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[U] Commonwealth v. Zachmann

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
THOMAS ZACHMANN Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence August 2, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): No. CP-51-CR-0005944-2011

BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J. [*]

MEMORANDUM

OTT, J.

Thomas Zachmann appeals from the judgment of sentence imposed on August 2, 2012 following his conviction for violating 18 Pa.C.S. § 6105(a)(1) Persons not to possess firearms. He was sentenced to a term of three and one-half to seven years' incarceration. In this timely appeal, Zachmann claims the trial court erred in failing to grant his motion to suppress evidence, on the basis that the information contained in the affidavit of probable cause was stale and otherwise insufficient. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm.

On April 19, 2011, police officers and agents of the Pennsylvania Gun Violence Task Force executed a search warrant for the premises of 1115 Ellsworth Street, Philadelphia, Pennsylvania, in an attempt to locate four rifles that had admittedly been stolen by Theresa Metzger.[1] Metzger subsequently delivered the rifles to Nicholas Picuri. The target address, 1115 Ellsworth, was the residence of Cynthia Rae "Cindy" Chaika, who was the girlfriend of the target of the search, Nicholas Picuri. Although Picuri was not at that address, they found Zachmann, a convicted felon, in possession of a rifle (not one of the stolen rifles), which was leaning against a wall in the bedroom where he was discovered. Additionally, Zachmann admitted to having purchased black powder handguns[2] that were found in a nearby safe that Zachmann opened for the officers. Because Zachmann was a convicted felon, he was not permitted to possess any firearms.[3]

In this appeal, Zachmann claims the search warrant was not supported by probable cause because the information supplied therein was both stale and insufficient. Our analysis is guided by the following legal principles:

When reviewing a challenge to a trial court's denial of a suppression motion, our standard of review 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, as here, 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 courts below are subject to our plenary review.

Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa.Super. 2013).

The legal principles applicable to the instant case are well established. Before an issuing authority may issue a constitutionally valid search warrant he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582, cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376 (1975); Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970). The requisite probable cause must exist at the time the warrant is issued and be based on facts closely related in time to the date of issuance. Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981); Commonwealth v. Jackson, supra; Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973); Commonwealth v. McCants, 450 Pa. 245, 299 A.2d 283 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973).

Commonwealth v. Jones, 484 A.2d 1383, 1387 (Pa. 1984).

Settled Pennsylvania law establishes that stale information cannot provide probable cause in support of a warrant. Commonwealth v. Gomolekoff, 910 A.2d 710, 713 (Pa.Super. 2006). In particular:
[A]ge of the information supporting a warrant application is a factor in determining probable cause. If too old, the information is stale, and probable cause may no longer exist. Age alone, however, does not determine staleness. The determination of probable cause is not merely an exercise in counting the days or even months between the facts relied on and the issuance ...

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