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[U] Commonwealth v. Zachmann

Superior Court of Pennsylvania

February 24, 2014



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




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 of the warrant. Rather, we must also examine the nature of the crime and the type of evidence.

Id. (quoting United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993)). Commonwealth v. Janda, 14 A.3d 147, 158-59 (Pa.Super. 2013).

Further, "[i]n determining whether a search warrant is supported by probable cause, appellate review is confined to the four corners of the affidavit." Commonwealth v. Galvin, 985 A.2d 783, 785 (Pa. 2009). Importantly, "[t]he issuing authority, in determining whether probable cause has been established, may not consider any evidence outside of the affidavits." Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003), citing Pa.R.Crim.P. 230(B).

The affidavit of probable cause contained the following information:

On 3-30-2011 the Gun Violence Task Force received information from Detective Richter of the Perkasie Police Department about a burglary he is investigating. This incident occurred on 12-20-2010 which the complainant, David Liedel, reported the theft of (4) rifles from his residence. Det. Richter stated that [on] 3-29-2011 he interviewed Liedel's girlfriend, Theresa Metzger who admitted to the theft of the aforementioned rifles and taking them [to] the parents of Nicky Picuri who live in the 2600 block of Bouvier St. in South Philadelphia Pa.
Det. Richter requested the assistance of the G.V.T.F. in recovering the stolen rifles since they were transported from Perkasie to Philadelphia. Your affiant, Special Agent James Coughlin interviewed Theresa Metzger about these rifles on 4-1-11 at the Perkasie PD and again on 4-6-11 at South Detective Division. Metzger stated that a week before Christmas 2010 she took the rifles that belonged to her boyfriend David Liedel and took them to Nicky Picuri's father's house at 2642 South Bouvier St. She stated that she has known Nicky for less than a year and that she knew that he was a Pagan Motorcycle gang Prospect. Theresa Metzger stated that when she first took these rifles from her boyfriend's house she took them to a friend's house by the name of Hugh Oberholzer who lives in the 2700 block of Tilden St and a week to ten days later she moved them to Nicky's father's house.
Metzger stated that her late Grandfather owned a jewelry store in Hatboro Pa. and he died in 2001 and that the store closed in 2003, her Mother had three handguns from the store that belonged to her Father, two of the guns were old revolvers that were in parts, Theresa didn't think they worked; the third gun was a Beretta automatic handgun. Last year her Mother was moving into a homeless shelter and couldn't take these guns with her, so she gave them to Theresa to hold. Metzger stated that around August of 2010 she was looking for a place to store some of her things, i.e. laptop computer, clothing and these three handguns. She took these items to her friends Kat's apartment "Boston & Almond St, Kat's boyfriend is named Pete Corsey. Theresa said that she asked Pete if he knew anyone who might guide her in what she should do with these guns, she said that Pete told her he would look into it.
Metzger stated that a few days after that conversation she had with Pete Corsey, she met Nicky Picuri outside the Wawa store located in the 2500 block Aramingo Ave. Nicky was talking to another biker named Zack. She overheard Picuri telling Zack that he was buying three guns from Pete Corsey. Theresa said that she asked Nicky if he was talking about three antique guns and when he said yes, she told Nicky that those guns belonged to her. Theresa stated that Nicky was going to pick up the guns from Pete on that following Friday. Theresa stated that she tried to get the guns back from Pete, but he refused to give them back.
Metzger stated the last time she talked to Nicky Pucuri [sic][4] was either March 7th or 8th of 2011 at a friend Brian's house on the 2500 block of Edgemont St; she said that while there she heard a motorcycle pull up outside, and Nicky Pucuri and his girlfriend Cindy walked in. Nicky told her "You can have those things back", which she took to mean the rifles, because she had been texting him about getting the rifles back. He then said "I got busted with one of your guns that was registered to someone up in Bum-fuck Pa." Nicky was telling everyone there that he was dropping off Cindy because he was on his way to talk to his lawyer about the gun he was arrested with. He also said that his court date was March 15th, 2011.
On 1-2-2011 Nicholas Pucuri was arrested in the 1800 block of Oregon Ave for carrying a handgun on the street and carrying a handgun without a license. He was in possession of a Beretta 25 caliber automatic with serial number BER35288V which is registered to an Eleanor Dunkelburger. Pucuri was taken to South Detective where he waived his rights and admitted to the possession of the handgun. On 3-15-11 he pled guilty to VUFA-NO LICENSE 6106 F3 and VUFA-ON STREETS 6108 M1.
Theresa Metzger stated on 4-1-11 she did not know anyone named Dunkelburger, but during our meeting at South Detectives on 4-6-2011 Metzger stated that she asked her Mother about Eleanor Dunkelburger and her Mother remembered a Fred Dunkelburger who was a customer at her Grandfather's Jewelry store in Hatboro.
Theresa Metzger directed the assigned to 2642 S. Bouvier St. where she met Nicky Pucuri and gave him the (4) rifles in the basement of that house. She also directed the assigned to 1115 Ellsworth St. where Nicky's girlfriend Cindy lives at and where Nicky stays at. She stated that he parks his motorcycle on the pavement outside her house.
Your affiant observed a black motorcycle parked outside 1115 Ellsworth St with Pa. Registration of ZRD-97. BMV check of that tag revealed it registered to a Nicholas & Marianne Picuri of 2642 S. Bouvier St Philadelphia Pa 19145.
As a result of the foregoing information your affiant believes there is sufficient probable cause for the issuance of a Search Warrant [for 1115 S. Ellsworth] to seize the Antique Handguns, possibly in parts; the four rifles, #1 an AK47 assault rifle; #2 A Russian Nagant rifle, Model CAI, serial # TX6057; #3 a Mossberg shotgun, ser# R185018; #4 a scoped 22 cal. rifle, along with any ammo and proof of residency.

Affidavit of Probable Cause, 4/18/11, at 1-2.[5]

Zachmann claims there was an insufficient basis to determine if Metzger's statements were reliable. The trial court found that Metzger's statements were confirmed in many significant aspects. Our review of the record finds no abuse of discretion or error of law in that determination.

We begin with the recognition that Metzger was relaying self-incriminating evidence. She admitted to stealing the rifles and described to the police how she disposed of them. Next, many details of her account were independently verified by police officials, such as the fact that Picuri had been arrested for carrying a Beretta handgun and was scheduled to appear in court on a specific date. Law enforcement officials confirmed Picuri's arrest, the type of gun he was carrying and the specific date he appeared in court to plead guilty.

Additionally, the trial court found the information Metzger gave to the police on April 6, 2011 to be particularly relevant. That information linked the gun previously found in Picuri's possession to Metzger's grandfather. The serial number of the Baretta demonstrated the gun was originally registered to Eleanor Dunkelburger. On April 6, 2011, Metzger informed the police that her mother informed her that the Dunkelburgers were patrons of her Grandfather's jewelry store. The guns Metzer took from her mother originally came from Metzger's grandfather. This link, which Metzger could not have manipulated, provided strong support for her statements to the affiant. Additionally, information about addresses and the fact that Picuri parked his motorcycle in front of his girlfriend's house on Ellsworth Street were also independently verified. Accordingly, the certified record amply supported the trial court's finding that Metzger provided reliable information. That information indicated that Picuri was in possession of various weapons and that the two places he most often resided, his parent's home on Bouvier Street where Metzger originally delivered the weapons and his girlfriend's home on Ellsworth Street, were the most likely places he would have stored the contraband.

As noted above, even if the information contained in the affidavit was otherwise sufficient, if that information was stale, it would not support a finding of probable cause. Here, the search warrant was executed on April 19, 2011. Prior to April 19, the last contact Metzger had with the target, Nicky Picuri, was March 7 or 8, 2011. This represents a 43-day gap. While the age of the information is relevant in determining staleness, we are required to examine the totality of the circumstances in analyzing the question.

The last information regarding Picuri provided by Metzger is directly relevant to the issue. Metzger reported to Special Agent Coughlin that Picuri told her she could have the guns, meaning the stolen rifles, back. The independent verification of Metzger's other statements to the affiant helped provide this statement with the ring of truth. The statement indicated that Picuri was not attempting to sell or otherwise dispose of the contraband. Therefore, it was reasonable to infer Picuri would retain possession of the weapons. As demonstrated above, the two most reasonable places Picuri would keep the weapons was at his parent's home or at his girlfriend's home. Because there was no indication that Picuri was attempting to dispose of the weapons, there was no reason to believe that the 43-day old information that Picuri had the guns was stale. Similarly, Special Agent Coughlin confirmed that Picuri was associated with both the Ellsworth and Bouvier Street addresses. Accordingly, as there was no indication that either of the salient pieces of information regarding Picuri was out of date, there was no basis to determine the warrant was stale.[6]

Because the certified record supports the determination that the information contained in the affidavit provided probable cause to search the Ellsworth Street address and that information was not improperly stale, we find no error of law or abuse of discretion in the trial court's denial of Zachmann's motion to suppress evidence.

Judgment of sentence affirmed.

Judgment Entered.

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