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Commonwealth v. Turner

September 17, 2009

COMMONWEALTH OF PENNSYLVANIA
v.
ERIC DAVID TURNER, APPELLANT



Appeal from the Judgment of Sentence, August 13, 2008, in the Court of Common Pleas of Allegheny County, Criminal Division at No. CC No. 200717717.

The opinion of the court was delivered by: Ford Elliott, P.J.

BEFORE: FORD ELLIOTT, P.J., SHOGAN AND POPOVICH, JJ.

OPINION

¶ 1 Eric David Turner appeals from the judgment of sentence of August 13, 2008, following his conviction of two counts each of aggravated assault and recklessly endangering another person ("REAP"). We affirm.

¶ 2 On August 13, 2008, following a non-jury trial before the Honorable Jeffrey A. Manning, appellant was found guilty of the above charges. Appellant was found not guilty of two additional counts of criminal attempt (homicide). Immediately following trial, the court imposed a mandatory minimum of five to ten years' imprisonment. This timely appeal followed.

¶ 3 Appellant has raised the following issue for this court's review:

Did the trial court err when it denied Appellant's Motion to Suppress where the incriminating nature of the shotgun shell recovered from Appellant's vehicle was not readily apparent and where its warrantless seizure violated Appellant's rights under the Fourth Amendment of [sic] the United States Constitution and Article I, sec. 8, of the Constitution of the Commonwealth of Pennsylvania?

Appellant's brief at 4.

[W]hen reviewing a motion to suppress evidence, our standard of review is well established:

The admissibility of evidence is a matter addressed to the sound discretion of the trial court and . . . an appellate court may only reverse upon a showing that the trial court abused its discretion. [W]e consider whether the record supports the suppression court's factual findings, and the legal conclusions drawn therefrom, by reviewing the prosecution's evidence and only so much of the defense's evidence as remains uncon-tradicted [sic] within the context of the record as a whole. Factual findings unsupported by the evidence may be rejected, but if the record supports the suppression court's factual findings, reversal of a suppression court's actions is justified only if the inferences and legal conclusions drawn therefrom are erroneous.

Commonwealth v. Harris, 888 A.2d 862, 868 (Pa.Super. 2005), appeal denied, 593 Pa. 746, 931 A.2d 656 (2007), quoting Commonwealth v. McCree, 857 A.2d 188, 190 (Pa.Super. 2004) (citations omitted), affirmed, 592 Pa. 238, 924 A.2d 621 (2007) (plurality).

¶ 4 Appellant contends that his Fourth Amendment rights were violated when police seized an empty shotgun shell from the front passenger seat of his vehicle. Appellant argues that the plain view exception to the warrant requirement did not apply.

For the exception to be present, initially, the officer must not have violated the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. Moreover, two additional conditions must be satisfied to justify the warrantless seizure. First, the incriminating character of the item must be 'immediately ...


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