J-S35003-15 & J-S35004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MELVIN MOORE
Appellee No. 1919 EDA 2014
Appeal from the Order March 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005370-2013
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHANA MOORE
Appellee No. 60 EDA 2015
Appeal from the Order March 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005371-2013
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 18, 2015
In this consolidated appeal,1 the Commonwealth appeals from the
March 10, 2014 order granting the motion to suppress filed by Appellees,
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*
Retired Senior Judge assigned to the Superior Court.
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Melvin Moore and Shana Moore.2 After careful review, we reverse and
remand for further proceedings.3
The suppression court set forth the facts of this case as follows.
On February 11th, 2013, [four] Complainants
reported the robbery of two HP laptops, a white
Samsung cell phone, and a black myTouch cell
phone. The Philadelphia Police Department identified
one of the robbers as a man known as Pace, and
obtained a warrant for his house at 2922 South 62nd
Street. On the evening of February 12th, 2013, the
police arrested Pace at his home, where they
discovered fruits of the robbery—college textbooks
and a black JanSport backpack. Pace then gave a
voluntary statement admitting to the robbery, and
alleged that Jakeel Walker committed the crime with
him, took backpacks from the rear of the
Complainants’ vehicle, and fired a small revolver
once during the robbery. Pace informed police that
he had known Walker for two (2) years, and that
Walker lived “on 65th between Lindberg and
Eastwick.” Police databases confirmed this
information, listing Walker’s address as 2844 South
_______________________
(Footnote Continued)
1
We have sua sponte consolidated the appeals under the referenced journal
numbers for disposition in the interest of judicial economy. As the motions
to suppress were heard by the same jurist in a combined proceeding, we
hereafter make reference in general to the “suppression court.” Further, all
dates and documents referenced herein are identical in both cases. See
Pa.R.A.P. 513 (stating that, “[w]here there is more than one appeal from the
same order, or where the same question is involved in two or more appeals
in different cases, the appellate court may, in its discretion, order them to be
argued together in all particulars as if but a single appeal”).
2
The Commonwealth has averred, pursuant to Pa.R.A.P. 311(d), that the
trial court’s order would terminate or substantially handicap its prosecution.
Commonwealth’s Notice of Appeal, 4/4/14. Therefore, we have jurisdiction
to address the Commonwealth’s interlocutory appeals.
3
We note that Appellees elected not to file briefs in the present appeal.
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65th Street. The four Complainants, however,
fail[ed] to identify Walker’s picture in a police lineup.
Police were issued a warrant for Walker’s residence
seeking two HP laptops, a white Samsung cell phone,
a black myTouch cell phone, and a proof of residency
on Walker. When they entered the residence on
February 15th, 2013, police discovered marijuana
and [Appellees], who[m] they subsequently
[4]
arrested.
Suppression Court Opinion, 12/5/14, at 1-2 (citations omitted).5
On May 1, 2013, the Commonwealth filed an information charging
each Appellee with one count each of conspiracy, intentional possession of a
controlled substance by a person not registered, use or possession of drug
paraphernalia, and manufacture, delivery, or possession with intent to
manufacture or deliver a controlled substance.6 Appellees moved to
suppress the evidence obtained from the search of Walker’s residence,
arguing that the search warrant for Walker’s residence was not supported by
probable cause. On January 10, 2014, the suppression court heard oral
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4
Police seized the evidence based on the plain view doctrine. See, e.g.,
Commonwealth v. Harvard, 64 A.3d 690, 698 (Pa. Super. 2013)
(explaining “police executing a valid search warrant may seize items not
listed in the warrant if their incriminating nature is immediately apparent[]”
pursuant to the plain view doctrine) (citation omitted), appeal denied, 77
A.3d 636 (Pa. 2013). Appellees did not challenge the seizure of this
evidence pursuant to the plain view doctrine. Additionally, we note that the
police established Appellees’ residency at the premises.
5
The suppression court filed an identical opinion in each case.
6
18 Pa.C.S.A. § 903, 35 P.S. §§ 780-113(a)(16), (a)(32), and (a)(30),
respectively.
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argument from all parties7 and then granted each Appellee’s motion to
suppress. On February 7, 2014, the suppression court entered orders
granting the Commonwealth’s motions to reconsider and vacating its
January 10, 2014 suppression orders. Thereafter, on March 10, 2014, the
suppression court filed an order, dated February 7, 2014, in each case
reinstating suppression. On April 4, 2014, the Commonwealth filed timely
notices of appeal.8
On appeal, the Commonwealth presents this issue for our review.
Where police investigating a gunpoint robbery in
which a shot was fired arrested one of the
participants in that same crime, who identified his
accomplice who fired the shot and told police that his
accomplice lived on a particular block, and where (a)
the police corroborated the accomplice’s address, (b)
phone records showed a call between the informant
and the accomplice an hour before the robbery, and
(c) the accomplice’s physical description matched
that given by the robbery victims, did the lower court
err in holding that the “four corners” of the search
warrant application failed to state probable cause to
search the accomplice’s house for the fired gun and
other evidence of the robbery?
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7
Appellees did not present any evidence during the suppression hearing.
8
On April 4, 2014, the Commonwealth filed a concise statement of matters
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) before the suppression court ordered such a statement.
The suppression court filed its opinion on December 5, 2014. Therein, the
suppression court explained, “[d]ue to a docketing error by this [c]ourt, the
Commonwealth was not able to appeal until April 4th, 2014.” Suppression
Court Opinion, 12/5/14, at 2.
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Commonwealth’s Brief at 4.9
We begin by noting our well-settled standard of review.
When the Commonwealth appeals from a
suppression order, this Court may consider only the
evidence from the defendant’s witnesses together
with the evidence of the prosecution that, when read
in the context of the record as a whole, remains
uncontradicted. In our review, we are not bound by
the suppression court’s conclusions of law, and we
must determine if the suppression court properly
applied the law to the facts. We defer to the
suppression court’s findings of fact because, as the
finder of fact, it is the suppression court’s
prerogative to pass on the credibility of the
witnesses and the weight to be given to their
testimony.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)
(internal quotation marks and citations omitted), appeal denied, 106 A.3d
724 (Pa. 2014).
The ultimate issue in a suppression hearing is
whether the police officer affiants had probable
cause at the time they applied for a search warrant.
At such hearings, the Commonwealth has the burden
of proving that the facts presented to the magistrate
demonstrate probable cause. The standard for
evaluating whether probable cause exists for the
issuance of a search warrant is the “totality of the
circumstances” test as set forth in Illinois v. Gates,
462 U.S. 213 (1983), which was adopted by the
Pennsylvania Supreme Court in Commonwealth v.
Gray, 503 A.2d 921, 925 (Pa. 1985). A magistrate
is to make a practical, common-sense decision
whether, given all the circumstances set forth in the
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9
The Commonwealth filed identical briefs in both appeals, presenting the
same issue for our review, verbatim.
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affidavit before him, including the veracity and basis
of knowledge of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be found in a
particular place. The information offered to establish
probable cause must be viewed in a common sense,
non-technical manner and deference must be given
to the issuing magistrate. It must be remembered
that probable cause is based on a finding of the
probability of criminal activity, not a prima facie
showing of criminal activity.
Commonwealth v. Luton, 672 A.2d 819, 821-822 (Pa. Super. 1996)
(some citations and parallel citations omitted) (internal quotation marks
omitted); see also Pa.R.Crim.P. 203(B), (D).
The suppression court suppressed the evidence based on its conclusion
that there was no substantial basis for the search warrant of Walker’s
residence because Pace, as an accomplice-informant, was not a reliable
source and there was no independent evidence corroborating Walker’s
involvement in the robbery. Suppression Court Opinion, 12/5/14, at 6. The
Commonwealth contends that probable cause was supplied by Pace’s
statement, wherein he admitted to participating in the robbery and
implicated Walker in the robbery, and by the police corroboration of some of
the information Pace provided. Commonwealth’s Brief at 10-11.
We conclude that the suppression court erred as a matter of law when
it determined that Pace’s uncorroborated confession implicating Walker in
the robbery was not a substantial basis for the warrant. Under Pennsylvania
law, probable cause is established by the uncorroborated statement of an
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accomplice’s confession to participation in a criminal act and implication of
the defendant in the crime. See, e.g., Commonwealth v. Wright, 702
A.2d 362, 366 (Pa. Super. 1997), appeal denied, 727 A.2d 1120 (Pa. 1998).
In Wright, police observed two juveniles selling drugs and arrested them.
Id. at 364. One of the juveniles cooperated with police and gave a
statement implicating the defendant as his supplier and identifying the hotel
room out of which defendant operated. Id. Based on the juvenile’s
statement alone, police obtained a search warrant for the hotel room. Id.
Upon executing the warrant, police seized cash and drugs from the hotel
room and arrested the defendant. Id. After his conviction, the defendant
appealed, among other things, the suppression court’s denial of his motion
to suppress based on probable cause to support the warrant. Id. at 365.
This Court rejected the argument that the informant was not reliable and
concluded that the affidavit established probable cause, explaining, “[t]he
fact that the informant herein was a co-defendant who made a statement
against penal interest does not, as appellant argues, defeat the validity of
the search warrant. In fact … the statements against penal interest support
the validity of the warrant.” Id. at 366; accord Commonwealth v. Miller,
439 A.2d 1167, 1169 (Pa. 1982) (holding “[t]he personal involvement of the
declarant assures direct knowledge of the source of the information and the
self[-]implication tends to suggest the reliability of the statement[]”);
Commonwealth v. Bradley, 295 A.2d 842, 844 (Pa. 1972) (holding “[i]t
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has long been the law of Pennsylvania that the uncorroborated testimony of
an accomplice is sufficient to convict a defendant. In light of the fact that
probable cause may be established by less evidence than would be sufficient
to support a conviction, it would be quite inconsistent to hold that
information supplied by a confessed accomplice cannot form the basis for
probable cause to arrest[]”) (footnote and citations omitted);
Commonwealth v. Reviera, 563 A.2d 1252, 1256 (Pa. Super. 1989)
(holding “[w]here a person is an admitted participant in a crime and police
secure a search warrant upon information received from him, affiant-officers
need not support their claim that the informant was credible or his
information reliable since the individual’s admission of participation in the
crime insures his reliability[]”) (citation omitted), quoting, Commonwealth
v. Stickle, 398 A.2d 957, 961-962 (Pa. 1979), appeal dismissed, 584 A.2d
308 (Pa. 1991).
In this case, evaluating the totality of the circumstances, we conclude
that the issuing magistrate properly concluded that the police officer affiants
established probable cause to search Walker’s residence. The affidavit
contained Pace’s statement admitting participation in the robbery and
identifying Walker as his accomplice, which was an inherently reliable
statement against penal interest. See Miller, supra; Reviera, supra.
Based on this source alone, the magistrate could conclude that there was a
fair probability that Walker participated in the robbery and, therefore,
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contraband or evidence of the robbery would be found in Walker’s residence.
See Luton, supra. The Commonwealth was not required to corroborate
Pace’s statement with independent evidence of Walker’s involvement in the
robbery.10 See Reviera, supra. Therefore, because the affidavit contained
sufficient facts to demonstrate probable cause, the search warrant was
properly issued and the evidence seized in the execution of the warrant was
not subject to suppression. See Luton, supra.
In its December 5, 2014 opinion, the suppression court relied on
Commonwealth v. Abbruzzese, 302 A.2d 853 (Pa. Super. 1973). In
Abbruzzese, the informant, under arrest for burglary, supplied police with
information that the defendant purchased items from various other burglars.
Abbruzzese, supra at 853-854. This Court held that the search warrant
based on the informant’s statement lacked probable cause because the
informant was not reliable, as the informant did not implicate himself in any
crime and his statement could be viewed as a self-serving attempt to
mitigate his own charges on an unrelated burglary. Id. at 854.
Abbruzzese, however, is distinguishable from this case because herein Pace
confessed to his involvement in the robbery and identified Walker as his
accomplice in the same crime. Therefore, as discussed above, Pace’s
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10
Based on this, we need not address the Commonwealth’s remaining
argument that police corroborated some of the information in Pace’s
statement.
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statement implicating himself in the robbery and naming Walker as his
cohort was a reliable statement against penal interest that alone gave rise to
probable cause to search Walker’s residence for proceeds or evidence of the
crime. See Bradley, supra; Miller, supra; Reviera, supra.
Based on the foregoing, we conclude that the suppression court erred
when it granted Appellees’ motions to suppress. See Hudson, supra.
Accordingly, the suppression court’s March 10, 2014 orders are reversed,
and the case is remanded for further proceedings, consistent with this
memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
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