Commonwealth v. Rosendary

313 A.3d 236

COMMONWEALTH of Pennsylvania

v.Emire Salem ROSENDARY, Appellant

No. 207 WDA 2022

Superior Court of Pennsylvania.

Submitted March 20, 2023

Filed March 19, 2024

Appeal from the Judgment of Sentence Entered December 13, 2021, In the Court of Common Pleas of Erie County, Criminal Division, at No(s): CP-25-CR-0000932-2020, John J. Trucilla, J.

Damon C. Hopkins, Erie, for appellant.

Jeremy Lightner, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

OPINION BY SULLIVAN, J.:

Emire Salem Rosendary ("Rosendary") appeals from the judgment of sentence entered following his jury convictions for one count each of robbery, aggravated assault, terroristic threats, possessing an instrument of crime, and reckless endangerment.¹ After careful review, we affirm.

Because of the posture of this case, we need not detail the underlying facts of the crime. We briefly note, on March 19, 2020, Rosendary entered the vehicle of his victim, lay in wait for him for nearly two hours, robbed him at gunpoint, and then physically assaulted him. See Trial Court Opinion, 5/11/22, at 3-6. At the time of the March 2020 robbery, Rosendary had been on parole for less than six months from a prior robbery conviction. See id. at 3. Rosendary was on electronic monitoring ("EM") and was wearing a GPS ankle monitor ("GPS") when he committed the March 2020 robbery. After his apprehension and prior to trial, Rosendary filed a motion to suppress. Following an evidentiary hearing, the suppression court denied the motion, and made the following findings of fact:

1. [Rosendary] was on parole and under the supervision of Pennsylvania Board of Probation and Parole Agent Beth Ann Servidio [("Agent Servidio")] beginning in October of 2019 and continuing through March of 2020.

2. At the time of his initial release, [Rosendary] was placed on a GPS … for 45 days as a special condition of his parole.

3. The [first GPS] was removed in midDecember 2019.

4. In … January of 2020, [Rosendary was] charged with new crimes ….

5. The imposition of new criminal charges while on supervision is a serious noncompliance with parole conditions which requires a serious sanction such as monitoring by [GPS].

6. [Because] of the new charges, [Rosendary] was placed on [GPS] for a second time[.]

7. [ ] Parole Agent Servidio reviewed the [GPS] Special Condition contract (GPS Contract) with [Rosendary], and he signed the [GPS] contract that same day.

8. By signing the GPS Contract, [Rosendary] acknowledged in writing that he understood he was required to wear the GPS … 24 hours a day and was not permitted to remove or otherwise tamper with [it].

9. [Rosendary] was required to be in his approved residence from 9:00 p.m. to 5:00 a.m. daily.

10. At the evidentiary hearing … [Rosendary] acknowledged reviewing and signing the GPS Contract.

11. [Rosendary] also testified at the hearing that he knew he would be required to wear the GPS … 24 hours a day.

12. As part of her duties in supervising [Rosendary] while on [GPS] and pursuant to department policy, Agent Servidio was required to review [Rosendary’s] GPS movements at least once a week.

13. On or about March 23, 2020, Detective Patrick Ginkel [("Detective Ginkel")] of the Erie Police Department contacted Agent Servidio and asked if she was supervising [Rosendary] and if he was on [GPS].

14. Detective Ginkel informed Agent Servidio that [Rosendary] was a suspect in an armed robbery.

15. Agent Servidio asked Detective Ginkel where and when the alleged crime had occurred.

16. Agent Servidio reviewed [Rosendary’s] GPS information for that date and time.

17. Agent Servidio turned over screen[ ]shots of [Rosendary’s] GPS movements to Detective Ginkel.

18. Detective Ginkel did not have a warrant for [Rosendary’s] GPS information.

Suppression Court Order, 10/1/21, at 1-3 (unnumbered) (citations to the record omitted).

A jury convicted Rosendary of the above-cited offenses. The trial court sentenced Rosendary to an aggregate term of twenty and one-half to fifty-two years in prison. Rosendary filed a post-sentence motion, which the trial court denied. The instant, timely appeal followed.²

Rosendary raises a single issue on appeal:

Whether the [suppression] court err[ed] in failing to suppress the evidence which was illegally obtained when the police utilized [Rosendary’s] state parole agent as a ‘22 stalking horse’ in order to circumvent the requirement of a search warrant?

Rosendary’s Brief at 3 (capitalization regularized).

[1–6] Rosendary challenges the denial of his motion to suppress the GPS location data from his EM. See Rosendary’s Brief at 12-18. The issue of whether police are required to obtain a warrant prior to obtaining GPS location data from a parole agent is a matter of first impression. We begin by recognizing that our standard of review over the denial of a motion to suppress:

is limited to determining whether the findings of fact are supported by the record and whether the legal conclusions drawn from those facts are in error. In making this determination, this Court may only consider the evidence of the Commonwealth’s witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Gindraw, 297 A.3d 848, 851 (Pa. Super. 2023) (citation omitted, bracket removed). Further, our review is limited to the suppression hearing record. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1085 (2013). "With respect to a suppression court’s factual findings, it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented." Commonwealth v. Heidelberg, 267 A.3d 492, 499 (Pa. Super. 2021) (citation and internal quotation marks omitted). Lastly, when a defendant files a suppression motion, he has "the preliminary burden of establishing standing and a legitimate expectation of privacy." Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc).

Both the Fourth Amendment of the Constitution of the United States and Article 1, Section 8 of the Constitution of the Commonwealth of Pennsylvania protect citizens from unreasonable searches and seizures. The Fourth Amendment provides:

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV.

[7] Similarly, the Pennsylvania constitution provides:

[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. Art. I, § 8.³

[8] With respect to the rights of parolees, this Court has explained:

[t]he aim of probation and parole is to rehabilitate and reintegrate a lawbreaker into society as a law-abiding citizen. The institution of probation and parole assumes a probationer or parolee is more likely than the ordinary citizen to violate the law. Consequently, probationers and parolees have limited Fourth Amendment rights because of a diminished expectation of privacy.

Commonwealth v. Parker, 152 A.3d 309, 316 (Pa. Super. 2016) (citations omitted, emphasis added); see also Samson v. California, 547 U.S. 843, 852, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (parolees have a "severely diminished expectation [ ] of privacy"). Moreover, law enforcement "has an ‘overwhelming interest’ in supervising parolees because parolees … are more likely to commit future criminal offenses." Id. at 853, 126 S.Ct. 2193 (citation omitted); see also Parker, 152 A.3d at 316. Nevertheless, while probationers and parolees have "a more narrowly protected privacy interest than that afforded a free individual … the government’s interest in enforcing the terms of parole and probation cannot entirely displace a parolee’s protected privacy rights." Commonwealth v. Arter, 637 Pa. 541, 151 A.3d 149, 167 (2016) (citation omitted).

The Pennsylvania Supreme Court summarized state parole agents’ authority and duties with respect to parolees as follows:

state parole agents’ authority and duties with respect to parolees are prescribed by two sections of the Prisons and Parole Code. Section 6152 [(repealed)⁴] declares agents to be peace officers and provides them with police power to arrest without warrant any parolee under supervision for violating parole conditions. See 61 Pa.C.S.[A.] § 6152 [(repealed)]. Section 6153 [(repealed)] deems parole agents to be in a "supervisory relationship with their offenders," aimed at assisting parolees in rehabilitation and reassimilation and protecting the public. Id. § 6153(a) [(repealed)]. This section further outlines the procedures and requirements for agents to search the person and property of offenders … and provides that such searches must comport with the protections of the United States and Pennsylvania Constitutions. ….Another provision prevents the exclusion of evidence from parole or criminal proceedings based solely on a violation of the statute.

Commonwealth v. Mathis, 643 Pa. 351, 173 A.3d 699, 701–02 (2017) (footnote and some statutory citations omitted; footnote added).

[9] Rosendary argues the trial court erred in denying his suppression motion. Specifically, he argues he "maintained a legitimate expectation of privacy in the record of his physical movements." Rosendary’s Brief...