Commonwealth v. Bowens

• Decision Date: 17 January 2020
• Docket Number: No. 341 MDA 2018,J-S43017-19,341 MDA 2018
• Citation: 2020 PA Super 9
• Parties: COMMONWEALTH OF PENNSYLVANIA v. TERRY BOWENS Appellant
• Court: Pennsylvania Superior Court

2020 PA Super 9

COMMONWEALTH OF PENNSYLVANIA v. TERRY BOWENS Appellant

J-S43017-19

No. 341 MDA 2018

SUPERIOR COURT OF PENNSYLVANIA

JANUARY 17, 2020

Appeal from the Judgment of Sentence Entered October 23, 2017

In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0007390-2016

BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS^*, P.J.E.

OPINION BY DUBOW, J.:

Appellant, Terry Bowens, appeals from the Judgment of Sentence of 15¾ to 31½ years' incarceration entered after a jury found him guilty of two counts of Possession With Intent to Deliver ("PWID"), and one count each of Conspiracy to PWID, Receiving Stolen Property, Firearms Not to be Carried without a License, and Possession of Drug Paraphernalia.¹ He challenges, inter alia, the denial of his suppression motion and the sufficiency of the evidence supporting the possession element of his convictions. After careful review, we conclude the trial court erred in failing to suppress the evidence obtained from Appellant's cell phone after the search warrant had expired. In addition, we conclude as a matter of law that the Commonwealth failed to prove that Appellant constructively possessed the items found in the locked glove box.We, thus, reverse the denial of the motion to suppress and convictions of PWID, Receiving Stolen Property, Firearms Not to be Carried without License, and Possession Drug Paraphernalia.

We glean the following relevant facts from the certified record. On October 12, 2016, Pennsylvania State Police Trooper Wesley Johnson observed a vehicle abruptly change lanes from the passing lane to the right lane, nearly hitting another vehicle. After activating the emergency lights on his vehicle, Trooper Johnson observed Maxi Echevarria, the driver of the vehicle, reaching over towards the glove box as he pulled the car onto the shoulder of the road. Appellant was sitting in the front passenger seat. While speaking with the men in the car, Trooper Johnson noticed that they were acting nervously. Mr. Echevarria informed the officer that the car belonged to his girlfriend in New Jersey. He also stated that he and Appellant were travelling from York City to Lancaster, and then on to Chester or Philadelphia.

While Trooper Johnson was speaking to Appellant and Mr. Echevarria on the side of the road, another officer learned of arrest warrants outstanding for both men. Trooper Johnson then took the men into custody and took possession of their cell phones. Trooper Johnson set Appellant's phone to airplane mode and placed it inside an aluminum foil-lined pouch for safekeeping.

Trooper Johnson then impounded the vehicle and conducted an inventory search. The glove box was locked; both Appellant and Mr. Echevarria denied having the key to open the glove box and denied knowingits contents.² Trooper Johnson contacted Mr. Echevarria's girlfriend, located in New Jersey, who gave him permission to search the glove box, stating that Mr. Echevarria had the key.

Trooper Johnson nonetheless obtained a search warrant for the glove box on October 13, 2016, and discovered, inter alia, heroin, drug paraphernalia, and two firearms. Consequently, on October 14, 2016, Trooper Johnson obtained a search warrant for the cell phones and provided it that day to Detective Mark Baker of the Northern York County Regional Police Department, a forensic expert in the field of cell phone data extraction. The search warrant expired on October 16, 2016, at 10:45 AM.

On October 20, 2016, Detective Baker notified Trooper Johnson that he had completed the cell phone extraction, which revealed text messages between Mr. Echevarria and Appellant using language common to the illicit drug trade. Appellant's phone also contained photographs of cash, and of a handgun similar to that found in the glove box.

The Commonwealth charged Appellant with the above offenses. Appellant and co-defendant Mr. Echevarria filed a pre-trial Omnibus Motion in which Appellant sought, inter alia, suppression of the evidence seized from hiscell phone because the search warrant expired before the police searched his phone.

After the hearing, the suppression court denied the Motion in part and granted it in part. The court found that Detective Baker had conducted the cell phone search on October 20, 2016, four days after the warrant had expired. However, the court concluded that because the phone had been in police custody since its seizure on October 12, 2016, and frozen in airplane mode, there were no "staleness concerns that would be present in other factual scenarios where the probable cause determination would have expired." Suppression Ct. Op., dated 6/6/17, at 10. The court also found that the delay in searching the phone "was a product[] of coordination delays between the police possessing the software and [the] expertise to do the job." Id. at 11. The court directed, however, that any information that was sent to the phone after 10:45 AM on October 16, 2016, i.e., after the warrant expired, would be inadmissible at trial. Id.

Appellant's trial commenced.³ The Commonwealth presented testimony from Trooper Johnson, Detective Baker, and Detective Craig Fenstermacher, an investigator with the York County District Attorney's Office and an expert in the field of drug interdiction. Trooper Johnson testified regarding the circumstances leading up to and including the traffic stop. The Commonwealthintroduced the cell phone extraction report through Detective Baker's testimony regarding the method of extraction utilized. The report contained a packet of printouts showing, inter alia, approximately 4000 images extracted from Appellant's cell phone, including text messages and photos.

Following Officer Baker's testimony, the court ruled on the authentication and admissibility of 44 text messages. Detective Fenstermaker then testified regarding the admitted messages and the drug language used therein. Trooper Johnson testified regarding the synchronicity of the text messages between Mr. Echevarria's and Appellant's cellphones. N.T. Trial at 234-35.

The jury found Appellant guilty of all of the above charges. The court ordered a pre-sentence report and subsequently sentenced Appellant to an aggregate term of 15 years 9 months' to 31 years 6 months' incarceration.

Appellant filed a timely Post-Sentence Motion challenging the discretionary aspects of his sentence, which the trial court denied. He then filed this timely appeal.⁴

In his Brief, Appellant raises the following issues for our review:

1. Did the trial court err in failing to suppress the fruits of a search of a cell phone backed with a warrant that had expired by the time the search was executed?

2. Did the court err in finding incriminating text messages had been authenticated for use against [Appellant] where the messages did not reveal their author and evidence showed others used the phone in question?

3. Was there insufficient evidence that [Appellant] possessed the guns, drugs, and paraphernalia found in the locked glove compartment of the car he was riding in where all indicia of ability and intent to exercise dominion and control over these items related to the driver?

4. Was there insufficient evidence that [Appellant] knew or believed the Ruger handgun was probably stolen where there was no evidence of when, where, or how the gun was stolen and its serial number was intact?

5. Did the sentencing court abuse its discretion in imposing three times the recommended incarceration, including multiple consecutive terms, based in part on convictions that were already included in [Appellant's] prior record score and the unsupported notion that [Appellant] was the leader in a criminal enterprise?

Appellant's Brief at 5.

Warrantless Search

Appellant first challenges the denial of his Motion to Suppress the information obtained from his cell phone, contending that because the search warrant expired four days before Officer Baker extracted the data on October 20, 2016, the search was "functionally warrantless" and the court should have suppressed the evidence. See Appellant's Brief at 28-30. We agree.

In reviewing the trial court's decision to deny a motion to suppress, we must determine "whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Freeman, 150 A.3d 32, 34 (Pa. Super. 2016). See also Commonwealth v. Batista, ___ A.3d ___, ___ , 2019 WL4727297 at *6 (Pa. Super. filed Sept. 27, 2019) (observing that "our standard of review is highly deferential with respect to the suppression court's factual findings and credibility determinations") (citation omitted)). The conclusions of law of the court below are subject to plenary review on appeal. Commonwealth v. Hopkins, 164 A.3d 1133, 1136 (Pa. 2017).

Further, "[b]ecause 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." Freeman, supra at 34. We may not consider evidence outside the suppression hearing record. In Re L.J., 79 A.3d 1073, 1085 (Pa. 2013).

Our rules of criminal procedure provide numerous rules pertaining to search warrants to protect our constitutional right to be free from unreasonable government intrusions into our private affairs. See Pa.R.Crim.P. 200-212; U.S. Const. amend. IV; PA Const. Art.1 §8. As the Pennsylvania Supreme Court recently noted in Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018), "[s]tate rules often implicate constitutional values, and the violation of a state rule may rise to the level of a federal constitutional violation," and "a more relaxed harmless error standard for errors perceived as violations of state rules, but which might also be violations of the federal Constitution, would leave constitutional values inadequately protected." Id. at 493 (quoting Commonwealth v. Story, 383 A.2d...