Commonwealth v. Harlan

208 A.3d 497

COMMONWEALTH of Pennsylvania

v.Jeremy Todd HARLAN, Appellant

No. 1592 MDA 2018

Superior Court of Pennsylvania.

Submitted March 18, 2019

Filed April 23, 2019

Reargument Dismissed May 17, 2019

Jeremy T. Harlan, appellant, pro se.

Amber L. Czerniakowski, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

OPINION BY MURRAY, J.:

Jeremy Todd Harlan (Appellant) appeals pro se¹ from the judgment of sentence imposed after the trial court convicted him of crimes committed under The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101 to 780-144, and The Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101 - 6128.² On appeal, Appellant challenges the denial of his suppression motion. After careful consideration, we affirm.

Appellant summarizes his argument as follows:

The affidavit of probable cause contained hearsay and inadmissible and unsubstantiated double-hearsay with no eyewitnesses, no named or reliable and trustworthy informants; provided no factual basis from which to determine when the unnamed informants allegedly obtained their information; and was insufficiently corroborated both by the informants and by an independent police investigation. Based on these factual defects, the affidavit of probable cause was insufficient to justify a probable cause determination and the issuance of a search warrant.

Appellant's Brief at 4.

The Commonwealth counters that "search warrants are able to rely on hearsay to establish probable cause as long as the hearsay is reliable," and "the information between the two anonymous sources was corroborated by each other as well as with [an] independent police investigation." Commonwealth Brief at 6. The Commonwealth further refutes Appellant's assertion of "stale" information, stating that "information was given using the present tense and the illegal activity of growing marijuana is not something that happens quickly." Id.

On appeal, we review the trial court's denial of Appellant's suppression motion mindful of the following:

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. 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. Thus, the conclusions of law of the courts below are subject to our plenary review.

Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman , 150 A.3d 32, 34–35 (Pa. Super. 2016) (citation omitted).

At the commencement of the hearing on Appellant's suppression motion, the suppression court confirmed:

THE COURT: So the warrant basically is the whole issue?

[DEFENSE COUNSEL]: Correct.

THE COURT: Do you understand that to be the issue, [Commonwealth]?

[COMMONWEALTH]: Yes, Your Honor.

N.T., 11/27/17, at 3.

The Commonwealth presented one witness, Manheim Borough Police Detective Anthony Martelle, who testified to being a member of the Lancaster County Drug Task Force and being the "case officer" who authored and executed the search warrant for the home located at 1963 Cider Press Road in Manheim. Id. at 5-6. Detective Martelle stated that he applied for and executed the warrant on the same day, June 8, 2017. Id. at 9. The warrant was entered without objection as Commonwealth Exhibit 1. Id. at 10.

Detective Martelle testified that when he executed the search warrant, he found property belonging to Appellant, who resided in the home with another individual, David Brandt. Id. at 6-7. Detective Martelle provided Appellant with his Miranda rights "at least twice that day before we questioned him." Id. at 8. After the search, Appellant gave a statement. Id.

Appellant did not present any witnesses. Rather, defense counsel argued that paragraphs 3 and 8 of the warrant, referencing a "confidential informant" and a "concerned citizen," were "really both anonymous tips because there's no indication of reliability." N.T., 11/27/17, at 11. Counsel continued:

[T]here is no time frame listed ... as to when those individuals received the information; and I believe that's fatal because then all you have is basically two anonymous tips that the person at that residence – one containing double hearsay – is selling marijuana or has marijuana.

Then we have to look to the rest of the warrant to see whether there's any independent corroboration of criminal activity and there simply is none.

Id.

The trial court stated that "[t]hese type of issues are particularly fact sensitive, and [involve] what a common sense reading of the information here would convey to the magisterial district judge who signed the warrant." N.T., 11/27/17, at 13-14. The court then suggested that the parties brief the issue. Appellant and the Commonwealth filed briefs on December 18, 2017 and December 29, 2017, respectively. On March 8, 2018, the court issued an opinion and order denying Appellant's suppression motion. The case proceeded to a bench trial, after which Appellant was convicted of the aforementioned drug and firearms crimes.³ On August 24, 2018, the trial court sentenced Appellant to four to ten years of incarceration. This timely appeal followed.

On appeal, Appellant assails the "reliability and trustworthiness of the unnamed informant" referenced in the affidavit of probable cause supporting the search warrant. Appellant's Brief at 9. Appellant claims that the court's citation to "present tense terminology" has "little to no merit in a case where unnamed, anonymous sources with unprovable reliability and trustworthiness are relaying hearsay and double-hearsay and there are no eyewitnesses to the alleged criminal conduct." Id. at 22-23. Appellant concludes:

The affidavit of probable cause in the instant case is defective and fatal, the foundation of which is an unsubstantiated and inadmissible double-hearsay allegation from unnamed and anonymous sources, which was uncorroborated by the sources, and insufficiently and inappropriately corroborated by independent police investigation. There is no evidence that these unknown individuals exist, or that the allegations were ever made. There are no facts to indicate when any of these unnamed and anonymous sources obtained the relayed hearsay and double-hearsay. There are no eyewitnesses to any criminal conduct. The basis of knowledge for the unidentified individual allegedly supplying the unnamed informant with the information is unknown. All of these unnamed individuals are unable to be proven reliable and trustworthy, and there is no indication that that any of them have provided accurate information in the past.

Id. at 31-32.

Procedural Defect

Preliminarily, we note that we cannot review the merits of Appellant's claim without reviewing the search warrant and supporting affidavit of probable cause (affidavit). Although Appellant has included the affidavit in his reproduced record, the affidavit is absent from the certified record. We recognize:

The fundamental tool for appellate review is the official record of the events that occurred in the trial court.

* * *

... Our law is unequivocal that the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty.

Commonwealth v. Preston , 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc ) (citations omitted).

Our review further reveals that the clerk of courts failed to mail to Appellant a copy of the record documents in contravention of Pennsylvania Rule of Appellate Procedure 1931(d). The Rule instructs:

Service of the list of record documents.-- The clerk of the lower court shall, at the time of the transmittal of the record to the appellate court, mail a copy of the list of record documents to all counsel of record, or if unrepresented by counsel, to the parties at the address they have provided to the clerk. The clerk shall note on the docket the giving of such notice.

Pa.R.A.P. 1931(d).

We have stated that "[t]he purpose of Rule 1931(d) is to assist appellants by providing notice as to what was transmitted so that remedial action can be taken if necessary. Rule 1931(d) does not absolve the appellant from the duty to see that this Court receives all documentation necessary to substantively address the claims raised on appeal." Commonwealth v. Bongiorno , 905 A.2d 998, 1001 (Pa. Super. 2006) (en banc ) (emphasis in original). Nonetheless, our Supreme Court has determined that when a document is "contained only within the Reproduced Record[, but] the accuracy of the reproduction has not been disputed ... we may consider it." Commonwealth v. Brown , 617 Pa. 107, 52 A.3d 1139, 1145 n.4 (2012) (citing Commonwealth v. Killen , 545 Pa. 127, 680 A.2d 851, 852 n. 5 (1996) ("As a general rule, matters not part of the record will not be considered on appeal," but the Court would "overlook this procedural defect" where, inter alia , appellant included "the statements in the reproduced record, [and] the Commonwealth has not objected.").

Consonant with the above authority, and considering the particular circumstances of this case, we will "overlook the procedural defect," i.e. , the omission of the affidavit from the certified record. Accordingly, we review Appellant's...