Com. v. Mason

• Citation: 415 Pa.Super. 22,608 A.2d 506
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Yvonne A. MASON, Appellant.
• Decision Date: 04 May 1992
• Court: Superior Court of Pennsylvania

Page 506

608 A.2d 506

415 Pa.Super. 22

COMMONWEALTH of Pennsylvania, Appellee, v. Yvonne A. MASON, Appellant.

Superior Court of Pennsylvania.

Argued March 10, 1992.

Filed May 4, 1992.

Gary Lysaght, Harrisburg, for appellant.

Gloria J. McPherson, Asst. Dist. Atty., Shermansdale, for Com., appellee.

Before POPOVICH, HUDOCK and HESTER, JJ.

POPOVICH, Judge:

We are asked to review the judgment of sentence (aggregating 3 to 6 years imprisonment) for possession with intent to deliver a controlled substance (cocaine), delivery of a controlled substance, possession of a small amount of marijuana, possession of drug paraphernalia and tampering with evidence by the appellant, Yvonne A. Mason. We affirm.

Because the appellant does not question the sufficiency of the evidence, the first issue we will address is whether the court erred in denying the appellant's motion to suppress.

In reviewing such a claim, we must consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). If the record supports the factual findings of the suppression court, as well as the legitimacy of the inferences and legal conclusions drawn from those findings, they may not be disturbed on appeal. Commonwealth v. O'Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978). "It is, however, exclusively the province of the suppression court to determine the credibility of witnesses and the weight to be accorded to their testimony." Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982).

With the preceding in mind, the suppression transcript discloses that on the afternoon of February 16, 1989, Trooper David S. Laudermilch was in charge of a drug task force providing surveillance for undercover officer Craig LeCadre.

Officer LeCadre met with Kenneth Mitchem to purchase drugs. Based on prior dealings, the police anticipated that Mitchem would travel to the Pennswood apartments in Lower Paxton Township, Dauphin County.

As officer LeCadre waited in his vehicle, Mitchem was observed entering apartment 404-D. Within 12 minutes, Mitchem exited the apartment and the surveillance team followed him to a location approximately a quarter-mile from the Pennswood apartments before arresting him. Thereafter, Mitchem was advised of his rights prior to disclosing information which led police to believe that additional drugs were present at 404-D.

Because Trooper Laudermilch was concerned that Mitchem's arrest may have been observed and reported to the occupants of 404-D, he decided not to wait for the completion of the search warrant by a member of the drug task force, Detective Taylor. Instead, Trooper Laudermilch and other officers returned to apartment 404-D. Once there, police knocked on the door for more than two minutes. When no response was forthcoming, Trooper Laudermilch gave the order to "knock and announce" that the police were present. In the absence of a response, the police forced the door open with a "battering ram".

After entering the apartment, the police observed the appellant standing in the doorway of the bathroom. She reacted by locking the bathroom door. The police kicked open the door and found the appellant in a crouched position over the toilet.

In the bathroom, the police observed a triple beam scale, a plate on the floor and a silver spoon in the water reservoir of the toilet. These items were left undisturbed, as was a "baggie" containing a white power observed in one of the bedrooms, until Detective Taylor arrived with the warrant. Thereafter, all items were seized.

The motion to suppress was heard immediately before trial. With the close of testimony and argument by counsel, the court concluded that the actions of the police were legitimate and the evidence seized not suppressible. We agree and find the United States Supreme Court decision of Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) instructive.

In Murray, based on information received, federal agents placed the defendant and a co-conspirator under surveillance. The two were observed driving separate vehicles into a warehouse. Within minutes, they relinquished the vehicles to other drivers, who in turn were followed and ultimately arrested. The vehicles were seized and found to contain marijuana.

After receiving this information, several agents converged on the warehouse and forced entry. The structure was unoccupied, but numerous burlap-wrapped bales were observed in plain view and found to contain marijuana. However, the agents left without disturbing the bales, kept the warehouse under surveillance and did not reenter until they had a search warrant.

In securing the warrant, no reference was made to the prior entry, and no reliance was had upon any observations made during the initial entry. When the warrant was issued, approximately 8 hours after the initial entry, federal agents reentered the warehouse and seized several hundred bales of marijuana. This led to the defendants being charged with conspiracy to possess and distribute illegal drugs.

The defendants' motion to suppress was denied by the District Court. The First Circuit Court of Appeals affirmed and certiorari was granted by the United States Supreme Court to resolve the question, left open in Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), of whether a search pursuant to a warrant was tainted by what the police had seen during an initial unlawful entry--marijuana in plain view.

The Supreme Court, in vacating judgment, relied upon the "independent source doctrine", a rule of law intended to condone the introduction of evidence acquired in a fashion untainted by illegal evidence-gathering activity. In applying the doctrine, a balancing approach was adhered to; namely:

[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.... When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in [the] absen[ce of] any error or violation.

Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984) (Citations omitted; emphasis in original).

The Court in Murray extended the policy considerations underlying the "independent source doctrine" to apply to evidence initially discovered during, or as a consequence of, an unlawful search, but later seized as a result of activities untainted by the initial illegality. 487 U.S. at 537, 108 S.Ct. at 2533. And, the Court found that the "inevitable discovery doctrine", with its distinct requirements, was in reality an extrapolation of the "independent source doctrine": Since the tainted evidence would be admissible if discovered through an independent source, it should be admissible if it inevitably would have been discovered. 487 U.S. at 539, 108 S.Ct. at 2534.

The two principles were applied to the facts in Murray thusly:

Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one

* * * * * *

The independent source doctrine ... rest[s] upon ... the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police's possession) there is no reason why the independent source doctrine should not apply.

487 U.S. at 541-42, 108 S.Ct. at 2535 (Emphasis in original).

As illustrated by Murray, the ultimate question is whether the search pursuant to a warrant has a genuinely independent source for its information and the seized tangible evidence. In other words, where a warrantless entry in no way contributes to the issuance of a warrant or the discovery of evidence during the lawful search that occurs pursuant to the warrant, there is no error in the court's refusal to suppress. Id.

The appellant would have us discount the "independent source doctrine" on the grounds that: 1) the police "did not merely 'secure' the premises, but in fact conducted a search and seized evidence prior to the warrant's arrival"; and 2) the Pennsylvania Supreme Court has not recognized the doctrine as an exception to the exclusionary rule under Article I, Section 8 of the Pennsylvania Constitution. Appellant's Brief at 7.

In responding to the last point first, we find that the "independent source doctrine" is extant and viable in this Commonwealth.

In Commonwealth v. Cephas, 447 Pa. 500, 291 A.2d 106 (1972), an admittedly illegal search of the appellant's apartment tainted the seizure of various objects and an incriminating statement from an individual arrested at the site. The Cephas Court reversed judgment because there was no "independent source" from which the Commonwealth could have learned of the identity of the individual who provided incriminating information against the appellant other than by "exploiting" the initial illegal search.

Next, in Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), the appellant...