Commonwealth v. Heidelberg

• Decision Date: 23 November 2021
• Docket Number: No. 1342 WDA 2019,1342 WDA 2019
• Citation: 267 A.3d 492
• Parties: COMMONWEALTH of Pennsylvania v. Cal HEIDELBERG, Appellant
• Court: Pennsylvania Superior Court

267 A.3d 492

COMMONWEALTH of Pennsylvania

v.Cal HEIDELBERG, Appellant

No. 1342 WDA 2019

Superior Court of Pennsylvania.

Submitted August 24, 2021

Filed: November 23, 2021

Cal Heidelberg, Albion, appellant, pro se.

Douglas H. Sullivan, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.

OPINION BY MURRAY, J.:

Cal Heidelberg (Appellant) appeals pro se from the judgment of sentence imposed after a jury found him guilty of four counts of possession of a controlled substance, as well as one count each of firearms not to be carried without a license, possession with intent to deliver a controlled substance, possession of a small amount of marijuana, and possession of drug paraphernalia.¹ Appellant challenges the lawfulness of his arrest and the denial of his motion to suppress contraband recovered from his vehicle following the arrest. After careful consideration, we affirm.

On August 11, 2018, Erie Police Department Corporal James Langdon (Corporal Langdon), while on foot patrol, saw Appellant seated in the driver's seat of a green BMW parked on West 19th Street. N.T. (suppression hearing), 1/28/19, at 8. Corporal Langdon was familiar with Appellant and his BMW from a prior drug arrest. Id. at 8-9, 15. Corporal Langdon radioed police dispatch and relayed Appellant's name and the license plate number of the vehicle to check for any active warrants for Appellant. Id. at 9. Dispatch checked the National Crime Information Center (NCIC) database² and informed Corporal Langdon that Appellant had an "active Erie County arrest warrant," and confirmed the BMW was registered to Appellant. Id.

As Corporal Langdon approached the BMW, Appellant exited the vehicle and walked to the front porch of his cousin's nearby house. Id. Corporal Langdon followed Appellant and asked him "to identify himself, which he did." Id. Corporal Langdon radioed the information to dispatch. Id. Dispatch "confirmed the warrant" and sent additional officers to the scene. Id.

Shortly thereafter, Corporal Curtis Waite (Corporal Waite) and Patrolman Daniel Post (Patrolman Post) arrived. Id. 21-22, 36. The officers placed Appellant under arrest; he was placed in handcuffs, walked to a police cruiser, and seated in the back. Id. at 10, 22, 36.

Corporal Langdon observed the BMW's "windows were down, [and] I believe [the] sunroof was open." Id. at 17. Appellant indicated to Corporal Langdon that he did not want anyone to go near or touch his vehicle. Id. at 10. However, Corporal Waite and Patrolman Post had "already" approached the vehicle to secure it. Id. at 10, 43. Corporal Waite explained:

We saw that his driver's side window was halfway down. It's our responsibility as police officers and it's in our policy that we are responsible for the vehicle, so we were going to secure the vehicle and make sure it was legally parked.

Id. at 37.

On cross-examination, he reiterated:

It's our responsibility to make sure your vehicle is secured. That way if it's not secured, if anybody does anything to your vehicle, takes anything out of your vehicle, we are responsible. You are in our custody, therefore, we are responsible for your vehicle. So we went to go secure your vehicle. Your window was halfway down and it was illegally parked.

Id. at 43.

Corporal Waite further testified, "on the driver's side driver's seat, we s[aw] a clear bag with suspected crack [cocaine] in it." Id. at 37. Corporal Waite opened the door and removed the bag. Id. ; see also id. (stating "the door was open"). Corporal Waite also "saw, in plain view on the ash tray, there were two more bags of suspected crack cocaine." Id. After removing the suspected crack cocaine, the officers "secured the vehicle, and it was towed to the city garage." Id.

Patrolman Post's testimony was consistent with Corporal Waite's testimony. Patrolman Post stated, "we went to secure [Appellant's] 1997 green BMW, and as we walked over, the window was halfway down. In plain view, you could see a bag of suspected crack on the driver's seat and two more bags of suspected crack in the cup holder." Id. at 22. Patrolman Post testified that after the officers removed the bags that appeared to contain crack cocaine, "we shut the car door, and we transported [Appellant] back to the station. We called for a tow for his vehicle so it could be towed to the city garage." Id. at 22-23.

At the same time, Corporal Waite and Patrolman Post applied for a warrant to search Appellant's vehicle. Id. at 23-24, 37-38. Corporal Waite completed an affidavit of probable cause.³ A Magisterial District Judge approved and signed the search warrant the same day, and delivered the warrant to police by fax. Id. at 24, 38, 41. When the warrant was executed, police recovered additional crack cocaine, a small amount of marijuana, and drug paraphernalia. Id. at 25, 39. They also found a handgun. Id.

The Commonwealth charged Appellant with various drug and firearm offenses, and the trial court appointed counsel for Appellant. Appellant asked to proceed pro se . On October 30, 2018, following a Grazier⁴ hearing, the court granted Appellant's request and appointed standby counsel.

On November 29, 2018, Appellant filed a pro se omnibus pretrial motion (OPT motion) and petition for writ of habeas corpus . The trial court denied the petition for writ of habeas corpus . In the OPT motion, Appellant argued, inter alia , that his arrest was unlawful and not supported by probable cause, and therefore, "all items which are obtained from this illegal search [must] be suppressed, [as being] fruits of a poisonous tree." OPT Motion, 11/29/18, at 2. The court held a suppression hearing at which Appellant, Corporal Langdon, Corporal Waite, and Patrolman Post testified. By order entered January 30, 2019, the court denied Appellant's motion to suppress, summarily finding: "[Appellant's] arrest, pursuant to an outstanding sheriff's warrant, and subsequent search of his vehicle, are legal," and "the [c]ourt finds that the evidence was obtained legally." Order, 1/30/19, at 1.

The case proceeded to trial, and a jury convicted Appellant of the aforementioned offenses. On August 20, 2019, the trial court sentenced Appellant to an aggregate 6 to 11 years’ imprisonment, followed by 1 year of probation. Appellant did not file post-sentence motions.

Appellant timely filed a pro se notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement. The trial court issued a one page, two paragraph Rule 1925(a) opinion. Without addressing Appellant's "multiple reasons" for appealing, the court incorporated its January 30, 2019 order and recommended the appeal be dismissed.⁵ Memorandum Opinion, 9/17/19.

Appellant presents four issues for our consideration:

1. Did the trial court abuse its discretion in denying Appellant's motion to suppress and that police had no grounds to detain or question Appellant where police believed that Appellant had a Sheriff's warrant for his arrest was based [sic ] on false information, the fruits of the illegal arrest and search should have been suppressed as required by the Fourth Amendment of the United States Constitution and Article I Section 8 of the Pennsylvania Constitution ?

2. Did the trial court abuse its discretion in denying Appellant's motion to suppress when the visual contact between Magistrate and Affiant required under Pa.R.Crim.P. 203(c), where the Affiant who sought the warrant via - advanced communication technology rather than in person was missing, given that the warrant was procured by telephone and/or fax only?

3. Did the trial court abuse its discretion in denying Appellant's Motion to Suppress where the actual search warrant, affidavit(s) and inventory of the items seized were never filed with the Cl[e]rk of Courts as required by Pa.R.Crim.P. 210 ?

4. Did the trial court abuse its discretion in denying Appellant's Motion to Suppress where the trial court did not consider the cumulative effect of all the violations taken together, which would have been fatal to the warrant itself?

Appellant's Brief at ii (brackets omitted).

In reviewing these issues, it is well settled:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing the ruling of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Bumbarger , 231 A.3d 10, 15 (Pa. Super. 2020) (citation and ellipses omitted). Our scope of review is limited to the evidence presented at the suppression hearing. Commonwealth v. Bellamy , 252 A.3d 656, 663 (Pa. Super. 2021). With respect to a suppression court's factual findings, "it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented." Commonwealth v. Caple , 121 A.3d 511, 516-17 (Pa. Super. 2015) (citation omitted).

At a suppression hearing, "the Commonwealth has the burden of establishing by a preponderance of the evidence that the evidence was properly obtained." Commonwealth v. Galendez , 27 A.3d 1042, 1046 (Pa. Super. 2011) (en banc ) (citation, quotation marks, and brackets omitted); see also Pa.R.Crim.P. 581(H) (at a suppression hearing, the Commonwealth "shall have the burden ... of establishing that the challenged evidence was not obtained in violation of the defendant's rights."). The preponderance of the evidence is "the lowest burden of proof in the administration of...