Commonwealth of Pa. v. Baker

24 A.3d 1006

2011 PA Super 131

COMMONWEALTH of Pennsylvania, Appellee

v.Jeffrey Wayne BAKER, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 7, 2010.Filed June 27, 2011.

Charles P. Mackin, Jr., Carlisle, for appellant. (Brief Submitted).Matthew P. Smith, Assistant District Attorney, Carlisle, for Commonwealth, appellee.BEFORE: STEVENS, SHOGAN, and MUNDY, JJ.OPINION BY STEVENS, J.:

Appellant, Jeffrey Wayne Baker, appeals from the imposition of a mandatory minimum sentence following his second conviction for possession of child pornography, and challenges his designation as a sexually violent predator. We affirm his judgment of sentence and find that he was properly determined to be a sexually violent predator.

Pertinent to the sentence currently under review, Baker was originally charged with possession of child pornography in October 2001. He entered into a negotiated guilty plea to violating 18 Pa.C.S. § 6312(d)(1), and was sentenced to 60 months intermediate punishment, with credit for time served. Baker completed this sentence on September 1, 2006, but by December 23, 2006, less than four months later, he was again the subject of scrutiny after police received a cyber-tip that he was sending and receiving images of child pornography by computer. A search warrant was subsequently issued for computers and related items located in the residence Baker shared with his parents, and during the execution of that warrant on February 6, 2007, Baker made incriminating statements to police. Although he was not arrested at the time, the evidence seized as the result of the search warrant prompted the filing of a criminal complaint against Baker on March 9, 2007.

Prior to trial, Baker filed a motion to suppress the evidence seized as well as the statements he made to police during the execution of the search warrant, and a hearing was held before the Honorable J. Wesley Oler, Jr., on January 2, 2008. In support of suppression of the evidence, Baker argued that the affidavit of probable cause supporting the search warrant was stale, lacked specificity, and contained a material misstatement, and also asserted that his statements should be suppressed because he was in custody at the time they were made, but had not been issued Miranda warnings.¹ N.T. 1/2/08 at 4–5, 103. Baker's suppression motion was denied by Judge Oler on March 25, 2008.

A jury trial presided over by the Honorable M.L. Ebert, Jr. commenced on July 14, 2008. At the conclusion of the presentation of evidence and testimony, Baker requested that Judge Ebert give Pennsylvania Standard Jury Instruction 3.04(d), which, in pertinent part, would have directed the jury that “in determining [the voluntariness of Baker's statements] you should also consider whether there was any violation of [ Miranda ].” N.T. 7/15/08 at 193–195, 200. Judge Ebert denied the request. Id. at 194–195, 200. Based on the evidence presented to it, the jury then convicted Baker of 29 counts of sexual abuse of children, pursuant to 18 Pa.C.S § 6312(d)(1),² and one count of criminal use of a communication facility, pursuant to 18 Pa.C.S. § 7512.³

Following Baker's convictions, a hearing before Judge Ebert was held on April 20, 2009, at the conclusion of which Baker was determined to be a sexually violent predator (SVP) for the purposes of 42 Pa.C.S. §§ 9791–9799.9 (Megan's Law). Baker later orally objected to this determination during his sentencing hearing, which was conducted on May 12, 2009.⁴ N.T. 5/12/09 at 8. He also challenged the constitutionality of 42 Pa.C.S. § 9718.2,⁵ under which he was facing a mandatory minimum sentence as the result of his 2001 offense. N.T. 5/12/09 at 9. Nonetheless, on May 15, 2009, the lower court imposed upon Baker concurrent mandatory minimum 25 to 50 year terms of imprisonment for each of the 29 convictions for Sexual Abuse of Children. Order filed 5/15/09. Additionally, Baker was ordered to submit to DNA testing and to undergo lifetime Megan's Law registration. Id. With regard to his conviction for Criminal Use of a Communication Facility, Baker received a concurrent standard range sentence of 1 to 7 years' imprisonment. Id.

On May 20, 2009, the Cumberland County Public Defenders Office filed post-sentence motions on Baker's behalf, indicating that a public defender had been appointed to represent Baker immediately following his sentencing, and did not have adequate information “regarding sentencing considerations, trial errors, or motions in order to set forth any motions with specificity.” Post–Sentence Motion filed 5/20/09. The motion did indicate, however, that it sought (1) modification of Baker's sentence for reasons to be set forth with greater specificity once counsel had the opportunity to review transcripts and presentence investigations, (2) a new trial on the ground that the verdict was against the weight of the evidence, and (3) dismissal of the charges on the ground that the verdict was unsupported by the evidence presented. Id. Baker's counsel was given 45 days from the filing of transcripts in which to file a more specific statement in support of Baker's post-sentence claims. Order filed 5/22/09.⁶ Nothing additional was filed, however, and on November 16, 2009, the lower court filed an order indicating that Baker's post-sentence motion was “denied by operation of law effective 9/17/09.” Order filed 11/16/09. Baker then filed the appeal currently before us on December 14, 2009,⁷ raising five allegations of error.⁸

We have re-ordered the issues raised by Baker, for ease of review, and first address his claim that his suppression motion was erroneously denied because (1) the affidavit of probable cause for the search warrant contained an intentional material misstatement of fact and (2) Baker was “in custody, or the equivalent thereof, and in severe bodily pain, when he made his statement, with no Miranda warnings having been given.” Appellant's brief at 7.

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (Pa.2003). Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, “whose duty it is to determine if the suppression court properly applied the law to the facts.” Commonwealth v. Mistler, 590 Pa. 390, 912 A.2d 1265, 1269 (Pa.2006) (quoting Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 881 (Pa.1998)). Thus, the conclusions of law of the courts below are subject to our plenary review. Mistler, supra; Commonwealth v. Morley, 545 Pa. 420, 681 A.2d 1254, 1256 n. 2 (Pa.1996).

Commonwealth v. Jones, 605 Pa. 188, 197–198, 988 A.2d 649, 655 (2010). “Moreover, ‘[i]t is within the suppression court's sole province as fact finder to pass on the credibility of witnesses and the weight to be given their testimony.’ ” Commonwealth v. Baker, 946 A.2d 691, 693 (2008) (citing Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super.2006)).

Pertinent to Baker's suppression claim regarding the material misstatement of fact, the record reflects that his suppression motion sought relief on the grounds that

A crucial piece of information contained in the affidavit [of probable cause] is at best an overly broad assumption, misleading in nature, and speculative; it may be.inaccurate [sic], and false. Given the extensive training and extraordinary experience of Det. Earl Bock, same should have been known to him, and the inclusion of such false information was for the sole purpose of influencing the MDJ by attempting to connect defendant to an electronic fingerprint. See paragraph 9, supra.⁹ In considering the sufficiency of the information in the affidavit, this statement should be redacted.

Suppression Motion filed 11/22/07. During the suppression hearing held on January 2, 2008, before the Honorable J. Wesley Oler, Jr., the Commonwealth indicated that it could not determine from Baker's motion which statement Baker was referring to, and Baker clarified that he believed the affidavit materially misrepresented that Baker himself “accessed the computer.” N.T. 1/2/08 at 5–6. Baker thus argued that because Analyst Hunt testified during the suppression hearing that he only told Detective Bock that someone had accessed the AOL account in question, it was a material misstatement of fact for Detective Bock to state in the affidavit that Hunt had found that Baker had accessed the account. Appellant's brief at 25. Baker urges that the existence of such a material misstatement of fact on the face of the search warrant required that it be declared invalid. Id. at 24 ( citing Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441, (1970)). Baker asserts that given Detective Bock's background, “it is beyond the realm of credulity that the misstatement was an error,” and urges us to find that Judge Oler's finding that the error was unintentional to be unsupported by the evidence, and reason to reverse his denial of Baker's request to suppress the evidence seized as the result of the execution of the search warrant. Id. at 26. Baker asserts that it was error for Judge Oler to determine that Detective Bock's actions were not deliberate, and that such a determination requires reversal of the suppression ruling. We disagree.

In order to secure a...