Commonwealth v. Price

• Decision Date: 19 October 2022
• Docket Number: 18 WAP 2021
• Citation: 284 A.3d 165 (Mem)
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Nathanial Ray PRICE, Appellant
• Court: Pennsylvania Supreme Court

284 A.3d 165 (Mem)

COMMONWEALTH of Pennsylvania, Appellee

v.Nathanial Ray PRICE, Appellant

No. 18 WAP 2021

Supreme Court of Pennsylvania.

Argued: April 13, 2022

Decided: October 19, 2022

Thomas M. Dickey, Esq., Tom Dickey Law Offices, P.C., Thomas K. Hooper, Esq., BMZ Law, PC, David J. Kaltenbaugh, Esq., Law Offices of Thomas M. Dickey, for Appellant.

Hugh J. Burns Jr., Esq., Pennsylvania Office of Attorney General, 16th Floor, Strawberry Square, Harrisburg, PA, Gina Ryen Force, Esq. Indiana County Court of Common Pleas, for Appellant.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

JUSTICE DONOHUE

We granted allocatur review in this case to determine whether the Commonwealth waived reliance on the doctrine of inevitable discovery where its Concise Statement of Matters Complained of on Appeal filed pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure asserted only that the trial court erred in granting a motion to suppress filed by Appellant Nathanial Ray Price ("Price") because the affidavit of probable cause at issue failed to assert probable cause sufficient for the issuance of a warrant. In particular, we must address whether, under these circumstances, the doctrine of inevitable discovery constitutes a "subsidiary issue" to the issue of the sufficiency of probable cause under Pa.R.A.P. 1925(b)(4)(v) and was thus not waived by operation of Pa.R.A.P. 1925(b)(4)(vii). Concluding that it was not a subsidiary issue and thus not preserved for review by the Superior Court, we vacate that court's order.

Factual and Procedural Background

On October 26, 2016, Price and two others, Justin Stevenson and Isiah Scott, allegedly conspired to commit a double murder and robbery. On October 28, 2016, the Commonwealth filed an Application for Search Warrant (the "Application") directed to "Celico Partnership d/b/a Verizon Wireless" seeking "[a]ny and all phone records for phone number/s 724-762-3803 from the time period 10/25/16 through and including 10/28/16." Omnibus Pretrial Motion for Relief, 9/1/2017, Exhibit D. The Affidavit of Probable Cause (the "Affidavit") in support of the Application read as follows:

Your affiant is Cpl John FISANICH. I am currently employed by the PA State Police as Supervisor in the Troop "A" Criminal Investigations Unit. I was so employed when this investigation was conducted.

On 10/27/16 at approximately 0040 hours, the PA State Police Patrol Unit was dispatched to a reported disturbance at 903 Hillside Drive In Cherry Hill Twp., Indiana County. Upon arrival, Patrol Troopers immediately saw a male lying In the downstairs area. He was clearly deceased. Upon clearing the residence for any further threats or suspects, Troopers found a female lying in an upstairs bedroom. She was also clearly deceased. The scene was secured and a supervisor and Criminal Investigators were tailed to the scene, as per PSP regulations.

As the investigation progressed through the day, several suspects were Identified. One suspect is identified as Nathanial Ray PRICE w/n/m DOB (3/21/98). Investigators learned his phone number, and he was later taken into custody. The phone number listed on this Search Warrant Application is 724-762-3803 and is the number that is associated to Nathaniel PRICE.

Based on my training and experience, I believe that there Is valuable information regarding the act of Criminal Homicide to be gleaned from the cellular phone records associated with the aforementioned number. I ask that this search be granted to further this investigation.

Id. (emphasis added).

The trial court, per the Honorable Thomas M. Bianco, issued the search warrant, which was then served on Verizon Wireless, and the responsive phone records were subsequently obtained. In his Omnibus Pretrial Motion for Relief filed on September 1, 2017, Price moved to suppress the phone records on the ground that the Affidavit failed to state probable cause. Omnibus Pretrial Motion for Relief, 9/1/2017, ¶ 34. In particular, Price argued that the Affidavit failed to include any factual averments that linked the identified phone number to the phone retrieved from Price after the crime. As the bolded language above reflects, the Affidavit states only that "investigators learned his phone number" but provides no indication as to how they obtained this information or in any respect confirmed its accuracy.

In his opinion deciding the claims raised in the Omnibus Pretrial Motion, Judge Bianco granted the motion to suppress the phone records, ruling as follows:

Defendant argues that the Affidavit did not provide probable cause for the issuance of the Search Warrant because it "failed to link the ‘Samsung Galaxy cellular phone’, stated to be in Mr. Price's possession, but without specifying a date, time, and place when so found, with the telephone number ‘724-762-3803’ stated to be that of Mr. Price...." The Court agrees.

The two operative phrases in the Affidavit that attempt to link Price to the phone number are "Investigators learned his phone number," and "724-762-3803 ... is the number that is associated with Nathanial PRICE." These phrases are completely devoid of any foundation or explanation of how the investigators determined that 724-762-3803 was the cell phone number associated with Price's cell phone.⁴ Therefore, looking at the "totality of the circumstances," and reviewing the Affidavit in a "common-sense, nontechnical manner," see Commonwealth v. Jones , 542 Pa. 418, 668 A.2d 114, 117 (1995), this Court finds that the Affidavit "did not provide the issuing authority⁵ with a substantial basis to conclude that probable cause existed" to search the phone records of 724-762-3803. See Commonwealth v. Torres , 564 Pa. 86, 764 A.2d 532 (2001).

WHEREFORE, Defendant's Motion to Suppress regarding the Search Warrant dated 10/28/2016 at 1:15 P.M. for the phone records for phone number 724-762-3803 is GRANTED. Any and all evidence seized pursuant to said Search Warrant is suppressed.

⁴ The Court acknowledges that the Court rejected a similar argument by Defendant with regard to Defendant's residence. The Court finds a distinction between stating that Defendant's residence is 6910 Route 286 Highway East, Indiana, PA, and stating that Defendant's cell phone number is 724-762-3803, in that it would be impossible for the affiant to know Defendant's cell phone number without receiving that information from another source. In comparison, Defendant was taken into custody at his residence, therefore, the address of that residence is within the knowledge of the affiant without the necessity of information from a third party.

⁵ This Court is well aware that it was the issuing authority of the Search Warrant at issue. Despite this fact, the Court believes that it is appropriate to review its prior decision in light of the Suppression Motion filed, and render the decision required by Pennsylvania jurisprudence.

Opinion and Order of Court, 10/15/2019, at 29-30.

Pursuant to Pa.R.A.P. 311(d),¹ the Commonwealth appealed Judge Bianco's decision to the Superior Court. In its Pa.R.A.P. 1925(b) statement of issues complained of on appeal, the Commonwealth set forth a single issue:

The Trial Court erred as a matter of law and abused its discretion in granting Defendant's Motion to Suppress when the Trial Court ruled that "the Affidavit did not provide probable cause for issuance of the Search Warrant ..." (See paragraph 10 of Order of Court dated 10/15/2019 and page 29 of the Opinion and Order of Court dated 10/15/2019).

Pa.R.A.P. Rule 1925(b) Statement, 12/9/2019, at 1.² In its subsequent brief filed with the Superior Court, the Commonwealth set forth two principal arguments. First, the Commonwealth argued that the trial court's original ruling to issue the warrant was correct, as the Affidavit contained sufficient probable cause because it was not necessary for the affiant to explain how he knew the identified phone number. In this regard, the Commonwealth further indicated that Price had no expectation of privacy in his cell phone number and it was significant that he may have communicated with his accomplices using his cell phone. As a result, the Commonwealth claimed that the "law of the case" doctrine prevented the same court from reversing its original ruling. Commonwealth v. Price , 244 A.3d 1250, 1253 (Pa. Super. 2020). Second, the Commonwealth contended that although the Affidavit inadvertently failed to include factual support to explain how the police officers had obtained the number for the phone found on Price's person, those police officers indeed possessed that information at the time of issuance of the "allegedly deficient" warrant (namely, during a post-crime interview with Price). Accordingly, the Commonwealth argued that recovery of the phone records for Price's cell phone number was inevitable. Id.

The Superior Court rejected the Commonwealth's law of the case doctrine argument. That doctrine prevents a court in later stages of litigation from reversing the prior decisions of another judge in that court or by a higher court in an earlier phase of the case. Id. (citing Commonwealth v. Gacobano , 65 A.3d 416, 419 (Pa. Super. 2013) ). Citing to this Court's decision in Commonwealth v. Starr , 541 Pa. 564, 664 A.2d 1326 (1995), however, the Superior Court indicated that the law of the case doctrine does not prevent a judge from modifying his/her own rulings, as by its terms the doctrine only prevents a second judge from revisiting in the same case the decision of an appellate court or another judge of coordinate jurisdiction. Price , 244 A.3d at 1253. In the current case, Judge Bianco, as the judge who issued the warrant, was free to revisit that decision and grant the motion to suppress. Id.

With respect to the second issue, the Superior Court declined to rule on the Commonwealth's contention that the Affidavit sufficiently established probable cause.³ Instead, the court indicated that "even if" the warrant application did not...