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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANTHONY DION SHAW : No. 1400 MDA 2019
Appeal from the Order Entered August 5, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003023-2018
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 01, 2020
The Commonwealth of Pennsylvania appeals from the order granting
Anthony Dion Shaw’s pre-trial motion to suppress evidence. We vacate and
remand for further proceedings.
The suppression court made the following findings of fact:
1. On May 3, 2018, Officer Sherise Wilson of the East Orange New
Jersey Police Department was dispatched to [Shaw’s] apartment
located at 74 South Munn Avenue, Apartment 11, East Orange,
New Jersey.
2. Officer Wilson was dispatched to [Shaw’s] apartment to check
on the well-being of [Shaw] because he had not reported for work
for two days.
3. Officer Wilson arrived at the apartment complex where [Shaw]
resided and located Apartment 11 which was the unit occupied by
[Shaw].
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* Former Justice specially assigned to the Superior Court.
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4. Although Officer Wilson knocked on the door several times, she
received no response.
5. Officer Wilson did not hear or smell anything unusual and
actually heard nothing while she was at the door to [Shaw’s]
apartment.
6. Several tenants of the apartment complex were questioned by
Officer Wilson regarding [Shaw] however none of them knew him.
7. After unsuccessfully attempting to locate [Shaw] in his
apartment, Officer Wilson made contact with the building
superintendent.
8. During a discussion with the superintendent, Officer Wilson
commented that she didn’t hear or smell anything unusual while
she was outside [Shaw’s] apartment.
9. The superintendent advised Officer Wilson that [Shaw] was
neither sickly nor elderly.
10. Officer Wilson told the superintendent that [Shaw] may be on
vacation out of the country without cell phone service or may just
want to be left alone.
11. Without encountering anything unusual or any type of
emergency requiring that she provide immediate assistance to
protect or preserve life or prevent serious injury, Officer Wilson
had the superintendent unlock the door to [Shaw’s] apartment so
she could enter.
12. After entering [Shaw’s] apartment with her sergeant, Officer
Wilson observed blood on the floor and proceeded into a bedroom
where she found [Shaw] lying on the floor.
13. [Shaw] stated that he had tried to kill himself.
14. Officer Wilson then walked through [Shaw’s] apartment and
located three knives, a notebook containing a handwritten note
and other items eventually seized by the East Orange Police
Department.
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15. After locating the notebook, Officer Wilson proceeded to read
the handwritten note contained therein.[1]
16. Officer Wilson’s testimony was corroborated by the video
recorded on her body camera.
17. Emergency personnel responded to the scene and began
treating [Shaw] for a self-inflicted knife wound to his neck.
18. [Shaw] was then transported to Rutgers University Hospital
and several items of evidence were taken from his apartment by
the East Orange Police Department including three knives, the
notebook containing a handwritten note, two blood swabs, a gold
cell phone and [Shaw’s] New Jersey driver’s license.
19. Sometime after the suicide attempt, the Office of the Luzerne
County District Attorney contacted Detective Michael McCusker of
the East Orange Police Department regarding [Shaw] and his
possible involvement in the death of the victim which occurred on
or about May 1 or 2 of 2018.
20. [Shaw] had been in a relationship with the victim prior to her
death and became a suspect in the homicide.
21. The Wilkes-Barre Township Police Department obtained a
search warrant for [Shaw’s] 2003 Mercury Sable bearing New
Jersey registration K3 8DZH from the Luzerne County Court of
Common Pleas on May 4, 2018.
22. Detective McCusker then obtained a search warrant on May 5,
2018 from the East Orange Municipal Court for the same vehicle
using the Luzerne County warrant to establish probable cause.
23. This vehicle was transported to Luzerne County and searched
on May 11, 2018.
24. During the search of [Shaw’s] 2003 Mercury Sable, the Office
of the Luzerne County District Attorney and/or the Wilkes-Barre
Township Police Department seized a Kmart receipt, Gerber knife
packaging, two swabs of suspected blood and a fingerprint.
25. Also on May 4, 2018, the Wilkes-Barre Township Police
Department obtained a search warrant from the Luzerne County
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1The handwritten note contained an apology by Shaw to the family of Cindy
Lou Ashton (“the victim”). Pa.R.A.P. 1925(a) opinion, 10/11/19 at 2.
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Court of Common Pleas for [Shaw’s] apartment located at 74
South Munn Avenue in East Orange, New Jersey.
26. Detective McCusker obtained a search warrant from the East
Orange Municipal Court for [Shaw’s] apartment on May 5, 2018
using the Luzerne County warrant to establish probable cause.
27. During the search of [Shaw’s] apartment on May 5, 2018, the
Office of the Luzerne County District Attorney and/or the Wilkes-
Barre Township Police Department seized twenty-three items
listed on the Wilkes-Barre Township Police property record and
attached hereto as Court Attachment “A”.
28. A third search warrant was obtained by the Wilkes-Barre
Township Police Department on May 4, 2018 from the Luzerne
County Court of Common Pleas for an evidence locker located at
the East Orange Police Department.
29. Detective McCusker then obtained a search warrant from the
East Orange Municipal Court for the items contained in the
evidence locker on May 5, 2018 using the Luzerne County warrant
to establish probable cause.
30. During the search of the evidence locker, the Office of the
Luzerne County District Attorney and/or the Wilkes-Barre
Township Police Department obtained the three knives, the
notebook containing a handwritten note and a gold cell phone.
31. On May 5, 2018 law enforcement officers from the Office of
the Luzerne County District Attorney and/or Wilkes-Barre
Township Police Department proceeded to the Rutgers University
Hospital to interview [Shaw].
32. Prior to initiating any questioning, [Shaw] was properly
provided with, and waived, his Constitutional right to remain silent
pursuant to Miranda v. Arizona.[2]
33. During the interview, [Shaw] was confronted with evidence
obtained by the East Orange Police Department while in [Shaw’s]
apartment during the welfare check on May 3, 2018 such as the
handwritten note from the notebook.
34. On May 10, 2018, the Office of the Luzerne County District
Attorney and/or the Wilkes-Barre Township Police Department
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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obtained a search warrant from the Luzerne County Court of
Common Pleas to take a buccal swab from [Shaw].
35. Detective Robert O’Neal of the Essex County Prosecutor’s
Office obtained a search warrant from the Superior Court of New
Jersey on May 10, 2018 for the buccal swab using the Luzerne
County warrant to establish probable cause.
36. On May 11, 2018 a buccal swab was taken from [Shaw] while
a patient at Rutgers University Hospital by the Office of the
Luzerne County District Attorney and/or Wilkes-Barre Township
Police Department.
37. The affidavits of probable cause for all four search warrants
obtained from the Luzerne County Court of Common Pleas contain
the following language:
On May 4, 2018, Affiants learned that on the previous day
(May 3, 2018) law enforcement officers from the East
Orange, NJ Police Department responded to a welfare check
at 74 South Munn Avenue, Apt 1I East Orange, NJ 07018;
believed to be the residence of Anthony D. Shaw. SHAW is
believed to have attempted suicide within the Apartment
and was transported for medical treatment.
On May 4, 2018, Affiants from the Luzerne County District
Attorney’s Office and Wilkes-Barre Township Police
Department learned of SHAW’s location and his apparent
suicide attempt that occurred on May , [sic] 2018. Affiants
also learned that multiple items were seized by the East
Orange Police Department including one (1) large straight
knife with red handle, two (2) folding knives (one folding
knife has a black/grey handle and one folding knife has a
black handle), one (1) handwritten note in a burgundy
colored one subject oxford notebook, and one (1) gold in
color Samsung Note 5 cellular phone. These items were
seized as part of the suicide investigation and logged into
evidence at the East Orange Police Department (Essex
County, NJ) located at 15 South Munn Avenue, East Orange,
NJ 07018.
On May 4, 2018, Affiants from the Luzerne County District
Attorney’s Office and Wilkes-Barre Township Police
Department learned that New Jersey authorities located
SHAW’s Mercury Sable vehicle. The vehicle is a silver in color
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Mercury Sable sedan with sunroof, NJ registration K38DZH
and VIN #IIVIEFM55S436617739.
38. The search warrants obtained from the Luzerne County Court
of Common Pleas were attached as exhibits to the search warrants
applied for and obtained in Essex County, New Jersey.
39. On May 22, 2018, [Shaw] was charged with one count of
criminal homicide.
Findings of Fact and Conclusions of Law, 8/5/19, at 1-6 (unpaginated).
Significantly, the investigating officer from Luzerne County, Detective
Noone, whom the suppression court found credible,3 testified as follows:
[Commonwealth]: The specific items of evidence that you
gathered that were important to this investigation?
The Court: Outside of the scope of what was in the probable cause
affidavits for all the warrants.
[Noone]: Basically we were advised that [victim’s] boyfriend or
ex-boyfriend or individual that was present with her on the 1st of
May, the day prior to her being discovered deceased, we were
given a name of Anthony Shaw. Further Investigation gives us an
address of Anthony Shaw to be 74 South Munn Ave [sic] in East
Orange, New Jersey. Our investigation took us to that apartment
complex where we observed that there was video cameras
amongst the inside and outside of that building.
After speaking to the superintendent there, we were able to view
those cameras outside/inside to see what the individual was
wearing based on information that we received, what he may have
been carrying, any evidence regarding the investigation of the
death of the victim. After seeing that information or that video,
the defendant does return home in his vehicle into his apartment
building, walking up the stairs towards his apartment building.
[Commonwealth]: The vehicle being the 2003 Mercury Sable?
[Noone]: Correct.
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3 See Findings of Fact and Conclusions of Law at 6, ¶40.
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[Commonwealth]: Was there also video obtained in the area of
the victim’s apartment?
[Noone]: Yes.
[Commonwealth]: Describe what type of video was obtained in
that area?
[Noone]: Specifically in the video that captured the front of 134
Nicholson Street, Wilkes-Barre Township was a neighbor’s front
porch video camera which captured the defendant leaving in his
said 2003 Mercury approximately 7:48 in the morning on the 2nd
of May 2018. That would be leaving the victim’s residence.
[Commonwealth]: Were you also able to obtain any records from
local businesses putting [Shaw] in the area of Wilkes-Barre or
Wilkes-Barre Township around the time of [the victim’s] death?
[Noone]: Yes. So the 1st of May 2018 [Shaw] went to Odyssey
Fitness Center with Tracy McCoy which would be the uncle of the
deceased victim Ashton. They went to the Odyssey Fitness Center
where he signed in, paid I believe with a credit card, did some
type of physical workout there for a little while and then later on
he dropped Mr. McCoy off back at the residence 134 which he lives
upstairs. He left there and ultimately went to see a movie at
Movies 14 downtown Wilkes-Barre on the 1st of May 2018.
[Commonwealth]: Did you also -- did you obtain any cell phone
information of the parties involved after the fact?
[Noone]: Yes, there was a cell phone dump of the phone of the
victim and [Shaw].
[Commonwealth]: Would that show any contact between the two
of them?
[Noone]: Yeah, there was -- based on the numbers and the
information that was known to us, [Shaw] and the victim
communicated with one another via text message which we were
able to read.
[Commonwealth]: Lastly, did [Shaw] eventually give any
statements to investigators that may have placed him in the area
at the time or around the time of [the victim’s] death?
[Noone]: Yeah, the 5th of May 2018 I interviewed [Shaw] at his
bedside in East Orange, Rutgers, I believe, University Hospital. He
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was Mirandized. He was willing to speak to us. And he gave a
statement of his recollection of events on the time that he spent
from approximately noon on May 1st, 2018 until he left the prior
morning at 7:48 approximately on the 2nd of May, the events.
Which basically he stated that he was in Wilkes-Barre, he went to
Odyssey Fitness Center. I believe he did state that he went to the
movies earlier in the afternoon, if I’m correct, I could be jogging
reports. But ultimately he arrives back at 7 p.m. to 134 Nicholson
Street to the victim’s residence. When he arrives the aunt was
there, she left. Him and the victim had a conversation regarding
the relationship. He indicated to me that they resolved their
differences with an agreement to be friends with benefits and
ultimately they just laid around, never left the apartment, nobody
came in, nobody left. He believed that approximately six in the
morning on the 2nd of May that the victim gave him a kiss which
he was going to leave for the day which the way he described she
had a routine: She leaves approximately six in the morning, works
out, showers, and then arrives for work and will work through five,
six o’clock p.m., give or take.
[Commonwealth]: During the statement that he gave you which
was after the warrants were issued, did he admit to operating the
Mercury Sable to go back to New Jersey?
[Noone]: Yes. He actually gave me a route he took. To the best of
my recollection, review of the reports, that he travelled 81, 380,
80 back to New Jersey…
N.T. Hearing, 6/28/19, at 49-53.
In October 2018, the Commonwealth filed a criminal information against
Shaw containing the lone charge of criminal homicide. Prior to trial, in
December 2018, Shaw filed an omnibus pre-trial motion seeking to suppress
all evidence police seized from Shaw’s apartment during both the initial
welfare search and the later search pursuant to the Pennsylvania/New Jersey
warrants. Shaw also sought to suppress the items police found upon searching
his vehicle, his statements to investigators while hospitalized in May 2018,
and the DNA evidence officers’ collected from him at that time.
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Following a suppression hearing, the court issued a briefing schedule
listing four specific issues it asked the parties to address, and encouraging the
parties to raise any other issues they deemed relevant, and both parties filed
briefs. In its brief, the Commonwealth argued, inter alia, that the court should
not suppress the evidence at issue because the inevitable discovery doctrine
applied. The Commonwealth also filed a motion specifically requesting the
opportunity to supplement the record with evidence regarding its inevitable
discovery argument.
The suppression court issued an order on August 5, 2019, granting the
suppression motion, together with findings of fact and conclusions of law. The
court found that the evidence at issue should be suppressed because Officer
Wilson’s initial warrantless entry and search of Shaw’s apartment was
unconstitutional and therefore all evidence emanating from that search should
be suppressed as fruit of the poisonous tree pursuant to the exclusionary rule.
The suppression court did not address the Commonwealth’s argument under
the inevitable discovery doctrine or its bid to supplement the record.
The Commonwealth filed the instant timely appeal and court-ordered
Pa.R.A.P. 1925(b) statement. In its Rule 1925(a) opinion, the court once again
concluded that Officer Wilson’s initial warrantless search was unconstitutional
and did not fall under New Jersey’s community-caretaking doctrine. Further,
the court also rejected the Commonwealth’s contention that the court had
erred by declining to admit the evidence under the inevitable discovery
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doctrine and by denying the Commonwealth’s request to supplement the
record regarding this claim.
The Commonwealth raises the following issues for appellate review:
1. Whether the court erred when it ruled that the
community caretaker doctrine did not justify entry into
the home of [Shaw] who was found with his throat
slashed, bleeding into a hamper, admitting to having
attempted suicide. Did not consider whether the
Commonwealth had demonstrated that the items seized
from [Shaw], his residence and vehicle would have been
inevitably discovered?
2. Whether the court erred when it did not consider whether
the Commonwealth had demonstrated that the items
seized from [Shaw], his residence and vehicle would
have been inevitably discovered[?]
Commonwealth’s Br. at 6.
When we review “an appeal by the Commonwealth of a suppression
order, we may consider only the evidence from the appellee’s witnesses along
with the Commonwealth’s evidence which remains uncontroverted.”
Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010). We review the
trial court’s factual findings to determine whether the record supports them;
we review the court’s legal conclusions de novo. Id. Where supported by the
record, “a suppression court’s findings of fact are binding on this Court.”
Commonwealth v. Coughlin, 199 A.3d 401, 404 (Pa.Super. 2018) (en banc)
(citations omitted).
In its first issue, the Commonwealth contends that the trial court erred
by determining that New Jersey’s community-caretaking doctrine did not
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excuse the officer’s warrantless entry and search of Shaw’s apartment. The
Commonwealth emphasizes that Officer Wilson entered Shaw’s apartment for
the sole purpose of checking on his welfare and did not have any knowledge
that he was a suspect in the victim’s murder. The Commonwealth points out
that Officer Wilson in fact saved Shaw’s life. Further, while the Commonwealth
acknowledges the suppression court’s reliance on State v. Vargas, 63 A.3d
175 (N.J. 2013), it asserts that the facts of the instant case are more similar
to State v. Mordente, 133 A.3d 684 (N.J. Super. Ct. App. Div. 2016).
The suppression court in this case applied New Jersey law to this issue
because it concluded that New Jersey has a greater interest in the outcome of
this question than Pennsylvania does. See Commonwealth v. Sanchez, 716
A.2d 1221, 1224 (Pa. 1998) (holding Pennsylvania’s choice-of-law interest
analysis applies in criminal cases). As neither party here disputes the lower
court’s application of New Jersey law to this issue, we assume, without
deciding, that New Jersey law governs Shaw’s first issue.
In Vargas, the New Jersey Supreme Court discussed New Jersey’s
community-caretaking doctrine at length. There, police entered the
defendant’s home to check on his welfare and found evidence of contraband
in the process. The State argued that the warrantless entry was proper
pursuant to the community-caretaking doctrine, because the defendant’s
landlord had had no contact with him for two weeks, his rent and bills were
late, his mailbox was full, and his car was covered in dust and had flat tires.
63 A.3d at 178-179.
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The Vargas court was not convinced. It explained that New Jersey’s
community-caretaking doctrine applies in strictly limited circumstances. It
permits an officer to enter a home without a warrant only if the officer “has
an objectively reasonable basis to believe that an emergency requires that
[the officer] provide immediate assistance to protect or preserve life, or to
prevent serious injury and there is a reasonable nexus between the
emergency and the area or places to be searched.” Id. at 188 (citations and
internal quotation marks omitted). The Vargas court explained that the police
lacked an objectively reasonable basis to believe that immediate entry was
necessary due to an immediate risk to the safety of either Vargas or the
community. Id. at 191. Rather, the court considered Vargas’s two-week
absence to be “consistent with a person vacationing, traveling on business, or
tending to a personal family matter.” Id.
Conversely, in Mordente, the Appellate Division of the New Jersey
Superior Court concluded that the circumstances there were sufficient to
invoke the community-caretaking doctrine. Mordente, 133 A.3d at 688.
There, the defendant had alerted police that his elderly mother was missing
during a winter night. Id. at 687-688. The defendant was extremely worried
and feared she might have fallen down some basement steps. The defendant
allowed New Jersey officers to enter his home, and then left. Later, officers
returned to the home and searched for the defendant’s mother, and found
unrelated contraband. The appellate court concluded that the trial court
properly refused to suppress the contraband, because there was sufficient,
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objective evidence that an emergency required immediate assistance to
protect human life. Id. at 688.
In this case, the suppression court found the instant facts more similar
to those presented in Vargas than those in Mordente, and we agree. The
only objective fact in favor of entry into Shaw’s apartment, that Officer Wilson
knew, was that Shaw had not attended work in two days. Officer Wilson did
not see, hear, or smell anything unusual at Shaw’s front door. Neither the
building superintendent, nor anyone else, told Officer Wilson that Shaw was
elderly or infirm, as occurred in Mordente. In fact, akin to the Vargas court’s
considering the evidence there to be consistent with a person being away,
Officer Wilson noted that Shaw could merely be on vacation or want to be left
alone. Therefore, we conclude that the suppression court properly determined
that Officer Wilson’s warrantless entry into Shaw’s apartment did not pass
muster under New Jersey’s community-caretaking exception. Thus, we hold
that the Commonwealth’s first issue warrants no relief.
In its second claim, the Commonwealth argues that the suppression
court erred by failing to apply the inevitable discovery doctrine to admit the
evidence at issue. The Commonwealth contends that Luzerne County police
would have inevitably discovered the evidence seized from Shaw’s apartment
and his car due to the information already in their possession before they
learned of the New Jersey officers’ search. The Commonwealth points out that
Shaw was a primary suspect in a homicide and surveillance video shows him
leaving the scene of the crime in his vehicle shortly before the victim’s body
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was found, and arriving at his own apartment in New Jersey in that vehicle
thereafter.
The Commonwealth adds that the victim’s uncle, Tracy McCoy, could
place Shaw in the area of the victim’s apartment at the time of the homicide
and represented that the victim and Shaw were involved in a romantic
relationship that they were discussing ending. In addition, the Commonwealth
notes that cell phone records revealed contact between Shaw and the victim
and business records also likewise confirmed that Shaw had used a gym and
movie theater near the victim’s apartment during the time in question. The
Commonwealth maintains that all of this information, together, supplied the
Luzerne County police with probable cause to obtain a warrant for Shaw’s
apartment, and they would have done so, as he was their prime suspect. The
Commonwealth argues that when police executed that warrant, they would
have inevitably discovered the evidence that the New Jersey police obtained
during their search.
The Commonwealth argues that the suppression court thus erred by
failing even to consider the inevitable discovery doctrine in its Findings of Fact
and Conclusions of Law. The Commonwealth further points out that the court
failed to address its request to supplement the record regarding this claim.
Thus, the Commonwealth urges this Court to remand this case to the
suppression court to provide the Commonwealth with the opportunity to
supplement the record and the suppression court with the chance to consider
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fully the application of this very fact-specific doctrine to the complex case at
hand.
Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution require governmental
searches of a home to be conducted pursuant to a warrant supported by
probable cause, unless a warrant exception applies. See Commonwealth v.
Newsome, 170 A.3d 1151, 1154 (Pa.Super. 2017). Searches that are
conducted in violation of this rule are illegal and evidence so discovered is
subject to suppression. See Commonwealth v. Carper, 172 A.3d 613, 618
(Pa.Super. 2017).
One exception to the warrant requirement is the inevitable discovery
doctrine, which excepts from exclusion evidence that police would have
inevitably discovered by legal means. Commonwealth v. Fulton, 179 A.3d
475, 489-90 (Pa. 2018). In order to invoke this doctrine, the prosecution has
the burden of proving by a preponderance of the evidence that police would
have inevitably discovered the otherwise excludable evidence, by lawful
means. Id. at 490. “Police must demonstrate that the evidence would have
been discovered absent the police misconduct, not simply that they somehow
could have lawfully discovered it.” Commonwealth v. Perel, 107 A.3d 185,
196 (Pa.Super. 2014) (emphasis removed).
Here, although the suppression court initially failed to address the
Commonwealth’s inevitable discovery claim, it ultimately found that the facts
known to Pennsylvania law enforcement at the relevant time were insufficient
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to invoke the doctrine.4 Suppression Ct. Op., 10/11/19, at 4-5 (unpaginated).
The suppression court also properly noted that a court’s decision to disallow
the opening of the record is subject to review under an abuse of discretion
standard. Commonwealth v. Brown, 700 A.2d 1310, 1320 (Pa.Super.
1997). Although the court did not initially address the Commonwealth’s
request to supplement the record, in its Rule 1925(a) opinion, the court opined
that the Commonwealth had sufficient opportunity between the time when
Shaw filed his suppression motion in December 2018 and the suppression
hearing in June 2019, to present any relevant evidence. Id. at 5-6. Thus, the
suppression court maintains that its failure to address the Commonwealth’s
request to supplement the record and ultimate denial of such request did not
constitute an abuse of discretion. Under the particular facts at issue here, we
disagree.
As discussed above, a claim regarding the inevitable discovery doctrine
is rooted in a close factual analysis. This case has a complex and sprawling
factual landscape – including two distinct law enforcement agencies in two
states, potential DNA evidence, surveillance video featuring Shaw, potential
testimony of the victim’s relative who observed Shaw and the victim interact
near the time of the murder – that required a fully developed record. In these
circumstances, the failure to grant, let alone address the Commonwealth’s
____________________________________________
4 The trial court applied Pennsylvania law to this issue and due to our
disposition we need not address whether this was the proper course.
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request to supplement the record prior to granting the suppression motion
seeking to exclude nearly all evidence at issue in this case, was error.
Accordingly, we affirm the suppression court’s application of New
Jersey’s community-caretaking exception. However, we reverse the denial of
the Commonwealth’s request to supplement the record, vacate the
suppression order, and remand for further proceedings consistent with this
Memorandum.
Order vacated and remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2020
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