Commonwealth v. Rivera

316 A.3d 1026

COMMONWEALTH of Pennsylvania

v.Ricardo Duran RIVERA, Appellant

No. 296 EDA 2023

Superior Court of Pennsylvania.

Submitted November 13, 2023

Filed May 22, 2024

Appeal from the Judgment of Sentence Entered August 5, 2022, In the Court of Common Pleas of Chester County, Criminal Division, at No: CP-15-CR-0002267-2018, David F. Bortner, J.

Albert C. Sardella, Coatesville, for appellant.

Gerald P. Morano, Chief Deputy District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: BOWES, J., STABILE, J., and DUBOW, J.

OPINION BY STABILE, J.:

Appellant, Ricardo Duran Rivera, appeals from his judgment of sentence of life imprisonment for second degree murder entered in the Court of Common Pleas of Chester County. We affirm.

Appellant shot and killed David Doyle III during a home invasion on September 24, 2017. The record reflects that Appellant and another intruder conspired with Anaye Raggazino to rob the decedent of drugs and money. The victim’s father, David Doyle Jr., witnessed the robbery and the shooting.

Several days after the murder, on September 28, 2017, the Commonwealth filed an application under the Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"), 18 Pa.C.SA. §§ 5701-5782, to obtain subscriber information, call and text records, and cell tower information for the phone number XXX-XXX-9559 for the period of September 23-28, 2017.¹ The application asserted that an affidavit appended to the application, prepared by a Chester County detective, "provides specific and articulable facts showing that there are reasonable grounds to believe that the above requested information associated with phone number XXX-XXX-9559 (MetroPCS/T-Mobile) are relevant and material to an ongoing criminal investigation." Order Denying Appellant’s Motion To Suppress ("Order"), 4/4/22, at n.2. The court, per the Honorable Charles Smith, granted the application. The police obtained this historical CSLI to track the movement of Appellant and his cohorts leading up to the home invasion.

In April 2018, Appellant was arrested and charged with second degree murder, conspiracy to commit second degree murder and related offenses.

Several years later, on October 22, 2021, the Commonwealth filed a second application requesting the same historical CSLI for the same period (September 23-28, 2017) that it had made in 2017. The Commonwealth asserted that its reason for making this second application was to ensure that it obtained the historical CSLI in compliance with a decision by the United States Supreme Court handed down after the first application, Carpenter v. United States, 585 U.S. 296, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). The second application was virtually the same as the first application except for one difference—while the first application asserted that there were "reasonable grounds" for issuance of the order, the second application asserted that there was "probable cause" for issuance of the order. Order at n.2. The court, per the Honorable Emanuel Bertin, granted the application.

Appellant filed a pretrial motion to suppress the historical CSLI. On April 4, 2022, the suppression court, per the Honorable David Bortner, denied Appellant’s motion to suppress. Order at n.2.

Prior to trial, the victim’s father, David Doyle Jr., indicated that the individuals who broke into his apartment were wearing masks. As a result, Doyle was never provided with any photo array or lineup to identify the perpetrators. During trial, however, Doyle testified as follows on direct examination:

Q: Did you see anything when you got to the hallway?

A: Yeah.

Q: What did you see?

A: I seen that guy right there. I’ll never forget his eyes.

N.T., 4/19/22, at 19. "That guy right there" referred to Appellant. This testimony was the first time after the murder that Doyle identified Appellant as the murderer.

Defense counsel immediately objected to Doyle’s testimony on the ground that counsel had never received any discovery indicating that Doyle had been shown a picture of Appellant or had identified Appellant in a photo array or lineup. The prosecutor responded that he had not expected Doyle to make an in-court identification, and that Doyle had never been shown photographs of Appellant or a lineup. The court overruled defense counsel’s objection. Id. at 19-21.

On cross-examination, Doyle testified that he had not seen Appellant between the robbery and the time of trial, four and a half years later. Doyle admitted looking at Appellant’s picture on the Internet all the time and wanted Appellant to spend the rest of his life in jail. Id. at 40-41. Doyle further admitted that the perpetrator was wearing a mask. On redirect, the prosecutor asked whether Doyle’s and the perpetrator’s eyes met during the incident, and Doyle replied, "Yes." The prosecutor asked whether Doyle would ever forget those eyes, and Doyle replied, "No." The prosecutor asked whether Doyle saw those eyes in the courtroom, and Doyle said "Hell, yeah," identifying Appellant. Id. at 43-44.

Defense counsel raised another objection to Doyle’s testimony. The court instructed the jury that it was "not going to permit the record to reflect an in-court identification of [Appellant] by this witness." Id. at 46. Defense counsel made a motion for mistrial, which the court denied.

Appellant was implicated and identified in court, without objection, by several witnesses other than Doyle as being one of the men involved in these crimes. Daniel Felix testified that he saw Appellant on the night of the murder and that Appellant confessed to murdering someone and showed Felix the gun used to commit the crime. N.T., 4/18/22, at 208-10. Franklin Watson testified that Appellant described the events of the robbery and murder to him. N.T., 4/20/22, at 172-80. Keisha Ramos testified that she overheard Appellant stating that he disposed of the clothes, shoes and weapon used during the incident. N.T., 4/21/22, at 95, 99-100. All these witnesses, like Doyle, identified Appellant in the court as sitting at the defendant’s table in a blue suit.

The court gave the jury a detailed instruction on the factors that they should consider when weighing the credibility of Doyle’s identification testimony.

On April 22, 2022, the jury found Appellant guilty of second-degree murder. Judge Bortner sentenced Appellant to the statutory sentence of life imprisonment without possibility of parole. Appellant filed timely post-sentence motions, which the court denied, and a timely appeal to this Court. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues in this appeal, which we have reordered for purposes of convenience:

1. Whether the trial court erred in admitting cellular telephone communication records and cell tower records, when the search and seizure of the cellular telephone/ cell tower records was conducted without a search warrant and the subsequently issued search warrant failed to state probable cause?

2. Whether the trial court erred in permitting David Doyle, Jr. to improperly identify Appellant at trial by testifying, "I seen that guy right there. I’ll never forget his eyes?"

3. Whether the trial court erred in denying Appellant’s motion for mistrial after David Doyle, Jr. improperly identified Appellant at trial which resulted in substantial prejudice and deprived Appellant of a fair trial?

4. Whether the trial court erred in denying Appellant’s post-sentence motion for a new trial after David Doyle, Jr. improperly identified Appellant at trial which resulted in substantial prejudice and deprived Appellant of a fair trial?

Appellant’s Brief at 10 (cleaned up).

[1] Relying on Carpenter, Appellant first argues that the trial court erred in denying his motion to suppress, because Judge Smith’s order authorizing disclosure of historical CSLI in 2017 was not supported by probable cause. The fact that the police obtained a search warrant for the same records in 2021, Appellant continued, did not cure the defect in the 2017 order. We hold that the trial court properly denied Appellant’s motion to suppress, because, inter alia, both the 2017 and 2021 orders satisfied the requisites for a search warrant articulated in Commonwealth v. Pacheco, — Pa. —, 263 A.3d 626 (2021).

[2–5] Our standard of review of a trial court’s ruling on a suppression motion is "whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Rosario, 248 A.3d 599, 607 (Pa. Super. 2021). We are bound by the facts found by the trial court so long as they are supported by the record, but we review its legal conclusions de novo. Id. at 607-08. The trial court has sole authority to, pass on the credibility of witnesses and the weight to be given to their testimony. Id. at 608. "Our scope of review is limited to the record developed at the suppression hearing, considering the evidence presented by the Commonwealth as the prevailing party and any uncontradicted evidence presented by the defendant." Commonwealth v. Kane, 210 A.3d 324, 329 (Pa. Super. 2019).

[6] The Fourth Amendment of the United States Constitution "protects citizens from unreasonable searches and seizures." Commonwealth v. Barnes, 296 A.3d 52, 56 (Pa. Super. 2023). "[S]earch warrants may only issue upon probable cause." Pacheco, 263 A.3d at 645. Here, the police obtained the September 2017 order for historical CSLI pursuant to Section 5743 of Pennsylvania’s Wiretap Act. Section 5743 authorizes an investigative or law enforcement officer to "require the disclosure by a provider of communication service of the contents' of a communication which is in electronic storage in a communication system." 18 Pa.C.S.A. § 5743(a). A provider of electronic communication services is permitted to disclose "a record or other information pertaining to a subscriber to or customer of service," other than contents of communications, to the officer when h...