In re L.J.

CourtUnited States State Supreme Court of Pennsylvania
Citation79 A.3d 1073
PartiesIn the Interest of L.J. Appeal of L.J.
Decision Date30 October 2013

79 A.3d 1073

In the Interest of L.J.
Appeal of L.J.

Supreme Court of Pennsylvania.

Argued March 8, 2011.
Resubmitted Aug. 19, 2013.

Decided Oct. 30, 2013.

[79 A.3d 1075]

Leonard Sosnov, Special Counsel, Karl Baker, Esq., Robin S. Forrest, Esq., Defender Association of Philadelphia, for L.J.

Hugh J. Burns Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.


[79 A.3d 1076]


Justice BAER.

We granted allocatur in this case to decide “whether and when a reviewing court considering a challenge to a pretrial ruling, whether in a post-verdict or appellate context, may look beyond the record of evidence presented at the suppression hearing.” In the Interest of: L.J., 606 Pa. 46, 994 A.2d 1080 (2010). The Superior Court relied on a footnote from this Court's decision in Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983), for the proposition that “it is appropriate to consider all of the testimony, not just the testimony presented at the suppression hearing, in determining whether evidence was properly admitted.” Id. at 317–318 n. 5 (emphasis in Chacko ). The Superior Court, reasoning that it was bound by Chacko, considered evidence adduced for the first time at trial when deciding whether the police properly seized contraband from Appellant, L.J. Specifically, the court affirmed the trial court's denial of suppression because trial testimony established that L.J. voluntarily consented to the search at issue. For the reasons set forth herein, we find the Superior Court's reliance on Chacko to be understandable but ultimately misplaced, vacate the disposition order, and remand this case to the juvenile court for a new suppression hearing in accord with this opinion.


The facts of the case are relatively straightforward. The Commonwealth charged Appellant, a minor, with the delinquent offenses of possession of a controlled substance and possession with intent to deliver.1 Appellant filed a motion to suppress. At the suppression hearing, Officer William Hunter testified that at 7:00 p.m. on September 18, 2007, he was conducting a narcotics surveillance of Chris Glover. Glover engaged in a hand-to-hand transaction with one male who left the scene. Alex Turner and Appellant then approached Glover. All three engaged in conversation. Turner gave money to Glover, who then retrieved items from a baggie and handed them to Turner. Turner and Appellant then left the area. Officer Hunter then radioed for backup officers A.C. Frames and Anthony Jackson to stop Turner. Officer Hunter learned that the other officers recovered from Appellant's purse a large ziplock baggie containing a large white chunky substance, which was later determined to contain 29 grams of crack cocaine. After a lengthy conversation among counsel and the court, it became clear that the officer who actually seized the items from Appellant and arrested her was not present for the suppression hearing. Officer Hunter did not witness the seizure of the contraband or Appellant's arrest.

Oral argument on the suppression motion was somewhat haphazard, with two portions of the argument being conducted off the record. Argument initially centered on the extent to which an arresting officer may rely for probable cause on the observations of an officer conducting surveillance. Appellant's counsel also argued that the officers needed a warrant to search Appellant's purse, and that Officer Hunter “does not know exactly where the items were recovered.” Notes of Testimony (N.T.), 12/24/07, at 25–26. Appellant's counsel generally argued that the search of Appellant's purse was conducted without a warrant, probable cause, or reasonable suspicion. After additional off-the-record argument, the court denied the motion, reasoning that Officer Hunter's observations of Appellant, Turner, and Glover provided probable cause to search Appellant's purse:

[79 A.3d 1077]

So we're clear on the record, I'm denying this motion because what the police officer [Hunter] saw at the time of the transaction would certainly suggest to him that both of the people who had a conversation with the buyer or seller were involved in the transaction. And as I understand it, they both had a conversation and the drugs that were passed to Turner by Glover could have been and reasonably would have been transferred to [Appellant], since they approached and conversated [sic] together. And for that reason your motion is denied.

Id. at 28–29.

The case proceeded immediately to an adjudicatory hearing on the charges, with the suppression testimony incorporated into the hearing. The first witness to testify was Officer Jackson.2 He testified that he was the backup officer to Officer Hunter. Using a radio, Officer Hunter instructed Officer Jackson and his partner, Officer Frames, to stop a male (Turner) and a female (Appellant) in the area of 1900 Berkshire. According to Officer Jackson, he:

stopped this female and asked her if she had any weapons on her. She was clutching a purse[.] I asked if she had weapons in her purse. She stated, no. I asked her if she mind [sic] if I took a look. She opened up her purse and it immediately appeared to me was a clear plastic baggie containing a large chunk of crack cocaine.
Id. at 30–31. Appellant attempted to cross-examine Officer Jackson by asking if he obtained her written consent to search the purse. The Commonwealth objected on relevance grounds, arguing, “we're at trial, your honor. The [suppression] motion is completed.” Id. at 32–33. The trial court sustained the objection. Appellant did cross-examine Officer Hunter concerning the fact that Appellant's consent to the search of the purse was not in “the police paperwork.” Id. at 33. Shortly thereafter, the court adjudicated Appellant delinquent of possession with intent to deliver, and not guilty of simple possession. Appellant was ordered to serve a term of probation.

Appellant filed a concise statement of errors complained of on appeal, arguing in part that the search and seizure of her purse were illegal, and therefore the evidence contained therein should have been suppressed, because the police acted without a warrant and without probable cause or reasonable suspicion. The juvenile court, in its Pa.R.A.P. 1925(a) opinion, reiterated its initial justification for denying the suppression motion, quoted above. The court then opined for the first time that, in light of Officer Jackson's trial testimony that Appellant gave consent to a search of her purse, “the arguments asserting the absence of probable cause or reasonable suspicion become moot.” Juv. Ct. Op. at 3.

On appeal to the Superior Court, Appellant contended that the juvenile court erred when it considered Officer Jackson's trial testimony in determining the validity of the search and seizure for purposes of Appellant's pretrial suppression motion. The Superior Court, initially found Appellant's argument

intuitively logical. Certainly, if the Commonwealth fails to establish the constitutionality of certain police action during a suppression hearing, then the proper course of action for the court hearing the motion is to grant the motion and suppress the unconstitutionally

[79 A.3d 1078]

seized evidence. That a court's error in so denying a motion could be cured by evidence introduced at trial, which establishes the constitutionality of the police action, raises questions of whether the defendant has been deprived of procedural due process.

Super. Ct. Mem. Op. at 4. The panel, however, described its scope of review as “well-settled” as defined by Chacko and its mandate “to consider all of the testimony, not just the testimony presented at the suppression hearing.” Id. at 5 (quoting Chacko, 459 A.2d at 317–18 n. 5). The court nevertheless noted that two panel decisions had recently opined that they were “bound by the record as created at the suppression hearing. Accordingly, we cannot rely on the facts that were not developed until trial.” Commonwealth v. Ventura, 975 A.2d 1128, 1136 (Pa.Super.2009) (quoting Commonwealth v. Days, 718 A.2d 797, 802 n. 8 (Pa.Super.1998)). Recognizing this conflict, the Superior Court in the instant appeal rejected the Ventura /Days language because, inter alia, neither Ventura nor Days discussed Chacko and, “since Chacko was decided by our Supreme Court and Days was decided by this Court, we are obviously bound to follow Chacko.” Super. Ct. Mem. Op. at 8. 3 Based upon Officer Jackson's trial testimony concerning consent, the panel affirmed the disposition order, without addressing whether the search and seizure would have been justified based only on the suppression record.


On appeal to this Court, Appellant argues that the Superior Court need not have followed the Chacko footnote, despite the panel's insistence that Chacko controlled the case, because the Chacko footnote constituted non-precedential dicta. Appellant also contends that, aside from Chacko, this Court has repeatedly held that courts are limited to the record of the suppression hearing, unless new and previously unavailable evidence arises at trial. Appellant argues that a general rule limiting suppression issues to the suppression record is consistent with the rules of juvenile and criminal procedure, and necessary to the orderly administration of justice. Appellant urges that it was particularly unfair for reviewing courts to rely on Officer Jackson's trial testimony in this case, where the trial court precluded Appellant from cross-examining Officer Jackson concerning Appellant's alleged consent to search her purse, on the ground that the suppression phase of the case was over. Finally, Appellant maintains that if the juvenile court is to consider post-suppression evidence to support the suppression finding, then fundamental fairness requires that the court do so by formally opening the suppression record and allowing a full hearing thereon....

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