Commonwealth v. McLean

302 A.3d 211

COMMONWEALTH of Pennsylvania v. Kelvin MCLEAN, Appellant

No. 176 MDA 2023

Superior Court of Pennsylvania.

Submitted June 26, 2023

Filed September 7, 2023

Christopher F. Wilson, Harrisburg, for appellant

Ryan H. Lysaght, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. ^*

OPINION BY LAZARUS, J.:

Kelvin McLean appeals nunc pro tunc from his judgment of sentence, entered in the Court of Common Pleas of Dauphin County, after a jury convicted him of one count each of statutory sexual assault, ¹ corruption of minors, ² and unlawful contact with a minor. ³ We conclude the trial court properly denied McLean's motion to suppress DNA evidence taken pursuant to court order, and, therefore, we affirm his judgment of sentence.

The trial court sets forth the facts of this case as follows:

In March of 2018, Dauphin County Children and Youth Services [DCCYS] received a child abuse referral alleging that B.F. (DOB: 8/[ ]/01) who was sixteen (16) years old at the time, had given birth to a child. [I]t was alleged [by DCCYS] that B.F. was fifteen (15) years old at the time of conception and that [McLean, B.F.’s mother's paramour at the time of conception,] was the biological father of the child. ... DCCYS had information from the hospital that B.F. wanted to put [McLean's] name as the biological father on the child's birth certificate.

B.F. had told hospital staff that she viewed [McLean] as a father, that she was planning on being adopted by him, and wanted her child to have the same last name as she. DCCYS interviewed B.F., who denied that [McLean] was the biological father.

Initially[,] the allegation was deemed unfounded upon the information DCCYS had at the time. Despite this, DCCYS was familiar with B.F. [due to two prior dependency proceedings in 2012 and 2015,] and had concerns with B.F.’s ability to care for her child.

* * *

During the summer of 2018, DCCYS provided housing assistance for B.F., her child, [B.F.’s mother (Mother), Mother's child with McLean, and McLean.] After a caseworker went to check on the family at the hotel [in which they were being housed], [ ] DCCYS began to have concerns that the relationship between B.F., [now] sixteen (16), and [McLean] was [not a familial relationship but rather a romantic relationship.] Thereafter, DCCYS pursued dependency of B.F. and her child.

On August 22, 2018, DCCYS obtained a court order[, issued by the Honorable John F. Cherry,] to place B.F. and her child in the care and custody of DCCYS, as well [as] an order for paternity testing of [McLean. It was subsequently determined that McLean failed to attend his scheduled appointment for paternity testing. As a result,] DCCYS requested an order for contempt of court for [McLean's] lack of compliance with the August 22, 2018 order. It was stipulated at the trial that the buccal swab of [McLean] was performed by [a "Miss Johnson"] on behalf of the court. After collecting DNA from the child, both samples were sent out for testing.

* * *

On November 8, 2018[, as a result of testimony stating there is a 99.99% probability that McLean is the biological father of B.F.’s child, based on the results of the DNA test] the Honorable Royce Morris issued an order [legally establishing McLean's paternity.]

B.F. testified at trial and admitted that [McLean] is the biological father of her child. She further admitted that she and [McLean] engaged in sexual intercourse beginning when she was fifteen (15) years old, and adamantly stated that she consented. She also identified [McLean] in court and stated they were not married.

In addition to DCCYS’ child abuse investigation, the Steelton Borough Police Department had also opened an investigation in March of 2018 and re-opened it in August of 2018. Officer Dory Thompson [ ] of Steelton Borough Police Department testified that they received a Childline referral in March of 2018 stating that B.F. had given birth to a child, that she was fifteen (15) years of age at the time of conception, and that [McLean's] name was on the child's birth certificate. Officer Thompson interviewed B.F., who denied the allegations, and because there was no other evidence that [McLean] was the father at that time, the case was closed.

After DCCYS took custody of B.F., she was placed in a foster home, then Pinkney's Vineyard, ^[4] and finally a youth shelter. Cell phones are prohibited at the youth shelter [and] DCCYS maintains possession of the youth's belongings if they are unable to give them to a parent. In this case, DCCYS took possession of B.F.’s phone. [This occurred sometime between late August and early September of 2018.] While [B.F.’s phone was in DCCYS’] possession, Mother provided the passcode to DCCYS and they were able to look at B.F.’s phone[, in which they found photographs and videos that prompted them to notify law enforcement.]

Based on the information provided by DCCYS, Officer Thompson [obtained a search warrant to obtain B.F's cell phone and download the contents of that cell phone, which revealed photos and videos of sexual acts performed by B.F. that had been forwarded to a number associated with McLean. ⁵ ] Thereafter, Officer Thompson was notified that [McLean] was found to be the biological father of B.F.’s child through paternity testing. [As a result of learning of McLean's paternity results, and other information gathered throughout the Steelton Borough Police Department's investigation, criminal charges were filed against McLean shortly thereafter. Officer Thompson then applied for and obtained an arrest warrant for McLean.]

On or about November 25, 2018, McLean was charged with the above-mentioned offenses. McLean filed an omnibus pretrial motion to suppress the DNA evidence. After a hearing on February 20, 2020, before the Honorable William T. Tully, the suppression court denied McLean's motion[, concluding that] the dependency action August 22, 2018 order was lawfully filed, and that McLean's defense counsel conceded his argument upon learning that this order arose from a separate proceeding. A jury trial was held [with the same jurist presiding], beginning on October 6, 2020, wherein McLean was found guilty on all counts.

McLean was sentenced on December 16, 2020, to an aggregate sentence of six (6) to twelve (12) years of incarceration and five (5) years of consecutive state probation. McLean was notified he was a Tier 3 sexual offender [under the Sex Offenders Registration and Notification Act (SORNA)] and all standard sexual offender conditions were imposed. McLean filed a timely post-sentence motion on December 28, 2020, which was subsequently denied on January 7, 2021. On February 3, 2021, McLean filed a timely notice of appeal, which was dismissed on May 26, 2021, for failure to comply with Pennsylvania Rule of Appellate Procedure 3517.

On July 28, 2022, McLean filed a petition [under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546 ]. Christopher Wilson, Esquire (Attorney Wilson) was appointed as PCRA counsel. Based upon the agreement of the parties, on November 10, 2022, Defendant's PCRA petition was granted, and his appeal rights were reinstated, nunc pro tunc . On January 31, 2023, McLean filed a timely notice of appeal, nunc pro tunc . The trial court directed McLean to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).]

Trial Court Opinion, 3/23/23, at 2-7 (unpaginated, citations omitted).

On appeal, McLean raises the following issue for our consideration:

Whether the [s]uppression [c]ourt erred in denying the motion to suppress the DNA sample obtained from [McLean] while he was in prison, and whether the [s]uppression [c]ourt's decision was erroneous, and the findings were not supported by the record?

Appellant's Brief, at 3.

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. Where ... 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. Thus, the conclusions of law of the court[ ] below are subject to our plenary review.

Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010).

The Fourth Amendment to the United States Constitution and Article I, § 8, of the Pennsylvania Constitution protects a private citizen from unreasonable searches and seizures. Commonwealth v. Wilmer , 648 Pa. 577, 194 A.3d 564, 565 (2018). In order to either search a constitutionally protected area for evidence or seize a criminal defendant, law enforcement is generally required to obtain a warrant supported by probable cause, with limited exceptions. See Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887, 899 (1991).

It is well settled that "[a] criminal defendant with standing to pursue a motion to suppress in this Commonwealth has a right to compel the prosecution to prove its evidence was not obtained in violation of his constitutional rights." Commonwealth v. Enimpah , 630 Pa. 357, 106 A.3d 695, 703 (2014) ; see Pa.R.Crim.P. 581(H). The Commonwealth has the initial burden to "present evidence that the defendant's constitutional rights were not infringed." See Enimpah , 106 A.3d at...