Argued January 30, 2014
Appeal from the Order of the Court of Common Pleas, Allegheny County, Criminal Division, No: CP-02-CR-0010466-2012. Before FLAHERTY, J.
Francesco L. Nepa, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Norma Chase, Pittsburgh, for appellee.
BEFORE: BOWES, WECHT, AND STABILE, JJ.
Appellant, the Commonwealth of Pennsylvania, appeals from the trial court's April 16, 2013 order suppressing evidence. The Commonwealth asks us to decide whether the trial court erred in suppressing a cell phone that police seized pursuant to the plain view doctrine. We affirm.
The trial court recited the pertinent facts and procedural history in its Pa.R.A.P. 1925(a) opinion:
On July 2, 2012, [Appellee, Joshua Thomas Wright (" Appellee" )], was charged with two counts of criminal homicide, one count of burglary, and one count of possession of a prohibited firearm stemming from the July 1, 2012 shooting deaths of Da'Shawna Gibson, [Appellee's] ex-girlfriend and mother of his child, and Michael Black, Gibson's supposed new paramour. [Appellee] filed a motion to suppress on January 25, 2013, and a suppression hearing was held on April 5, 2013. On April 16, 2013, this [c]ourt granted [Appellee's] Motion to Suppress. On May 1, 2013, the Commonwealth filed a Motion to Reconsider, which was denied via Order of Court dated May 13, 2013. On May 15, 2013, the Commonwealth filed the instant appeal.
The following are the facts as found by this [c]ourt during the Suppression Hearing: The shooting deaths of Gibson and Black were brought to the attention of the Wilkinsburg Police Department by Brandy Clark (" Clark" ), who was present in the home at the time of the incident. Clark relayed a few different versions of the events of the night in question, however ultimately she convinced the officers to enter and search the premises, where they discovered the bodies of Gibson and Black in an upstairs bedroom. Based upon Clark's observations and identification of [Appellee] as the shooter, an arrest warrant for [Appellee] was issued. The police executed the arrest warrant at approximately 2:20 a.m. at [Appellee's] mother's residence.
Upon arrest, [Appellee] was found in bed wearing only a pair of underwear. [Appellee] was then handcuffed, and, given his state of undress, the arresting police officers assisted him in getting clothed. They chose and placed upon him a pair of khaki shorts. The two officers testified that they had found [Appellee's] cellular telephone in the pocket of the shorts after they were placed upon him, and as such, the cellular telephone was seized incident to arrest. The [c]ourt did not find as credible testimony that the officers gave a double homicide suspect an article of clothing to wear with something as weighty as a cell phone in the pockets. This action would be contrary to the safety of the officers, as the clothing could have contained a gun or other small weapon, and contrary to police policy. [Appellee's] mother, who was present during the arrest testified that the cellular telephone was located 'in the front of the television on the left side' next to [Appellee's] bed. This [c]ourt
found as credible [Appellee's] mother's testimony. Based upon the testimony presented at the suppression hearing, this [c]ourt concluded that the cellular telephone was situated on the nightstand next to the bed, and not seized incident to arrest or within [Appellee's] immediate control, and as such, the seizure was impermissible.
Trial Court Opinion, 8/26/13, at 1-3 (record citations omitted). Appellee stands accused of two counts of criminal homicide (18 Pa.C.S.A. § 2501(a)), one count of burglary (18 Pa.C.S.A. § 3502), and one count of persons not to possess a firearm (18 Pa.C.S.A. § 6501(a)(1)).
As set forth above, the Commonwealth filed a timely appeal from the trial court's suppression order. The Commonwealth raises a single issue for review: " Whether the lower court erred in granting the Appellee's motion to suppress his cellphone and its contents based on an allegedly unlawful seizure of the phone?" Commonwealth's Brief at 4.
We review the trial court's order according to the following standard:
When the Commonwealth appeals from a suppression order, we . . . consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.
Commonwealth v. Whitlock, 2013 PA Super. 105, 69 A.3d 635, 637 (Pa. Super. 2013).
The Commonwealth accepts, as it must, the trial court's finding that Appellee's mother offered credible testimony as to the location of the cell phone. Therefore, the sole issue before us is whether the plain view doctrine justified the warrantless
seizure of Appellee's cell phone. We conclude that it did not.
In general, the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution do not permit police to search for or seize property absent a lawfully obtained search warrant. Commonwealth v. Anderson, 2012 PA Super. 65, 40 A.3d 1245, 1249 (Pa. Super. 2012), appeal denied , 616 Pa. 666, 51 A.3d 837 (Pa. 2012). The plain view doctrine permits a warrantless seizure if each of the following conditions applies:
1) police did not violate the Fourth Amendment during the course of their arrival at the location where they viewed the item in question; 2) the item was not obscured and could be seen plainly from that location; 3) the incriminating nature of the item was ...