Commonwealth v. Torres

J-S95023-16

2017 PA Super 408

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ERIC TORRES

Appellant No. 2241 EDA 2015

Appeal from the Judgment of Sentence Entered July 8, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0011169-2013
CP-51-CR-0011170-2013
CP-51-CR-0011171-2013
CP-51-CR-0011172-2013
CP-51-CR-0011173-2013

BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

OPINION BY STABILE, J.: FILED DECEMBER 22, 2017

Appellant, Eric Torres, appeals from the July 8, 2015 judgment of

sentence imposing an aggregate term of 66 to 132 years’ imprisonment for

assault of law enforcement officer, aggravated assault, simple assault,

persons not to possess firearms, firearms not to be carried without a license,

carrying firearms on public streets in Philadelphia, possessing instruments of

crime (“PIC”), possession of a controlled substance with intent to deliver
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(“PWID”), and possession of drug paraphernalia.1 We vacate and remand

for a new trial.

The trial court set forth the following facts:

On August 13, 2013, Officer William Barr of the
Philadelphia Police Department was assigned to street patrol in a
marked vehicle in the area of Fifth Street and Allegheny Avenue.
Just before noon, Officer Barr initiated a traffic stop on a BMW,
Pennsylvania license plate number JJA-951, travelling eastbound
on Allegheny. Officer Barr had been traveling behind the vehicle
and initiated the stop when he saw the middle brake light was
not functioning. The vehicle pulled over on Fifth Street, just
North of Allegheny. Officer Barr exited his patrol car and
approached the vehicle, which was being driven by Appellant.
As he approached, he noticed Appellant’ shoulders moving back
and forth.

Officer Barr explained that he had stopped Appellant for
the brake light, as well as his inspection stickers, which were
from New York but placed on a Pennsylvania license plate. He
asked for Appellant’s license and registration. Officer Barr
testified that Appellant produced the documents right away, but
that he appeared nervous and was looking around. Officer Barr
asked Appellant if there was anything in the vehicle he should
know about, but Appellant did not answer. This made Officer
Barr concerned for his safety, and he opened the door and asked
Appellant to step out of the vehicle. Appellant did not exit the
vehicle; instead he closed the door and drove away. Officer Barr
returned to his own vehicle to follow him. He still had
Appellant’s license and registration in his hand at this time.

Officer Barr followed Appellant on Fifth Street for about
five or six blocks. Officer Barr relayed information about
Appellant’s flight over the radio. Sergeant Zimmerman[2] then
____________________________________________

1 18 Pa.C.S.A. §§ 2702.1(a), 2702(a), 2701(a), 6105(a)(1), 6106(a)(1),
6108, and 907(a) and 35 P.S. §§780-113(a)(30) and 780-113(a)(32),
respectively.

2 Sergeant Zimmerman’s first name is not in the record.

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directed Officer Barr to terminate his pursuit due to safety
concerns, as both vehicles were traveling at high speeds in a
residential area. Within a few minutes, Sergeant Zimmerman
met Officer Barr at Fifth and Sedgley Avenue to sign his log. At
about this time, Officer Barr also received information over the
radio about a crash and a disturbance at a grocery store at
Fourth and Annsbury Streets. Officer Barr then traveled to the
grocery store.

Officer Roberto Luciano was also on duty in the same
neighborhood on August 13 and received the call about a vehicle
that had fled a stop. Officer Luciano traveled to Second and Erie
to attempt to intercept the vehicle. While waiting at that
intersection, a 911 call reported a similar vehicle involved in an
accident at Second and Bristol streets. Upon arriving at the
scene, Officer Luciano observed a light-colored BMW crashed
against a fence and building. The building was owned by the
Richard Burns Company, a construction material recycling
facility. Allen Burns, the owner of the company, was in the
parking lot when he heard a screeching and “bang” of the car
hitting the building. Mr. Burns saw the man in the driver’s seat,
later identified as Appellant, push the airbag away and climb out
of the driver’s side window. Mr. Burns watched Appellant take a
step or two, then turn back and reach inside the vehicle. He
then began running from the car as he was putting something
dark in his pocket. When Officer Luciano arrived on the scene
soon after, he reported over the radio that the vehicle was
unattended, and the driver had fled.

Upon hearing the information broadcast by Officer Barr,
Officers [Craig] Van Sciver and Raul Ortiz drove to 401 West
Raymond Street to see if Appellant returned to his residence.
While waiting outside the residence, they received more
information from Officer Luciano regarding the crash at Mr.
Burns’ building. Officers Van Sciver and Ortiz began traveling
toward Third and Wingohocking Streets, hoping to intercept
Appellant. Officer Van Sciver testified that they were then
approached by an unidentified man, who told them a man had
just run into the corner grocery store at Fourth and Annsbury
Streets. Upon entering the store, they saw Appellant running
down an aisle toward a back access door, and gave chase.
Officer Van Sciver grabbed Appellant at the steps by the door,
and testified that Appellant resisted and kept his hands at his
waistband.

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Officers John Bucceroni and Edward Davies were in a
marked police car in the area of Fourth and Annsbury when they
received the radio calls regarding Appellant that day. They
arrived at the Almonte Grocery store within a few minutes of
receiving the call. Officer Bucceroni testified that Officer Davies
entered the store first. Officers Van Sciver and Ortiz were
already on the scene, and Officer Bucceroni saw them struggling
with Appellant at the back of the store. Appellant appeared to
be on his knees or bending over, and both hands were at his
waist. The officers were trying to hold Appellant’s arms. They
were instructing Appellant, in both English and Spanish, to show
his hands.

Officer Bucceroni testified that as Appellant struggled, he
and Officers Van Sciver, Davies, and Ortiz were all attempting to
get him under control. They continued to say “dame los manos”
and “give me your hands.” Officer Bucceroni reached for
Appellant’s hands, and felt a metal object he recognized as the
barrel of a gun. He said “gun” to alert his fellow officers, and a
few seconds later a shot was fired. He heard Officer Davies
react, but did not see him, because Appellant was still
struggling.

Officer Shawntai Cooper had arrived on the scene with her
partner, Officer Kendall Robinson, when the other four officers
were already struggling with Appellant. In the course of the
struggle, she saw a muzzle flash and heard a “pop” sound.
Officer Davies said “I’m shot” and grabbed his abdomen. He
stumbled towards Officer Cooper and fell into her arms. With
the help of Officer Barr, Officer Cooper put Officer Davies into a
car and drove him to Temple University hospital.

After Officer Davies was shot, Officer Bucceroni told
Appellant to give him the gun, but Appellant continued to kick
and struggle against the officers. When Officer Bucceroni
grabbed for the gun again, Appellant bit his wrist. When he tried
to pull the gun away a second time, Appellant bit him again and
drew blood. Officer Bucceroni was eventually able to get the gun
from Appellant and hand it to Officer Ortiz. Appellant continued
to struggle, but officers were then able to handcuff him. They
attempted to escort Appellant from the store, but he continued
to resist. As the officers brought Appellant to a marked police
car, he kicked, and attempted to bite and head-butt the officers.

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Following his arrest, Officer Luciano requested Appellant be
brought back to the scene of the accident, so that Mr. Burns
could identify him as the man who fled from the car crash.
Appellant was brought to the scene of the accident in a police
vehicle, and Officer Luciano observed him screaming and
banging his head on the Plexiglas divider and on the back of the
seat. Appellant was saying that if the officers took the handcuffs
off, he would fight with them. They removed Appellant from the
vehicle, and he began swinging his arms trying to reach his
waistband, with his hands still cuffed behind his back. Mr. Burns
was able to positively identify Appellant as the man who had fled
the scene of the accident on his property. Before returning
Appellant to the vehicle, he was patted down in the waistband
area he had been reaching for, and a black holster was found
clipped to his belt.

Appellant was then taken to Einstein Medical Center’s
emergency department. Dr. Neeraj Gupta attempted to assess
any injuries following the car accident and struggle with police,
but Appellant was uncooperative. Several people were required
to hold Appellant down on a stretcher, and eventually leg and
arm restraints were deemed necessary. Even after applying
restraints to Appellant, he continued to fight and was still able to
sit up. Dr. Gupta became concerned about this behavior, which
included biting and spitting, and administered a sedative to calm
Appellant. After obtaining vital signs and as much other
information as he could from Appellant, Dr. Gupta concluded
that he appeared to be intoxicated, likely due to an illegal
substance. Appellant was discharged from the hospital the next
day, August 14.

Officer Edward Davies testified that he had been trying to
help other officers restrain Appellant when he heard a bang. He
said he felt his chest and stomach get “real hot” and saw a hole
in his shirt. He testified that everything was hazy and he
remembered staggering towards the floor. When Officer Cooper
drove him to the hospital, he recalled her telling him to keep his
eyes open and stay awake.

Officer Davies testified that he spent 37 days in the
hospital, and was in a medically-induced coma for three weeks.
It was several months before he was able to walk normally
again. At the time of trial he had five surgeries to address his
injuries, and was told he would need at least one more surgery

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following trial. At the time of trial, Officer Davies was
undergoing rehabilitation and aquatic therapy three times a
week. He continued to feel constant pain in his stomach, back,
groin, and right leg and foot. He testified that he was unable to
lift or play with his three-year-old son due to his injuries. Officer
Davies also lost a kidney due to the shooting.

Detective Frank Mullen, assigned to the Homicide Unit,
assisted in obtaining video surveillance footage from the Beer
Stop beer distributor located at 4245 Rising Sun Avenue. The
distributor had multiple surveillance cameras on its property,
and Detective Mullen was able to obtain footage from August 13
that showed the Richard Burns Company’s property. The
footage showed Appellant’s BMW crash into the fence and
building around noon.

Officer Brian Myers was assigned to the Narcotics Field
Unit at the time of the incident. On August 13, 2013, he was
sent to execute a search warrant at Appellant’s home at 401
West Raymond Street. From the house, Officer Myers recovered
a white rectangular object known as a rack of heroin, boxes of
blue and white glassine baggies, and a grinder. Multiple packs of
marijuana and bulk heroin were also found.

Officer Steven Berardi of the Crime Scene Unit was
assigned to process two vehicles registered to Appellant at the
police garage on McCallister Street on August 14, 2013. These
vehicles were a silver BMW, license plate JJA9851, and a black
Lexus, license plate JCT4539, both registered to Appellant.
Officer Berardi photographed the exterior and interior of each
vehicle, and these photographs were entered into evidence.

Inside the BMW was a Samsung phone with a black and
red case on the passenger side floor. In the glove compartment
were four empty “green plastic screw cap jars,” which Officer
Berardi testified are often used to package marijuana. There
was also a bundle of blue glassine packets (approximately 12
packets) stamped “eBay,” containing an off-white powder, later
tested and determined to be heroin. Officer Berardi also found a
fanny pack containing multiple bundles of white and blue
glassine packets containing an off-white powder. In another
pocket of the fanny pack were two more bundles of white
glassine packets containing off-white powder. More white
glassine packets were found inside a red sunglass pouch
containing off-white powder, stamped “Lexus.” In total, Officer

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Berardi recovered 153 glassine packets containing off-white
powder from the BMW; 22 blue packets stamped “eBay” and 131
white packets stamped “Lexus.” No contraband was found inside
the Lexus registered to Appellant.

Officer Kevin Keyes of the Narcotics Field Unit gave expert
testimony at trial. Officer Keyes reviewed the chemical analysis
of the property retrieved from Appellant’s home and vehicles.
Officer Keyes testified that in his expert opinion, the drugs found
in this investigation were possessed with the intent to distribute.
Officer Keyes based this determination on the amount of packets
and the bulk amount of heroin possessed, which would amount
to over 800 packets total based on his estimates. The grinder
and strainer found in the house are also often used in processing
kilos of heroin to a fine powder. Officer Keyes further explained
that the toothbrush found with powder residue was commonly
used to keep buildup off the grinder, and the cards and straw
were used to portion out the powder into individual packets.

Trial Court Opinion, 4/22/16, at 2-9 (citations omitted).

On March 10, 2015, a jury convicted Appellant of the aforementioned

offenses. On July 8, 2015, the trial court imposed sentence as set forth

above. Appellant filed a post-sentence motion on July 13, 2015, which the

trial court denied the next day. This timely appeal followed. Appellant

raises four assertions of error:

1. Did not the trial court err in denying Appellant’s motion to
suppress the evidence seized pursuant to search warrant no.
176023, as the affidavit did not provide probable cause to
believe that evidence would be found in the home as the
completed crime took place inside of a grocery store far from
that site?

2. Did not the trial court err in denying Appellant’s motion to
sever when a case involving possession of drugs and a blank gun
found in a home was consolidated with an unrelated case
alleging a shooting of a police officer in a grocery store as the
evidence in the drugs and blank gun case was inadmissible in

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the case alleging an assault on a police officer, and the error was
prejudicial?

3. Did not the trial court err in imposing a twenty-year minimum
mandatory sentence when the legislature did not specify if 42
Pa.C.S.A. § 9719.1’s “mandatory term of imprisonment” was to
be applied to the minimum or maximum sentence imposed
(unlike other mandatory sentencing statutes) and the
Pennsylvania Supreme Court in Commonwealth v. Glover, 156
A.2d 114 (Pa. 1959) held that a mandatory term of
imprisonment must be applied to the maximum sentence in such
a situation?

4. Did not the lower court err and abuse its discretion by
sentencing [Appellant] to an unreasonable sentence that was
higher than the standard range of the Sentencing Guidelines,
(even with application of the deadly weapon enhancement) and
18 times what the guidelines recommend, without giving
adequate reasons, on the basis of considerations, including the
nature of the offense, his prior criminal history and the use of a
deadly weapon, that were already factored into the Sentencing
Guidelines and did not the lower court further err by failing to
give proper consideration to [Appellant’s] personal
circumstances and mitigating factors?

Appellant’s Brief at 5-6.

Appellant first argues that the affidavit in support of the search

warrant for his home did not contain sufficient facts from which the issuing

authority could find probable cause to search the home. He maintains that

because both Appellant and the gun were recovered at the scene, there was

not probable cause to believe that connecting evidence would be found at

Appellant’s home. We agree.

When reviewing a denial of a suppression motion, we must determine

whether the record supports the suppression court’s factual findings and

whether the legal conclusions drawn from those facts are correct.

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Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013). In

reviewing the record, we consider all of the Commonwealth’s evidence, as

well as uncontradicted defense evidence. Commonwealth v. Harvard, 64

A.3d 690, 695 (Pa. Super. 2013), appeal denied, 77 A.3d 636 (Pa. 2013).

Where the record supports the suppression court’s findings, they are binding

on the appellate court. Id.

A search warrant must be supported by probable cause. U.S. Cont.

amend. IV; Pa.Const. art. I, § 8. “Probable cause exists where the facts and

circumstances within the affiant's knowledge and of which he has reasonably

trustworthy information are sufficient in themselves to warrant a man of

reasonable caution in the belief that a search should be conducted.”

Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010)3 (quoting

Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa. 1972)).

Further:

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983), the United States Supreme Court
____________________________________________

3 Six Justices participated in Jones. Justice McCaffery wrote the majority
opinion, joined by Justice Eakin. Chief Justice Castille, joined by Justice Baer
wrote a concurring opinion in which he joined Justice McCaffery’s opinion but
expressed his own thoughts on the proper standard for reviewing a
magistrate’s probable cause determination. Jones, 988 A2d at 659-60
(Castille, C.J., concurring). Justice Todd, joined by then-Justice Saylor, now
Chief Justice Saylor, authored a concurring opinion in which she agreed only
with the majority’s result that probable cause supported issuance of the
warrant. Id. at 661-62 (Todd, J. Concurring). In summary, the Jones
Court was unanimous as to the result but divided about the level of
deference to be afforded to a magistrate’s probable cause determination.

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established the “totality of the circumstances” test for
determining whether a request for a search warrant under the
Fourth Amendment is supported by probable cause. In
Commonwealth v. Gray, []503 A.2d 921 ([Pa.] 1986), this
Court adopted the totality of the circumstances test for purposes
of making and reviewing probable cause determinations under
Article I, Section 8. In describing this test, we stated:

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.

...

[Further,] a reviewing court [is] not to conduct a de novo
review of the issuing authority’s probable cause determination,
but [is] simply to determine whether or not there is substantial
evidence in the record supporting the decision to issue the
warrant.

Id. (quoting Commonwealth v. Torres, 764 A.2d 532, 537–38, 540 (Pa.

2001)) (some alterations in original).

The affidavit of probable cause submitted to the issuing authority in

support of a search warrant for Appellant’s home stated in full:

On 8-13-13 at 11:55AM Philadelphia Police Officer Barr
#6345, in uniform and a marked police vehicle (RPC #2532),
observed a BMW sedan, PA Reg #JJA-9851, with a rear brake
light not illuminated traveling eastbound on Allegheny Ave. going
towards 5th St. P/O Barr initiated a vehicle stop by activating

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the lights and siren and the BMW turned left (N/B) onto N. 5th
St. The vehicle stopped and P/O Barr approached the driver’s
side and observed a lone male (later ID’d as Eric Samuel Torres-
Solivan DOB 10-26-81) in the driver’s seat. The male was
requested to supply his driver’s license, registration and
insurance paperwork, which he did. P/O Barr states that during
his encounter with Torres-Solivan he acted erratic and it was at
this time that Torres-Solivan was directed to exit the auto.
Torres-Solivan opened the driver side door and then suddenly
closed the door and sped away, northbound on N. 5th St. P/O
Barr pursued the vehicle N/B on N. 5th St., supplied Police Radio
with Flash information on the auto and the male as well as the
direction of travel. P/O Barr was then directed by Sgt.
Zimmerman to end the pursuit, which he did, at 5th & Lindley.
P/O Barr awaited the arrival of Sgt. Zimmerman.

P/O Bucceroni #1248, in uniform and a marked vehicle
(RPC #2541) along with his partner, P/O Edward Davies #1240,
responded to 4th & Annsbury, at the Almonte corner grocery
store, in reference to the investigation of a male, later ID’d as
Eric Samuel Torres-Solivan DOB 10-26-81, who was observed by
P/O’s VanShiver and Ortiz inside the of the grocery store.
Torres-Solivan was directed numerous times by the Officers to
display his hands, but failed to do so. The Officers then
attempted to subdue Torres-Solivan by tackling him and a
struggle ensued. During this struggle Torres-Solivan was
continually directed to cease resisting the officers and to show
his hands, but continued to be noncompliant.

It was during this struggle that P/O Bucceroni had his arms
wrapped around the waist area of Torres-Solivan and he felt a
handgun. P/O Bucceroni was also being bitten on his hand by
Torres-Solivan at the same time. P/O Bucceroni had his hand
positioned on top of the receiver of the handgun and he felt and
heard the gun discharge. P/O Davies then stumbled from the
immediate area, holding his stomach, suffering from a gunshot
wound. Torres-Solivan continued to resist and was eventually
subdued and handcuffed and placed in the rear of a Police
vehicle.

P/O Barr arrived at the Almonte grocery store, 4th &
Annsbury, and observed that P/O Davies had sustained a
gunshot wound to his stomach, and assisted him into an
awaiting RPC. P/O Barr then observed Torres-Solivan resisting

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the officers’ efforts to handcuff him and he assisted in the arrest.
P/O Barr positively identified this male, Torres-Solivan, as having
been the male who was the operator of the BMW who fled on N.
5th St. from him. Once Torres-Solivan had been placed into the
rear of an RPC, P/O Barr asked why he proceeded to flee, that
he should have stopped. Torres-Solivan responded “I couldn’t, I
had a gun”. P/O Barr then proceeded to Bristol & Rising Sun and
positively ID’s the BMW, PA Reg # JJA-9851, as having been the
auto he had stopped that was being operated by Torres-Solivan.

The weapon recovered from Torres-Solivan is a .45 cal
Glock model 30, Serial # LFH813, loaded with a magazine that
contained seven (7) unfired cartridges and one (1) stove-piped
casing in the handgun.

Torres-Solivan supplied his home address as being 401 W.
Raymond St. Phila., PA 19140. The driver’s license supplied by
Torres-Solivan to PO Barr during the initial investigation also
indicates the address of 401 W. Raymond St., with PA OLN -
29135376, issued on 7-03-13.

It is the belief of this Affiant that enough probable cause
exists for issuance of a Search Warrant authorizing the search of
401 W. Raymond St. Phila., PA 19140, the residence of Eric
Samuel Torres-Solivan 31/H/M. Items to be searched for are:

Specifically and all ammunition or ballistics evidence
consistent with a .45 cal Glock model 30, as well as any and all
handguns, rifles, shotguns, ammunition, gun storage
boxes/containers, proof of identification, and any other items of
evidentiary value.

Affidavit of Probable Cause #176023.

The trial court denied Appellant’s motion to suppress the evidence,

reasoning:

The shooting of Officer Davies, which occurred mere blocks
from Appellant’s residence, involved an illegally obtained
firearm. Based on this information, police applied for a search
warrant of Appellant’s residence. They sought to find further
evidence linking this firearm to Appellant, such as ammunition,
in their search. The search of the home led to significant
evidence of a drug-dealing operation, which directly led to the

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search of the other vehicle, which was parked at the residence
and also registered to Appellant.

Trial Court Opinion, 4/22/16, at 11.

Appellant argues that there was no nexus between the crimes under

investigation and the search proposed in the warrant. We agree. For

guidance on the nexus requirement as it relates to home searches, we turn

to this Court’s opinions in Commonwealth v. Kline, 335 A.2d 361 (Pa.

Super. 1975), and Commonwealth v. Way, 492 A.2d 1151 (Pa. Super.

1985). In Kline, police obtained a warrant to search the defendant’s home

based on statements from two girls who stated that the defendant went

home and retrieved LSD after the girls asked if they could buy some from

him. The affidavit contained no evidentiary basis for the girls’ statement

that the defendant went home, and not to some other location, to retrieve

the LSD. This Court framed the issue as follows: “What is before us is the

question whether the informants supplied information sufficient to justify the

inference, not only that criminal activity was afoot (their information was

certainly sufficient for that), but also that the premises to be searched were

instrumental in that activity.” Kline, 335 A.2d at 363. Further, “the

information [m]ust be sufficient . . . to enable the magistrate independently

to judge of the validity of the informant’s [c]onclusion that the narcotics

were where he said they were.” Id. at 363-64 (quoting Spinelli v. United

States, 393 U.S. 410, 413 (1969)). This Court deemed the affidavit

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deficient because it did not specify how the girls concluded that the drugs

were in the defendant’s home. Id. at 364.

In Way, an undercover police officer asked two suspects to procure

methamphetamine for him. Way, 492 A.2d at 1152. The two suspects met

with defendant, who provided the drugs. Id. After the transaction between

the defendant and the two suspects, a surveillance officer followed the

defendant’s vehicle to another location, which turned out to be the

defendant’s home. Id. at 1152-53. Thus, the affidavit stated that police

followed the defendant to his home after the transaction. We concluded that

the affidavit was deficient. “Probable cause to believe that a man has

committed a crime does not necessarily give rise to probable cause to search

his home.” Id. at 1154. Finding Kline controlling, we stated: “In our

opinion an allegation based on an assumption or supposition not

supported by the facts is insufficient to support (an inference of)

criminal activity in the premises, in spite of the fact that there are plenty

of allegations alleged to relate to criminal activity of the individual who is

alleged to have lived in the premises.” Id. (emphasis added) (quoting

Kline, 335 A.2d at 364).

The Way Court distinguished Commonwealth v. Frye, 363 A.2d

1202, 1204 (Pa. Super. 1976), in which the affidavit stated that the

defendant “was taking telephone orders in furtherance of his illicit business

at his home.” Thus, we concluded that a “man of reasonable caution would

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be warranted in believing that marijuana was being kept at [the defendant’s]

residence.” Id. The Frye Court found Kline distinguishable because, in

Frye, “the nexus between the evidence to be seized and the place to be

searched was provided by [the defendant’s] admission that he was

conducting at least part of his unlawful operations from his home.” Id.

Thus, the affidavit in Frye contained facts relating to a specific defendant.

The Commonwealth would have us hold that, because Appellant was

found in possession of a gun mere blocks from his home, it was reasonable

to infer that some additional evidence of his connection to the gun would be

located at his home. The Commonwealth relies on Jones, 988 A.2d 649

(Pa. 2010), in which police obtained a warrant to search the dorm room of a

murder victim and the defendant tuned out to be the victim’s roommate.

Jones, 988 A.2d at 651-53. Police found, among other things, the victim’s

cell phone with his blood on it, and several articles of the defendant’s

clothing with the victim’s blood on them. Id. at 652. The Supreme Court

rejected this Court’s conclusion that police lacked probable cause to search

the victim’s dorm room.

The relevant evidence set forth in the affidavit of probable
cause for the search warrant of the dormitory room was that a
body was found shot to death in the City of Chester and that
keys found on the body and a university student photograph
indicated that a nearby dormitory room was the last known
residence of the victim. Accordingly, the police sought to obtain
evidence both to confirm the identity of the victim and to further
their investigation. That evidence included, as listed in the
application for the warrant, cellular telephones and pagers,
which, if found, could provide leads with regard to any

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individuals who had spoken with or contacted the victim on the
night of his murder.

Id. at 656. Here, in contrast, the warrant sought “[h]andguns, rifles,

shotguns, ammunition, gun storage boxes/containers, holsters, proof of

identification, any items of evidentiary value.” Warrant #176023. Unlike

Jones, in this case it is unclear how any of the items specified in the warrant

were of any evidentiary value. Appellant’s identification was not in doubt,

and police already were in possession of the firearm used in the shooting.

Said another way, there is no obvious nexus between the crimes under

investigation and the proposed search.

In Pennsylvania, the nexus requirement comes from Pennsylvania’s

long-standing history of protecting its citizens’ privacy under Article 1,

Section 8 of the Pennsylvania Constitution. Our Supreme Court reviewed

that history in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).

There, our Supreme Court considered whether to adopt the “good faith”

exception to the exclusionary rule. Id. at 888. In United States v. Leon,

468 U.S. 897 (1984), the United States Supreme Court concluded that

evidence gathered during a “good faith” execution of a defective search

warrant need not be excluded from evidence. The Edmunds Court

distinguished Pennsylvania jurisprudence, and its historic focus on the right

to privacy under Article 1, Section 8, from the Leon Court’s conclusion that

the federal exclusionary rule was designed to deter unscrupulous police

conduct.

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The requirement of probable cause in this Commonwealth
thus traces its origin to its original Constitution of 1776, drafted
by the first convention of delegates chaired by Benjamin
Franklin. The primary purpose of the warrant requirement was
to abolish ‘general warrants,’ which had been used by the British
to conduct sweeping searches of residences and businesses,
based upon generalized suspicions. Therefore, at the time the
Pennsylvania Constitution was drafted in 1776, the issue of
searches and seizures unsupported by probable cause was of
utmost concern to the constitutional draftsmen.

Moreover, as this Court has stated repeatedly in
interpreting Article 1, Section 8, that provision is meant to
embody a strong notion of privacy, carefully safeguarded in this
Commonwealth for the past two centuries. “[T]he survival of the
language now employed in Article 1, Section 8 through over 200
years of profound change in other areas demonstrates that the
paramount concern for privacy first adopted as part of our
organic law in 1776 continues to enjoy the mandate of the
people of this Commonwealth.

Edmunds, 586 A.2d at 897 (internal citations and quotation marks

omitted). Thus, the purpose of Pennsylvania’s exclusionary rule is “quite

distinct” from that of the federal exclusionary rule under the Fourth

Amendment to the United States Constitution. Id.

Pennsylvania’s exclusionary rule bolsters the “twin aims” of

safeguarding privacy and ensuring that warrants issue only upon probable

cause.

[Probable cause] is designed to protect us from
unwarranted and even vindictive incursions upon our privacy. It
insulates from dictatorial and tyrannical rule by the state, and
preserves the concept of democracy that assures the freedom of
its citizens. This concept is second to none in its importance in
delineating the dignity of the individual living in a free society.

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Id. at 899 (quoting Commonwealth v. Miller, 518 A.2d 1187, 1191-92

(Pa. 1986)).

The Edmunds Court explained that the right of privacy espoused in

Article 1, Section 8 arose in part to keep citizens free from searches based

upon generalized suspicions. Id. at 897. The Commonwealth would have

us permit precisely that. The Commonwealth’s rationale—that gun owners

are likely to store gun-related items in their homes—does not depend upon

the facts of this case. Rather, the Commonwealth’s rationale could permit a

search of the home of any criminal suspect arrested for committing a crime

with a gun, regardless of any particularized reason to believe evidence will

be found there. This violates Article 1, Section 8 of the Pennsylvania

Constitution and Rule 206(6)4 of the Pennsylvanian Rules of Criminal

Procedure.

____________________________________________

4 Rule 206(6) provides:

Each application for a search warrant shall be supported by
written affidavit(s) signed and sworn to or affirmed before an
issuing authority, which affidavit(s) shall:

[…]

(6) set forth specifically the facts and circumstances
which form the basis for the affiant’s conclusion that there
is probable cause to believe that the items or property identified
are evidence or the fruit of a crime, or are contraband, or are
expected to be otherwise unlawfully possessed or subject to
seizure, and that these items or property are or are
expected to be located on the particular person or at the
particular place described;
(Footnote Continued Next Page)

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The Commonwealth distinguishes Kline and Way because those cases

involved illicit drugs whereas the instant case involves guns. Commonwealth

Brief at 17. Guns, unlike illicit drugs, are lawful to own and thus are more

likely to be stored in a home. Id. Assuming without conceding the accuracy

of this assertion5 we do not believe such a generalization suffices to create

probable cause in a specific case. Were we to hold otherwise, police could

obtain a warrant to search a suspect’s home in virtually any case in which

the suspect possessed or used a gun. Additionally, the Commonwealth’s

argument applies to many more items than guns. Knives, for example, are

lawful but sometimes used in violent crimes. Cell phones are lawful but

sometimes used to facilitate unlawful conduct. We do not believe that

probable cause for the search of a home arises from nothing more than the

suspect’s use of a lawful item commonly stored in a home.

Furthermore, the Commonwealth’s reliance on Commonwealth v.

Hutchinson, 434 A.2d 740, 744 (Pa. Super. 1981) is misplaced. There,

police obtained a warrant for the suspect’s home after he was identified as

the perpetrator of an armed robbery. Id. At 742-43. The warrant did not
(Footnote Continued) _______________________

Pa. R. Crim. P. 206(6) (emphasis added).

5 Some federal courts have held that it is reasonable to infer that drug
traffickers will often keep drug-related evidence in their residences and
businesses. See United States v. Lull, 824 F.2d 109, 119 (4th Cir. 2016),
United States v. Whitner, 219 F.3d 289, 292 (3d Cir. 2000), United
States v. Chew, 1 F.3d 1248 (5th Cir. 1993), United States v. Johnson,
641 F.2d 652 (9th Cir. 1980).

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specify guns as an item to be searched for, but police found a gun and

seized it. Id. This Court concluded that police had probable cause to search

the defendant’s home (a fact the defendant did not challenge) and that a

gun was “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.” Id. at 743. Hutchinson is inapposite

here because the scope of the warrant, not the locale of the search, was at

issue. Furthermore, the suspect was not apprehended in possession of the

gun, and this Court found reason to believe that the suspect had time to

stash the gun at his home subsequent to the robbery.

In short, Kline, Way, and Frye are directly on point6 and controlling,

and they provide no support for the Commonwealth’s position. Each of

those opinions required facts establishing case-specific reasons why police

believed they would find evidence of a crime in the defendant’s home. None

of them states or implies that, unlike guns, the nexus requirement is made

necessary due to the unlikelihood that drug traffickers would store

contraband in their homes.

In light of all of the foregoing, we agree with Appellant that police did

not have probable cause to search his home.

____________________________________________

6 That Appellant was apprehended two blocks from his home is of no
significance. The Police in Way lacked probable cause to search the
defendant’s home even though they followed the defendant to his home.

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Appellant also challenges two other warrants. Warrant number

176024 (“the BMW warrant”), executed later on the same day as the search

of Appellant’s home, authorized police to search his BMW—the one he was

driving and eventually crashed while fleeing police—for “[f]irearms,

ammunition, identification, ballistics evidence, narcotics, narcotics

paraphernalia and any all [sic] items of evidentiary value.” Search Warrant

#170264. Appellant argues that the evidence seized pursuant to this

warrant must be suppressed as fruit of the poisonous tree. 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). “A fruit of the poisonous tree argument

requires an antecedent illegality.” Id. Appellant identifies the search of his

home as the antecedent illegality.

The record does not support Appellant’s argument. The affidavit of

probable cause in support of the BMW warrant does not rely on the search of

Appellant’s home as grounds for searching the BMW. Rather, the affidavit

describes the circumstances of the initial stop of the BMW, Appellant’s flight

in the vehicle, crash, flight on foot, and altercation with police. Affidavit of

Probable Cause #170264. Appellant does not address whether these

circumstances failed to provide probable cause for the BMW warrant. See

Appellant’s Brief at 33-35. In summary, the affidavit in support of the BMW

warrant did not rely on the fruits of the unlawful home search, and Appellant

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does not challenge the BMW warrant in any other respect. We therefore

affirm the suppression court’s order insofar as it denied suppression of

evidence recovered during the execution of the BMW warrant.

Appellant also challenges warrant number 170265—a warrant

authorizing a search of a Lexus (“the Lexus warrant”) parked at Appellant’s

home—as fruit of the poisonous tree. Police discovered the Lexus during

their unlawful search of Appellant’s home. Once again, the affidavit of

probable cause sets forth facts similar to those in the affidavit in support of

the BMW warrant. We find this puzzling, as the affidavit contains no

mention of the Lexus, its relationship to the crime under investigation, or

why police investigators expected to find evidence of a crime in it. In any

event, the affidavit does not support Appellant’s argument that the Lexus

warrant was fruit of an antecedent illegality. In a footnote, the

Commonwealth dismisses Appellant’s challenge to the Lexus search as moot

because police recovered no relevant evidence from the Lexus.

Commonwealth Brief at 18-19 n.6. We reject Appellant’s challenge to the

Lexus warrant inasmuch as the Commonwealth did not introduce any

evidence recovered from the Lexus. Any error in the trial court’s ruling was

harmless.7

____________________________________________

7 Harmless error exists where “the error did not prejudice the defendant or
the prejudice was de minimus.” Commonwealth v. Hutchinson, 811 A.2d
556, 561 (Pa. 2002), cert. denied, 540 U.S. 858 (2003).
(Footnote Continued Next Page)

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To summarize, we have concluded that Appellant has offered a

meritorious challenge to the search of his home but not to the searches of

his vehicles. Given our disposition, a new trial will be required without

introduction of the evidence retrieved from Appellant’s home.

Appellant’s second assertion of error is that the trial court improperly

denied his motion to sever the possessory offenses relating to drugs and a

blank gun (arising out of the searches of Appellant’s home and BMW) from

the offenses arising out of police officer assaults. Given our resolution of

Appellant’s suppression argument, this issue will recur on retrial. The

parties have fully briefed the issue, and we therefore proceed to review it.

Appellant argues that severance was required because the drug

evidence and blank gun would have been inadmissible at a trial solely for the

assault of the officers.8 We review a trial court’s denial of a motion for

severance for an abuse of discretion. Commonwealth v. Mollett, 5 A.3d

291, 305 (Pa. Super. 2010).

Instantly, the trial court consolidated the charges pursuant to

Pennsylvania Rule of Criminal Procedure 582(A)(1):

(A) Standards

(1) Offenses charged in separate indictments or informations
may be tried together if:
(Footnote Continued) _______________________

8 Appellant does not argue that the evidence concerning the assault on the
officers would have been inadmissible at a separate drug trial.

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(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is
capable of separation by the jury so that there is no
danger of confusion; or

(b) the offenses charged are based on the same act
or transaction.

Pa.R.Crim.P. 582(A)(1). Further, Rule 583 permits separate trials if “it

appears that any party may be prejudiced” by consolidating charges.

Pa.R.Crim.P. 583.

When offenses are not based on the same act or transaction, courts

apply the following test to determine whether severance is proper:

[W]hether the evidence of each of the offenses would be
admissible in a separate trial for the other; whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries are in
the affirmative, whether the defendant will be unduly prejudiced
by the consolidation of offenses.

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005) (quoting

Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988)). Concerning the

admissibility requirement, “evidence of other crimes may be introduced

where such evidence was part of the chain or sequence of events which

became part of the history of the case in question and formed part of the

natural development of the facts.” Commonwealth v. Kunkle, 79 A.3d

1173, 1191 (Pa. Super. 2013) (quoting Commonwealth v. Spotz, 756

A.2d 1139, 1152 (Pa. 2000)), appeal denied, 114 A.3d 1039 (Pa. 2015).

Here, the trial court found that the drugs recovered from Appellant’s

BMW completed the natural development of the facts, beginning with

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Appellant’s flight from a vehicle stop and culminating in the violent

altercation with police when they finally located him. See, e.g.,

Commonwealth v. DeHart, 516 A.2d 656, 661 (Pa. 1986) (no abuse in

consolidating the trial for the defendant’s escape with subsequent violent

crimes committed in furtherance of the escape). Further, the drug evidence

provided a motive for Appellant’s flight from and subsequent violent

resistance of the police. The trial court instructed the jury to consider the

evidence in support of the drug offenses separately from the evidence in

support of the various assault charges, thus mitigating any possibility of jury

confusion. N.T. Trial, 03/06/2015, at 155. We agree with the trial court and

the Commonwealth that no undue prejudice occurred, as the Commonwealth

presented a substantial body of direct evidence, summarized above,

establishing the altercation between Appellant and the police and the

shooting of one officer. We discern no abuse of discretion in the trial court’s

denial of Appellant’s motion for severance.

In summary, we conclude that the search of Appellant’s home was

unlawful because the warrant was not supported by probable cause. In all

other respects, we affirm the suppression court’s order. We affirm the trial

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court’s order denying Appellant’s motion to sever. We vacate the judgment

of sentence and remand for a new trial in accordance with this opinion.9

Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

Judge Musmanno joins the opinion.

Judge Moulton files a concurring opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2017

____________________________________________

9Because we have vacated the judgment of sentence, it is not necessary for
us to consider Appellant’s third or fourth issues, both of which raise
sentencing issues.

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