Com. v. Heidelberg, C.

J-E02007-21

                                   

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CAL HEIDELBERG                             :
                                               :
                       Appellant               :   No. 1342 WDA 2019

       Appeal from the Judgment of Sentence Entered August 20, 2019
                 In the Court of Common Pleas of Erie County
                 Criminal Division at CP-25-CR-0002293-2018


BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
        J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.

OPINION BY MURRAY, J.:                             FILED: NOVEMBER 23, 2021

       Cal Heidelberg (Appellant) appeals pro se from the judgment of

sentence imposed after a jury found him guilty of four counts of possession of

a controlled substance, as well as one count each of firearms not to be carried

without a license, possession with intent to deliver a controlled substance,

possession of a small amount of marijuana, and possession of drug

paraphernalia.1      Appellant challenges the lawfulness of his arrest and the

denial of his motion to suppress contraband recovered from his vehicle

following the arrest. After careful consideration, we affirm.

       On August 11, 2018, Erie Police Department Corporal James Langdon

(Corporal Langdon), while on foot patrol, saw Appellant seated in the driver’s


____________________________________________


1 35 P.S. § 780-113(a)(16); 18 Pa.C.S.A. § 6106(a)(1); 35 P.S. §§ 780-
113(a)(30), (31) and (32).
J-E02007-21


seat of a green BMW parked on West 19th Street. N.T. (suppression hearing),

1/28/19, at 8. Corporal Langdon was familiar with Appellant and his BMW

from a prior drug arrest. Id. at 8-9, 15. Corporal Langdon radioed police

dispatch and relayed Appellant’s name and the license plate number of the

vehicle to check for any active warrants for Appellant. Id. at 9. Dispatch

checked the National Crime Information Center (NCIC) database 2 and

informed Corporal Langdon that Appellant had an “active Erie County arrest

warrant,” and confirmed the BMW was registered to Appellant. Id.

       As Corporal Langdon approached the BMW, Appellant exited the vehicle

and walked to the front porch of his cousin’s nearby house. Id. Corporal

Langdon followed Appellant and asked him “to identify himself, which he did.”

Id.   Corporal Langdon radioed the information to dispatch.                 Id.   Dispatch

“confirmed the warrant” and sent additional officers to the scene. Id.

       Shortly   thereafter,     Corporal      Curtis   Waite   (Corporal    Waite)   and

Patrolman Daniel Post (Patrolman Post) arrived. Id. 21-22, 36. The officers

placed Appellant under arrest; he was placed in handcuffs, walked to a police

cruiser, and seated in the back. Id. at 10, 22, 36.

       Corporal Langdon observed the BMW’s “windows were down, [and] I

believe [the] sunroof was open.” Id. at 17. Appellant indicated to Corporal


____________________________________________


2 NCIC is a computerized database comprised of information (including names
of individuals with active arrest warrants) available to federal, state, and local
law enforcement.


                                            -2-
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Langdon that he did not want anyone to go near or touch his vehicle. Id. at

10. However, Corporal Waite and Patrolman Post had “already” approached

the vehicle to secure it. Id. at 10, 43. Corporal Waite explained:

            We saw that his driver’s side window was halfway down. It’s
      our responsibility as police officers and it’s in our policy that we
      are responsible for the vehicle, so we were going to secure the
      vehicle and make sure it was legally parked.

Id. at 37.

      On cross-examination, he reiterated:

            It’s our responsibility to make sure your vehicle is secured.
      That way if it’s not secured, if anybody does anything to your
      vehicle, takes anything out of your vehicle, we are responsible.
      You are in our custody, therefore, we are responsible for your
      vehicle. So we went to go secure your vehicle. Your window was
      halfway down and it was illegally parked.

Id. at 43.

      Corporal Waite further testified, “on the driver’s side driver’s seat, we

s[aw] a clear bag with suspected crack [cocaine] in it.” Id. at 37. Corporal

Waite opened the door and removed the bag. Id.; see also id. (stating “the

door was open”). Corporal Waite also “saw, in plain view on the ash tray,

there were two more bags of suspected crack cocaine.” Id. After removing

the suspected crack cocaine, the officers “secured the vehicle, and it was

towed to the city garage.” Id.

      Patrolman Post’s testimony was consistent with Corporal Waite’s

testimony.   Patrolman Post stated, “we went to secure [Appellant’s] 1997

green BMW, and as we walked over, the window was halfway down. In plain


                                     -3-
J-E02007-21


view, you could see a bag of suspected crack on the driver’s seat and two

more bags of suspected crack in the cup holder.” Id. at 22. Patrolman Post

testified that after the officers removed the bags that appeared to contain

crack cocaine, “we shut the car door, and we transported [Appellant] back to

the station. We called for a tow for his vehicle so it could be towed to the city

garage.” Id. at 22-23.

       At the same time, Corporal Waite and Patrolman Post applied for a

warrant to search Appellant’s vehicle. Id. at 23-24, 37-38. Corporal Waite

completed an affidavit of probable cause.3        A Magisterial District Judge

approved and signed the search warrant the same day, and delivered the

warrant to police by fax. Id. at 24, 38, 41. When the warrant was executed,

police recovered additional crack cocaine, a small amount of marijuana, and

drug paraphernalia. Id. at 25, 39. They also found a handgun. Id.

       The Commonwealth charged Appellant with various drug and firearm

offenses, and the trial court appointed counsel for Appellant. Appellant asked

to proceed pro se. On October 30, 2018, following a Grazier4 hearing, the

court granted Appellant’s request and appointed standby counsel.




____________________________________________


3The search warrant and attached affidavit of probable cause was admitted
as Commonwealth Exhibit 1. Id. at 24. The affidavit alleged probable cause
based on the officers’ plain view observations of suspected crack cocaine.

4   Commonwealth v. Grazier, 

 (Pa. 1998).

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      On November 29, 2018, Appellant filed a pro se omnibus pretrial motion

(OPT motion) and petition for writ of habeas corpus. The trial court denied

the petition for writ of habeas corpus. In the OPT motion, Appellant argued,

inter alia, that his arrest was unlawful and not supported by probable cause,

and therefore, “all items which are obtained from this illegal search [must] be

suppressed, [as being] fruits of a poisonous tree.” OPT Motion, 11/29/18, at

2. The court held a suppression hearing at which Appellant, Corporal Langdon,

Corporal Waite, and Patrolman Post testified. By order entered January 30,

2019, the court denied Appellant’s motion to suppress, summarily finding:

“[Appellant’s] arrest, pursuant to an outstanding sheriff’s warrant, and

subsequent search of his vehicle, are legal,” and “the [c]ourt finds that the

evidence was obtained legally.” Order, 1/30/19, at 1.

      The case proceeded to trial, and a jury convicted Appellant of the

aforementioned offenses.    On August 20, 2019, the trial court sentenced

Appellant to an aggregate 6 to 11 years’ imprisonment, followed by 1 year of

probation. Appellant did not file post-sentence motions.

      Appellant timely filed a pro se notice of appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) concise statement. The trial court issued a one

page, two paragraph Rule 1925(a) opinion. Without addressing Appellant’s

“multiple reasons” for appealing, the court incorporated its January 30, 2019




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order and recommended the appeal be dismissed.5 Memorandum Opinion,

9/17/19.

       Appellant presents four issues for our consideration:

       1. Did the trial court abuse its discretion in denying Appellant’s
          motion to suppress and that police had no grounds to detain or
          question Appellant where police believed that Appellant had a
          Sheriff’s warrant for his arrest was based [sic] on false
          information, the fruits of the illegal arrest and search should
          have been suppressed as required by the Fourth Amendment
          of the United States Constitution and Article I Section 8 of the
          Pennsylvania Constitution?

       2. Did the trial court abuse its discretion in denying Appellant’s
          motion to suppress when the visual contact between Magistrate
          and Affiant required under Pa.R.Crim.P. 203(c), where the
          Affiant who sought the warrant via - advanced communication
          technology rather than in person was missing, given that the
          warrant was procured by telephone and/or fax only?

       3. Did the trial court abuse its discretion in denying Appellant’s
          Motion to Suppress where the actual search warrant,
          affidavit(s) and inventory of the items seized were never filed
          with the Cl[e]rk of Courts as required by Pa.R.Crim.P. 210?

       4. Did the trial court abuse its discretion in denying Appellant’s
          Motion to Suppress where the trial court did not consider the
____________________________________________


5  The “Rules of Appellate Procedure make the filing of a 1925(a) opinion
mandatory and the Rule 1925(a) opinion must set forth the reasons for the
rulings of the trial judge or must specify in writing the place in the record
where the reasons may be found.” Commonwealth v. Hood, 

,
178 (Pa. Super. 2005). “It is incumbent upon a trial court to provide this
Court with its Rule 1925(a) opinion addressing an appellant’s issues, with
citation to the record, to permit a meaningful and effective review of the issues
raised and efficient use of judicial resources.” Commonwealth v. Widger,

, 1165 n.5 (Pa. Super. 2020); but see also 

 (“Although we
do not approve of or sanction the trial court’s failure to comply with its
obligations under Rule 1925(a), the lack of a Rule 1925(a) opinion does not
preclude this Court’s review of the merits of [a]ppellant’s issues based upon
our review of the record, including the notes of testimony[.]”).

                                           -6-
J-E02007-21


         cumulative effect of all the violations taken together, which
         would have been fatal to the warrant itself?

Appellant’s Brief at ii (brackets omitted).

      In reviewing these issues, it is well settled:

            Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record. Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Bumbarger, 

, 15 (Pa. Super. 2020) (citation

and ellipses omitted). Our scope of review is limited to the evidence presented

at the suppression hearing. Commonwealth v. Bellamy, 

, 663

(Pa. Super. 2021). With respect to a suppression court’s factual findings, “it

is the sole province of the suppression court to weigh the credibility of the

witnesses. Further, the suppression court judge is entitled to believe all, part

or none of the evidence presented.” Commonwealth v. Caple, 

, 516-17 (Pa. Super. 2015) (citation omitted).

      At a suppression hearing, “the Commonwealth has the burden of

establishing by a preponderance of the evidence that the evidence was

properly obtained.” Commonwealth v. Galendez, 

, 1046 (Pa.

Super. 2011) (en banc) (citation, quotation marks, and brackets omitted);

see also Pa.R.Crim.P. 581(H) (at a suppression hearing, the Commonwealth


                                      -7-
J-E02007-21


“shall have the burden . . . of establishing that the challenged evidence was

not obtained in violation of the defendant’s rights.”). The preponderance of

the evidence is “the lowest burden of proof in the administration of justice,

and it is defined as the greater weight of the evidence, i.e., to tip a scale

slightly in one’s favor.” Commonwealth v. Ortega, 

, 886 n.3

(Pa. Super. 2010).

      Appellant first argues his arrest was unlawful (and the trial court abused

its discretion in failing to suppress the contraband recovered from his vehicle)

because the Commonwealth failed to prove the existence of a valid arrest

warrant.     Appellant’s   Brief   at   10,   15.   Appellant   emphasizes    the

Commonwealth did not produce the arrest warrant at the suppression hearing,

and asserts “there is nothing in the record that reflects proof positive an active

Sheriff’s warrant ever existed[.]” Id. at 12. Alternatively, Appellant contends

that even if there was a valid arrest warrant, his arrest for the new charges

with respect to the contraband in his vehicle was unlawful and unsupported

by probable cause. Id. at 14-15.

      The Commonwealth counters:

      Given the circumstances, and the information provided to Corporal
      Langdon, the trial court had enough information to find Corporal
      Langdon properly relied upon dispatch’s representation of
      information and that the information conveyed was from a reliable
      source.     Thus, the arrest is proper, even though the
      Commonwealth did not produce the warrant.

Commonwealth Substitute Brief at 6-7.




                                        -8-
J-E02007-21


      A lawful arrest must be supported by probable cause. Commonwealth

v. Smith, 

, 10 (Pa. 2003); see also Commonwealth v. Clark,

, 1251 (Pa. 1999) (describing circumstances whereby police

may effectuate a warrantless arrest). In determining whether probable cause

exists, we examine the totality of the circumstances. See Commonwealth

v. Martin, 

, 721 (Pa. 2014). When an officer effectuates an

unlawful arrest, “any evidence seized during a search incident to the arrest

must be suppressed. Consequently, the propriety of a search depends upon

the validity of the arrest.” Clark, 735 A.2d at 1251 (citation omitted). The

remedy for illegal searches and seizures is exclusion of the evidence.

Commonwealth v. Johnson, 

, 187 (Pa. 2014).

      This Court recently examined a scenario similar to the one in this case

in Bumbarger, 231 A.3d at 10. A police officer, Trooper Murarik, was driving

his police cruiser when he noticed a white Chevy Impala, driven by the

appellant, pass in the opposite direction.   Id. at 13. Trooper Murarik had

previous experience with appellant, who was a known drug user, and knew he

drove a white Chevy Impala. Id. Trooper Murarik and other officers were

alerted to be on the lookout for a white Chevy Impala driven by appellant, as

there was an outstanding warrant for his arrest.     Id. at 13, 17.    Trooper

Murarik turned his cruiser around, began following appellant’s vehicle, and ran

appellant’s registration number through NCIC. Id. at 16. NCIC indicated the

white Impala was registered to appellant and there was an active warrant for


                                     -9-
J-E02007-21


his arrest from the State of Colorado “with full extradition.”   Id.   Trooper

Murarik stopped appellant’s vehicle and confirmed appellant was the driver.

Id. He asked appellant to exit the vehicle and placed him in custody based

on the arrest warrant. Id. at 14. Trooper Murarik then approached the front

passenger side of the vehicle, where a woman was seated. Id. The woman,

a known drug user, appeared intoxicated. Id. Trooper Murarik asked her to

exit the vehicle. Id. When she exited, Trooper Murarik saw, in plain view,

two unsecured hypodermic syringes partway under the front passenger seat.

Id. Trooper Murarik then conducted a warrantless search of the vehicle and

found numerous narcotics as well as a handgun on the rear seat. Id.

     The appellant in Bumbarger filed a pretrial motion to suppress,

asserting the contraband was the product of an unlawful arrest and search.

Id. at 13, 14. The appellant argued, inter alia, that the arrest warrant was

not valid, and thus Trooper Murarik lacked authority to stop and arrest him.

Id. at 15.    Following the denial of appellant’s suppression motion, and

conviction of drug and gun charges, appellant appealed. Id. at 14.

     This Court upheld the denial of suppression, reasoning:

     [T]here was no dispute that on April 1, 2018, N.C.I.C. alerted
     Trooper Murarik to an outstanding, active arrest warrant for
     appellant. Because of his prior involvement with appellant,
     Trooper Murarik was familiar with appellant and his vehicle. The
     driver of the vehicle resembled appellant.       The registration
     reflected that the white Chevy Impala was registered to appellant.
     Thus, Trooper Murarik had probable cause to stop appellant’s
     vehicle and arrest appellant. As this Court has explained:




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J-E02007-21


          We have previously held that the information
          contained in a[n] N.C.I.C. report is so inherently
          reliable that such information is, in and of itself,
          sufficient to form the basis of a finding of probable
          cause for a police officer who receives such information
          from an N.C.I.C. report to make an on the spot arrest.

      Commonwealth v. Cotton, 

, 264-65 (Pa. Super.
      1999) [(emphasis added) (holding arresting officer’s reliance on
      hearsay information gathered from NCIC report, broadcasted over
      police radio by dispatch, that appellant was wanted pursuant to
      two bench warrants was sufficient for probable cause to arrest)]
      (citing Commonwealth v. Feflie, 

, 642 (Pa. Super.
      1990)); see also Commonwealth v. Bolton, 

, 736
      (Pa. Super. 2003) (“This Court has consistently found that a report
      from the [N.C.I.C.] is sufficient to form reasonable and articulable
      grounds, i.e., probable cause, that a crime is being committed or
      has been committed.”)          Thus, Trooper Murarik’s stop and
      subsequent arrest of appellant on April 1, 2018, was lawful.

Bumbarger, 231 A.3d at 16 (citations modified); see also id. at 17 (“any

argument that Trooper Murarik erred by ‘assuming’ that the warrant was valid

and therefore lacked authority to stop [appellant] is meritless.”).

      We find Bumbarger analogous. Appellant points out that unlike this

situation, where Corporal Langdon was on foot patrol and advised by radio

dispatch of the NCIC information, the officer in Bumbarger personally used

his police cruiser computer to check NCIC. See Appellant’s Supplemental Brief

at 1-2. The distinction is not meaningful. This Court has held:

      An arresting officer, in executing a valid arrest, may rely upon
      radio broadcasts emanating from police facilities provided,
      however, that the arresting officer has been either (1) ordered or
      directed to perform the arrest by an officer in possession of facts
      justifying the arrest; (2) received information justifying
      arrest; or (3) heard information which, coupled with facts he
      personally observed, provided probable cause to arrest.


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J-E02007-21


Commonwealth v. Evans, 

, 388 (Pa. Super. 1985) (emphasis

added); see also 

 (where arresting officer was informed by radio dispatch

that an NCIC check revealed appellant’s vehicle was stolen and used in a

criminal act and occupants were armed, the information was sufficient in and

of itself to justify the warrantless arrest of appellant). We have stated, “[t]he

fact that [an] arrest was made by police officer who had knowledge of the

arrest warrant, but did not have physical possession of it at time of arrest

would not affect its validity.” Commonwealth v. Blakney, 

, 7

(Pa. Super. 1978) (citing Commonwealth v. Gladfelter, 

, 519

(Pa. Super. 1974)).

       Here, both Corporal Langdon and Corporal Waite testified that Erie

police dispatch, a reliable source, confirmed the existence of an Erie County

sheriff’s warrant for Appellant’s arrest. See N.T., 1/28/19, at 9, 36.6 The

suppression court credited this testimony, which we may not disturb,

regardless of whether the arrest warrant was produced at the suppression

hearing. See Cotton, 

 (“The suppression court found [the

arresting officer’s] testimony that he was relying on the N.C.I.C. report of the

bench warrants[, relayed by the police dispatcher,] at the time of arrest, as



____________________________________________


6 Further, Appellant’s identity was not in question. Appellant gave, i.e.,
confirmed, his name and date of birth to Corporal Langdon, who was familiar
with Appellant and his vehicle. See N.T., 1/28/19, at 9 (Corporal Langdon
testifying he “informed dispatch that I had made contact with Cal. I asked
Cal to identify himself, which he did[.]”).

                                          - 12 -
J-E02007-21


well as his testimony that the bench warrants themselves were valid, to be

credible.    Since evaluating the credibility of the witnesses is the

exclusive province of the factfinder in a suppression hearing, we are

compelled to affirm the suppression court’s factual determination and

conclude that it properly denied appellant’s suppression motion.” (emphasis

added; citation omitted)); see also 

 (noting “Commonwealth did

not produce the [bench] warrants at [the] suppression hearing.”

(emphasis added)); see also Bumbarger, 231 A.3d at 15-16.

       Although the Commonwealth did not produce absolute proof of the

existence of the arrest warrant, we ascertain no abuse of the trial court’s

discretion in finding it was more probable than not that a valid warrant

existed from the evidence adduced at the suppression hearing.           See

Commonwealth v. Murray, 

, at *7-8 (Pa. Super. 2019)

(unpublished memorandum)7 (employing similar language under similar

facts); but see also 

 at *8 n.4 (where arresting officer testified at

suppression hearing that another officer (who did not testify at suppression

hearing) verbally advised that NCIC database revealed there was an active

warrant for defendant’s arrest, and the suppression court “relied on [the


____________________________________________


7Contrary to the Commonwealth’s argument, citation to the non-precedential
Murray decision is not improper. See Petition for En Banc Review, 9/25/20,
at 1-2. The Rules of Appellate Procedure provide that non-precedential
decisions of this Court filed after May 1, 2019 “may be cited for their
persuasive value.” Pa.R.A.P. 126(b); see also Commonwealth v. Finnecy,

, 910 n.9 (Pa. 2021). Murray was filed on December 16, 2019.

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arresting officer’s] testimony in conjunction with” the arrest warrant that the

Commonwealth produced at suppression hearing, stating: “We do not suggest

by our decision today that we would reach the same conclusion had the

Commonwealth failed to produce a warrant at the suppression hearing[.]”).

      Based on the foregoing, we conclude the Commonwealth met its burden

of proving by a preponderance of the evidence that a valid arrest warrant for

Appellant existed.   Thus, the suppression court properly found, under the

totality of the circumstances, that the police officers had probable cause to

arrest him.

      We next consider whether the police lawfully obtained the contraband

in Appellant’s vehicle.     “Both the Fourth Amendment of the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution

guarantee     individuals    freedom     from   unreasonable   searches    and

seizures.” Commonwealth v. Newsome, 

, 1154 (Pa. Super.

2017). As a general rule, “a warrant stating probable cause is required before

a police officer may search for or seize evidence.”       Commonwealth v.

Anderson, 

, 1248 (Pa. Super. 2012). “Absent the application

of one of a few clearly delineated exceptions, a warrantless search or seizure

is presumptively unreasonable.” Commonwealth v. Whitlock, 

,

637 (Pa. Super. 2013).




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       Notably, the Pennsylvania Supreme Court recently announced a new

rule of criminal law mandating probable cause and exigent circumstances8

for a warrantless search of an automobile.                   See Commonwealth v.

Alexander,      

,    181    (Pa.   Dec.    22,   2020)   (overruling

Commonwealth v. Gary, 

 (Pa. 2014) (adopting federal

“automobile exception” to the warrant requirement and holding police may

conduct a warrantless vehicle search based solely on probable cause, with no

exigency required beyond the inherent mobility of a motor vehicle)).

       However, we have held that appellants are not automatically entitled

to retroactive application of the Alexander decision (which was decided

during the pendency of this appeal). See Commonwealth v. Grooms, 

, 37 n.8 (Pa. Super. 2021). We explained:

       The decision in Alexander, supra, overruling Gary, announced a
       new criminal rule. When a United States Supreme Court decision
       “results in a ‘new rule,’ that rule applies to all criminal cases still
       pending on direct review.” Schriro v. Summerlin, 

,
       351 (2004) (citing Griffith v. Kentucky, 

, 328
       (1987)). “Case law is clear, however, that in order for a new rule
       of law to apply retroactively to a case pending on direct appeal,
       the issue had to be preserved at ‘all stages of adjudication up
____________________________________________


8 “[T]here is no definition of exigency that will apply to all scenarios; however,
the basic formulation of exigencies recognizes that in some circumstances the
exigencies of the situation make the needs of law enforcement so compelling
that the warrantless search is objectively reasonable under the Fourth
Amendment.” Commonwealth v. Shaw, 

, 886 (Pa. Super.
2021) (citation omitted); see also Commonwealth v. Lee, 

, 5
(Pa. Super. 2009) (Exigent circumstances may arise where “the need for
prompt police action is imperative, either because the evidence sought to be
preserved is likely to be destroyed or secreted from investigation, or because
the officer must protect himself from danger[.]” (citation omitted)).

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      to and including the direct appeal.’” Commonwealth v. Tilley,
      

, 652 (Pa. 2001) ([emphasis added;] citation
      omitted); see also Commonwealth v. Newman, 

,
      90 (Pa. Super. 2014) (en banc) (“To be entitled to retroactive
      application of a new constitutional rule, a defendant must have
      raised and preserved the issue in the court below.”). Appellant
      here did not challenge the Gary automobile exception. Thus, to
      the extent relevant to the disposition of this appeal, and consistent
      with Tilley and Newman, appellant cannot rely on Alexander to
      challenge the warrantless search of his vehicle.

Grooms, 247 A.3d at 37 n.8 (citations modified). Further:

      Because appellant did not contest the application of the
      automobile exception announced in Gary, which now has been
      overruled by Alexander, he logically had no occasion to address
      whether exigent circumstances existed to justify the officers’
      judgment that obtaining a warrant was not reasonably practicable.
      Thus, because appellant did not raise the issue of exigency before
      the trial court or in his Rule 1925(b) statement, the issue is
      waived. See Commonwealth v. Hill, 

, 492 (Pa.
      2011) (citing Commonwealth v. Lord, 

, 309 (Pa.
      1998)); Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the
      Statement and/or not raised in accordance with the provisions of
      this paragraph (b)(4) are waived.”); see also Pa.R.A.P. 302(a)
      (“Issues not raised in the lower court are waived and cannot be
      raised for the first time on appeal.”).

Grooms, 247 A.3d at 37 n.9 (citations modified).

      Here, as in Grooms, Appellant did not preserve a challenge to the

application of the automobile exception and the existence of exigent

circumstances because he never raised the issue with the trial court or in his

Pa.R.A.P. 1925(b) concise statement.       Moreover, Appellant has not cited

Alexander in his appellate briefs, which he filed months after Alexander was

decided. Accordingly, we do not apply Alexander. See Grooms, 247 A.3d

at 37 n.9; see also Commonwealth v. Aursby, 2021 Pa. Super. Unpub.


                                     - 16 -
J-E02007-

, at *16, 

, at *6 (Pa. Super. July 7, 2021)

(unpublished memorandum) (declining to apply Alexander, pursuant to

Grooms, where appellant failed to raise and preserve the issue); cf.

Commonwealth v. Lowe, 

, at *12-13,

, at *5 (Pa. Super. July 30, 2021) (unpublished

memorandum) (finding appellant “sufficiently preserved his challenge to the

exigency requirement before the suppression court,” and remanding for

further proceedings where development of record was necessary to decide

appellant’s suppression claim in light of Alexander).

      Next, we consider whether the initial search of Appellant’s vehicle met

an established exception to the warrant requirement. As described above,

Corporal Waite and Patrolman Post walked to Appellant’s nearby vehicle after

Appellant was placed under arrest.     See N.T., 1/28/19, at 22, 36.     Their

actions were based on Appellant being in custody and their responsibility for

securing his vehicle. See id. at 36-37, 42-43. The driver’s side window was

down and the vehicle was parked illegally. Id. at 37, 43. The officers saw, in

plain view, clear plastic bags containing suspected crack cocaine. Id. at 22

(Patrolman Post stating: “In plain view, you could see a bag of suspected crack

on the driver’s seat and two more bags of suspected crack in the cup holder.”

(emphasis added)); id. at 37 (Corporal Waite stating that in addition to seeing

suspected crack cocaine on the driver’s seat, he “saw, in plain view on the ash

tray, there were two more bags of suspected crack cocaine.” (emphasis


                                    - 17 -
J-E02007-21


added)). The officers retrieved the bags in plain view and called for a tow

truck. Id. at 22-23, 37.

      The Commonwealth argues the “plain view” exception to the warrant

requirement.   See Commonwealth v. McCree, 

, 627 (Pa.

2007); see also Petition for En Banc Review, 9/25/20, at 8-10. We have

explained:

      The plain-view doctrine permits the warrantless seizure of an
      object when: (1) an officer views the object from a lawful vantage
      point; (2) it is immediately apparent to him that the object is
      incriminating; and (3) the officer has a lawful right of access to
      the object. There can be no reasonable expectation of privacy in
      an object that is in plain view. To judge whether the incriminating
      nature of an object was immediately apparent to the police officer,
      reviewing courts must consider the totality of the circumstances.
      In viewing the totality of the circumstances, the officer’s training
      and experience should be considered.

Bumbarger, 231 A.3d at 19 (citations omitted); see also Commonwealth

v. Liddie, 

, 236 (Pa. Super. 2011) (en banc) (“An officer can

never be one hundred percent certain that a substance in plain view is

incriminating, but his belief must be supported by probable cause.” (citation

omitted)). Further, “inherent in the plain view doctrine is the principle the

seized object must not have been put in plain view as a result of unlawful

police conduct.” Commonwealth v. Jeffries, 

, 918 (Pa. 1973);

see also Texas v. Brown, 

, 737 (1983) (the “question of

whether property in plain view of the police may be seized [] must turn on the

legality of the intrusion that enables them to perceive and physically seize the

property in question.”).

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J-E02007-21


      We conclude the Commonwealth met the first requirement of the plain

view test, as the officers viewed the bags that appeared to contain crack

cocaine from a lawful vantage point. After they lawfully arrested Appellant,

the officers acted reasonably to secure his vehicle, when they plainly saw,

through the open driver’s side window, clear bags of what appeared to be

crack cocaine on the driver’s seat and center console (the officers also

determined the vehicle was parked illegally).       Thus, Appellant lacked a

reasonable expectation of privacy in the objects left in plain view.

      Under the second plain view requirement, the incriminating nature of

the clear bags was immediately apparent to the police. Corporal Waite, who

had been a police officer for 15 years, unequivocally described seeing “a clear

bag with suspected crack.” See N.T., 1/28/19, at 35, 37. Patrolman Post

corroborated Corporal Waite’s testimony.      See id. at 22.     Also, Corporal

Langdon testified to “knowing who” Appellant was because of “prior

involvement with [Appellant] including an arrest of drugs during a traffic stop

involving the same vehicle.”     Id. at 14-15.    Under the totality of these

circumstances, including the      officers’ experience   and familiarity with

Appellant’s criminal history, the incriminating nature of the bags of cocaine

was immediately apparent. See, e.g., Liddie, 

 (incriminating

nature of suspected crack cocaine police saw inside defendant’s vehicle, by

looking through a side window, was immediately apparent to arresting officer




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J-E02007-21


under totality of circumstances, including officer’s 21 years of police

experience and familiarity with drugs).

      Finally, turning to the third plain view requirement of “lawful right of

access,” “where police officers observe incriminating-looking contraband in

plain view in a vehicle from a lawful vantage-point, the lack of advance notice

and opportunity to obtain a warrant provides the officers with a lawful right of

access to seize the object in question.” Commonwealth v. Miller, 

, 429 (Pa. Super. 2012) (quoting Commonwealth v. Brown, 

, 557 (Pa. Super. 2011) (en banc)). Here, the officers had a lawful right

of access to the vehicle where Appellant was under arrest, and in securing his

vehicle, they had no advance notice and opportunity to obtain a warrant with

respect to the bags they observed on the driver’s seat and console of the

vehicle.   See, e.g., Miller, 

 (holding police officer’s

warrantless seizure of beer bottles from inside appellant’s vehicle was lawful

under plain view exception where incriminating nature of bottles was

immediately apparent and officer lacked advance notice and an opportunity to

obtain warrant before commencing search); Bumbarger, supra.

      Also, even if the requirements of the plain view exception were not met,

the bags of crack cocaine would have been lawfully — and inevitably —

discovered during an inventory search of Appellant’s vehicle. The “inevitable

discovery” doctrine provides:

      Evidence which would have been discovered was sufficiently
      purged of the original illegality to allow admission of the evidence.

                                     - 20 -
J-E02007-21


       Implicit in this doctrine is the fact that the evidence would have
       been discovered despite the initial illegality.        Evidence is
       admissible under this doctrine where the Commonwealth
       demonstrates by a preponderance of the evidence that the
       illegally obtained evidence inevitably would have been discovered
       through lawful means.

Anderson, 

1249 n.6 (citations, ellipses and brackets omitted).

       Here, Appellant’s vehicle was illegally parked on a city street and the

driver’s side window was down. See N.T., 1/28/19, at 22, 37, 43. The officers

removed the clear bags in plain view, but then “shut the door” and “secured

the vehicle”; they also “called for another officer [who] was going to stand by”

until the tow truck arrived to take the vehicle to the city garage. 

 at 22-

23, 37.9 Under these circumstances, the impoundment of the vehicle at the

city garage would have led to an inventory of the vehicle’s contents. See

e.g., South Dakota v. Opperman, 

, 368-69 (1976) (“Police . .

. frequently remove and impound automobiles which violate parking

ordinances and which thereby jeopardize both the public safety and the

efficient movement of vehicular traffic. The authority of police to seize and

remove from the streets vehicles impeding traffic or threatening public safety

and convenience is beyond challenge.”); accord Commonwealth v.

Hennigan, 

, 255 (Pa. Super. 2000) (recognizing community



____________________________________________


9 Corporal Waite explained: “We called for another officer, I believe Officer
Rhoades. He was going to stand by. Corporal Langdon was doing the [foot]
patrol. We were going to take [Appellant] down to the police station[.]” N.T.,
1/28/19, at 37.

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J-E02007-21


caretaking function and explaining warrantless inventory searches of

impounded vehicles). Thus, police would have inevitably discovered the bags

of crack cocaine. See, e.g., Commonwealth v. Bailey, 

, 863

(Pa. Super. 2009) (“[B]ecause the police conduct routine inventory searches

whenever a car is towed, and an inventory search includes looking into obvious

storage places . . . the gun would have inevitably been discovered absent

police error or misconduct.”); see also Commonwealth v. Parker, 

 at *19-20 (Pa. Super. Jan. 27, 2021) (unpublished memorandum) (citing

Bailey and applying inevitable discovery doctrine to hold that even if officer’s

warrantless search of appellant’s vehicle was unlawful, the illegally obtained

evidence inevitably would have been discovered by an inventory search

pursuant to a lawful impoundment and towing of the vehicle); see also 

 at

*20 n.2 (“Similarly, to the extent that the officer’s warrantless search could

be viewed as not justified by an exigency under our Supreme Court’s recent

decision in Alexander, 

, because the car was to be impounded

and towed, the evidence would have been inevitably discovered.” (citation

modified)). Accordingly, the suppression court did not abuse its discretion.

      In Appellant’s second and third issues, which are related, he argues the

search warrant was technically defective because the Commonwealth failed to

comply with Rules of Criminal Procedure, and thus the contraband discovered

during execution of the search warrant should have been suppressed. See

Appellant’s Brief at 20-23. In sum, Appellant contends the search warrant


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J-E02007-21


was defective where the Commonwealth (a) obtained the warrant via fax, in

violation of Criminal Rule 203,10 id. at 20-21; (b) failed to submit an affidavit

of probable cause in connection with the application for search warrant, id. at

21; and (c) the magisterial district judge did not file the search warrant and

affidavit of probable cause with the clerk of court, in violation of Criminal Rule

210.11 Id. at 22-23.


____________________________________________


10   Rule 203 provides, in relevant part:

        (B) No search warrant shall issue but upon probable cause
        supported by one or more affidavits sworn to before the issuing
        authority in person or using advanced communication technology.
        The issuing authority, in determining whether probable cause has
        been established, may not consider any evidence outside the
        affidavits.

        (C) Immediately prior to submitting a search warrant application
        and affidavit to an issuing authority using advanced
        communication technology, the affiant must personally
        communicate with the issuing authority in person, by telephone,
        or by any device which allows for simultaneous audio-visual
        communication. During the communication, the issuing authority
        shall verify the identity of the affiant, and orally administer an
        oath to the affiant. In any telephonic communication, if the
        issuing authority has a concern regarding the identity of the
        affiant, the issuing authority may require the affiant to
        communicate by a device allowing for two-way simultaneous
        audio-visual communication or may require the affiant to appear
        in person.

Pa.R.Crim.P. 203(B) & (C).

11 Rule 210 states: “The judicial officer to whom the warrant was returned
shall file the search warrant, all supporting affidavits, and the inventory with
the clerk of the court of common pleas of the judicial district in which the
property was seized.” Pa.R.Crim.P. 210.


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J-E02007-21


      The record does not support Appellant’s claims. However, assuming,

arguendo, that there was evidence of record to support Appellant’s assertions

that the warrant was technically defective, Appellant would not be entitled to

relief because, as discussed above, the contraband would have been

discovered during an inventory of the vehicle’s contents when impounded.

See Bailey, 

 Parker, supra. The Pennsylvania Supreme Court has

instructed that suppression,

      is not an appropriate remedy for every violation of the
      Pennsylvania Rules of Criminal Procedure concerning searches and
      seizures.   It is only where the violation also implicates
      fundamental, constitutional concerns, is conducted in bad-faith or
      has substantially prejudiced the defendant that exclusion may be
      an appropriate remedy.

Commonwealth v. Mason, 

, 426 (Pa. 1985) (emphasis in

original). Here, even if the search warrant was technically defective, there is

no indication that the Commonwealth acted in bad faith or Appellant was

substantially prejudiced. Therefore, no relief is due.

      In his final issue, Appellant argues the “cumulative” effect of the above

errors “render both the illegal warrant and illegal arrest illegitimate.”

Appellant’s Brief at 24. We disagree. As discussed, Appellant’s first three

issues are unavailing, and consequently his fourth issue lacks merit.

      For the above reasons, we conclude Appellant’s arrest was lawful and

the contraband in his vehicle was lawfully obtained.     Accordingly, the trial

court did not abuse its discretion in denying suppression.

      Judgment of sentence affirmed.

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J-E02007-21


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2021




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