4927 Old York Road. “Q” confronted them, kidnapped them in a
purple van, and tied their hands and feet with duct tape and
rope. “Q” drove the men to a remote location where he pistol-
whipped and threatened the men to either return the narcotics
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or pay him the monetary value for the drugs. One of the men
was shot during this interaction. N.T., 9/10/2012 at 40-45.
While conducting a search of [“Q’s”] store located at 4927
Old York Road, the detectives recovered a business license in the
name of Darin Thomas. The license listed an address of 87 West
Sharpnack Street. Detective Grace obtained a Pennsylvania
Driver’s License photo of Darin Thomas and showed it to one of
the witnesses. The witness identified the individual in the photo
as the brother of the person that they knew as “Q”. During a
[visual] check of 87 West Sharpnack Street before applying for
the search warrant, the detectives observed a purple van parked
nearby. The van matched the description provided by the
eyewitnesses, and the van’s Pennsylvania license plate came
back to 87 West Sharpnack Street.
As a result of this information, Detectives Suchinsky and
Grace obtained a search warrant for 87 West Sharpnack Street.
The warrant identified the items to be searched for and seized as
“Firearms, any ballistic evidence, any information concerning the
identity of suspect “Q” and any other items of evidentiary value
so that this investigation can be brought to a successful
conclusion.” Although the search warrant does not mention
“narcotics” as an item to be searched and seized, the affidavit of
probable cause contains a summary of the detectives’
investigation to date as well as a possible motive of the crime,
i.e., that “Q” demanded the return of his narcotics or money
prior to the victim being shot. N.T. 9/10/2012 at 45-46, 60, 63-
65; Search Warrant and Affidavit No. 151128.
On July 16, 2010, the detectives executed a search
warrant for 87 West Sharpnack Street. A female let the
detectives into the building and told them that [Wormley] was
sleeping in the rear bedroom on the second floor. Detective
Suchinsky entered the bedroom and found [Wormley] sleeping
next to a baby. Detective Suchinsky searched the bedroom and
recovered bullets, a holster, a roll of duct tape, a state
identification card with [Wormley’s] name, mail and shipping
labels listing [Wormley’s] name with the address of … 87 West
Sharpnack Street, the key to the purple van believed to be
linked to the crime, and $150. N.T., 9/10/2012 at 46-47, 52,
56-57.
As Detective Suchinsky searched the rear bedroom,
Lieutenant Lark searched the room adjacent to [Wormley] for
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weapons and contraband. As part of her search, Lieutenant Lark
observed a large freezer that measured four feet long by three
feet high. As Lieutenant Lark searched the freezer, she
discovered a large trash bag inside the freezer. Inside the trash
bag, Lieutenant Lark found several wrapped bags containing
what she immediately recognized as marijuana. The officers
seized over 10 pounds of marijuana from the freezer. N.T.,
9/10/2012 at 47-48; 68; N.T., 9/11/2012 at 13-22.
Lieutenant Lark was aware that – prior to executing the
search warrant – the warrant was based upon a kidnapping and
shooting that related to a narcotics dispute. Lieutenant Lark has
executed over one hundred search warrants during her twenty-
four years as a police officer including as a drug enforcement
officer in the 17th police district. When conducting a search for
weapons, Lieutenant Lark usually searches closets, bags,
basements, under beds, refrigerators, freezers, and anywhere
else a firearm or contraband may be concealed. When executing
search warrants, Lieutenant Lark has found weapons hidden
inside of refrigerators and freezers similar to the freezer she
searched at 87 West Sharpnack Street. N.T. 9/11/2012 at 6-9,
11, 21.
Trial Court Opinion, 4/3/14 at 1-3.
Wormley was subsequently arrested and charged with numerous
weapons and narcotics-related charges. On May 31, 2011, Wormley filed an
Omnibus Pre-Trial Motion seeking, inter alia, to suppress physical evidence
on the grounds that the search warrant “did not particularly describe the
place or persons to be searched or the items of evidence to be seized and
did not set forth probable cause for its issuance or for a nighttime search.”
Omnibus Pre-Trial Motion, 5/3/11 at II.3. The trial court denied Wormley’s
four-corners challenge after a hearing.1 On September 18, 2012, a jury
____________________________________________
1
The trial court did exclude evidence of zip lock bags (packaging), a cell
phone, and scales, for which the Commonwealth failed to provide an account
(Footnote Continued Next Page)
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convicted Wormley of Possession with Intent to Deliver a Controlled
Substance (“PWID”),2 Persons not to Possess Firearms,3 and Firearms Not to
Be Carried Without a License.4 On November 14, 2012, the trial court
sentenced Wormley to an aggregate term of 12½ to 27 years’ imprisonment.
On November 19, 2012, Wormley filed a post-sentence motion, which the
trial court denied. This timely appeal followed.
On appeal, Wormley contends that the trial court erred when it denied
his motion to suppress evidence. We review the denial of a motion to
suppress physical evidence as follows:
Our 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.
[W]e 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 findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Further, [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.
_______________________
(Footnote Continued)
detailing how that evidence was discovered during the search. See Order,
9/12/12.
2
35 Pa.C.S.A. § 780-113(a)(16).
3
18 Pa.C.S.A. § 6105.
4
18 Pa.C.S.A. § 6106.
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Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal
citations and quotations omitted).
The trial court’s factual findings are supported by the record. We
therefore proceed to examine the propriety of the lower court’s legal
conclusions. Wormley asserts that the warrant authorizing the search of 87
West Sharpnack Street was constitutionally overbroad in that it did not
state, with particularity, the items to be searched and seized. See
Appellant’s Brief at 2.
A search warrant cannot be used as a general
investigatory tool to uncover evidence of a crime. In re Casale,
512 Pa. 548, 517 A.2d 1260, 1263 (1986); Commonwealth ex
rel. Ensor v. Cummings, 416 Pa. 510, 207 A.2d 230, 231
(1965). Nor may a warrant be so ambiguous as to allow the
executing officers to pick and choose among an individual's
possessions to find which items to seize, which would result in
the general “rummaging” banned by the Fourth Amendment.
See Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d
24 (1982) (quoting Marron v. United States, 275 U.S. 192,
195, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). Thus, Pa.R.Crim.P. 205
specifies the necessary components of a valid search warrant.
The comment to Rule 205 provides, however, that even though
general or exploratory searches are not permitted, search
warrants should “be read in a common sense fashion and should
not be invalidated by hypertechnical interpretations. This may
mean, for instance, that when an exact description of a
particular item is not possible, a generic description will suffice.”
Pa.R.Crim.P. 205 (cmt.). Embracing this approach, we have held
that “where the items to be seized are as precisely identified as
the nature of the activity permits ... the searching officer is only
required to describe the general class of the item he is seeking.”
Commonwealth v. Matthews, 446 Pa. 65, 85 A.2d 510
(1971).
A warrant is defective when its explanatory narrative does
not describe as clearly as possible those items for which there is
probable cause to search. Grossman, 521 Pa. 290, 555 A.2d
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896. In assessing the validity of a description contained in a
warrant, a court must initially determine for what items there
was probable cause to search. Id. at 900. “The sufficiency of
the description [in the warrant] 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 [to search] and the description in the warrant
requires suppression.” Id.
Commonwealth v. Rega, 933 A.2d 997, 1011-1012 (Pa. 2007).
We note at the outset that Wormley does not allege that the search
warrant was invalid because it was issued without probable cause. We must
therefore measure the description contained in the warrant. See Rega, 933
A.2d at 2012. As previously noted, the warrant described the items to be
searched for and seized as:
Firearms, any ballistic evidence, any information concerning the
identity of suspect ‘Q’ and any other items of evidentiary value
so that this investigation can be brought to a successful
conclusion.
Search Warrant and Affidavit No. 151128. The affidavit in support of the
application for the warrant provided a further description of the items as
follows:
At this time the affiants respectfully requests [sic] approval
of this warrant to search the property 87 W. Sharpnack Street
by, [sic] for any firearms or ballistic evidence, any duct tape,
twine to tip up the complainants, and information leading to the
identity of “Q”, also any other item(s) of evidentiary value so
that this investigation may be brought to a successful
conclusion.
Id.
We have no problem concluding that the items listed in the search
warrant and affidavit were described with sufficient particularity and limited
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to evidence directly pertaining to the kidnapping and shooting and to
information leading to “Q’s” identity. We do not agree with Wormley’s
contention that the search warrant authorized an impermissible general
“rummaging”, merely because the scope of the warrant was not limited to
specific areas of the residence. As the trial court cogently recognized,
“[w]here a search warrant adequately describes the place to be searched
and the items 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.” Trial Court Opinion,
4/3/14 at 4-5 (quoting Commonwealth v. Watson, 724 A.2d 289, 292
(Pa. 1998) (emphasis added)). See also, Rega, supra, at 1013 (“[A]
lawful search generally extends to the entire area in which the object of the
search may be found.”) (citation omitted). Lieutenant Lark testified that, in
her experience, weapons are sometimes stored in refrigerators or freezers
such as the freezer in which the marijuana was discovered. We are
therefore satisfied that the search of the freezer did not constitute
impermissible “rummaging”.
We further reject Wormley’s claim that the narcotics uncovered during
the search should have been suppressed as items seized outside of the
scope of the search warrant. It is well-settled that when police are executing
a search pursuant to a valid search warrant, any “evidence seized, relating
to crimes not specified in the warrant, which was inadvertently found, may
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be admitted as evidence in the trial of those crimes.” Commonwealth v.
Doria, 574 A.2d 653, 656 (Pa. Super. 1990) (en banc).
Based on the foregoing, we find no error in the trial court’s denial of
Wormley’s suppression motion. Accordingly, we affirm Wormley’s judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2015
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