Com. v. Hardy, J.

J-S56040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JAMES LEE HARDY,

Appellant No. 243 MDA 2015

Appeal from the Judgment of Sentence December 5, 2014
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0003415-2014

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 22, 2015

Appellant, James Lee Hardy, appeals from the judgment of sentence

imposed on December 5, 2014 pursuant to his jury conviction of possession

of firearm prohibited, 18 Pa.C.S.A. § 6105(a)(1). Appellant challenges the

trial court’s denial of his motion to suppress evidence. We affirm.

The trial court aptly set forth the background facts of this case in its

May 19, 20141 opinion, as follows:

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
The certified record did not contain the court’s opinion, which accompanied
its order denying Appellant’s motion to suppress. We remind Appellant that
it is his responsibility to provide this Court with a complete certified record
that includes everything pertinent to our review, and that failure to do so
generally results in waiver. See Commonwealth v. Little, 879 A.2d 293,
301 (Pa. Super. 2005), appeal denied, 890 A2d 1057 (Pa. 2005) (“An
(Footnote Continued Next Page)
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On October 6, 2013, at approximately 7:30 p.m., Officer
[Thomas] Cole of the Lancaster City Police Department
responded to a domestic dispute in the 600 block of South Lime
Street in the City and County of Lancaster. (See N.T.
Suppression Hearing, 3/14/14, at 15). While en route, Officer
Cole was informed that Caprice Speller had been assaulted by
her boyfriend, [Appellant], with a silver revolver, that a shot had
been fired, and that [Appellant] was leaving the scene in a white
SUV, likely headed for his residence at 1551 Passey Lane in
Manheim Township. (See id. at 16).

Upon arrival, Officer Cole met with Ms. Speller and
observed multiple visible injuries to Ms. Speller and noted that
the rear door was kicked in, pieces of the door were splintered
and laying on the floor, a kitchen table was moved, curtains
were knocked down, and other furniture was upturned. (See id.
at 17). Officer Cole then notified the Manheim Township Police
Department that [Appellant] was likely traveling to 1551 Passey
Lane and that he should be detained until the situation was
under control. (See id. at 17-18). Manheim Township Police
were also notified that the first three characters of [Appellant’s]
registration were “J G S.” (Id. at 18).

Officer Daniel Swigart of the Manheim Township Police
Department responded to 1551 Passey Lane, as instructed by
dispatch. (See id. at 5). He had also been informed by dispatch
of the nature of the incident in the 600 block of South Lime
Street, that [Appellant] had broken into a residence and was
involved in a domestic dispute with a firearm, and that [he]
would be driving a white SUV with “J G S” as the first three
characters of the registration. (Id. at 6; see id. at 5). Officer
Swigart also found a photograph of [Appellant] on JNET. (See
id. at 6).

Officer Swigart identified [Appellant’s] vehicle as it entered
the parking lot of the apartment complex and followed it until it
parked. (See id. at 7). Officer Swigart identified [Appellant]
_______________________
(Footnote Continued)

appellant’s failure to provide the reviewing court with a complete certified
record results in the waiver of the claim.”) (citations omitted). However, in
the interest of judicial economy, we obtained a certified copy of the opinion
from the trial court.

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based on his JNET photo as he exited the SUV. (See id. at 8).
At this point, Officer Swigart exited his patrol vehicle, ordered
[Appellant] to the ground at gunpoint, searched [him],
handcuffed [him], and placed [him] in the rear of a police vehicle
to await the Lancaster City Police. (See id. at 9). Lancaster
City Police informed Officer Swigart that the firearm used by
[Appellant] was likely in a black bag in [Appellant’s] vehicle;
Officer Swigart observed the black bag in the vehicle and stayed
with the vehicle until Officer Cole took possession of it. (See id.
at 10-11). Officer Hamby of the Lancaster City Police arrived,
took custody of [Appellant], and transported him from the scene.
(See id.).

After speaking to Ms. Speller and securing the scene of
South Lime Street, Officer Cole responded to 1551 Passey Lane.
(See id. at 18-19). He had learned from Ms. Speller that Ellen
Davidson was the owner of the white SUV driven by [Appellant].
(See id. at 18). Officer Cole verified that Ellen Davidson was
the registered owner via a records check. (See id. at 18-19).
Lancaster City Police contacted Ellen Davidson and accompanied
her to 1551 Passey Lane, where she gave Lancaster City Police
permission to search the vehicle and signed a Lancaster City
Bureau of Police Consent form. (See id. at 19). While Ms.
Davidson was the clear registered owner of the vehicle, she
informed police that [Appellant] was the primary operator of the
vehicle, that she intended to transfer ownership to his name,
and that [Appellant] was the only person in possession of a set
of keys for the vehicle. (See id. at 21-22).

Upon receiving consent, officers searched the vehicle and
found a black bag that matched the description of the bag that
was alleged to contain the firearm. (See id. at 21). A .38
revolver was found inside the bag, which was then secured by
police and taken to the Lancaster City Police Station where
Officer Cole inventoried the contents of the bag. (See id. at 21-
23). Inside the bag, Officer Cole found two discharged rounds,
three live rounds in the chamber of the revolver, a small
quantity of marijuana, approximately twelve grams of cocaine,
several digital scales, and a box of sandwich baggies. (See id.
at 23).

(Trial Court Opinion, 5/19/14, at 1-3) (some record citation formatting

provided).

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The Lancaster City police filed charges against Appellant, and, on

December 30, 2013, the Commonwealth filed an information at docket

number 5892-2013, charging him with possession of drug paraphernalia,

possession with intent to deliver, possession of a small amount of marijuana,

possession of a firearm prohibited, and firearms not to be carried without a

license.2 On February 14, 2014, Appellant filed a motion to suppress, and

the court held a hearing on March 14, 2014. The parties then submitted

briefs on the suppression issue, and the trial court denied the motion on May

19, 2014.3

On July 23, 2014, the Manheim Township Police Department filed the

same charges against Appellant for the incident as those previously filed by

the Lancaster City police at docket number 5892-2013. Thereafter, the

Commonwealth filed an information at docket number 3415-2014,

consolidated docket numbers 5892-2013 and 3415-2014, and nolle prossed

all charges at case number 5892-2013.

____________________________________________

2
35 P.S. § 780-113(a)(32), (a)(30), and (a)(31), and 18 Pa.C.S.A. §§
6105(a)(1) and 6106(a)(1), respectively.
3
The date stamp on the opinion and order denying the suppression motion
is May 19, 2014. (See Opinion, 5/19/14). However, the docket lists the
opinion as filed on May 21, 2014. (See Docket, Case Number 5892-2013, at
8). For sake of clarity, because the trial court uses the earlier date when
referring to its decision, (see Trial Court Opinion, 3/09/15, at 1), we will use
May 19th also.

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At trial, the Commonwealth proceeded on only count one of the

information at 3415-2014, possession of firearm prohibited. On September

15, 2014, the jury convicted Appellant of committing the offense. On

December 5, 2014, the court sentenced him to not less than four nor more

than eight years’ incarceration.4 The court denied his timely post-sentence

motion on January 5, 2015.

Appellant timely appealed on February 4, 2015. The court ordered

him to file a Rule 1925(b) statement, which he timely did on February 23,

2015. See Pa.R.A.P. 1925(b). The court filed an opinion on March 9, 2015

in which it relied on its May 19, 2014 opinion. See Pa.R.A.P. 1925(a).

Appellant raises two questions for our review:

I. Did not the court err in denying [Appellant’s] motion to
suppress when the police did not have probable cause to conduct
the search and when any purported consensual search was
invalid?

II. Did not the court err in denying [Appellant’s] motion to
suppress when an officer of the Lancaster City Police Department
performed the warrantless search beyond the territorial limits of
his primary jurisdiction in contravention of 42 Pa.C.S.[A.]
§[]8953?

(Appellant’s Brief, at 4) (most capitalization omitted).

Our standard of review of a trial court’s denial of a motion to suppress

is well-settled:
____________________________________________

4
At the sentencing hearing, the Commonwealth also formally nolle prossed
counts two through five of the information filed at docket number 3415-
2014.

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[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth 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 suppression court’s
factual findings are supported by the record, [the appellate court
is] bound by [those] findings and may reverse only if the court’s
legal conclusions are erroneous. Where . . . the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to []
plenary review.

Commonwealth v. Jones, 2015 WL 4503123, at *1 (Pa. Super. filed July

24, 2015) (citation omitted).

In his first issue, Appellant argues that the trial court abused its

discretion in denying his motion to suppress the gun seized from the search

of his car. (See Appellant’s Brief, at 18-24). Specifically, he makes two

arguments in support of this issue: that “[t]he police did not have probable

cause to search [his] vehicle,” and no exception to the warrant requirement

applied; and that Ellen Davidson’s consent to search was invalid and

involuntary. (Id. at 18, 22). We disagree.

Both the Fourth Amendment to the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution acknowledge an

individual’s right to be free from unreasonable searches and seizures, which

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generally requires that police officers obtain a search warrant based on

probable cause. See U.S. Const. Amend. IV; Pa. Const. Art. 1, § 8.

However, as acknowledged by Appellant, the Pennsylvania Supreme

Court recently held in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014),

that “[t]he prerequisite for a warrantless search of a motor vehicle is

probable cause to search; no exigency beyond the inherent mobility of a

motor vehicle is required.” (Appellant’s Brief, at 19) (quoting Gary, supra

at 138).

It is well-settled that “[p]robable cause [ ] is a practical, non-technical

concept which requires consideration of the totality of the circumstances.”

Commonwealth v. Perel, 107 A.3d 185, 203 n.4 (Pa. Super. 2014)

(citation omitted). “Whether probable cause exists . . . must be . . . viewed

through the eyes of a prudent, reasonable, cautious police officer guided by

experience and training.” Commonwealth v. Wells, 916 A.2d 1192, 1195

(Pa. Super. 2007) (citation omitted).

Here, the trial court found that, in the totality of the circumstances,

police had probable cause to search Appellant’s vehicle, and that the

warrantless search of the vehicle therefore was authorized by the automobile

exception recognized in Gary. (See Trial Ct. Op., at 6-7). Specifically, the

court stated:

In the instant case, police were responding to a violent
domestic call involving the use of a firearm. (N.T. Suppression
Hearing, 3/14/14, at 15-16). Officer Cole arrived and
corroborated the victim’s story by observing fresh injuries to the

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victim and signs of a struggle in the residence. (See id. at 17).
The victim provided a description of the vehicle that [Appellant]
was driving, his likely location, and a description of the bag from
which she saw [him] remove the firearm and to which [he]
returned the firearm. (See id. at 16-17, 21). [Officer Swigart]
confirmed that the firearm was not on [Appellant’s] person and
viewed a bag matching the description of the one containing the
firearm. (See id. at 9-10). Approximately six minutes had
passed between the time Officer Cole was dispatched to the
scene of the domestic incident and when [Officer Swigart]
stopped [Appellant], which led officers to believe [Appellant] had
just left the scene of the domestic incident and still had the
firearm in his possession. (See id. at 5, 15).

Based on the information Officer Cole received from
dispatch, observed from the scene of the incident, and the short
period of time between when Officer Cole was dispatched and
when [Appellant] was stopped, there was probable cause to
believe there was evidence of a crime, namely the firearm,
within the vehicle. Therefore, the police properly executed a
warrantless search of the vehicle to recover the firearm used in
the incident pursuant to the automobile exception to the warrant
requirement.

(Trial Ct. Op., at 6-7)5 (some record citation formatting provided).

Our independent review of the record supports the trial court’s factual

findings, and we conclude that it properly applied the law to those facts
____________________________________________

5
We note that, even prior to Gary, it was well-settled that an officer’s
reasonable belief that the defendant had a weapon in the vehicle created an
exigent circumstance justifying a warrantless search. See, e.g.,
Commonwealth v. Morris, 644 A.2d 721, 723 (Pa. 1994), cert. denied,
513 U.S. 1031 (1994) (“[R]easonable belief based on . . . specific articulable
facts . . . entitles an officer to conduct a search of those portions of the
passenger compartment of a suspect's vehicle in which a weapon could be
placed.”); Commonwealth v. Boyd, 17 A.3d 1274, 1278 (Pa. Super.
2011), appeal denied, 29 A.3d 370 (Pa. 2011) (concluding that warrantless
vehicle search for weapons proper where based on officer’s reasonable belief
and articulable suspicion that the occupants of the vehicle may have access
to a weapon).

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J-S56040-15

when it found that the police had probable cause to search Appellant’s

vehicle without a warrant pursuant to the automobile exception. See

Jones, supra at *1; Gary, supra at 138. Appellant’s argument to the

contrary lacks merit.

Moreover, even if the automobile exception did not apply to this

matter, Appellant’s argument that Ellen Davidson was unable to give valid,

voluntary consent lacks merit. (See Appellant’s Brief, at 22).

It is well-settled that:

A search warrant is not required . . . where a person with the
proper authority26 unequivocally and specifically consents to the
search.
26
A person has authority to consent to a search if
the person has a possessory or privacy interest in
the area to be searched . . . .

To establish a valid consensual search, the prosecution
must first prove that the consent was given during a legal police
interaction . . . and second, that the consent was given
voluntarily.

Commonwealth v. Reid, 811 A.2d 530, 544 (Pa. 2002), cert. denied, 540

U.S. 850 (2003) (citations omitted). Third party consent is valid if police

reasonably believe the individual has authority to consent. See Illinois v.

Rodriguez, 497 U.S. 177, 188-89 (1990).

Here, despite Appellant’s argument to the contrary, the record

supports the court’s finding that Ellen Davidson, the registered owner of the

searched vehicle, gave voluntary, valid consent. (See Trial Ct. Op., at 7).

First, we observe that Appellant provides no supporting authority for his

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argument that, because Ms. Davidson bought the car for his use and

intended to give it to him, she had no authority to consent to the search.

(See Appellant’s Brief, at 23-24).

Additionally, we find no merit to Appellant’s argument that Ms.

Davidson’s consent was involuntary because, “[o]nce at the scene, [she]

was effectively at the mercy of the police to return her home.” (Id. at 24).

The suppression hearing transcript reflects that Officer Cole independently

confirmed via a records check that Ms. Davidson was the legal registered

owner of the subject vehicle. (See N.T. Suppression Hearing, 3/14/14, at

18-19). An officer brought her to the vehicle at 1551 Passey Lane. (See id.

at 19). Before talking to Officer Cole, she signed the Lancaster Bureau of

Police Consent Search Form. (See id. at 19-20). Officer Cole orally

reviewed the form with Ms. Davidson, ensuring she understood her rights.

(See id. at 20). Ms. Davidson confirmed at the scene that she had

purchased the vehicle, and that it was registered to her. (See id. at 21).

Ms. Davidson did not testify at the hearing. Therefore, there is nothing in

the record to support Appellant’s allegation that she felt she was “at the

mercy of the police to return her home.” (Appellant’s Brief, at 24).

Hence, we conclude that the Commonwealth established that Ms.

Davidson’s consent was given “during a legal police interaction,” Reid,

supra at 544, and that the police reasonably could believe that she had a

possessory interest in the vehicle as its registered owner. See Rodriguez,

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supra at 188-89; Reid, supra at 544. Also, the record supports the court’s

legal conclusion that Ms. Davidson’s consent to search was voluntary. See

Reid, supra at 544. Accordingly, Appellant’s argument regarding the

trooper’s lack of consent to search does not merit relief. Therefore,

Appellant’s first issue lacks merit.

In his second claim, Appellant maintains that the court erred in

denying his suppression motion where Officer Cole performed the vehicle

search outside of his primary jurisdiction, in violation of the Municipal Police

Jurisdiction Act (MPJA), 42 Pa.C.S.A. §§ 8951-8954. (See Appellant’s Brief,

at 25-29). We disagree.

Section 8953 of the MPJA provides, in pertinent part:

(a) General rule.─Any duly employed municipal police officer
who is within this Commonwealth, but beyond the territorial
limits of his primary jurisdiction, shall have the power and
authority to enforce the laws of this Commonwealth or otherwise
perform the functions of that office as if enforcing those laws or
performing those functions within the territorial limits of his
primary jurisdiction . . .

* * *

(3) Where the officer . . . has probable cause to believe
that the other officer is in need of aid or assistance.

(4) Where the officer has obtained the prior consent of the
chief law enforcement officer . . . of the organized law
enforcement agency which provides primary police services to a
political subdivision which is beyond that officer’s primary
jurisdiction to enter the other jurisdiction for the purpose of
conducting official duties which arise from official matters within
his primary jurisdiction.

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J-S56040-15

(5) Where the officer is on official business and views an
offense, or has probable cause to believe that an offense has
been committed, and makes a reasonable effort to identify
himself as a police officer and which offense is a felony,
misdemeanor, breach of the peace or other act which presents
an immediate clear and present danger to persons or property.

42 Pa.C.S.A. § 8953(a)(3)-(5).

It is well-settled that:

[T]he MPJA must be liberally construed to effectuate the
purposes of the Act, which include providing police with the
authority to act in a law enforcement capacity outside their own
jurisdictions under limited circumstances. The intent behind the
MPJA is to promote public safety while maintaining police
accountability; the Act was not intended to be used to erect
impenetrable jurisdictional walls benefiting only criminals hidden
in their shadows.

Two conflicting positions have arisen in this Court on the
question as to whether a violation of the MPJA entitles an
aggrieved party to suppression under the exclusionary rule. In
Commonwealth v. Bradley, 724 A.2d 351 (Pa.Super.1999) (en
banc), this Court noted the exclusionary rule applies to any
evidence gathered subsequent to an MPJA violation even if the
officer acts in good faith or the police officer’s actions would
have been lawful if performed within the proper jurisdictional
limits.

In Commonwealth v. Chernosky, 874 A.2d 123
(Pa.Super.2005) (en banc), appeal denied[,] 588 Pa. 747, 902
A.2d 1238 (2006), this Court implicitly rejected the absolutist
approach espoused in Bradley in favor of the case-by-case
approach approved of by our Supreme Court in Commonwealth
v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1990). The factors to
be considered in applying this case-by-case approach consist of
all the circumstances of the case including the intrusiveness of
the police conduct, the extent of deviation from the letter and
spirit of the [MPJA], and the prejudice to the accused. [See]
Chernosky, supra at 130. The Chernosky Court further noted
that the spirit, or purpose of, the MPJA is to proscribe
investigatory, extraterritorial forays used to acquire additional
evidence where probable cause does not yet exist.

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Chernosky unquestionably sets forth the proper standard
this Court is to employ in determining whether the exclusionary
rule should act to suppress evidence obtained pursuant to an
MPJA violation. Chernosky relies on an approach approved by
our Supreme Court, is more recent than the decision rendered in
Bradley, and sets forth a standard which allows this
Commonwealth’s courts to tailor a remedy in situations where
police intentionally have overstepped their boundaries while still
affording our courts the flexibility to deny suppression when
police have acted to uphold the rule of law in good faith but are
in technical violation of the MPJA.

Commonwealth v. Henry, 943 A.2d 967, 971-72 (Pa. Super. 2008),

appeal denied, 959 A.2d 928 (Pa. 2008) (quotation marks and most citations

omitted); see also Commonwealth v. O’Shea, 567 A.2d 1023, 1030 (Pa.

1989), cert. denied, 498 U.S. 881 (1990) (“suppression of evidence may or

may not be the appropriate remedy for a violation of [MPJA]”);

Commonwealth v. Borovichka, 18 A.3d 1242, 1250 (Pa. Super. 2011)

(suppression for violation of MPJA not warranted where it would “run afoul of

the legislative intent behind the MPJA, which is to promote public safety, not

to hinder law enforcement and shield criminal behavior.”) (citations

omitted).

In Henry, the arresting municipal police officer entered into the

jurisdiction of the Pennsylvania State Police after determining he had

probable cause to stop the defendant. See id. at 972. The Court

acknowledged that the officer failed to follow proper protocol pursuant to the

MPJA, but observed that the failure did not prejudice the defendant and that

“the arresting officer did not enter the State Police’s jurisdiction to conduct

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an extraterritorial patrol or to embark on a fishing expedition in hopes of

gathering more evidence to reach a determination of probable cause.” Id.

at 973 (citation omitted). Based on the foregoing, the Court concluded that

the circumstances did not warrant the exclusionary rule’s application. See

id.

In this case, the trial court applied the Henry Court’s reasoning in

reaching its decision, in which it found:

In the present case, Officer Cole had probable cause to
detain [Appellant] based on the incident in Lancaster City, which
is Officer Cole’s jurisdiction. Officer Cole specifically asked the
Manheim Township Police to detain [Appellant] on his behalf
until he could arrive. Officer Swigart did so. Officer Swigart had
also been informed of the nature of the incident in the city and
that city police believed the weapon used by [Appellant] was in a
black bag in [Appellant’s] vehicle. Pursuant to the automobile
exception recently adopted by the Pennsylvania Supreme Court,
Officer Swigart could have searched the vehicle, found the black
bag, and the contents of the bag. Instead, he secured the
vehicle until Officer Cole entered Manheim Township’s
jurisdiction for the purpose of conducting official duties which
arise from official matters within his primary jurisdiction. The
technical violation of the MPJA did not prejudice [Appellant]
because the contents of the black bag would have been
inevitably discovered whether searched by the Lancaster City
Police or the Manheim Township Police. Additionally, like the
officer in Henry, Officer Cole was not on a fishing expedition to
hopefully reach a determination of probable cause. Officer Cole
possessed probable cause based on his investigation in Lancaster
City to believe [Appellant], who had fled just prior to police
arrival, was in possession of the firearm used in the assault and
that the firearm was in a black bag in [his] car. Therefore,
despite being outside of his jurisdiction, Officer Cole’s search of
the black bag was appropriate.

(Trial Ct. Op., at 8-9). We agree.

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After our independent review of the record, and plenary review of the

trial court’s legal conclusions, we conclude that it properly found that,

although Officer Cole may have technically violated the MPJA by performing

the search outside his jurisdiction, this did not necessitate the imposition of

the exclusionary rule. See Jones, supra at *1; Henry, supra at 971-73.

Therefore, Appellant’s second issue lacks merit.

The trial court properly denied Appellant’s motion to suppress. See

Jones, supra at *1.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2015

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