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                                   2016 PA Super 87

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ANGEL ROMERO

                            Appellee                  No. 1480 EDA 2015


                  Appeal from the Order Entered April 17, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001465-2012


                                          *****

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

WENDY CASTRO

                            Appellee                  No. 1479 EDA 2015


                  Appeal from the Order Entered April 17, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001464-2012


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

OPINION BY LAZARUS, J.:                               FILED APRIL 19, 2016




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       The Commonwealth of Pennsylvania appeals1 from the order, entered

in the Court of Common Pleas of Philadelphia County, granting Angel

Romero’s and Wendy Castro’s (h/w) (Appellees) motions to suppress

evidence uncovered as a result of a search of Appellees’ residence located at

4745 North 2nd Street, Philadelphia.           After careful review, we reverse and

remand for trial.2

       In June 2011, Romero’s brother/Castro’s brother-in-law, Earnest

Moreno, was declared delinquent after absconding from the Diagnostic

Rehabilitation Center (DRC), a Philadelphia halfway house, while he was on

state parole. A warrant was issued for Moreno’s arrest; the warrant listed

Appellees’ address as Moreno’s most likely place of residence.           In August

2011, Parole Agent Sean Finnegan executed the arrest warrant at Appellees’

residence. Agent Finnegan, along with other members of the United States

Marshals Violent Crime Task Force, knocked on Appellees’ door and

announced their presence.          One of the Appellees answered the door and

permitted the authorities to enter the premises.              Agent Finnegan told

Appellees that he was looking for Moreno, at which point Romero told

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1
  The Commonwealth has certified in its notice of appeal that the trial court’s
order suppressing physical evidence substantially handicaps the prosecution
of this case. See Pa.R.A.P. 311(d).
2
  We have sua sponte consolidated these appeals as they are both taken
from the same suppression order and the same question is involved. See
Pa.R.A.P. 513.



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Finnegan that Moreno was not on the property.3              Agent Finnegan and the

U.S. Marshals conducted a search of the property for Moreno.               As the

authorities approached the basement, Appellees began objecting to the

search. Disregarding their objections, Finnegan proceeded to the basement.

        In the process of searching for Moreno, Agent Finnegan uncovered 61

marijuana plants growing in the basement of Appellees’ house.               Agent

Finnegan contacted the Narcotics Strike Force where a search warrant was

secured for Appellees’ residence.               The search uncovered a baggie of

marijuana, high-intensity heat lamps, a scale, Romero’s driver’s license, mail

addressed to Appellees, a food saver heat sealer, an illegally registered

silver Smith & Wesson 9 mm handgun, one silver magazine loaded with 9

mm bullets, and a box of bullets.              Romero and Castro were subsequently

charged with various drug offenses and possession of an instrument of

crime.4

        On November 21, 2012, Appellees filed identical pre-trial motions to

suppress.     In those motions, Appellees claimed that:             (1) they made

statements while in police custody without receiving a Miranda5 warning


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3
  Agent Finnegan testified that the Appellees did not say either “yes” or “no”
to the authorities’ request to search the premises of Moreno.
4
    18 Pa.C.S. § 907(a).
5
    Miranda v. Arizona, 384 U.S. 436 (1966).



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and that the statements were the product of an illegal arrest; (2) post-arrest

they were illegally searched without a warrant; (3) their prior criminal

records should not be admissible as the prior arrests did not involve

convictions of crimes of such nature relevant to the instant charges; (4)

suggestive identification evidence was the product of an illegal arrest; (5)

evidence is insufficient as matter of law to sustain the case; (6) their arrests

were illegal as officers lacked probable cause; (7) Pa.R.Crim.P. 600 rule

speedy trial rights were violated; and (8) wiretap evidence was unlawfully

obtained where the application lacked probable cause. See Angel Romero’s

Omnibus Pre-Trial Motion to Suppress, 11/21/12; Wendy Castro’s Omnibus

Pre-Trial Motion to Suppress, 11/21/12.

      On February 20, 2015, the court held a suppression hearing at which

Agent Finnegan and Romero testified.         The court found both witnesses

credible. At the conclusion of the hearing, the court issued findings of fact

on the record.    N.T. Suppression Hearing, 2/20/15, at 53.         In its final

statement at the hearing, the court noted:

      The issue before the court is whether or not the administrative
      search can be conducted under the circumstances set forth
      herein under the court’s findings and facts, specifically that
      the investigators had information that Mr. Romero – I mean Mr.
      Moreno used the property address of 4745 North 2nd Street on
      past occasions. Under these circumstances, this court finds
      that – the findings of fact both individuals are, in fact,
      credible, that the police officer did not have the expressed
      permission to search the property from the defendants, and that
      the defendants objected to the search of the actual basement of
      the property.



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N.T. Suppression Hearing, 2/20/15, at 53 (emphasis added).           The court

asked the parties to brief the issue regarding “the extent of the allowable

search under the facts and circumstances contained herein.” Id. On April

17, 2015, following further briefing by defense counsel on the stated search

issue, as well as the court’s own independent research, the court granted

Appellees’ motion to suppress. N.T. Suppression Motion, 4/17/15, at 4. The

Commonwealth filed a timely notice of appeal from the suppression order, as

well as a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.6

On July 10, 2015, the trial court issued its Rule 1925(a) opinion.

       On appeal, the Commonwealth raises the following issue for our

consideration:      Did not the lower court err in granting the motion to

suppress where officers with an arrest warrant had reasonable grounds to

believe that the residence searched was that of the suspect named on the

warrant?

       When the Commonwealth appeals from a suppression order:

       we follow a clearly defined standard of review and 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.
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6
  However, the trial court did not order the Commonwealth to file a Rule
1925(b) statement of errors complained of on appeal.



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Commonwealth v. Miller, 56 A.3d 1276, 1278-79 (Pa. Super. 2012)

(citations omitted).        While “[o]ur standard of review is restricted to

establishing whether the record supports the suppression court’s factual

findings[,] we maintain de novo review over the suppression court’s legal

conclusions.”    Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010)

(citation omitted).7

       The Commonwealth asserts that the court erred in granting Appellees’

suppression motion where police officers, who had an arrest warrant for
____________________________________________


7
  We recognize that in their written suppression motions Appellees did not
specifically challenge the validity of Agent Finnegan’s initial entry and search
of their residence pursuant to the arrest warrant secured for Moreno. See
Pa.R.Crim.P. 581(D) (a suppression motion “shall state specifically and with
particularity the evidence sought to be suppressed, the grounds for
suppression, and the facts and events in support thereof.”). It is this search
that ultimately led to their challenged arrest and subsequent search of their
residence. However, at the beginning of the suppression hearing defense
counsel clearly indicated that the agent’s original entry into Appellees’
residence, based upon the arrest warrant for Moreno, was illegal.
Accordingly, we decline to find that this issue is waived.             Compare
Commonwealth v. Quaid, 871 A.2d 246 (Pa. Super. 2005) (even though
defendant’s suppression motion should have been more specific, where
Commonwealth did not object to its content or form at hearing, where
Commonwealth was apparently on notice as to issue to be litigated, and
where it fully participated in suppression proceeding, no waiver will be
found) with Commonwealth v. Bradshaw, 471 A.2d 558, 560 (Pa. Super.
1984) (where defendant’s suppression motion did not specifically challenge
search and seizure which occurred incident to defendant’s arrest by police,
averment was lacking in specificity or particularity under Rule 581(D));
Commonwealth v. Ryan, 442 A.2d 739 (Pa. Super. 1982) (bald
statements or boilerplate allegations of illegally obtained evidence are
insufficient to trigger Commonwealth’s burden of going forward and proving
that search was legal). See generally Commonwealth v. Dixon, 997
A.2d 368 (Pa. Super. 2010) (en banc).




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Romero’s fugitive brother-in-law, had reasonable grounds to believe that the

fugitive resided at Appellees’ house.

      Where authorities have a reasonable belief that the subject of an

arrest warrant lives within a given premises, they can enter the home and

arrest the suspect without a search warrant. Commonwealth v. Muniz, 5

A.3d 345 (Pa. Super. 2010).     Compare Commonwealth v. Conception,

657 A.2d 1298 (Pa. Super. 1995) (where police listed address on arrest

warrant as possible residence of one of two fugitives, no search warrant

needed to enter third-party defendant’s apartment) with Staegald v.

United States, 451 U.S. 204, 214 (1981) (where authorities conclude

fugitive may be inside premises, but is not believed to be resident of

premises, arrest warrant for fugitive inadequate to justify search of third-

party owner’s residence).     The validity of an arrest warrant must be

assessed on the basis of the information that the officers disclosed, or had a

duty to discover and to disclose, to the issuing magistrate.    Maryland v.

Garrison, 480 U.S. 79, 85 (1987).

      In Muniz, supra, our Court was faced with an issue similar to the one

raised in this appeal.   In that case the trial court denied the defendant’s

motion to suppress drugs discovered during a search of his apartment

building for fugitives. On appeal, the defendant argued that the authorities’

belief that the fugitives resided at defendant’s Lancaster City apartment was

unreasonable because the fugitive’s approved parole address was in

Philadelphia and because the defendant’s mother testified that only she and

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the defendant lived in defendant’s apartment.     Our Court found that the

defendant’s mother’s testimony was “irrelevant to what authorities believed

on the morning of the incident.”   Id. at 351.   Moreover, where testimony

from a female at the fugitive’s previous residence, a Lexis/Nexis search

listing, and a statement from a co-resident in defendant’s building “all

corroborated the reasonable belief that [the fugitive] lived in (and could be

found in) the [defendant’s] apartment,” id., our Court affirmed the denial of

suppression.

     Instantly, Agent Finnegan testified that he believed Moreno’s residence

was 4745 North 2nd Street based upon: (1) the address listed on Moreno’s

most recent, but expired, driver’s license; (2) the address Moreno had given

to the police department when he was arrested in 2009; (3) the address

Moreno had given to the DRC in 2011 as a point of contact after being

paroled; (4) the address Moreno listed while signing out of the DRC when he

absconded in 2011; and (5) the fact that Moreno still had family living at

that address. N.T. Suppression Hearing, 2/20/15, at 11-12. Agent Finnegan

also testified that, based upon his investigation, while there may have been

other possible addresses that could be linked to Moreno, the 4745 North 2 nd

Street address seemed to be the most likely residence due to the familial

connection. Id. at 12.

     At the suppression hearing the court not only found Agent Finnegan

credible, but it also made the following findings of fact regarding his

testimony in securing Moreno’s arrest warrant:

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        According to Agent Finnegan he conducted an independent
         investigation reflecting that Moreno had absconded from the DHC;

        At the time Moreno absconded, he was on parole;

        Moreno had allegedly provided information to parole agents on the
         Parole Board that his last known address was that of Appellees’
         residence;

        Agent Finnegan’s independent research of PennDOT records show
         Moreno’s last validly issue driver’s license listing Appellees’ residence
         as last known address; and

        Moreno used Appellees’ address on DRC records and sign-out sheet on
         day he absconded.

N.T. Suppression Hearing, 2/20/15, at 48-50, 53.

         Despite   the   above-stated      findings   of   fact   and   its   credibility

determination, the court gave the following rationale,8 in its Rule 1925(a)

opinion, to support its decision to grant Appellees’ motion to suppress:


____________________________________________


8
    We note that, pursuant to Pa.R.Crim.P. 581(I):

         At the conclusion of the hearing, the judge shall enter on the
         record a statement of findings of fact and conclusions of law as
         to whether the evidence was obtained in violation of the
         defendant's rights, or in violation of these rules or any statute,
         and shall make an order granting or denying the relief sought.

Here, the trial court made findings of fact at the conclusion of the first day of
the suppression hearing, reserving the ultimate legal question of the validity
of Moreno’s arrest warrant for another day. However, even at the later
suppression hearing, the court did not state its conclusions of law on the
record, save for stating “Motion granted.”         N.T. Suppression Hearing,
4/17/15, at 40. It was not until the trial court issued its Rule 1925(a)
opinion, however, that its legal conclusions were placed on the record in
contravention of Rule 581(I).



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     Agent Finnegan, who had earlier obtained an arrest warrant for
     Moreno, believed that Moreno might be found at the North 2 nd
     Street address because Moreno provided that address to police
     when he was arrested in 2009 and to a rehabilitation center after
     being paroled. . . . The address also appeared on Moreno’s most
     recent driver’s license, which expired in 2007. . . . Agent
     Finnegan also claimed that Moreno used the 4745 North 2 nd
     Street address while signing out of his halfway house in 2011.
     However, documentation supporting this assertion was
     not produced and was not presented in evidence. . . .
     Although Agent Finnegan discovered other possible addresses for
     Moreno, he deemed the North 2nd Street address to be the most
     likely one for Moreno.

     It is suggested that this Court did not err in denying this
     motion to suppress because officers lacked reasonable
     grounds and exigent circumstances to believe that Moreno
     was present inside the residence.

     Agent Finnegan’s sole basis for entering the [Appellees’]
     residence was the address listed on Moreno’s expired
     driver’s license and because Moreno had given that
     address to authorities in 2009. The license expired in
     2007, almost five years before the search was conducted
     and Moreno last gave that address two years previously.
     No evidence was produced to show that the address was
     still valid for Moreno or that he used that address as his
     own at any time subsequent to 2009.           Further, no
     evidence was produced to show a relative of Moreno’s
     lived at the address or that Moreno had been seen in or
     about the residence . . . near the date the authorities
     entered the premises.

N.T. Trial Court Opinion, at 7/10/15, 3-4, 6-7 (emphasis added).

     The trial court granted Appellees’ suppression motion based on its

opinion that evidence to support Agent Finnegan’s arrest warrant for Moreno

at Appellees’ residence was stale and also because the Commonwealth failed

to produce DRC records and any documented evidence showing a family

relationship between Moreno and Romero. The court essentially concluded


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that Agent Finnegan’s belief that Moreno’s last known address was

Appellees’ residence was not reasonable.     Therefore, anything that flowed

from the authorities’ initial illegal entry and search of Appellees’ residence

was, also, unlawful.    We find the suppression court’s legal conclusions

erroneous.

      None of the facts listed above from the suppression hearing, which

contributed to securing the arrest warrant for Moreno, were contradicted by

Romero at the suppression hearing. Miller, supra. Accordingly, we must

consider those facts on appeal and are bound by them because they are

supported in the record. Id. Our de novo review of the trial court’s legal

conclusions, based upon these supported facts, lead us to conclude that

suppression was improper. Brown, supra.

      This is not a case where the Commonwealth simply sat on its hands at

the suppression hearing. Cf. Commonwealth v. Enimpah, 62 A.3d 1028

(Pa. Super. 2013), aff’d, 106 A.3d 695 (Pa. 2014) (where Commonwealth’s

attorney refused to call defendant’s arresting officer or present any

evidence, arguing that defendant had initial burden of proof to show

reasonable expectation of privacy in seized contraband or searched car,

suppression was proper). The Commonwealth offered Agent Finnegan as a

witness to testify about his investigation into and the evidence found to

support his belief that 4745 North 2nd Street was Moreno’s last known

address.     He presented documented evidence of Moreno’s expired 2007


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license listing Appellees’ address, as well as proof that Moreno furnished

Appellees’ address to the Philadelphia Police Department in 2009 when he

was arrested in the instant matter for which he was on parole. The agent

also testified, and the court found as facts at the suppression hearing, that

Moreno had listed Appellees’ residence on his 2011 DRC sign-out sheet and

also listed it as his address in DRC records.

      Agent Finnegan’s testimony, supporting his belief that 4745 North 2 nd

Street was Moreno’s most likely last place of residence, is as strong as the

evidence that the police had in Muniz to believe that the fugitive in that

case lived at the defendant’s residence.         Moreover, Romero’s suppression

hearing testimony that Moreno had not spoken to him in over 15 years, did

not receive mail at Romero’s address, and did not associate with Romero, is

irrelevant to what Agent Finnegan’s good faith belief was at the time he

prepared and executed the arrest warrant for Moreno at Appellees’

residence. Muniz, 5 A.3d at 351-52.

      Accordingly,   we    find   the     Commonwealth      established,   by   a

preponderance of the evidence, that Agent Finnegan reasonably believed

that Moreno’s last place of address was Appellees’ home. Commonwealth

v. Bonasorte, 486 A.2d 1361 (Pa. Super. 1984) (Commonwealth’s burden

of proof at suppression hearing is “by a preponderance of the evidence.”);

see also Commonwealth v. Jury, 636 A.2d 164, 169 n.5 (Pa. Super.

1993) (Commonwealth’s burden of proof at suppression hearing has been


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defined as “the burden of producing satisfactory evidence of a particular fact

in issue; and . . . the burden of persuading the trier of fact that the fact

alleged is indeed true.”).

       Because the arrest warrant for Moreno was valid, the authorities had

the legal basis to enter Appellees’ residence without a search warrant,

despite the fact that Moreno was not inside the home.         Muniz, supra;

Conception, supra. Therefore, the entry of the residence did not violate

Appellees’ Fourth Amendment rights and the court improperly suppressed

the evidence uncovered during the search of Appellees’ residence. 9

       Order reversed. Case remanded for trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2016




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9
 We note that the validity of the subsequent search warrant secured by the
Narcotic’s Strike Force for Appellees’ home is not argued on appeal.



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