Commonwealth v. Grimes

COMMONWEALTH OF PENNSYLVANIA v. LOUIS RICHARD GRIMES, JR. Appellant

J-S10041-21

No. 1194 MDA 2020

SUPERIOR COURT OF PENNSYLVANIA

MAY 28, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered August 6, 2020

In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001166-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.^*

CONCURRING AND DISSENTING MEMORANDUM BY MURRAY, J.:

After carefully reviewing the record, I agree with the Majority's determination that "Denzell had apparent authority to consent to the search of the home in Camille's absence," but lacked authority to consent to the search of the safe. Maj. at 13 and 18 n.12. However, even if I were to agree with the Majority's additional finding that Camille's consent to the search was involuntary, I cannot agree with the Majority's determination that "the denial of suppression was not harmless error." Id. at 25 (footnote omitted). The Majority appears to engage in fact-finding in reaching this conclusion; further, the record indicates that the gun would have been admissible under thedoctrine of inevitable discovery. For these reasons, I would affirm the denial of suppression, but on a basis different from that of the trial court. See Rosiecki v. Rosiecki, 231 A.3d 928, 933 (Pa. Super. 2020) ("[W]e are not limited by a trial court's rationale, and we may affirm its decision on any basis.").

The Rules of Criminal Procedure provide:

At the conclusion of the [suppression] hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant's rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.

Pa.R.Crim.P. 581(I).

However, as our Supreme Court observed, compliance has been less than optimal:

We recognize that, unfortunately, it is not uncommon for suppression judges to fail to comply with this directive, and the lapse is then belatedly accounted for, if at all, either in the court's Pa.R.A.P. 1925 opinion filed after an appeal is taken by the aggrieved party (which could be months in the case of a Commonwealth appeal or years later in the case of a defense post-verdict appeal) or by the [Commonwealth v.] Kichline[, 361 A.2d 282, 290 (Pa. 1976)] standard of review—a standard which came into existence precisely because of such lapses. We stress, however, the essential purposes served by the Rule, and we disapprove of non-compliance with its unambiguous mandate. A specific and contemporaneous announcement of suppression findings of fact and conclusions of law serves at least two salutary purposes. First, it permits the losing party to make a more intelligent assessment of whether or not to burden the appellate justice system with an appeal of the suppression ruling, particularly in cases of contested evidence. A defensible credibility-based decision may dissuade an appeal, whereas a purely legal ruling may make clear that further review is appropriate. Second, it is often the case (for example, where awaiver trial occurs) that the suppression judge is different from the trial judge yet, if there is a conviction, it will be the trial judge who will be responsible for preparation of the Rule 1925 opinion for appeal. Thus, in cases where suppression is denied, a trial occurs, and a conviction ensues, and the defendant seeks to challenge the suppression ruling, the timely and specific ruling the suppression judge is required to enter under Rule 581(I) is essential to ensuring that the trial judge and the appellate courts will have a record upon which they can timely and meaningfully discharge their responsibilities.

Commonwealth v. Millner, 888 A.2d 680, 688-89 (Pa. 2005) (footnote omitted).

Here, the suppression court did not detail its findings of facts and conclusions of law. The court briefly stated:

. . . I don't believe that the fact that one of — at least two adults who lived in that premises and had lived there for an extended period of time both have to give their consent to search. I think the consent of one is sufficient and I also believe that the fact that one has indicated that they don't give consent, that does not preclude somebody else from giving consent.

N.T., 10/03/19, at 70-71; see also id. at 75. In addition, the trial judge in this case did not preside at the suppression hearing, but citing the notes of testimony from the suppression hearing, referenced both facts of record and prevailing legal authority in opining that suppression was not warranted. Trial Court Opinion, 11/17/20, at 1-2, 5-8. In contrast, the Majority makes independent and discrete factual findings to reach its legal conclusions. See e.g., Maj. at 4 n.3; 10, 14-15, 20 n.13, 21, 23-24.

It is well-settled that as an appellate court, our scope of review is limited to the evidence presented at the suppression hearing. In the interest ofL.J., 79 A.3d 1073, 1088-89 (Pa. 2013). Moreover, "it is well-established that an appellate court does not make findings of fact or conclusions of law." Commonwealth v. Sharaif, 205 A.3d 1286, 1289 (Pa. Super. 2019) (citation omitted).

In instances when an appellate court perceives the suppression court's findings of fact and conclusions of law to be lacking, the appropriate remedy is either remand for a new opinion by the judge who presided at the suppression hearing, or, if that is not feasible, remand for a new suppression hearing. See Millner, 888 A.2d at 688 (citing cases). See also Sharaif, 205 A.3d at 1289-90 (remanding for new suppression hearing where suppression court failed to comply with Pa.R.Crim.P. 581(I) and judge who presided over hearing was no longer on bench); Commonwealth v. Grundza, 819 A.2d 66, 68 (Pa. Super. 2003) (remanding for new suppression hearing and holding an "appellate court does not in the first instance make findings of fact and conclusions of law. . . . Due to the suppression court's failure to comply with Rule 581(I), we are precluded from our appellate function of determining whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error." (citation and internal quotation marks omitted)); Cf Commonwealth v. Stock, 2020 WL 553900, at *3 (Pa. Super. Feb. 4, 2020) (finding suppression court did not comply with Pa.R.Crim.P. 581(I) but declining to remand where trial court cited notes oftestimony from suppression hearing in recital of facts and made conclusions of law in its Pa.R.A.P. 1925(a) opinion).¹

It is not this Court's role to act as a proxy for the suppression or trial court. If the Majority viewed the record as inadequate, the appropriate remedy was remand; at this writing, the Honorable Gregory M. Snyder, who presided at the suppression hearing, continues to serve on the bench in York County, and is presumably available to author a new opinion.² See Millner, supra; Sharaif, supra.

The Majority concluded that Camille's consent to the search of the safe was involuntary and that the denial of suppression was not harmless error. Maj. at 24-29. Even if I agreed with the Majority that Camille's consent was involuntary³, the evidence would have been admissible under the doctrine of inevitable discovery.

We recently explained:

The doctrine [of inevitable discovery] allows into evidence materials the police

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