J-S42021-23
2024 PA Super 104
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICARDO DURAN RIVERA : : Appellant : No. 296 EDA 2023
Appeal from the Judgment of Sentence Entered August 5, 2022 In the Court of Common Pleas of Chester County Criminal Division at No: CP-15-CR-0002267-2018
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
OPINION BY STABILE, J.: FILED MAY 22, 2024
Appellant, Ricardo Duran Rivera, appeals from his judgment of sentence
of life imprisonment for second degree murder entered in the Court of
Common Pleas of Chester County. We affirm.
Appellant shot and killed David Doyle III during a home invasion on
September 24, 2017. The record reflects that Appellant and another intruder
conspired with Anaye Raggazino to rob the decedent of drugs and money. The
victim’s father, David Doyle Jr., witnessed the robbery and the shooting.
Several days after the murder, on September 28, 2017, the
Commonwealth filed an application under the Wiretapping and Electronic
Surveillance Control Act (“Wiretap Act”), 18 Pa.C.S.A. §§ 5701-5782, to obtain
subscriber information, call and text records, and cell tower information for J-S42021-23
the phone number XXX-XXX-9559 for the period of September 23-28, 2017. 1
The application asserted that an affidavit appended to the application,
prepared by a Chester County detective, “provides specific and articulable
facts showing that there are reasonable grounds to believe that the above
requested information associated with phone number XXX-XXX-9559
(MetroPCS/T-Mobile) are relevant and material to an ongoing criminal
investigation.” Order Denying Appellant’s Motion To Suppress (“Order”),
4/4/22, at n.2. The court, per the Honorable Charles Smith, granted the
application. The police obtained this historical CSLI to track the movement of
Appellant and his cohorts leading up to the home invasion.
In April 2018, Appellant was arrested and charged with second degree
murder, conspiracy to commit second degree murder and related offenses.
Several years later, on October 22, 2021, the Commonwealth filed a
second application requesting the same historical CSLI for the same period
(September 23-28, 2017) that it had made in 2017. The Commonwealth
asserted that its reason for making this second application was to ensure that
it obtained the historical CSLI in compliance with a decision by the United
States Supreme Court handed down after the first application, Carpenter v.
United States, 585 U.S. 296, 138 S.Ct. 2206 (2018). The second application
was virtually the same as the first application except for one difference—while ____________________________________________
1 The relevant decisions refer to this type of information as “historical cell site
location information” or “historical CSLI.” See, e.g., Commonwealth v. Pacheco, 263 A.3d 626, 635 (Pa. 2021). Accordingly, we will refer to the cell phone records in question as “historical CSLI.”
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the first application asserted that there were “reasonable grounds” for
issuance of the order, the second application asserted that there was
“probable cause” for issuance of the order. Order at n.2. The court, per the
Honorable Emanuel Bertin, granted the application.
Appellant filed a pretrial motion to suppress the historical CSLI. On April
4, 2022, the suppression court, per the Honorable David Bortner, denied
Appellant’s motion to suppress. Order at n.2.
Prior to trial, the victim’s father, David Doyle Jr., indicated that the
individuals who broke into his apartment were wearing masks. As a result,
Doyle was never provided with any photo array or lineup to identify the
perpetrators. During trial, however, Doyle testified as follows on direct
examination:
Q: Did you see anything when you got to the hallway?
A: Yeah.
Q: What did you see?
A: I seen that guy right there. I’ll never forget his eyes.
N.T., 4/19/22, at 19. “That guy right there” referred to Appellant. This
testimony was the first time after the murder that Doyle identified Appellant
as the murderer.
Defense counsel immediately objected to Doyle’s testimony on the
ground that counsel had never received any discovery indicating that Doyle
had been shown a picture of Appellant or had identified Appellant in a photo
array or lineup. The prosecutor responded that he had not expected Doyle to
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make an in-court identification, and that Doyle had never been shown
photographs of Appellant or a lineup. The court overruled defense counsel’s
objection. Id. at 19-21.
On cross-examination, Doyle testified that he had not seen Appellant
between the robbery and the time of trial, four and a half years later. Doyle
admitted looking at Appellant’s picture on the Internet all the time and wanted
Appellant to spend the rest of his life in jail. Id. at 40-41. Doyle further
admitted that the perpetrator was wearing a mask. On redirect, the
prosecutor asked whether Doyle’s and the perpetrator’s eyes met during the
incident, and Doyle replied, “Yes.” The prosecutor asked whether Doyle would
ever forget those eyes, and Doyle replied, “No.” The prosecutor asked
whether Doyle saw those eyes in the courtroom, and Doyle said “Hell, yeah,”
identifying Appellant. Id. at 43-44.
Defense counsel raised another objection to Doyle’s testimony. The
court instructed the jury that it was “not going to permit the record to reflect
an in-court identification of [Appellant] by this witness.” Id. at 46. Defense
counsel made a motion for mistrial, which the court denied.
Appellant was implicated and identified in court, without objection, by
several witnesses other than Doyle as being one of the men involved in these
crimes. Daniel Felix testified that he saw Appellant on the night of the murder
and that Appellant confessed to murdering someone and showed Felix the gun
used to commit the crime. N.T., 4/18/22, at 208-10. Franklin Watson testified
that Appellant described the events of the robbery and murder to him. N.T.,
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4/20/22, at 172-80. Keisha Ramos testified that she overheard Appellant
stating that he disposed of the clothes, shoes and weapon used during the
incident. N.T., 4/21/22, at 95, 99-100. All these witnesses, like Doyle,
identified Appellant in the court as sitting at the defendant’s table in a blue
suit.
The court gave the jury a detailed instruction on the factors that they
should consider when weighing the credibility of Doyle’s identification
testimony.
On April 22, 2022, the jury found Appellant guilty of second-degree
murder. Judge Bortner sentenced Appellant to the statutory sentence of life
imprisonment without possibility of parole. Appellant filed timely post-
sentence motions, which the court denied, and a timely appeal to this Court.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues in this appeal, which we have
reordered for purposes of convenience:
1. Whether the trial court erred in admitting cellular telephone communication records and cell tower records, when the search and seizure of the cellular telephone/ cell tower records was conducted without a search warrant and the subsequently issued search warrant failed to state probable cause[.]
2. Whether the trial court erred in permitting David Doyle, Jr. to improperly identify Appellant at trial by testifying, “I seen that guy right there. I'll never forget his eyes[.]
3. Whether the trial court erred in denying Appellant’s motion for mistrial after David Doyle, Jr. improperly identified Appellant at trial which resulted in substantial prejudice and deprived Appellant of a fair trial[.]
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4. Whether the trial court erred in denying Appellant’s post- sentence motion for a new trial after David Doyle, Jr. improperly identified Appellant at trial which resulted in substantial prejudice and deprived Appellant of a fair trial[.]
Appellant’s Brief at 10 (cleaned up).
Relying on Carpenter, Appellant first argues that the trial court erred
in denying his motion to suppress, because Judge Smith’s order authorizing
disclosure of historical CSLI in 2017 was not supported by probable cause.
The fact that the police obtained a search warrant for the same records in
2021, Appellant continued, did not cure the defect in the 2017 order. We hold
that the trial court properly denied Appellant’s motion to suppress, because,
inter alia, both the 2017 and 2021 orders satisfied the requisites for a search
warrant articulated in Commonwealth v. Pacheco, 263 A.3d 626 (Pa.
2021).
Our standard of review of a trial court’s ruling on a suppression motion
is “whether the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.” Commonwealth v.
Rosario, 248 A.3d 599, 607 (Pa. Super. 2021). We are bound by the facts
found by the trial court so long as they are supported by the record, but we
review its legal conclusions de novo. Id. at 607-08. The trial court has sole
authority to pass on the credibility of witnesses and the weight to be given to
their testimony. Id. at 608. “Our scope of review is limited to the record
developed at the suppression hearing, considering the evidence presented by
the Commonwealth as the prevailing party and any uncontradicted evidence
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presented by the defendant.” Commonwealth v. Kane, 210 A.3d 324, 329
(Pa. Super. 2019).
The Fourth Amendment of the United States Constitution “protects
citizens from unreasonable searches and seizures.” Commonwealth v.
Barnes, 296 A.3d 52, 56 (Pa. Super. 2023). “[S]earch warrants may only
issue upon probable cause.” Pacheco, 243 A.3d at 645. Here, the police
obtained the September 2017 order for historical CSLI pursuant to Section
5743 of Pennsylvania’s Wiretap Act. Section 5743 authorizes an investigative
or law enforcement officer to “require the disclosure by a provider of
communication service of the contents of a communication which is in
electronic storage in a communication system.” 18 Pa.C.S.A. § 5743(a). A
provider of electronic communication services is permitted to disclose “a
record or other information pertaining to a subscriber to or customer of
service,” other than contents of communications, to the officer when he uses
one of several means, including a court order. 18 Pa.C.S.A. § 5743(c)(2). To
obtain a court order, the officer must demonstrate “specific and articulable
facts showing that there are reasonable grounds to believe that the contents
of a wire or electronic communication, or the records or other information
sought, are relevant and material to an ongoing criminal investigation.” 18
Pa.C.S.A. § 5743(d).
In 2018, subsequent to the first order in this case for historical CSLI,
the United States Supreme Court decided Carpenter, a case which concerned
“how to apply the Fourth Amendment to a new phenomenon: the ability to
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chronicle a person’s past movements through the record of his cell phone
signals. . .[because m]uch like GPS tracking of a vehicle, cell phone location
information is detailed, encyclopedic, and effortlessly compiled.” Carpenter,
585 U.S. at 309.2 In Carpenter, federal prosecutors applied for court orders
____________________________________________
2 The Carpenter Court described how a cell phone’s movement is tracked as
follows:
Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors.
Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as [CSLI]. The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.
Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here. While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine (Footnote Continued Next Page)
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under the Stored Communications Act, 18 U.S.C. § 2703, to obtain cell phone
records for the defendant and several other suspects. Similar to Section 5743
of Pennsylvania’s Wiretap Act, the Stored Communications Act “permit[ed]
the Government to compel the disclosure of certain telecommunications
records when it offers specific and articulable facts showing that there are
reasonable grounds to believe” that the records sought were “relevant and
material to an ongoing criminal investigation.” Id. at 302. The Court held,
for the first time, that law enforcement officials violated an individual
defendant’s Fourth Amendment rights by obtaining his historical CSLI from a
third-party carrier without first obtaining a search warrant supported by
probable cause. Id. at 310. The Court also made clear that the “reasonable
grounds” standard “[fell] well short of the probable cause required for a
warrant.” Id. at 317.
In Pacheco, our Supreme Court applied Carpenter to Pennsylvania’s
Wiretap Act. The police in Pacheco were conducting a heroin-trafficking
investigation and obtained several orders pursuant to the Wiretap Act to
secure real-time CSLI tracking. Pacheco held that Appellant had a legitimate
expectation of privacy in his real-time CSLI, so “Carpenter’s rationale
data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.
Carpenter, 585 U.S. at 300-01.
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requiring a warrant pursuant to the Fourth Amendment for the collection of
historical CSLI equally applies here.” Pacheco, 263 A.3d at 641.
The Pacheco Court reasoned that
the United States Supreme Court has not required that the issuing authority label its determination of probable cause a “warrant.” In fact, in [Dalia v. United States, 441 U.S. 238 (1979)], the Court upheld a court order authorizing the interception of an oral communication on grounds that it substantively complied with the 4th Amendment’s warrant requirement. [Id.] at 256 (stating that the “[t]he April 5 court order authorizing the interception of oral communications occurring within petitioner’s office was a warrant issued in full compliance with these traditional Fourth Amendment requirements”).
Likewise, . . . this Court has held that orders issued pursuant to [Pennsylvania’s] Wiretap Act may serve as the functional equivalent of a warrant for constitutional purposes where the protections of the Fourth Amendment were afforded. See [Commonwealth v. Brion, 652 A.2d 287, 289 (Pa. 1994)] (holding that the probable cause/warrant requirement to obtain an oral communication under the Wiretap Act could be satisfied by a prior determination of probable cause rendered by a neutral, judicial authority); and [Commonwealth v. Melilli, 555 A.2d 1254, 1258-59 (Pa. 1989)] (holding that “a judicial order authorizing the installation of pen registers [under the Wiretap Act] is the equivalent of a search warrant in its operative effect . . . [and] the affidavit and order must comply with the requirements of probable cause”). Thus, it is clear that the substance, not the label, determines whether a particular court order constitutes a valid warrant.
Id. at 646 (emphasis added).
The Pacheco Court also observed:
In summarizing the plain language of the Fourth Amendment, the United States Supreme Court has explained that there are three prerequisites for a valid warrant: (1) the warrant must be issued by a neutral, disinterested magistrate; (2) the entity seeking the warrant must demonstrate probable cause to believe that the evidence sought will aid in a particular apprehension or conviction
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for a particular offense; and (3) the warrant must describe particularly the place to be searched and the items to be seized.
Id. (citing Dalia, 441 U.S. at 255). Applying these standards, Pacheco held
that the substance of the orders authorizing seizure of real-time CSLI, and the
affidavit of probable cause underlying the orders submitted by a police
detective, satisfied the three requisites for a valid warrant. Id. at 647-52.
In the present case, the suppression court, per Judge Bortner, held that
both the 2017 and 2021 applications for historical CSLI fulfilled the three
requirements for a valid warrant set forth in Pacheco. We agree.
First, the suppression court correctly observed that “both the 2017 and
2021 orders were issued by a neutral, disinterested magistrate. There is no
evidence in this record that Judge Smith or Judge Bertin were anything but
impartial in their consideration of the Commonwealth's requests.” Order,
4/4/22, at n.2 (cleaned up).
Next, the suppression court correctly concluded that the 2017 and 2021
applications provided probable cause to obtain the historical CSLI. “Probable
cause exists where the facts and circumstances within the affiant’s knowledge
and of which he has reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that a search
should be conducted.” Commonwealth v. Leed, 186 A.3d 405, 413 (Pa.
2018). In considering an affidavit of probable cause, the issuing authority
Must apply the totality of the circumstances test which requires [it] to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit . . . including the
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veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa. 2012). Courts should
not invalidate warrants by interpreting them in a hyper-technical fashion.
Illinois v. Gates, 462 U.S. 213, 236 (1983). A court reviewing the issuing
authority’s determination of probable cause examines only whether a
substantial basis existed for the issuing authority’s finding of probable cause.
Johnson, 42 A.3d at 1031. An “after-the-fact scrutiny by courts of the
sufficiency of an affidavit should not take the form of de novo review,” Gates,
462 U.S. at 236, because the issuing authority’s probable cause determination
is entitled to deference.
Here, the suppression court reasoned:
[T]he affidavit first prepared in 2017, and utilized again in 2021, provides probable cause that the requested information would aid in the apprehension or conviction of the individuals responsible for the September 24, 2017 homicide of David Doyle III. According to police, the incident began when an individual named Anaye Raggazino entered the victim’s residence at 782 Worth Boulevard, Apartment 206, North Coventry Township, Chester County. Almost immediately after Ms. Raggazino entered the apartment, she was joined by two masked individuals, one of whom was brandishing a handgun. During the course of this home invasion, the victim was fatally shot, and both the masked individuals and Ms. Raggazino fled the scene after the shots were fired. During the investigation, police interviewed the victim’s father, David Doyle, Jr., and his fiancée Tiffany Poznanski. Both of those witnesses confirmed that Anaye Raggazino had arrived at the victim’s residence minutes prior to the home invasion and homicide.
Pertinent to this case, Ms. Raggazino arrived at the residence of an unnamed witness after the homicide. This witness told police
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that Raggazino admitted that she had been involved in the robbery of an individual named “David,” and that the robbery had not gone the way she had intended. She described the above- referenced events in detail to the witness, and informed the witness that her cousin Bianca had been involved in the planning of the robbery. At approximately 2:00 a.m. on September 25, 2017, Ms. Raggazino used the witness’s cellphone to dial XXX- XXX-9559, the telephone number at issue herein. She told the witness that this phone number belonged to her cousin Bianca. Ms. Raggazino’s aunt, Dawn Stutzman, related to police that Raggazino told her that she intended to rob David Doyle, Jr. for drugs and money, and that she had been present at the scene of the shooting. Stutzman also confirmed that her daughter-in-law is Bianca Rowan.
These averments in the affidavit provide probable cause that inspection of the telephone records and cell tower data of XXX- XXX-9559 would provide information aiding in the arrest or conviction of the perpetrators of the homicide. We note that at the time they made their request, police believed that this number belonged to Bianca Rowan. However, at the hearing on February 3, 2022, the Commonwealth set forth that their investigation determined that Ms. Rowan was not involved in this incident and the phone number was actually associated with [Appellant]. The ultimate identity of the individual who used the number is of no moment in determining whether probable cause arose from this affidavit - we must consider what information was available to the magistrate when considering whether to grant the Commonwealth’s request.
The affidavit describes in detail the events of the home invasion that led to the homicide, as well as every significant step taken by police in their investigation. Ms. Raggazino allegedly admitted to multiple parties that she was present at, and participated in, the robbery scheme and the shooting. She told the unnamed witness that her cousin Bianca was involved as well, and used that witness’s cellphone to allegedly call Bianca at XXX-XXX-9559. Accordingly, the activity of that phone number was likely to generate information relating to the incident. [Appellant] argues that the only individual who actually connected this phone number to the homicide is an unnamed witness, and therefore not reliable enough to generate probable cause. However, the affidavit indicates that the witness was interviewed on September 27, 2017 by Detectives Robert Balchunis and Ben Martin. Even though the
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witness was unnamed in the affidavit itself, the fact that [the witness was] actually interviewed by police indicates [the witness’s] identity was and continues to be known to law enforcement. This witness is therefore no more or less reliable than any other, and is distinguishable from an anonymous, and therefore inherently unreliable, source. We therefore conclude that probable cause was present in both affidavits, as required by Pacheco.
Order at n.2 (cleaned up).
We disagree with Appellant’s contention that “the averments contained
in both affidavits did not amount to probable cause. The averments amounted
to suspicion and nothing more.” Appellant’s Brief at 29. The affidavit rested
in part on an interview with an anonymous informant, who stated that one of
the participants in the fateful home invasion, Raggazino, told the informant
that her cousin Bianca Rowan had also participated in the home invasion and
used the informant’s phone to contact Bianca at the number that was the
subject of the wiretap application (XXX-XXX-9559). The police corroborated
the informant’s tip by interviewing eyewitnesses to the murder who identified
Raggazino as one of the perpetrators of the home invasion.
The police further corroborated the informant’s tip by interviewing
Raggazino’s aunt, who stated that Raggazino told her that she (Raggazino)
intended to rob the victim’s father, David Doyle, Jr., for drugs and money, and
that she was present during the shooting. In addition, Raggazino’s aunt
confirmed that her daughter-in-law is Bianca Rowan, another suspect in the
home invasion. This information, combined with the anonymous tip, gave rise
to probable cause for the issuance of the 2017 wiretap order. See
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Commonwealth v. Sanchez, 589 Pa. 43, 907 A.2d 477, 488 (2006)
(“information received from an informant whose reliability is not established
may be sufficient to create probable cause where there is some independent
corroboration by police of the informant's information”).
Finally, the suppression correctly concluded, based on the following
analysis, that the 2017 and 2021 applications “describe particularly the place
to be searched and the items to be seized.” Order at n.2. The court reasoned:
Even though the “place to be searched” was not a geographical location, and the “items to be seized” were electronic data as opposed to physical objects, the information being requested by the Commonwealth for the number XXX-XXX-9559 is provided in detail:
1. Current subscriber information, to include subscriber name, user name, address, additional contact number, date service began and date service was terminated (if applicable);
2. Call detail records to include originating telephone number, dialed telephone number, date and time call originated, date and time call terminated, duration of call;
3. SMS and MMS detail records to include originating telephone number, receiving telephone number, date and time message was sent;
4. Cell tower information for all calls to include, originating cell tower site and sector, terminating cell tower site and sector and all cell tower site locations.
(Commonwealth’s Exhibit C-3, Bates stamp p. 001122; Commonwealth’s Exhibit C-4, Bates stamp p. 002237). Apart from the affidavit, the applications themselves also limit this request to only that data generated from that telephone number between September 23 and September 28, 2017. This request is sufficiently specific to comply with the Fourth Amendment requirements set forth in Pacheco.
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Id. We agree that both applications described the items to be searched with
reasonable particularity.
Appellant argues that the 2017 application was invalid because the
issuing authority, Judge Smith, applied the “reasonable grounds” standard
prescribed under 18 Pa.C.S.A. § 5743 instead of the correct standard of
probable cause. Appellant further asserts that the 2021 application did not
cure the defect in the 2017 application process, even though Judge Bertin
applied the probable cause standard when he granted the 2021 application.
Finally, Appellant suggests that since Judge Smith applied the reasonable
grounds test at the time of the 2017 application, Judge Bortner could not apply
the probable cause standard to the 2017 application during pretrial
suppression proceedings.
We begin our analysis of this argument by noting that neither
Carpenter nor Pacheco examine this question because the circumstances in
those cases were different from the present case. In Carpenter, both the
magistrate who issued the wiretap order and the judge who denied
suppression applied the standard of reasonable grounds. Id., 585 U.S. at
302, 317. In Pacheco, both the judge who issued the wiretap application and
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the judge who denied suppression applied the standard of probable cause. 3
Id., 243 A.3d at 648.
There are, however, two pertinent decisions on this subject from this
Court: Commonwealth v. Lynch, 268 A.3d 411, 2021 WL 5176390 (Pa.
Super., Nov. 8, 2021) (unpublished memorandum), and Commonwealth v.
Davis, 241 A.3d 1160, 1172-73 (Pa. Super. 2020). In Lynch, in 2016, prior
to Carpenter, the court granted a wiretap order to obtain historical CSLI
relating to the defendant’s cell phone by finding that the wiretap application
provided reasonable grounds for issuance of the order. In 2018, due to the
change in the law in Carpenter, the police obtained another warrant for the
same cell phone based on a showing of probable cause. No new records were
obtained from this warrant. The trial court denied the defendant’s motion to
suppress the historical CSLI seized under the 2016 order on the ground that
the application for the 2016 order satisfied the probable cause standard. In
other words, the court applied the probable cause test to the 2016 application
3 The prosecutors in Pacheco applied for a wiretap under 18 Pa.C.S.A. § 5773,
a different statute under Pennsylvania’s Wiretap Act than the statute under which the Commonwealth sought a wiretap in the present case, 18 Pa.C.S.A. § 5743. Section 5773 requires a showing of probable cause to “authoriz[e] the disclosure of mobile communications tracking information, the installation and use of a pen register, a trap and trace device or a telecommunication identification interception device within this Commonwealth.” 18 Pa.C.S.A. § 5773(a).
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at the suppression stage even though the court had only applied the
reasonable grounds test at the time it issued the wiretap order.
This Court affirmed, reasoning that the 2016 application satisfied
Dalia’s three requisites, including its requirement of probable cause. We
consider Lynch persuasive authority for the determination that Judge Smith’s
use of the “reasonable grounds” standard in granting the wiretap application
in 2017 did not preclude Judge Bortner from applying the probable cause test
to the same application at the pretrial suppression stage in 2022. See
Pa.R.A.P. 126 (non-precedential decisions of Superior Court filed after May 1,
2019 may be cited for their persuasive value). Appellant fails to present any
authority, nor are we aware of any, that use of the reasonable grounds
standard by the judge who grants a wiretap application precludes another
judge from applying a different, correct standard to the same application
following a change in the law.
Even if the initial seizure of the historical CSLI evidence in 2017 was
unlawful under Carpenter, the second seizure of the same evidence in 2021
was proper under the doctrine of inevitable discovery. In Davis, a case with
similar facts to the present case, the police obtained a wiretap order for
historical CSLI in 2016 based on a showing of reasonable grounds. Following
Carpenter, the police obtained a search warrant using virtually the same
affidavit as it used in the 2016 application. The trial court denied the
defendant’s motion to suppress. In this Court, the defendant argued that
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suppression was necessary because the reasonable grounds standard was
erroneous, and the fact that the police subsequently obtained a warrant did
not purge the taint of the original wiretap order.
This Court observed that the inevitable discovery doctrine provides that
“if the prosecution can establish by a preponderance of the evidence that
illegally obtained evidence ultimately or inevitably would have been
discovered by lawful means, the evidence is admissible.” Davis, 241 A.3d at
1172. “This standard requires a finding that the law enforcement officer’s
decision to seek a warrant was prompted by information independent of what
was learned during the unlawful search and the information illegally obtained
did not influence the issuing authority’s decision to issue the search warrant.”
Id.
Based on this doctrine, we held that suppression was unnecessary
because (1) the police first obtained historical CSLI in 2016 under Section
5743 because that statute was the governing law at that time, and the police
did not engage in any cognizable misconduct by following it; (2) after the
Supreme Court issued Carpenter, the police secured the same records with
a search warrant based on a showing of probable cause; and (3) in the
affidavit of probable cause attached to the search warrant, the police did not
use the CSLI records obtained from the 2016 order. Id. at 1172-73. Thus,
“the evidence was sufficiently purged of any original illegality to allow its
admission under the inevitable discovery doctrine.” Id.; see also Lynch,
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2021 WL 5176390, at *8 (following Davis and holding, under circumstances
similar to Davis, that even if initial order approving wiretap was erroneous
due to application of “reasonable grounds” test, trial court properly denied
motion to suppress historical CSLI under inevitable discovery doctrine).
Presently, even if Judge Bertin’s 2017 order was erroneous, the seizure
of the historical CSLI in 2021 was permissible under the doctrine of inevitable
discovery for the same reasons given in Davis: (1) the police first obtained
historical CSLI in 2017 under Section 5743 because that statute was the
governing law at that time, and the police did not engage in any cognizable
misconduct by following it; (2) after the Supreme Court issued Carpenter,
the police secured the same records with a search warrant based on a showing
of probable cause; and (3) in the affidavit of probable cause attached to the
search warrant, the police did not use the CSLI records obtained from the
2017 order.
For these reasons, we hold that Judge Bortner properly denied
Appellant’s motion to suppress the historical CSLI. It is the substance of the
2017 and 2021 applications that determine whether they constitute valid
warrants, not their title. Although the 2017 application was labeled as an
application for a wiretap under Section 5743, its substance met the three
requisites for a valid warrant under Dalia. The 2021 application, titled as an
application for a search warrant, fulfilled the same requirements. The fact
that Judge Bertin examined the 2017 application under the “reasonable
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grounds” standard within Section 5743 did not prevent Judge Bortner from
evaluating the same application under the more exacting probable cause
standard during pretrial suppression proceedings—and in any event, the
inevitable discovery doctrine justified the seizure of this evidence.
Appellant’s next three arguments, which we will consider together,
concern the in-court identification of Appellant by David Doyle, Jr., the victim’s
father. Appellant argues that Doyle’s in-court identification was inherently
unreliable, and that Judge Bortner erred by denying Appellant’s motion for
mistrial, because (1) Doyle failed to make such an identification at any point
between the murder and trial, a period exceeding four years, (2) the
identification was inconsistent with Doyle’s prior statements to police and
those of other witnesses, (3) defense counsel had not received any discovery
that indicated Doyle would make an in-court identification, and (4) the
dramatic nature of the surprise identification in front of the jury—“I’ll never
forget his eyes”—was overly suggestive. See Appellant’s Brief at 17-25.
Our standard of review in assessing the denial of a motion for mistrial
is as follows:
The trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the grant or denial of a mistrial will not be overturned absent an abuse of discretion. A mistrial may be granted only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. Likewise, a mistrial is not necessary where cautionary instructions are adequate to overcome any possible prejudice.
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Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007).
The trial court thoroughly discussed this matter in its order denying
Appellant’s post-sentence motions:
[Appellant] argues that this in-court identification was inherently unreliable due to a number of factors. [Doyle] failed to make such an identification at any point prior to trial, a period of over four years. According to [Appellant], the identification was inconsistent with [Doyle]’s prior statements to police and those of other witnesses. [Appellant] also claims that the courtroom setting of this identification was overly suggestive, given [Appellant]’s location and status a[t] the time of [Doyle]’s testimony. Based upon these allegedly prejudicial circumstances, [Appellant] now moves that his right to a fair trial was infringed by [Doyle]’s identification, and accordingly requests a new trial.
In support of this claim, [Appellant] brings the court’s attention to the cases of Commonwealth v. Pifer, 425 A.2d 757 (Pa. Super. 1981) and Commonwealth v. Carter, 643 A.2d 61 (Pa. 1994). We first note that the holding in Carter addressed whether an improper pretrial identification may be testified to at trial, and the steps that must be taken to sanitize it. In Pifer, however, the alleged victim of a rape identified the defendant as the perpetrator for the first time at trial. The Superior Court held that, in such a scenario, “a one-on-one identification of a defendant in the context of a judicial proceeding is inherently suggestive, [but] it is concomitantly well-settled that any taint resulting from such a viewing can be negated in certain cases. Specifically, if the prosecution establishes by clear and convincing evidence that the totality of the circumstances affecting the witness’ identification did not involve a substantial likelihood of misidentification, then the in-court identification must be deemed reliable.” Id. at 762.
When defense counsel objected after [Doyle] initially stated that he recognized [Appellant]’s eyes, the court overruled the objection. The court recognized that this testimony was unsolicited and a surprise to all parties, but those circumstances did not, in and of themselves, require the statement to be struck from the jury’s consideration. On cross-examination, defense counsel elicited testimony that showed [Doyle]’s substantial and understandable bias in this trial, as well as the fact that [Doyle] repeatedly viewed [Appellant]’s photograph on the internet. This
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strategic line of questioning no doubt immediately raised substantial concerns as to the veracity of [Doyle]’s identification. On redirect examination, the district attorney then attempted to have [Doyle] make a formal in-court identification of [Appellant] as the individual who shot his son. The court granted the defense objection prohibiting this explicit and consequential identification, based upon the inherent unreliability of such testimony as set forth in Pifer, supra. The jury was specifically instructed that the record would not reflect [Doyle]’s in-court identification of [Appellant].
Critically, the court delivered in its closing charge to the jury Pennsylvania Suggested Standard Criminal Jury Instruction 4.07(A) on identification testimony. The jury in this case was specifically instructed as follows:
1. In his testimony, David Doyle, Jr. has identified the defendant as the person who committed the crime.
2. In evaluating his testimony, you should consider the following factors in addition to the other instructions I will have provided to you for judging the testimony of witnesses:
a. Did the witness have a good opportunity and enough time to observe the perpetrator of the offense?
b. Was there enough lighting for him to make his observations?
c. Was he close enough to the individual to note his facial and other physical characteristics, as well as any clothing he was wearing?
d. Has he made a prior identification of the defendant as the perpetrator of these crimes?
e. Was his identification positive or was it qualified by any hedging or inconsistencies?
f. Did the witness identify anyone else as the perpetrator, during the course of this case?
g. How attentive was the witness during the incident?
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h. Was the witness’s focus affected by a visible weapon?
i. Was the witness under high levels of stress during the incident? If so, did this affect the witness’s ability to give an accurate identification?
j. Was the witness intoxicated at the time of the identification?
k. Did the race of the witness and the perpetrator have any bearing on the accuracy of the identification?
3. Please consider that a victim or another witness can sometimes make a mistake when trying to identify the criminal. If certain factors are present, the accuracy of identification testimony is so doubtful that you must receive it with caution.
4. Identification testimony must be received with caution:
a. if the witness did not identify the defendant as the criminal before the trial; or
b. if there are any other factors that could affect the witness’s identification of the defendant, including masks.
5. If you believe that one or more of these factors are present, then you must consider with caution David Doyle, Jr.’s testimony identifying the defendant as the person who committed the crime. If, however, you do not believe that at least one of these factors is present, then you need not receive the testimony with caution; you may treat it like any other testimony.
6. You should consider all evidence relevant to the question of who committed the crime, including the testimony of all of the witnesses. You cannot find the defendant guilty unless you are satisfied beyond a reasonable doubt by all the evidence, direct and circumstantial, not only that the crime was committed but that it was the defendant who committed it.
This instruction directly addresses [Appellant]’s concerns with [Doyle]’s identification testimony. The jury was given a series of factors to weigh when considering this testimony. Several of those factors, which may call the identification into question, existed in this case. For example, [Doyle] was purportedly high
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on fentanyl at the time of the home invasion that led to the victim’s death. Importantly, the jury was specifically instructed that, if they found th[at] certain additional circumstances existed, [Doyle]’s identification was to “so doubtful” that it had to be “received with caution.” Those additional circumstances - that [Doyle] did not identify [Appellant] prior to the trial and that the perpetrator was wearing a mask - were directly testified to by [Doyle] and were incontrovertibly present in this case. The court can thus reasonably conclude that the jury did receive [Doyle]’s identification testimony with caution as instructed. Accordingly, the jury was properly instructed as to how to weigh the identification’s inherent unreliability when deliberating upon its verdict. Additionally, the court’s ruling not to have the record reflect an in-court identification by [Doyle] was intended to provide some degree of minimization of the surprise nature of this testimony. [Appellant]’s rights to a fair trial were therefore protected and he is not entitled to a new trial.
Order, 12/28/22, at n.1. This careful analysis was a proper exercise of
discretion. Judge Bortner aptly recognized that the Commonwealth’s conduct
was blameless because it had no reason to suspect that Doyle would
spontaneously identify Appellant from the witness stand. Furthermore,
Appellant had the opportunity to cross-examine Doyle, and defense counsel
took full advantage of this opportunity by demonstrating Doyle’s bias and the
fact that Doyle repeatedly viewed Appellant’s photograph on the Internet.
Next, the court gave a detailed instruction to the jury listing the factors
it had to weigh in evaluating Doyle’s testimony. “It is well settled that the
jury is presumed to follow the trial court’s instructions.” Commonwealth v.
Lamont, 308 A.3d 304, 312 (Pa. Super. 2024). Nothing in the record rebuts
this presumption. Finally, we note that the Commonwealth presented
substantial evidence of Appellant’s guilt unrelated to Doyle’s testimony, such
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as the historical CSLI described above and testimony of other witnesses that
Appellant confessed to the murder. For these reasons, Doyle’s in-court
identification of Appellant does not entitle him to a new trial.
Judgment of sentence affirmed.
Date: 5/22/2024
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