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Commonwealth v. Smith

Superior Court of Pennsylvania

May 31, 2017


         Appeal from the Judgment of Sentence September 11, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013850-2012

          BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J. [*]


          OTT, J.

         David Smith appeals from the judgment of sentence imposed on September 11, 2014, in the Court of Common Pleas of Philadelphia County following his conviction by jury on charges of first-degree murder, robbery, and carrying a firearm on public streets of Philadelphia without a license.[1]Smith was sentenced to a term of life incarceration. In this timely appeal, he raises one issue. Smith claims the trial court erred in failing to suppress results of the warrantless testing of DNA evidence taken from his clothing and person. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm.

         The specifics of the underlying crime are not directly relevant to the resolution of the issue presented. Accordingly, we simply note that in the early morning hours of July 26, 2012, Smith shot and killed Andre Strum (the Victim) near the corner of 66th Street and Haddington Lane, Philadelphia. Smith also stole approximately $2, 800.00 from the Victim. As he was being arrested, the police noticed what appeared to be blood on Smith's shoes. The shoes were confiscated pursuant to Smith's lawful arrest. The police also recovered a stained t-shirt belonging to Smith while executing a search warrant at Smith's girlfriend's residence. Both shirt and shoes were submitted for DNA analysis.[2] Pursuant to a warrant, buccal swabs were taken from Smith after his arrest.

         Smith sought to suppress the DNA evidence, claiming the Commonwealth was required to obtain a warrant specifically to conduct the DNA test on the blood samples. The trial court denied the motion and Smith was subsequently convicted of the crimes mentioned above. In this timely appeal, Smith claims the trial court erred in failing to suppress the DNA evidence that was obtained without the benefit of a warrant.

         The standard of review for the denial of a motion to suppress evidence is as follows:

[An appellate court's] standard of review in addressing a challenge to the denial of a suppression motion 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, [the appellate court is] bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where ... 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 [ ] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation omitted).

         Additionally, the Pennsylvania Supreme Court has ruled that when reviewing a motion to suppress evidence, we may not look beyond the suppression record. See In re L.J., 79 A.3d 1073 (Pa. 2013). This is important as the certified record is unclear whether the DNA analysis report had been generated or delivered to Smith at the time of the suppression hearing.

         Here, the trial court determined the seizure of the physical evidence, Smith's shirt, shoes and the buccal swab, were all constitutionally sound. The shirt and buccal swabs were obtained by search warrant. See Search Warrants 167301 (shirt) and 167303 (buccal swab). We note Warrant167303 was obtained for the stated purpose "to obtain a DNA sample for comparison against any/all other evidence in this investigation." Id. Accordingly, the purpose of DNA analysis of the buccal swab was established in the warrant. Smith's shoes were properly seized in a search incident to his lawful arrest. See Commonwealth v. Ingram, 814 A.2d 264 (Pa. Super. 2002) (warrantless search incident to lawful arrest is reasonable, and no justification other than the arrest is required). Accordingly, the trial court reasoned Smith's constitutional rights were not violated. This analysis is sound, yet does not address Smith's specific argument that the extraction and analysis of the DNA samples represented an additional search that required a warrant.

         Smith concedes that the physical evidence consisting of his orange t-shirt, shoes, and buccal swabs were all legally seized by the police. See Smith's Brief at 29, 40. However, he asserts that because DNA can "reveal 'physiological data' and a 'host of private medical facts, ' such analyses may 'intrude [] upon expectations of privacy that society has long recognized as reasonable.'" Smith's Brief, at 23 (citing United States v. Davis, 690 F.3d 226, 243 (4th Cir. 2012)). As such, Smith contends his privacy interest in information that may have been obtained by the DNA analysis of his blood, required a separate warrant. See Commonwealth v. Mitchell, 652 F.3d 387 (3rd Cir. 2011). See also, Commonwealth v. Barton, 690 A.2d 293 (Pa. Super. 1997) (Pennsylvania citizens have a reasonable expectation of privacy in their medical records). We conclude Smith's argument is unavailing.

         Initially, we agree with the Commonwealth's assertion that historically no separate warrant has ever been required to conduct scientific testing upon physical evidence lawfully obtained by the Commonwealth. However, the cases cited by the Commonwealth, Commonwealth v. Stallworth, 781 A.2d 110 (Pa. 2001), and Commonwealth v. Aljoe, 216 A.2d 50 (Pa. 1966) addressed the warrantless seizure of clothing incident to the arrest of the defendant. Although, in those cases, the clothing was subsequently tested for the presence of biological or other trace evidence, the constitutionality of that testing was not at issue. While such scientific testing was allowed, the privacy issues currently before this panel were not before prior panels. Accordingly, while those cases have some instructive value, they do not resolve the issues before us.

         Smith bases his argument upon the assertion that DNA can reveal medical information he is entitled to protect. There ...

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