from the Judgment of Sentence September 11, 2014 In the Court
of Common Pleas of Philadelphia County Criminal Division at
BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J. [*]
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.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.
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. Pursuant to a warrant, buccal swabs were
taken from Smith after his arrest.
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.
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).
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.
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.
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.
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.
bases his argument upon the assertion that DNA can reveal
medical information he is entitled to protect. There ...