J. A30033/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT DAVID REINHART, : No. 498 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, March 9, 2017,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0000724-2016
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 28, 2018
This case returns to us from the Court of Common Pleas of Allegheny
County. The trial court conducted an evidentiary hearing relating to
appellant’s motion to dismiss pursuant to Pa.R.Crim.P. 600 on June 21, 2018,
pursuant to this court’s May 21, 2018 memorandum. Having received the
record of the Rule 600 hearing from the trial court, along with its findings, we
shall now consider appellant’s appeal on its merits.
The trial court made the following factual determination:
[Elizabeth Police Department Officer Garret Kimmel’s]
initial observation of [appellant] was [appellant]
driving a quad on a road where quads are not allowed.
The officer noticed a very distinguishable
characteristic on the front of the quad—a fishing rod.
Within minutes of that initial observation, followed by
losing track of the vehicle, the officer saw that very
same quad parked alongside a house in a neighboring
jurisdiction, maybe 15 yards from the road. He
J. A30033/17
approached the quad. He touched it. It was warm.
The grass between the road and its resting place gave
every appearance of it having been recently been
driven over that patch of grass. He then went to the
front door and knocked. He interacted with Scott
Johnson. After some dialogue at the door, which
included Johnson telling the officer that the quad was
“Bob’s,” home owner Johnson[] allowed the officer to
enter his house. From that [] vantage point, the
[o]fficer saw the male that [was riding] on the quad.
Trial court opinion, 8/3/2017 at 5 (internal quotation marks and citations to
the record omitted).
The procedural history of this case, as stated by our May 21, 2018
memorandum is as follows:
The Commonwealth charged appellant with the
following offenses: DUI highest rate of alcohol, DUI
general impairment, habitual offenders, driving while
BAC 0.02 or greater while license is suspended,
driving without a license, operating a snowmobile/ATV
on streets and highways, unlawful operation, unlawful
operation of snowmobile/ATV under influence, proof
of liability insurance required to be produced and
displayed, driving an unregistered vehicle, improper
display of registration plate, failure to signal, giving
false information, investigation by officer/duty of
operator, fleeing or attempting to elude a police
officer, and failure to yield to emergency
vehicle.[Footnote 1] At the preliminary hearing on
January 26, 2016, the following charges were
dismissed: driving an unregistered vehicle, failure to
signal, failure to yield to emergency vehicle, fleeing or
attempting to elude a police officer, giving false
information, improper display of registration plate,
and investigation by officer/duty of operator. All of
the remaining charges were held over for trial.
[Footnote 1] 75 Pa.C.S.A. §§ 3802(c),
3802(a)(1), 6503.1, 1543(b)(1.1)(i),
1501(a), 7721(a), 7711.1(a), 7726(a)(3),
-2-
J. A30033/17
7730(b), 1301(a), 1332(a), 3335(a),
3748, 6308(a), 3733(a), and 3325(a),
respectively.
On April 5, 2016, appellant filed an omnibus pretrial
motion in which he sought to suppress evidence. A
suppression hearing and trial were originally
scheduled for June 7, 2016. On May 17, 2016, the
Commonwealth filed a motion for continuance, which
the trial court granted. The suppression hearing and
trial were rescheduled for September 8, 2016.
On September 8, 2016, the trial court denied
appellant’s omnibus pretrial motion following a
suppression hearing, and immediately called the case
for trial. The Commonwealth, having dismissed its
only witness, Elizabeth Police Department Officer
Garret Kimmel, at the conclusion of his suppression
hearing testimony, orally moved for a continuance,
which the trial court granted. The trial was
rescheduled for December 12, 2016. On
November 10, 2016, appellant filed a motion to
dismiss pursuant to Pa.R.Crim.P. 600, which the trial
court denied on December 12, 2016, following a
hearing immediately preceding trial.
At the conclusion of the bench trial on December 12,
2016, the trial court convicted appellant of DUI
highest rate, DUI general impairment, driving while
BAC 0.02 or greater while license is suspended,
driving without a license, operating a snowmobile/ATV
on streets and highways, unlawful operation of
unregistered snowmobile/ATV, and unlawful operation
of snowmobile/ATV under influence. The trial court
acquitted appellant of proof of insurance required to
be produced and displayed. The Commonwealth
withdrew the habitual offenders charge. On March 9,
2017, the trial court sentenced appellant to one year
less one day to two years less two days’
imprisonment.
Appellant filed a notice of appeal to this court on
March 30, 2017. The trial court ordered appellant to
file a concise statement of errors complained of on
-3-
J. A30033/17
appeal pursuant to Pa.R.A.P. 1925(b) and appellant
complied. The trial court filed its opinion pursuant to
Pa.R.A.P. 1925(a) on August 3, 2017.
Commonwealth v. Reinhart, No. 498 WDA 2017, unpublished
memorandum at *1-3 (Pa.Super. filed May 21, 2018). We filed a
memorandum remanding the case on May 21, 2018, to provide the trial court
with an opportunity to conduct a fuller hearing pursuant to Pa.R.Crim.P. 600.
See id. at *7. The trial court did so on June 21, 2018.
We may now address the following issues raised on appeal:
I. Did the [trial] court err in refusing to grant
[appellant’s] Rule 600 motion when all of the
delay in this case was attributable to the
Commonwealth and trial was not commenced
until 62 days beyond the mechanical run date?
II. Did the [trial] court err in refusing to suppress
all evidence, including the identification of
[appellant] and blood evidence, following
Officer Kimmel’s illegal search of the curtilage at
914 15th Street, Elizabeth, Pennsylvania?
Appellant’s brief at 5 (full capitalization omitted).
In his first issue for our review, appellant avers that the Commonwealth
violated his constitutional right to a speedy trial pursuant to Pennsylvania Rule
of Criminal Procedure 600.
“In evaluating Rule [600] issues, our standard of
review of a trial court’s decision is whether the trial
court abused its discretion.” Commonwealth v. Hill,
736 A.2d 578, 581 (Pa. 1999). See also
Commonwealth v. McNear, 852 A.2d 401
(Pa.Super. 2004). “Judicial discretion requires action
in conformity with law, upon facts and circumstances
judicially before the court, after hearing and due
-4-
J. A30033/17
consideration.” Commonwealth v. Krick, 67 A.2d
746, 749 (Pa.Super. 1949). “An abuse of discretion
is not merely an error of judgment, but if in reaching
a conclusion the law is overridden or misapplied or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill will, as shown
by the evidence or the record, discretion is abused.”
Commonwealth v. Jones, 826 A.2d 900, 907
(Pa.Super. 2003) (en banc) (citing Commonwealth
v. Spiewak, 617 A.2d 696, 699 n.4 (Pa. 1992)).
“The proper scope of review . . . is limited to the
evidence on the record of the Rule [600] evidentiary
hearing, and the findings of the [trial] court.” Hill,
supra at 581; McNear, supra at 404. See also
Commonwealth v. Jackson, 765 A.2d 389
(Pa.Super. 2000), appeal denied, 793 A.2d 905 (Pa.
2002). “[A]n appellate court must view the facts in
the light most favorable to the prevailing party.” Id.
at 392.
Commonwealth v. Hunt, 858 A.2d 1234, 1238-1239 (Pa.Super. 2004),
appeal denied, 875 A.2d 1073 (Pa. 2005).
The comment to Rule 600 provides that “delay in the time of trial that
is attributable to the judiciary may be excluded from the computation of time.”
Pa.R.Crim.P. 600 cmt., citing Commonwealth v. Crowley, 466 A.2d 1009
(Pa. 1983); see also Commonwealth v. Mills, 162 A.3d 323, 325 (Pa.
2017), citing Commonwealth v. Bradford, 46 A.3d 693, 705 (Pa. 2012)
(“periods of judicial delay are excludible from calculations under the rule”).
In the instant appeal, the Elizabeth Borough Police Department filed a
criminal complaint against appellant on October 11, 2015. Pursuant to
Rule 600, the Commonwealth was required to commence trial on or before
October 11, 2016. The Commonwealth originally listed this case for trial on
-5-
J. A30033/17
June 7, 2016. On May 17, 2016, the Commonwealth requested a continuance
due to the unavailability of Officer Kimmel. The trial court granted the
Commonwealth’s request, rescheduling the trial for September 8, 2016.
As noted above, the trial court called the case to trial on September 8,
2016, immediately upon the conclusion of the suppression hearing. The
Commonwealth, having dismissed Officer Kimmel at the conclusion of his
suppression hearing testimony, indicated it would not be able to proceed that
day with trial, and the trial court responded by stating, “Pick a date, whatever
you want.” (Notes of testimony, 9/8/16 at 67.)
At the Rule 600 hearing, Kristen Reitmeyer, the trial court’s minute
clerk, testified that even if the Commonwealth had been prepared to proceed
to trial immediately after the suppression hearing, the trial court would have
been unable to proceed due to jury selection taking place in another case.
(Notes of testimony, 6/21/18 at 8.) Additionally, appellant at that time was
still seeking a jury trial. Ms. Reitmeyer further testified that the trial would
be postponed to a date in which there would not be a conflict with other jury
trials or with either of the attorneys’ calendars. (Id.) Ms. Reitmeyer also
testified that these postponements could last two to three months. (Id. at 9.)
When determining a new date for appellant’s trial, Ms. Reitmeyer testified that
she “wanted to schedule it on a day [she] knew we would be able to proceed
so we didn’t run into the same issue.” (Id. at 10.) Critically, Ms. Reitmeyer
stated that the postponement of appellant’s trial on September 8, 2016, was
-6-
J. A30033/17
attributable to neither the Commonwealth nor the defense, but rather to
unavailability of the trial court. (Id. at 9.)
Accordingly, we find that the delay in the trial in this case was
attributable to the trial court, thus rendering the period of delay excludable
for Rule 600 purposes.1 Therefore, we find that the trial court ultimately did
not abuse its discretion when it denied appellant’s Rule 600 motion.
In his second issue, appellant avers that the trial court erred when it
refused to suppress evidence, including the identification of appellant and
blood evidence.
Our 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, we are bound by these 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
1 We acknowledge Justice Wecht’s concurring opinion in Mills, in which he
opines that judicial delay is not a “mechanism or totem” that exempts the
Commonwealth from demonstrating that it is “ready, able, and willing to
proceed with the case against the defendant.” Mills, 162 A.3d at 326
(Wecht, J., concurring). This, however, is not binding authority on this court.
-7-
J. A30033/17
conclusions of law of the courts below are subject to
our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013), quoting Commonwealth v.
Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012), appeal denied, 57 A.3d
68 (Pa. 2012) (citations omitted).
We must first determine whether appellant had a reasonable
expectation of privacy as a guest at Mr. Johnson’s residence.
Both the United States Constitution and the Pennsylvania Constitution
guarantee that individuals shall not be subject to unreasonable searches or
seizures.
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV.
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches
and seizures, and no warrant to search any place or
to seize any person or things shall issue without
describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation
subscribed to by affiant.
Pa. Const. Art. I, § 8. A search or seizure conducted without a warrant is,
under the Fourth Amendment and Article I, Section 8, presumed to be
-8-
J. A30033/17
unconstitutional. Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007),
citing Horton v. California, 496 U.S. 128, 134 n.4 (1990) (citations omitted).
Evidence obtained as a result of an unlawful search is subject to the fruit
of the poisonous tree doctrine. The Supreme Court of the United States has
stated that any material, tangible, or verbal evidence “obtained either during
or as a direct result of an unlawful invasion” is inadmissible at trial. Wong
Sun v. United States, 371 U.S. 471, 485 (1963).
Pennsylvania courts have recognized, however, the following exception
to the warrant requirement:
First, police officers have the authority to enter the
curtilage for the purpose of conducting an
investigation. Commonwealth v. Gibson, [] 638
A.2d 203, 207 ([Pa.] 1994) (“police have the power
to knock on the doors of the citizens of this
Commonwealth for investigatory purposes without
probable cause”) (emphasis added). Second, entry
onto the curtilage generally is not a Fourth
Amendment violation when the curtilage is used by
the public. Cf. [Commonwealth v. Gibbs, 981 A.2d
274, 280 (Pa.Super. 2009), appeal denied, 3 A.3d
670 (Pa. 2010),] (“courts which have found that the
front porch constitutes curtilage have generally found
no Fourth Amendment violation where the porch in
question is used by the general public”); see
generally LaFave, Search And Seizure: A Treatise On
The Fourth Amendment, § 2.3(f) (5th ed.) (database
updated October 2015) (“when the police come on to
private property to conduct an investigation . . . and
restrict their movements to places visitors could be
expected to go (e.g., walkways, driveways, porches),
observations made from such vantage points are not
covered by the Fourth Amendment”).[Footnote 7]
[Footnote 7] Professor LaFave gathers
49 cases in support of this precept,
-9-
J. A30033/17
including Trimble v. State, 842 N.E.2d
798, 802 (Ind.2006) (police entry onto
private property and their observations do
not violate Fourth Amendment when
police have legitimate investigatory
purpose for being on property and limit
their entry to places visitors would be
expected to go; the route which any
visitor to residence would use is not
private in Fourth Amendment sense, so if
police take that route for purpose of
making general inquiry or for some other
legitimate reason, they are free to keep
their eyes open), and State v.
Lodermeier, 481 N.W.2d 614, 624 (S.D.
1992) (approving officer’s examination of
exterior of garden tractor parked in
driveway, because “even though it is part
of the curtilage, an officer with legitimate
business may enter a driveway and, while
there, may inspect objects in open view”).
See LaFave, § 2.3(f) at n. 225 and 229.
Commonwealth v. Eichler, 133 A.3d 775, 784 (Pa.Super. 2016), appeal
denied, 161 A.3d 791 (Pa. 2016).
The facts of the instant appeal reflect that Officer Kimmel entered
Mr. Johnson’s property for the purposes of conducting an investigation. The
fact that Officer Kimmel entered the side yard of Mr. Johnson’s property to
determine whether the quad was hot to the touch is inconsequential.
Officer Kimmel testified that while he was on patrol on Barrett Avenue in
Elizabeth on October 9, 2015, he observed a red quad traveling in the opposite
direction. (Notes of testimony, 9/8/16 at 23-24.) Officer Kimmel attempted
to pursue the quad; however, he lost sight of the vehicle and began searching
for the quad in the immediate area. (Id.) From his seated position in his
- 10 -
J. A30033/17
patrol car, Officer Kimmel observed the quad in plain view parked on
Mr. Johnson’s property. (Id. at 25.) Officer Kimmel further testified that the
quad he observed parked on Mr. Johnson’s property was the same color,
shape, and had the same number of wheels as the vehicle he observed on
Barrett Avenue. (Id. at 26.) Additionally, Officer Kimmel testified that the
quad parked on Mr. Johnson’s property had a fishing rod attached to the front,
and that the quad he observed on Barrett Avenue also had a fishing rod
attached to the front. (Id.) Upon his arrival to Mr. Johnson’s property,
Officer Kimmel observed freshly pressed down grass in the yard, which
appeared to be from tire tracks. (Id. at 28.)
Upon observing the freshly pressed down grass in the yard,
Officer Kimmel approached the quad, felt near the exhaust area, and noted
that it was hot to the touch. (Id.) Officer Kimmel then knocked on the door
to Mr. Johnson’s house. (Id.) Mr. Johnson answered the door and denied
owning the quad. (Id. at 29.) Officer Kimmel testified that upon
Mr. Johnson’s opening the door, Officer Kimmel was able to observe appellant
sitting at the dining room table. (Id.) Officer Kimmel further testified that he
recognized appellant as the same person that he observed driving the quad
on Barrett Avenue. (Id.)
The trial court determined that Officer Kimmel’s testimony was credible,
and the record before us supports this conclusion. We therefore find that
Officer Kimmel’s decision to knock on the door to Mr. Johnson’s house was
- 11 -
J. A30033/17
based on his observation from his patrol car of a quad parked in the side yard
matching the description of the quad he had previously observed on Barrett
Avenue. We further find that Officer Kimmel’s entry onto Mr. Johnson’s
property was not in violation of appellant’s constitutional rights against
unreasonable search and seizure because Officer Kimmel’s decision to knock
on Mr. Johnson’s door was not based solely on his inspection of the quad, but
rather his observations from his squad car and his observations of the fresh
tracks in the grass on Mr. Johnson’s property. (See id. at 40.)
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2018
- 12 -