Commonwealth v. Lynch

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered February 28, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005121-2018

BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J. ^[*]

MEMORANDUM

PANELLA, P.J.

Dwayne Lynch appeals from the judgment of sentence entered on October 11, 2019, as made final by the denial of post-sentence motions on February 28, 2020.^[1] A jury convicted Lynch of one count of involuntary manslaughter and three counts of recklessly endangering another person ("REAP") arising from the shooting death of Robert Colter, III. During the investigation, police secured a court order, and subsequent search warrant,

which authorized the disclosure of historical cell-site location information ("CSLI") related to Lynch's cellphone number. This evidence was highly relevant to the case because it revealed Lynch's movements on the night of the shooting and confirmed an inculpatory recitation of events regarding that fateful day as provided by Lynch's cousin, Rodney Beaty. On appeal, Lynch argues the court erred in refusing to suppress the CSLI evidence. Lynch also raises weight and discretionary aspects of sentencing challenges. We affirm.

In the early evening of February 16, 2016, Colter was gunned down while standing outside of his home in Bristol Borough, Pennsylvania. Witnesses described two masked shooters, who fired a total of at least six shots at Colter. One of these shots hit Colter in the head, ultimately leading to his death. The perpetrators fled in a small, red car with a hatchback that was being driven by a third male individual.

Less than a month later, Bristol Borough police received a complaint from Colter's family. Three young men were repeatedly driving by their home and holding their hands to resemble guns. The Colters gave a description of the vehicle involved, which led police to a vehicle being driven by Jaquan Wilkerson on March 9, 2016. Wilkerson was already a person of interest in the Colter shooting, as police had received information that Wilkerson and his friends had a conflict with Colter. Wilkerson was subsequently questioned by police and he provided his mobile phone number and consented to a search of his mobile phone.

Detectives also spoke with A.S., Wilkerson's girlfriend. During her interview, the detectives received information concerning a new phone number, which they believed to be Wilkerson's second phone. They obtained a court order for that number pursuant to the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5701-5782 ("Wiretap Act") on May 11, 2016 ("the May 2016 order"). Contrary to their expectations, the subscriber information from AT&T showed that since 2013, the account holder was Lynch. Moreover, the address associated with the cell phone was 1011 Winder Drive in Bristol, Pennsylvania. See id., at 17.

Based on the information contained in the cell records, Detective Hanks subsequently determined that Lynch possessed or utilized a red vehicle. Detective Hanks noted that members of law enforcement observed a red car twice at the 1011 Winder Drive residence. The car was registered to Lynch's mother who lived at that same address.

Eventually, Detective Hanks's investigation led to Beaty, who told the detective an incriminating story regarding the night of the shooting. Beaty admitted that he, Lynch, and Wilkerson had been involved with the shooting. Beaty revealed that earlier on the day of the shooting, he and Lynch were driving around in Lynch's mother's red Chevrolet Sonic, drinking, smoking marijuana, and dealing heroin and cocaine. At some point, Wilkerson contacted Beaty through Facebook Messenger, asking to be picked up at a 7-11 in Croydon, Pennsylvania.

After Beaty and Lynch picked up Wilkerson, Wilkerson indicated that he wanted to rob Derron Thompson, another local drug dealer. When they passed Thompson on the street, Beaty parked the car nearby and waited while Lynch and Wilkerson armed themselves with firearms. Lynch and Wilkerson covered their faces and walked towards where they believed Thompson to be. Beaty heard multiple gunshots, and then Lynch and Wilkerson returned to the car in a panic, yelling at Beaty to leave quickly. As they drove away, Wilkerson said, "I think we dropped one." N.T., 4/25/2019 (A.M.), at 28.

Detective Hanks checked Beaty's story against the CSLI data provided by the mobile phone carrier. The location data for Wilkerson's and Lynch's phones corresponded closely to the story told by Beaty. After an intervening Supreme Court of the United States decision caused him to question the legality of the May 2016 order, Detective Hanks obtained a search warrant on July 11, 2018 ("the July 2018 search warrant") for Lynch's cellular telephone number for the period of February 16, 2016, to February 17, 2016. See N.T., 4/3/2019, at 179. No new records were obtained from the July 2018 search warrant.

Lynch and Wilkerson were subsequently arrested and charged with numerous offenses related to the shooting. Lynch filed several pre-trial motions, including a motion to suppress phone records obtained by the May 2016 order. See Supplemental Omnibus Pretrial Motion, 3/20/2019, at 13-14.

The court held four pre-trial hearings between January and April 2019, after which the court denied Lynch's motion to suppress.

On April 22, 2019, Lynch and Wilkerson's joint trial began.^[2] At the conclusion of nine days of trial and three days of deliberations, the jury found Lynch guilty of one count of involuntary manslaughter and three counts of REAP.^[3] The court then imposed the following sentence on Lynch: (1) two and a half to five years' incarceration for the involuntary manslaughter conviction; (2) and two consecutive terms of one to two years for two of the REAP offenses. The sentences were outside of the aggravated range of the sentencing guidelines, but not beyond the maximum sentence allowable by law. The court imposed no further penalty regarding the third count of REAP. Lynch filed post-sentence motions for a new trial and/or in arrest of judgment. The court held a hearing on February 28, 2020, and denied the motions. This appeal followed.^[4]

In his first argument, Lynch complains that the trial court erred in denying his motion to suppress the CSLI evidence captured from his mobile phone. As all parties acknowledge, the May 2016 order was based on reasonable suspicion pursuant to then-controlling law. However, all parties concede that reasonable suspicion is no longer sufficient pursuant to United States v. Carpenter, 138 S.Ct. 2206 (U.S. 2018). As will be discussed in detail below, the Carpenter Court held that requests for historical cell site records from wireless carriers constituted a "search" within the meaning of the Fourth Amendment of the United States Constitution, thereby generally requiring a warrant supported by probable cause. Id., at 2221.

It is also undisputed that the May 2016 order and its supporting documentation was incorporated into the application for the July 2018 search warrant. However, Lynch contends that the July 2018 search warrants relies solely on Beaty's version of events on the night of the shooting and refers to the May 2016 order and supporting affidavit of probable cause, which indicated that Lynch's phone number was obtained after investigators spoke with Lynch's federal probation officer. See id., at 24. Lynch alleges that a fact, which is not addressed in the affidavit of probable cause, is "that Lynch's phone was identified by his federal probation officer [and] that the search by which the phone was seized by federal authorities was suppressed by the United States District Court for the Eastern District of Pennsylvania." Id., at 24-25. He directs us to the federal district court's memorandum opinion, which

he attached to his brief, and states that there, the district court held that the stop related to the seizure of the phone was not based on reasonable suspicion and evidence of the phone number was suppressed. See id., at 25-26. Lynch purports that as a result, the 2018 search warrant was based on statements from an unreliable witness and information that was obtained "in violation of [his] Fourth Amendment rights." Id., at 26.

Lynch also cites to Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018), for the principle that "accessing any information from a cell phone without a warrant contravenes" the United States Supreme Court's precedent of Riley v. California and United States v. Wurie, 573 U.S. 373 (2014) ("Riley/Wurie"). Fulton, 179 A.3d at 479. Lynch further contends:

Neither Carpenter nor Fulton were decided at the time the initial search of [his] phone took place in May of 2016, but both courts clearly state that in order to search through a person's technology or for law enforcement to use the technology, a warrant must be obtained…. To hold that, because [Lynch]'s phone was searched in 2016, he is not entitled to the same rights as a defendant whose phone was searched after February or June of 2018, strains the imagination. Either Fulton and Carpenter and Riley/Wurie created a new right, based in the Fourth Amendment to the U.S. Constitution or [Article I, Section 8] of the Pennsylvania Constitution, or such a new right is somehow not a right at all. Regardless, at the time of the May 16 court order, the United States Supreme Court had made it clear that a warrant was required to search a phone. Carpenter, in 2018, merely clarified that a warrant was also necessary to gain information regarding the location of a phone.

Appellant's Brief, at 30-31.

Lastly, Lynch complains about the trial court's reliance on...