Commonwealth v. Chesney

196 A.3d 253

COMMONWEALTH of Pennsylvania

v.Edward CHESNEY, Appellant

No. 315 MDA 2017

Superior Court of Pennsylvania.

Submitted January 22, 2018

Filed September 20, 2018

Andrea E. Mertz, Reading, for appellant.

Matthew A. Thren, Assistant District Attorney, Reading, for Commonwealth, appellee.

BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

OPINION BY FORD ELLIOTT, P.J.E.:

Appellant, Edward Chesney, appeals from the January 25, 2017 judgment of sentence entered by the Court of Common Pleas of Berks County. After careful review, we vacate appellant's judgment of sentence and reverse the trial court's order denying suppression.

The trial court provided the following relevant factual and procedural history:

[L]aw enforcement, pursuant to a warrant, searched a house where [a]ppellant used to live. Arriving at this house, Detective [James] Gresh [ ("Detective Gresh") ] observed a Buick parked in the driveway. Trooper Higdon informed Detective Gresh that he could see a small glass vial with a black plastic cap in the vehicle. After seeing the vial, Detective Gresh opened the vehicle to search, as he was aware that such vials are commonly used to transport PCP. In the vehicle, the following evidence was discovered: jars, which are commonly used to store PCP; large vials, which are commonly used to transport PCP; 92.31 grams of PCP, which was contained within these jars and vials, though some of the jars and vials were empty; a very large pair of sweatpants; a digital scale; three handguns and ammunition; seven cell phones, including a Maxwest Cellphone, which contained text messages. Additionally, discovered in the vehicle, was a bank statement, prescription bottle, and insurance documents bearing [a]ppellant's name.

Tying all this evidence together, Detective [George] Taveras [ ("Detective Taveras") ] testified as to the relevance of the most important pieces of evidence. First, the detective explained the relevance of the cell phones and the messages contained within. Specifically, he discussed the messages extracted from the Maxwest Phone. One message, known to have been sent from a phone belonging to [Ivan] Meletiche, corroborated that [a]ppellant and Big Homie were the same person. Though, most important instantly, is a string of messages that stated the following:

Will you please answer your phone[?]

Chris said if I don't come home with a jar for him he's gonna put his hands on me[.]

[W]ill you please answer your phone [E]d?

Detective Taveras also testified that the quantity of cell phones indicated that [a]ppellant was a drug dealer, since keeping such a large quantity of phones is a common practice in the drug trade. Second, the detective related that the vials, jars, and a scale, were all an integral part of the repackaging and distribution operation needed to sell the PCP found within the vehicle. Third, the detective testified that the only purpose of having empty jars was for the intent of distributing the PCP in sellable quantities. Fourth, the detective testified that presence of firearms clearly indicated that [a]ppellant desired to protect what was approximately $7,000 worth of PCP found in the vehicle. From all this evidence, Detective Taveras was able to come to the expert opinion that [appellant] intended to distribute the PCP.

Trial court opinion, 5/23/17 at 4-5 (footnotes omitted).

Appellant filed an amended omnibus pretrial motion in which he, inter alia , sought to have evidence obtained during a search of his residence and his 2002 Buick LeSabre suppressed. On October 13, 2016, the trial court granted appellant's motion in part, suppressing evidence obtained during a search of his residence, and denied appellant's motion in part with respect to the evidence seized from the 2002 Buick LeSabre.

On January 25, 2017, a jury convicted [a]ppellant[ ] of the following offenses: five counts of Criminal Use of Communication Facility, five counts of Possession with Intent to Deliver a Controlled Substance – PCP ("PWID"); and five counts of Possession of a Controlled Substance.

After being convicted, [a]ppellant was sentenced to several consecutive sentences. The first period of incarceration, lasting from 6 to 20 years, was received for PWID – Count 14. The second period of incarceration, lasting 2 to 5 years, was received for PWID – Count 10. The third period of incarceration, lasting 2 to 5 years, was received for PWID – Count 11. The fourth period of incarceration, lasting 2 to 5 years, was received for PWID – Count 12. The fifth period of incarceration, lasting 2 to 5 years, was received for PWID – Count 13. Additionally, [a]ppellant was sentenced to 5 years' probation on each charge of Criminal Use of Communication Facility. All probationary sentences are to run concurrently.

Following sentencing, by and through counsel, [a]ppellant filed a post-sentence motion for a new trial and for the modification of sentence. [The trial court] denied this motion on February 8, 2017. On February 21, 2017, [a]ppellant filed a notice of appeal. Subsequently, [a]ppellant petitioned the [trial court] for an extension to file a Concise Statement, which [was] granted. A Concise Statement was then filed on March 20, 2017.

Id. at 1. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issues for our review:

I. Did the trial court err in denying [a]ppellant's pretrial motion to suppress the PCP, firearms, ammunition, and cellphones found in the 2002 Buick LeSabre as the search warrant was invalid and the law enforcement officers had no authority and no good faith reason to enter onto the property of 133 Pieller Road, Berks County, Pennsylvania where the 2002 Buick LeSabre was parked?

II. Did the trial court err by admitting evidence, to wit, the extracted information from the Maxwest cell phone found in the 2002 Buick LeSabre, pursuant to Pennsylvania Rule of Evidence 404(b)(2) as the probative value of the text messages extracted and shown to the jury did not outweigh the potential for unfair prejudice and should not have been admitted?

III. Did the trial court err in admitting evidence, to wit, the extracted information from the Maxwest cellphone found in the 2002 Buick LeSabre, based upon an ostensible discovery violation when the appropriate remedy under the Pennsylvania Rule of Criminal Procedure 573 for this type of late discovery which resulted from the Commonwealth's decision to delay the forensic analysis of the cellphone contents until the week prior to the trial, and telling defense counsel of the contents three business days prior to the start of trial, was exclusion of evidence?

IV. Did the [trial court] err in denying a defense objection to the improper rebuttal testimony of Detective Haser (who testified that he witnessed [a]ppellant leave from and return to 133 Pieller Road on April 20, 2015 between 1:11 a.m. and 1:18 a.m.) offered to rebut testimony of [a]ppellant where [a]ppellant stated clearly that he did not recall being at 133 Pieller Road on April 20, 2015 around 1:00 a.m. and admitted to being present at that location occasionally late at night?

V. Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that a Delivery of PCP occurred on April 10, 2015 through the use of cell phone communications (i.e. Counts 5, 6, 10 and 15)[?]

VI. Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that the two Deliveries of PCP occurred on April 21 and 22, 2015 through the use of cell phone communications (i.e. Counts 7, 11, 16, 8, 12 and 17)[?]

VII. Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that the Delivery of PCP occurred on May 3, 2015 through the use of cell phone communications (i.e. Counts 9, 13 and 18)[?]

Appellant's brief at 11-14.

Appellant's first three issues on appeal pertain to evidence that was seized from the 2002 Buick LeSabre ("LeSabre") parked in the driveway at 133 Pieller Road, North Heidelberg Township, in Berks County, Pennsylvania. On October 13, 2016, the trial court determined that the search warrant used to search the house did not establish probable cause, and the items seized from the house were suppressed. (See trial court opinion, 10/13/16 at 3-4.) Appellant also moved to suppress evidence seized from the LeSabre, which the trial court denied.

On appeal, appellant argues that he had an expectation of privacy in the LeSabre. (Appellant's brief at 37-38.) Specifically, he notes that the LeSabre was parked in a private driveway and that there was no evidence of record that the LeSabre was visible from the street. (Id. at 38.) Moreover, appellant contends that the police would not have seen the LeSabre but for their unlawful presence on the property at the time the vehicle was searched. (Id. )

The Commonwealth avers that the evidence seized from the LeSabre was in plain view, and thus not subject to a warrant requirement. (Commonwealth's brief at 11-12.) Based upon the observation of a glass vial lying on the floor of the LeSabre, the police searched both the passenger compartment and trunk of the LeSabre. (Id. at 12.) Despite the search warrant for the house having been determined to be invalid, the Commonwealth contends that the police were nonetheless able to observe the glass vial inside the LeSabre from a lawful vantage point, as the driveway was a generally accessible area and the police needed "no greater authority to be present in the driveway than delivery persons, visitors, or those engaged in door-to-door solicitation." (Id. at 13.) To justify its search of the LeSabre, the Commonwealth relies on our supreme court's decision in Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102, 138 (2014), in which our supreme court adopted the federal automobile exception, holding that only probable cause must be established in order to search an automobile without a warrant, as the inherent mobility of the automobile provides...