J-S42013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEVONTE PRESSLEY,
Appellant No. 2520 EDA 2014
Appeal from the Judgment of Sentence August 13, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004653-2013
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 15, 2015
Jevonte Pressley (“Appellant”) appeals from the August 13, 2014
judgment of sentence entered after he was convicted of robbery, robbery of
a motor vehicle, two counts of receiving stolen property, and possessing an
instrument of crime. The sole issue for review is whether the trial court
erred in denying Appellant’s motion to suppress. We affirm.
On February 12, 2013, at approximately 2:15 a.m., a robbery occurred
at the 7-Eleven located on the 7300 block of Elmwood Avenue in Southwest
Philadelphia. The perpetrator pointed a gun at the store clerk’s face,
demanded and took money from the cash registers, and stole the clerk’s
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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cellular phone, car keys, and vehicle, a 2003 Buick Century. Trial Court
Opinion, 11/24/14, at 5.
Philadelphia Police Detective Michael DeRose was assigned to
investigate the robbery. In conjunction with his investigation, Detective
DeRose received information from another police officer that the
complainant’s vehicle had been recovered from a rear driveway at 2525 S.
Massey Street. Trial Court Opinion, 11/24/14, at 5. Accordingly, Detective
DeRose applied for a warrant to search the premises. After the warrant was
executed, Appellant was arrested and charged with the aforementioned
offenses.
On February 27, 2014, Appellant filed a motion to suppress the
evidence seized incident to the search. The trial court held a hearing on the
suppression motion on May 7, 2014, after which it denied the motion. A jury
trial commenced on May 12, 2014, and on May 13, 2014, the jury rendered
its guilty verdicts. On August 13, 2014, Appellant was sentenced to
consecutive terms of sixty-two to 180 months of incarceration for robbery,
forty-two to 174 months for robbery of a motor vehicle, and twelve to forty-
two months for possessing an instrument of crime. No further penalty was
imposed for the receiving stolen property convictions.
Appellant filed a notice of appeal on August 15, 2014. In compliance
with the trial court’s order, on September 19, 2014, Appellant filed a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. He also
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filed a supplemental Rule 1925(b) statement on October 13, 2014. In both
statements, Appellant averred that the search warrant was not supported by
probable cause. In the latter statement, Appellant also claimed that
Appellant’s ensuing statement to the detectives must be suppressed as “fruit
1
of the poisonous tree.”
On November 24, 2014, the trial court filed a Pa.R.A.P. 1925(a)
opinion in support of its decision to deny the motion to suppress. The trial
court explained the rationale for denial of the motion, as follows:
Here, when employing the totality of the circumstances
analysis, it becomes clear that the warrant to search 2525 S.
Massey Street was properly issued. [T]he warrant and affidavit
explain how the location became the subject of the investigation:
Mr. Bahl (manage[r] of Car and Van, Inc.) received a call from
the complainant, stating that his 2003 Buick Cent[u]ry, that he
purchased from the Car and Van lot, had been stolen.
Mr. Bahl tracked the vehicle using GPS, disabled its
starter, and traveled to the area of 2559 S. Massey Street. He
later located the Buick in the rear driveway of 2525 S. Massey
Street. After locating it, Mr. Bahl recovered the stolen vehicle
using a spare set of keys that he had.
The warrant and affidavit explains that upon recovery, Mr.
Bahl immediately went to the 12th District police station. At this
time Mr. Bahl noticed that a black plastic trash bag was placed
over the license plate to conceal it.
Applying the totality-of-the-circumstances test to this
warrant and affidavit it is clear that the warrant to search 2525
S. Massey Street was properly issued.
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1
“The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained
from, or acquired as a consequence of lawless official acts.”
Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa. Super. 2013).
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Mr. Bahl was in possession of the same vehicle that was
stolen from the 7-Eleven at 7329 Elmwood Avenue. He
recovered the vehicle at 2525 S. Massey Street, approximately
.5 miles from the robbery location. These facts indicate that
there was a fair probability that contraband or evidence of a
crime would be found at 2525 S. Massey Street. Balancing all of
this information together illustrates that Mr. Bahl was providing
a reliable tip and that the warrant was properly issued.
Trial Court Opinion, 11/24/14, at 9–10. The trial court thus concluded that
there was sufficient cause for the issuance of the search warrant under both
the United States and Pennsylvania Constitutions. Id. at 10. As a
consequence of its conclusion that the evidence of the robbery was not
acquired from an illegally issued search warrant, the trial court also rejected
Appellant’s “fruit of the poisonous tree” assertion. Id. at 10–11. See
Commonwealth v. Gatlos, 76 A.3d 44, 63 (Pa. Super. 2013) (fruit of the
poisonous tree argument requires an antecedent illegality) (citing
Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997)).2
Appellant raises one issue for appellate scrutiny:
Did not the lower court err in denying the motion to
suppress where the police executed a search warrant that lacked
probable cause because it failed to contain any evidence, besides
the fact that an unnamed person said that there had been a
stolen vehicle parked outside a row home, and the conclusion
that there was probable cause to believe the property which was
the subject of the warrant would contain contraband or
proceeds?
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2
Appellant does not pursue the “fruit of the poisonous tree” argument on
appeal.
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Appellant’s Brief at 4.
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.” Commonwealth v. Reese, 31 A.3d
708, 721 (Pa. Super. 2011) (citations omitted). When, as here, the
prosecution has “prevailed in the suppression court, we 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.”
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal
quotation marks and citations omitted).
Appellant contends that the affidavit supporting the instant search
warrant did not contain the requisite probable cause for three reasons: 1)
there was no reliable or corroborated information that would indicate that
evidence related to the subject crimes or contraband would be found in his
house; 2) the affidavit relied upon information from an unnamed anonymous
source that was not corroborated by any police investigation; 3) there was
no nexus between the stolen car parked in the driveway to the premises
sought to be searched. When addressing this type of challenge, our review
is confined to the “four corners of the affidavit.” Commonwealth v.
Coleman, 830 A.2d 554, 560 (Pa. 2003); see also Commonwealth v.
Smith, 784 A.2d 182, 185 (Pa. Super. 2001) (citations omitted)
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(magistrate’s finding of probable cause must be based on facts included
within four corners of affidavit); Pa.R.Crim.P. 203B (“The issuing authority,
in determining whether probable cause has been established, may not
consider any evidence outside the affidavits.”).
The affidavit of probable cause under scrutiny here recited the
following information:
On February 12th, 2013, at approximately 2:25 am, the
complainant reported a gunpoint robbery at the 7-11 located at
7329 Elmwood Avenue. The complainant, an employee at the 7-
11 was interviewed inside of SWDD and stated the following in
summary: He was stocking shelves when the offender entered
the store holding a large black handgun, possibly a desert eagle
and approached a customer who was getting coffee. The
offender pointed the gun at the customer and told him to lay on
the ground. The offender then grabbed the complainant and
ordered him to open the registers and empty the contents. The
complainant was in the process of placing the money from the
registers in a bag when the offender shoved him back and placed
the remainder of the money in the bag. The offender then
ordered the complainant to give him his car keys and cell phone
before ordering him to go to the back room and count to thirty.
When the complainant heard the store[’]s door chime indicating
the offender had left the store, the complainant looked out and
observed the offender outside the store staring back at him. The
offender re-entered the store and stated “didn’t I tell you to lay
down on the ground, as a matter of fact lay right here and count
to thirty.” The complainant counted to thirty and observed the
offender pulling off in his 2003 Buick Cent[u]ry, gold in color, tag
unknown at this time. Also taken was approximately $50 from
the store’s register and the complainant’s HTC Inspire cell phone
b[e]aring phone number. . . . The complainant further stated
that the customer who was getting coffee fled the scene on foot
after the offender left and that nothing was taken from him.
There is no further information on that individual at this time.
On February 13th, 2013, at 1:58 am, Detective DeRose received
information from 12th District Sergeant Davis #517 informing
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him that the complainant’s 2003 Buick Cent[u]ry was recovered
in the rear driveway of 2525 Massey Street.
A witness was interviewed inside of SWDD by Detective DeRose
#679 and stated the following in summary:
He is the manager of “Car and Van Inc” located at 577 Chester
Pike, Prospect Park PA which is the lot where the complainant
had recently purchased the Buick. On 02/12/2012, at
approximately 11 am, the complainant informed the witness that
the car had been stolen. The witness conducted a check of the
vehicle’s GPS tracking system and it revealed the vehicle was in
the vicinity of 2559 S Massey Street. The witness disabled [the]
vehicle’s starter and went out to locate the vehicle. The witness
located the vehicle parked in the rear driveway of 2525 S
Massey Street. The witness drove off and waited for a short
period of time. At approximately 11 pm, the witness went to
2525 Massey Street in the rear driveway and recovered the
complainant’s vehicle with a spare set of keys that he had for the
vehicle. While recovering the vehicle, the witness observed a
male looking at him from the window of that location. The
witness further stated that upon recovering the vehicle he
immediately went to the 12th District. Upon arrival at the 12th
District, he observed that a black plastic trash bag was placed
over the vehicle’s license plate to conceal the plate.
The vehicle, 2003 Buick Cent[u]ry, VIN# . . . was recovered,
placed on a Philadelphia police property receipt and towed to
4298 Macalester Street.
An INCT check revealed that no calls were made to the
Philadelphia Police to report to any vehicles stolen at that
location. A BRT property search revealed that Granite Hill
[P]roperties LLC is listed as the current owner of that location.
2525 Massey Street is approximately 0.5 miles from the 7329
Elmwood Avenue.
Based on the above facts and circumstances, your affiant
believes there is sufficient probable cause to search 2525 Massey
Street, Philadelphia PA, 19142 for any and all firearms,
ammunition, ballistic evidence, proceeds taken in the robbery
including the complainant’s HTC Inspire cell phone b[e]aring
phone number. . ., the complainant’s keys to the 2003 Buick
Cent[u]ry, proof of residence, or any item that may help identify
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the offender, as well as any item that may aid in the
investigation.
Affidavit of Probable Cause, 2/12/13, at 2–3.
Appellant’s first two challenges to the legality of the warrant concern
the reliability of the witness referred to in the affidavit. Appellant argues
that there was no information regarding the veracity of the statement from
the person described as “the manager of Car and Van Inc” and no indication
the police verified the information received from that individual. Appellant
urges that the witness’s veracity and reliability should have been assessed
pursuant to the analysis that courts employ when judging the reliability of
unnamed or confidential informants. Because this witness’s information was
not evaluated in this manner, Appellant contends that the witness could not
be considered reliable, and the warrant was issued without probable cause.
We disagree.
Pennsylvania courts utilize the “totality of the circumstances” test set
forth in Illinois v. Gates, 462 U.S. 213 (1983), to determine if probable
cause exists to support issuance of a search warrant. See Commonwealth
v. Murphy, 916 A.2d 679, 681–682 (Pa. Super. 2007) (observing that the
Gates totality of the circumstances test was adopted in this jurisdiction in
Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986)). In Commonwealth
v. Jones, 988 A.2d 649 (Pa. 2010), the Pennsylvania Supreme Court
described the test, as follows:
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Pursuant to the “totality of the circumstances” test
set forth by the United States Supreme Court in
Gates, the task of an issuing authority is simply to
make a practical, common-sense decision whether,
given all of the circumstances set forth in the
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. . . . It is the duty of a court
reviewing an issuing authority’s probable cause
determination to ensure that the magistrate had a
substantial basis for concluding that probable cause
existed. In so doing, the reviewing court must
accord deference to the issuing authority’s probable
cause determination, and must view the information
offered to establish probable cause in a common-
sense, non-technical manner.
Id. at 655 (quoting Commonwealth v. Torres, 764 A.2d 532, 537–538,
540 (Pa. 2001) (emphasis added)).
Issuing authorities must consider only the information in the affidavit
when assessing the trustworthiness of information provided to law
enforcement officials by informants. Commonwealth v. Dukeman, 917
A.2d 338, 341–342 (Pa. Super. 2007). The reliability of all informants,
however, is not gauged equally. “Officers relying on statements from an
ordinary citizen, in contrast to a police informant,” may presume that the
witness is reliable. Commonwealth v. Lyons, 79 A.3d 1053, 1064–
1065 (Pa. 2013) (citing Commonwealth v. Weidenmoyer, 539 A.2d 1291,
1295 (Pa. 1988)); see also Commonwealth v. Sudler, 436 A.2d 1376,
1380–1381 (Pa. 1981) (police relying on named civilian information
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permitted to assume person’s credibility in absence of “circumstances
suggesting that such might not be the case”).
In the case sub judice, we acknowledge that the search warrant
application did not identify the witness who recovered the stolen vehicle, Mr.
Bahl, by name. That does not mean, as Appellant suggests, that the source
of the information was anonymous. The affidavit detailed that the
complainant called the witness after the 7-Eleven and vehicle robberies. The
witness was identified as the manager of “Car and Van Inc” where
complainant purchased the car. Also, according to the affidavit, the witness
was able to check the vehicle’s GPS tracking system, disable the vehicle’s
starter, and eventually start the vehicle using a spare set of keys. These
factors indicate that the witness was familiar with the vehicle and the fact
that it had been stolen. The witness then drove the vehicle to the police
station where he was interviewed in person. Any cloak of anonymity was
shed at this point. Furthermore, there was some corroboration to the
information provided by the witness. The complainant had informed the
police that his gold 2003 Buick Century had been stolen. The next day, the
witness presented the vehicle to the police and referred to his telephone call
from complainant. Therefore, Appellant’s claim that the reliability of the
witness should have been scrutinized as if he was an anonymous informant
fails.
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Appellant next claims that the affidavit of probable cause did not
establish a sufficient nexus between the robbery and the premises to be
searched. Appellant contends that the mere fact that a stolen car was
parked in a driveway belonging to a property management firm cannot
support the necessary probable cause for issuance of a warrant to search the
property at 2525 S. Massey Street.
Although the Commonwealth faults Appellant for stating that there
must be a nexus between the crime committed and the place to be
searched, we do not construe Appellant’s argument so narrowly. Rather we
view Appellant’s position as advocating that if the warrant is seeking
evidence of a crime, the affidavit of probable cause must detail a nexus
between the crime and the premises. This position is legally supportable.
Under Pa.R.Crim.P. 201, a search warrant may be issued to search and
seize: “(1) contraband, the fruits of a crime, or things otherwise criminally
possessed; or (2) property that is or has been used as the means of
committing a criminal offense; or (3) property that constitutes evidence of
the commission of a criminal offense.” Pa.R.Crim.P. 201.
The third enumerated purpose permits searches for property
evidencing commission of a crime. See Jones, 988 A.2d at 657–658 (under
Rule 201(3), a search warrant may be issued to search for and seize
property constituting evidence that a crime has been committed). In this
instance, the affidavit of probable cause represented that, in addition to
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searching for proceeds of the robbery, it averred that there was sufficient
probable cause to search for “all firearms, ammunition, ballistic evidence”
and any items “that may aid in the investigation.” Affidavit of Probable
Cause, 2/12/13, at 3. As these items are linked to the crime itself, Appellant
is not in error when he claims that the warrant must establish a connection
between this evidence and the property to be searched. See
Commonwealth v. Wallace, 42 A.3d 1040, 1049–1050 (Pa. 2012) (there
must be a nexus between the suspect’s residence and the criminal activity or
contraband sought in order to permit the search thereof).
Our task on review is to evaluate whether the issuing authority had a
substantial basis to conclude that probable cause existed to search 2525 S.
Massey Street. Commonwealth v. Housman, 986 A.2d 822, 843 (Pa.
2009). “Furthermore, probable cause is based on probability, not a prima
facie case of criminal activity; deference should be afforded the magistrate’s
finding of probable cause.” Id.
Here, the affidavit of probable cause related that, approximately
eleven hours after the vehicle was reported stolen, GPS tracking revealed
that the car was in the 2500 block of S. Massey Street. After another eleven
hours, the vehicle was observed parked in the rear driveway of 2525 S.
Massey Street, one-half mile from where the robbery occurred. When the
witness was recovering the vehicle, he saw a male looking at him from the
window of that location.
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In deciding that the warrant was legally issued under the totality of
circumstances test, the trial court found that the supporting affidavit
adequately explained how the location became the subject of the
investigation. The trial court cited the above-mentioned information in the
affidavit concerning tracking of the vehicle stolen from the nearby 7-Eleven
and its eventual discovery in the driveway at 2525 S. Massey Street. The
court concluded that these facts “indicate that there was a fair probability
that contraband or evidence of a crime would be found” at the location
identified in the warrant. Trial Court Opinion, 11/24/14, at 10.
We agree with the trial court that the facts contained in the affidavit
formed a sufficient basis for the issuing authority to conclude that evidence
of, or from, the robbery would be found at 2525 S. Massey Street, especially
given the close temporal and spatial proximity of the robberies to the
premises search. Additionally, we can surmise that the perpetrator of the
crime might likely conceal the items sought, the weapon used in the
robbery, and the proceeds of the robbery, where he resides. Where police
are looking for stolen property, the logical inference is that the thief will
return to a place where he expects privacy to conceal the proceeds of his
crime. See Commonwealth v. Fromal, 572 A.2d 711, 718 (Pa. Super.
1990) (search warrant properly issued based on logical supposition that
place to be searched was connected to the crime); Commonwealth v.
Crawford, 466 A.2d 1079, 1081 (Pa. Super. 1983) (reasonable for issuing
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authority to conclude that proceeds from robbery would be at a place under
suspect’s control). Although at the time the warrant was issued herein,
there was no information on the identity of the person residing in the
dwelling where the vehicle was located, a male inside the premises observed
the recovery of the stolen vehicle. All of these factors demonstrate that the
issuing authority made a common sense and supportable decision that there
was a fair probability that evidence of, or proceeds from, the crime would be
discovered at the address attached to the driveway where the stolen car was
parked.
Having reviewed the four corners of the affidavit filed in support of the
search warrant for 2525 S. Massey Street, we conclude that it provided a
substantial basis to support the issuing authority’s finding of probable cause
to search. Accordingly, we will not disturb the suppression court’s denial of
the motion to suppress, and the judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
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