Commonwealth v. Simonson

• Citation: 148 A.3d 792,2016 PA Super 207
• Decision Date: 12 September 2016
• Docket Number: No. 598 WDA 2015,598 WDA 2015
• Parties: Commonwealth of Pennsylvania, Appellee v. Ronald Simonson, Appellant
• Court: Superior Court of Pennsylvania

148 A.3d 792

2016 PA Super 207

Commonwealth of Pennsylvania, Appellee

v.Ronald Simonson, Appellant

No. 598 WDA 2015

Superior Court of Pennsylvania.

Argued May 17, 2016

Filed September 12, 2016

Thomas N. Farrell, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

OPINION BY OLSON, J.:

Appellant, Ronald Simonson, appeals from the judgment of sentence entered on October 29, 2014, as made final by the denial of Appellant's post-sentence motion on March 12, 2015. We affirm.

In February 2010, Appellant was arrested and charged with attempted homicide, aggravated assault, and firearms not to be carried without a license.¹ On March 21, 2011, Appellant filed an omnibus pre-trial motion. Within this motion, Appellant claimed that, following his arrest, the police performed a warrantless gunshot residue test on his hands. Appellant's First Suppression Motion, 3/21/11, at 1-5. Appellant claimed that the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution mandated that the results of the gunshot residue test be suppressed, as “there was no search warrant and no exigency existed that would enable a warrantless search” for gunshot residue on his hands. Id.

On March 31, 2011, the trial court held a hearing on Appellant's motion to suppress. During this hearing, City of Pittsburgh Police Detective Harry Lutton testified that, at approximately 8:30 p.m. on February 9, 2010, he received a call that shots had been fired in the Greenway housing project. N.T. Suppression Hearing, 3/31/11, at 4-5. Uniformed police officers informed Detective Lutton that they apprehended Appellant “a matter of blocks away from the scene” and that Appellant matched the description of the shooter. Id. at 5. Detective Lutton also learned that the victim, Bradley Cohen, was shot twice, was taken to the hospital, and was in critical condition and that “a shell casing and a bullet fragment” were recovered from the scene. Id. at 6.

That night, detectives in the homicide unit presented a photographic array to the victim and to two witnesses at the scene; all individuals identified Appellant as the shooter. Id. at 6-7. Detective Lutton testified that, after the victim and the witnesses identified Appellant as the shooter, Appellant was placed under arrest. Id. at 7.

City of Pittsburgh Police Detective Blase Kraeer testified that, following Appellant's arrest, he performed a gunshot residue test on Appellant's hands. Id. at 11. As Detective Kraeer testified, to perform the post-arrest gunshot residue test upon Appellant, the detective “[took] a swab[ ] and [he] swab[bed] four different parts of the two hands.” Id. Detective Kraeer testified that the swab had a “sticky substance” that he just “brush[ed] against the hand” and that the test did not “use any liquid.” Id. Daniel Wolfe, an employee of the Allegheny County Medical Examiner's Office, testified that a gunshot residue test is generally necessary to detect such residue because gunshot residue particles are “the size of a micron” and are not “readily apparent to the naked eye.” Id. at 19.

Detective Kraeer testified that, after he swabbed Appellant's hands, he forwarded the kit to the Allegheny County Crime Lab—and the crime lab then performed “the actual [laboratory] testing” for gunshot residue. Id. at 15. As Mr. Wolfe testified, he analyzed the kit that Detective Kraeer submitted and the analysis demonstrated a “positive result for gunshot residue.” Id. at 18.

Regarding temporal considerations surrounding gunshot residue tests, Mr. Wolfe testified that a gunshot residue swab must be performed “[a]s quickly as possible” following the suspected discharge of the firearm because:

the particulate material, when it exits the firearm, is not adhesive by nature. It lands on the surface. You start to slough those materials off through activity, interaction with your hands, pants, placing your hands in your pockets. If you wash your hands, all of that—the more activity that takes place after the incident, the less likely you are to find particles.

Id.

Mr. Wolfe testified that “bagging the hands” of a living individual² would not necessarily preserve gunshot residue on that person's hands. Mr. Wolfe testified:

there is still activity. The bag could interact with the surface of the individual's hands, and that acts the same as a pocket or your trouser pants would. The more interaction with the surface, the more obstruction you have.

Id. at 19. However, Mr. Wolfe noted that, “[a]s far as the hands in the bag thing, the gunpowder could come off, the particles could come off in the bags” and that he would then “have to examine the entire bag in addition to the hands.” Id. at 20.

At the conclusion of the hearing, the trial court denied Appellant's suppression motion on the record. Id. at 24.

Thereafter, as the trial court explained:

[On April 4, 2011, a] jury was empaneled [and Appellant's trial began. However,] on April 5, 2011, [the trial court] declared a mistrial. Appellant moved to bar retrial on the basis of double jeopardy, which [the trial court] denied on August 9, 2011. The Superior Court of Pennsylvania affirmed [the trial court's] order on June 21, 2012. [Commonwealth v. Simonson , 53 A.3d 937 (Pa.Super.2012) (unpublished memorandum) at 1-14].

Trial Court Opinion, 10/15/15, at 2.

On remand, Appellant's case was reassigned to a different trial court judge and the case proceeded to trial.³ At the conclusion of the trial, the jury found Appellant guilty of aggravated assault and carrying a firearm without a license; the jury found Appellant not guilty of attempted homicide. On October 29, 2014, the trial court sentenced Appellant to serve an aggregate term of 72 to 160 months in prison, followed by three years of probation.

Following the denial of Appellant's post-trial motion, Appellant filed a timely notice of appeal. Appellant raises one issue on appeal:

Whether the suppression court erred by failing to suppress the results of the gunshot residue evidence when the police without a warrant seized particles from Appellant's hands?

Appellant's Brief at 5.

“Once a motion to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights.” Commonwealth v. Wallace , 615 Pa. 395, 42 A.3d 1040, 1047–1048 (2012) (en banc ); see also Pa.R.Crim.P. 581(H). With respect to an appeal from the denial of a motion to suppress, our Supreme Court has declared:

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. Eichinger , 591 Pa. 1, 915 A.2d 1122, 1134 (2007) (internal citations omitted). “It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony.” Commonwealth v. Gallagher , 896 A.2d 583, 585 (Pa.Super.2006).

On appeal, Appellant claims that the trial court erred when it denied his motion to suppress the results of the gunshot residue test.⁴ According to Appellant, the police committed an unreasonable search when they swabbed his hands for gunshot residue. Specifically, Appellant claims, the search was unreasonable because it was performed without a warrant and without exigent circumstances. Appellant's Brief at 19-24. Further, with respect to the claim that the search was performed without exigent circumstances, Appellant relies upon the United States Supreme Court's recent opinion in Missouri v. McNeely , ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), where the High Court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency and that, “consistent with Fourth Amendment principles, [ ] exigency in [drunk-driving cases] must be determined case by case based on the totality of the circumstances.” Id. at 1556 and 1558.

In Appellant's view, McNeely demands that we vacate his conviction because, in this case, the trial court simply applied a “categorical rule” that the warrantless, post-arrest gunshot residue test constituted a reasonable search under the Fourth Amendment. See Appellant's Brief at 23-24. According to Appellant, the police had time to secure a warrant in this case and, if the police feared the destruction of evidence, the police could have “bagged” his hands until they obtained the warrant. Id. Appellant's claim fails.

“The Fourth Amendment to the [United States] Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protect citizens from unreasonable searches and seizures.” Commonwealth v. McAdoo , 46 A.3d 781, 784 (Pa.Super.2012). “A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies.” Commonwealth v. Strickler , 563 Pa. 47, 757 A.2d 884, 888 (2000). “Exceptions to the warrant requirement include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception ..., the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Dunnavant , 63 A.3d 1252, 1257 n. 3 (Pa.Super.2013).

In the case at bar, the Commonwealth does not dispute Appellant's claim that a search occurred when the police performed the post-arrest gunshot...