Commonwealth v. Bowens

• Decision Date: 19 October 2021
• Docket Number: No. 341 MDA 2018,341 MDA 2018
• Citation: 265 A.3d 730
• Parties: COMMONWEALTH of Pennsylvania v. Terry BOWENS, Appellant
• Court: Pennsylvania Superior Court

265 A.3d 730

COMMONWEALTH of Pennsylvania

v.Terry BOWENS, Appellant

No. 341 MDA 2018

Superior Court of Pennsylvania.

Argued December 3, 2020

Filed: October 19, 2021

Brian McNeil, Public Defender, York, for appellant.

Scott A. McCabe, Assistant District Attorney, York, for Commonwealth, appellee.

James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON, J., STABILE, J., NICHOLS, J., McLAUGHLIN, J., and KING, J.

OPINION BY BOWES, J.:

Terry Bowens appeals from the judgment of sentence imposed after he was convicted of multiple drug and firearms offenses. We granted en banc review to address whether the collection of data from a cell phone that was in police custody, undertaken more than two days after the issuance of the warrant that authorized its search, required suppression of the information obtained. Upon review of that issue and others raised by Appellant, we discern no cause to disturb the trial court's suppression ruling and affirm Appellant's judgment of sentence.

I. Facts and Procedural History

Appellant's convictions stem from a traffic stop on Route 30 in York, Pennsylvania at approximately 6:30 p.m. on October 12, 2016. At that time, Pennsylvania State Trooper Wesley Johnson, observing traffic from his marked police cruiser, saw a gray Chrysler 200 with New Jersey plates commit a traffic violation. See N.T. Pretrial Motions, 4/6/17, at 4-5.¹ He activated his lights and pulled the vehicle over to find two occupants: Maxi Echevarria in the driver's seat and Appellant in the front passenger seat. Id . at 6-7. Echevarria produced documents revealing the vehicle was registered to his partner, Ms. Solita Thomas of New Jersey, whom he indicated had given him permission to drive it. Id . at 7, 11. Echevarria represented that he and Appellant were journeying from York City to Lancaster, possibly further on to Philadelphia. Id . at 9. Trooper Johnson ran Echevarria's information and determined that he had a suspended license and an active arrest warrant. Id . at 12.

Trooper Johnson then spoke with Appellant who, during the officer's interaction with Echevarria, had repeatedly put his hands out the window to signal Trooper Johnson. Trooper Johnson, based upon his experience, perceived this as an effort to interrupt his questioning of Echevarria and an "attempt to control the situation, control the information, conversation, and their environment." N.T. Trial, 9/13-15/17, at 144. Appellant offered "Terry Bowen" rather than "Terry Bowens" as his name, and also provided a birthdate that was off from the correct date by one day and one year. Appellant was unable to supply a social security number. Id . at 145-46. Trooper Johnson requested that Appellant show him his Facebook profile in an attempt to establish his identity. Appellant used his Samsung Galaxy smart phone to access his Facebook profile, which identified Appellant as "Nino Brown." Id . at 147-49. Trooper Johnson eventually ascertained Appellant's identity, as well as the fact that he also had an active arrest warrant. Id . at 149. Appellant and Echevarria were both arrested at the scene pursuant to the outstanding warrants and their phones were seized. Id . at 173-74.

With the owner of the vehicle in New Jersey and both occupants of the vehicle being taken into custody, Trooper Johnson determined that the vehicle required a tow and conducted an inventory search. He discovered that the vehicle's glove box was locked. After obtaining the key,² permission from the vehicle's owner, and a search warrant, police searched the vehicle and seized a 9mm Ruger SR9c firearm, a .40 caliber Kahr firearm, heroin, a cutting agent, and packaging. Id . at 149-50. The Ruger had been reported stolen, while the serial number on the Kahr had been obliterated, preventing the police from running a query to see if it had been reported. Id . at 157-59.

After recovering the contraband, Trooper Johnson applied for and was issued warrants on October 14, 2016, to search Appellant's phone as well as two phones seized from Echevarria. Trooper Johnson secured the devices by putting them in airplane mode, turning them off, and wrapping them in aluminum foil to prevent the data thereon from being accessed and altered remotely. See N.T. Pretrial Motions, 4/6/17, at 113-14. He then immediately sent the devices to Detective Mark Baker. Id . at 113, 116.

Detective Baker conducted a forensic analysis of Appellant's phone, which was the only one of the three that could be analyzed using a Cellebrite Touch device. See N.T. Trial, 9/13-15/17, at 193-95. Detective Baker was able to access contacts, applications, texts, photos, and video on Appellant's phone. The photographic images recovered were thumbnails located in the phone's image cache directory. Id . at 200. The presence of an image in the cache directory did not mean that the photo was taken by Appellant's phone, as opposed to having been received by his phone via text message or other means. Id . at 200, 204. Rather, it meant only that the photos were viewed by the phone's user at some point, and thumbnails saved for faster repeat viewing. Id . at 200.

Among the nearly 4,000 images recovered were multiple selfies³ of Appellant, selfies of people other than Appellant, and a photograph of a Ruger identical to the Ruger recovered from the glovebox of the Chrysler 200. Id . at 199-201, 231-34, 236, 242-45. Text messages from October 8, 10, and 11, 2016, sent and received between Appellant's phone and one of the phones seized from Echevarria,⁴ revealed plans to secure transportation and both 9mm and .40 caliber ammunition and travel to Lancaster to sell heroin. See id . at 267-81, Court Exhibit 1 at 14, 22, 44.

Appellant was charged with criminal conspiracy to commit PWID, possession of heroin, possession with intent to deliver heroin ("PWID"), possession of drug paraphernalia, possession of a firearm with an altered serial number, receiving stolen property ("RSP"), and firearms not to be carried without a license. Prior to trial, Appellant sought to suppress the images and text messages extracted from his phone, arguing that the warrant had expired prior to its execution. Unpersuaded, the trial court declined to suppress the texts between Appellant and Echevarria in the days prior to the traffic stop.⁵

At trial, Appellant's defense was that the Commonwealth's evidence failed to establish that he had anything to do with the contraband, but rather showed only his mere presence in the car. See id . at 136-38, 322. He maintained that any nervousness on his part during Trooper Johnson's traffic stop was due to the outstanding warrant against him, rather than any guilty knowledge of the contents of the glove box. See id . at 148, 325, 327-28. He posited that the presence of selfies of other people on his phone indicated that it was a community phone, and that the drug-related texts recovered from it were sent by one of its other users. Id . at 329-33. The jury nonetheless found Appellant guilty on all charges except possession of the Kahr pistol with the altered serial number.

Following a presentence investigation, the trial court sentenced Appellant to an aggregate term of fifteen and three-quarters to thirty-one and one-half years of imprisonment. Appellant filed a timely post-sentence motion in which he, inter alia , challenged the admission of the text messages and photographs and requested reconsideration of his sentence. The trial court denied the motion by order of January 22, 2018. Appellant filed a timely notice of appeal, and both he and the trial court complied with Pa.R.A.P. 1925.

A three-judge panel of this Court (1) reversed the denial of Appellant's motion to suppress the evidence recovered from Appellant's smart phone; (2) granted Appellant a judgment of acquittal on his convictions for PWID, receiving stolen property, firearms not to be carried without a license, and possession of drug paraphernalia based upon lack of evidentiary sufficiency; and (3) remanded for a new trial on the conspiracy charge.

The Commonwealth filed a timely petition for reargument en banc . By order of March 19, 2020, this Court granted the Commonwealth's petition, withdrew the prior opinion, and directed the parties to submit argument on the following issues:

(1) Whether the trial court erred in denying suppression of data that was copied and reviewed from a seized cell phone more than two days after expiration of the relevant warrant? and

(2) If the data should be suppressed, whether the proper remedy is acquittal of the offenses due to insufficiency of evidence, or remand for a new trial?

Order, 3/19/20, at unnumbered 2. The parties filed substituted briefs arguing those issues and more. Due to the COVID-19 pandemic, oral argument was held remotely on December 3, 2020, and this appeal is ripe for our disposition.⁶

Appellant presents the following questions, which we have reordered for ease of disposition:

[1.] 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?

[2.] 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?

[3.] 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?

[4.] 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?

[5.] Did the sentencing court abuse its discretion in imposing three times the recommended incarceration, including

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