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Commonwealth v. Arters

SUPERIOR COURT OF PENNSYLVANIA
Aug 27, 2018
J. S15042/18 (Pa. Super. Ct. Aug. 27, 2018)

Opinion

J. S15042/18 No. 1464 EDA 2017

08-27-2018

COMMONWEALTH OF PENNSYLVANIA v. KEVIN ARTERS, Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence, March 27, 2017, in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0002192-2015 BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:

Appellant, Kevin Arters, appeals from the March 27, 2017 judgment of sentence entered by the Court of Common Pleas of Chester County following his non-jury conviction of one count of luring a child into a motor vehicle, twelve counts of sexual abuse of children (child pornography), and one count of criminal use of communication facility. The trial court sentenced appellant to an aggregate sentence of 28½ to 57 years' imprisonment. After careful review, we affirm appellant's conviction and vacate the portion of appellant's sentence finding appellant to be a sexually violent predator.

The relevant facts in this case are as follows: Early in the morning of February 13, 2015, Detective Michael Raech and Officer Colon of the Coatesville City Police Department arrested appellant pursuant to a bench warrant for violating the terms of his probation. (Notes of testimony, 3/17/16 at 21, 27.) The bench warrant was issued following a report from the Coatesville School Police involving an incident of suspected child luring at Scott Middle School in Coatesville, Pennsylvania. ( Id. at 23.) The police identified appellant based on the license plate on his car. ( Id. at 19.) At the time of his arrest, appellant was driving his car in the area of Scott Middle School. ( Id.)

Officer Colon's first name is not found in the record.

Upon his arrest, appellant was taken into custody and transported to the police station. ( Id. at 29.) When appellant was searched incident to his arrest, the police seized appellant's cell phone. ( Id. at 29-30.) The police placed appellant in an interview room and notified appellant of his Miranda rights. ( Id. at 30-31.) After being read his Miranda rights, appellant waived his right to remain silent and agreed to speak with the police. ( Id. at 31, 33, 36, 43).

Miranda v. Arizona , 384 U.S. 436 (1966)

The police conducted two interviews with appellant on the morning of February 13, 2015. ( Id. at 30, 43.) During the second interview, appellant admitted that there were images of child pornography on his cell phone. ( Id. at 56-58.) Appellant gave his consent for the police to search his cell phone, even after the police reminded him that he was under no obligation to do so. ( Id. at 44, 58.) Prior to obtaining appellant's consent to search his cell phone, the police switched the phone into airplane mode. ( Id. at 61.)

The Commonwealth charged appellant with four counts of luring a child in to a motor vehicle, twelve counts of sexual abuse of children (child pornography), and one count of criminal use of communication facility. On March 14, 2016, appellant filed an omnibus pretrial motion in which he sought to have evidence of his statements to police and evidence obtained from his cell phone suppressed. The trial court held an evidentiary hearing on March 17, 2016 and May 20, 2016. In an order dated June 2, 2016, the trial court denied appellant's motion.

Following a non-jury trial, the trial court acquitted appellant of three counts of luring a child into a motor vehicle and convicted him of all other counts on July 15, 2016. On July 26, 2016, the trial court ordered the State Sexual Offender Assessment Board to perform an assessment of appellant to determine whether appellant should be classified as a sexually violent predator.

On March 27, 2017, the trial court sentenced appellant to an aggregate term of imprisonment of 28½ to 57 years. The trial court also classified appellant as a sexually violent predator. On April 5, 2017, appellant filed a motion for reconsideration of sentence, which the trial court denied on April 10, 2017.

Appellant filed a notice of appeal to this court on May 10, 2017. The trial court ordered appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on May 15, 2017. After receiving an extension of time, appellant timely filed his concise statement on June 30, 2017. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on July 19, 2017.

Appellant raises the following issues for our review:

I. Did the trial court err in denying the motion to suppress regarding Appellant's oral and written statements as violative of the United States Constitution and Article I Sections 8 and 9 of the Pennsylvania Constitution?

II. Did the trial court err in finding that Appellant knowingly and voluntarily consented to speak with authorities when Appellant was in custody for a violation of probation and did not understand the nature of the consent?

III. Did the trial court err in denying the motion to suppress regarding the contents of Appellant's cell phone obtained pursuant to an unconstitutional search and seizure against the Fourth Amendment of the United States Constitution and Article [I] Section 8 of the Pennsylvania Constitution? Was the phone searched before valid consent to search or a search warrant was obtained by placing the phone on airplane mode?

IV. Was the Sexually Violent Predator (SVP) classification unconstitutional pursuant to this Honorable Court's holding in Commonwealth
v. Butler , 2017 PA Super 344 (Oct. 31, 2017), reargument denied (Jan. 3, 2018)? Do the Sexual Offender Registration Notification Act (SORNA) requirements imposed by judgment of sentence as a result of this classification constitute unconstitutional enhanced criminal penalties requiring reversal of the SVP order?
Appellant's brief at 4.

Appellant's first three issues pertain to whether the trial court erred when it denied appellant's motion to suppress evidence. In reviews of the denial of a defendant's motion to suppress evidence, we are governed by the following standard:

[An appellate court's] standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, [the appellate court] is bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where . . . the appeal of the determination of the suppression court turns on allegation of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to [] plenary review.
Commonwealth v. Jones , 121 A.3d 524, 526-527 (Pa.Super. 2015), appeal denied , 135 A.3d 584 (Pa. 2016), quoting Commonwealth v. Jones , 988 A.2d 649, 654 (Pa. 2010), cert. denied , 562 U.S. 832 (2010) (internal citations and quotation marks omitted).

Specifically, in his first and second issues on appeal, appellant contends that the trial court erred when it determined that appellant knowingly and voluntarily consented to speak to police officers while he was in custody for a violation of probation. (Appellant's brief at 18.) The Commonwealth argues that the record reflects that appellant voluntarily waived his right to remain silent. (Commonwealth's brief at 20.)

Appellant combined his first two issues in his brief. ( See appellant's brief at 18-24.) For ease of discussion, we shall combine appellant's first two issues.

It is axiomatic that under the United States and Pennsylvania Constitutions that an individual subject to a custodial interrogation has a right to remain silent. See Miranda , supra ; Commonwealth v. Boyer , 962 A.2d 1213, 1216 (Pa.Super. 2008), citing Commonwealth v. Bomar , 826 A.2d 842 n.12 (Pa. 2003), cert. denied , 540 U.S. 1115 (2004). An individual may, however, waive his or her right to remain silent.

It is the Commonwealth's burden to establish that a defendant knowingly and voluntarily waived his Miranda rights. Commonwealth v. Cohen , 53 A.3d 882, 885-886 (Pa.Super. 2012). A defendant must explicitly waive his Miranda rights by making an outward manifestation of that waiver. Id. The determination of whether a waiver is valid depends on:

(1) whether the waiver was voluntary, in the sense that defendant's choice was not the end result of government
pressure, and (2) whether the waiver was knowing and intelligent, in the sense that it was made with full comprehension of both the nature of the right being abandoned and the consequence of that choice.

Commonwealth v. Mitchell , [] 902 A.2d 430, 451 (Pa. 2006).

If the totality of the circumstances reveals an uncoerced choice and the requisite level of comprehension, a court may properly find that Miranda rights have been waived. See , e.g., Commonwealth v. Martin , [] 101 A.3d 706, 724 (Pa. 2014);[Footnote 7] Commonwealth v. Cephas , [] 522 A.2d 63, 65 (Pa.Super. 1987) (finding that defendant's schizophrenia rendered him unable to knowingly and voluntarily waive his Miranda rights).

[Footnote 7] Factors this Court may consider include: "the means and duration of the interrogation, including whether questioning was repeated, prolonged, or accompanied by physical abuse or threats thereof; the length of the accused's detention prior to the confession; whether the accused was advised of his or her constitutional rights; the attitude exhibited by the police during the interrogation; the accused's physical and psychological state, including whether he or she was injured, ill, drugged, or intoxicated; the conditions attendant to the detention, including whether the accused was deprived of food, drink, sleep, or medical attention; the age, education, and intelligence of the accused; the experience of the accused with law enforcement and the criminal justice system; and any other factors which might serve to drain one's powers of
resistance to suggestion and coercion." See Martin , 101 A.3d at 724-725.
Commonwealth v. Lukach , 163 A.3d 1003, 1011-1012 (Pa.Super. 2017), allocatur granted , 170 A.3d 1064 (Pa. September 22, 2017).

In the instant case, the trial court made the following determination:

The statements were taken in an interview room and were short in duration. Detective [Michael] Raech [of the City of Coatesville Police Department] conducted the interviews. Officer Colon was also in the room with them. At the beginning of the first interview, Detective Raech read [appellant] his Miranda warnings. [Appellant] indicated he wanted to speak with the police and consented to the interview. After being reminded of his Miranda rights at the beginning of the second interview, [appellant] reiterated his willingness to speak to the police. [Appellant] was never threatened, no firearms were brandished during the interview, and neither officer raised their voice toward [appellant.] There was nothing in [appellant's] tone, demeanor, [or] appearance [] that would give rise to any questions regarding [appellant's] physical or psychological state. In fact, defense counsel conceded that the videotapes of the interviews would show that the statements made by [appellant] were made voluntarily.
Trial court order and opinion, 6/2/16 at unnumbered page 3.

After a careful review of the record in light of the totality of the circumstances, we find that there is basis in the record for the trial court's conclusions. Accordingly, we find that the trial court's factual findings are supported by the record and that the trial court properly applied the law to the facts of the case. Appellant's first and second issues are without merit.

In his third issue on appeal, appellant avers that the trial court erred when it denied appellant's motion to suppress evidence found on his cell phone without a warrant. Specifically, appellant contends that the police improperly searched appellant's phone by placing the phone on airplane mode before obtaining appellant's consent or a search warrant. ( See appellant's brief at 25.) Both the United States Constitution and the Pennsylvania Constitution guarantee that individuals shall not be subject to unreasonable searches or seizures.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
Pa. Const. Art. I, § 8.

Evidence obtained as a result of an unlawful search is subject to the fruit of the poisonous tree doctrine. The United States Supreme Court has stated that any material, tangible, or verbal evidence "obtained either during or as a direct result of an unlawful invasion" is inadmissible at trial. Wong Sun v. United States , 371 U.S. 471, 485 (1963).

Our supreme court further stated:

We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by means sufficiently distinguishable or to be purged of the primary taint."
Commonwealth v. Cunningham , 370 A.2d 1172, 1176-1177 (Pa. 1977), quoting Wong Sun , 371 U.S. at 487-488.

In the instant issue on appeal, there are two sub-issues presently before us. The first is whether appellant provided consent for the police to search his phone without a warrant. The second sub-issue is, if appellant gave consent for a warrantless search, whether appellant gave consent prior to the police switching the phone into airplane mode. ( See appellant's brief at 25.)

We first turn to whether appellant gave his consent to the police to search his phone. Consent to a search is one of the exceptions to the search warrant requirement recognized by our supreme court. Commonwealth v. Riedel , 651 A.2d 135, 139 (Pa. 1994). "In order for a consent to search to be valid it must be unequivocal, specific, and voluntary." Commonwealth v. Powell , 994 A.2d 1096, 1102 (Pa.Super. 2010), appeal denied , 13 A.3d 477 (Pa. 2010), citing Commonwealth v. Stapinski , 431 A.2d 260 (Pa. 1981).

The trial court determined that appellant "was only questioned for a short period of time and he was not threatened in any way in order to get him to consent to the search of his phone." (Trial court order, 6/2/16 unnumbered page 4 n.1.) The trial court further determined that the police "did not use stealth, deceit or misrepresentation to get [appellant] to consent. [Appellant] fully understood what was going on and [to] what he was consenting []." ( Id.)

Upon our review of the record, the record reflects that appellant gave voluntary consent for the police to search his cell phone. (Notes of testimony, 3/17/16 at 47.) The record further reflects that appellant's consent was unequivocal, specific, and voluntary. ( See id. at 47-48.) Moreover, the record further reflects that the police did not confront appellant with the images on the home screen of his cell phone before obtaining his consent.

The home screen on appellant's cell phone depicted what appeared to be child pornography. ( Id. at 60-61.) The police saw the image on the home screen while they were placing appellant's phone on airplane mode. ( Id. at 61).

Having determined that appellant gave valid consent to the police to search his cell phone, we must now address his second sub-issue—whether appellant gave the police consent to search his phone prior to the police switching his phone into airplane mode. This sub-issue is waived on appeal, as appellant failed to raise the issue before the trial court. See 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").

Moreover, even had this sub-issue not been waived on appeal, appellant's argument would nevertheless be without merit. Even if the police switched appellant's cell phone into airplane mode before obtaining his consent to search the phone, any evidence obtained from appellant's cell phone is still admissible due to the inevitable discovery rule. Commonwealth v. Gonzalez , 979 A.2d 879, 890 (Pa.Super. 2009), citing Nix v. Williams , 467 U.S. 431, 444 n.4 (1984) (holding that evidence obtained illegally that would have ultimately or inevitably been discovered by lawful means is admissible). Here, the police did not confront appellant with the image depicted on his home screen that was observed when the police switched his cell phone to airplane mode. Appellant nevertheless gave his voluntary consent for the police to search his cell phone. Accordingly, the image depicted on the home screen would have inevitably been discovered by the police. Therefore, had appellant's second issue been preserved for appeal, it would still be without merit.

See Riley v. California , 134 S.Ct. 2473, 2487 (2014) (finding that rather than switching a phone into airplane mode, the police have less intrusive measures that they can take such as turning a cell phone off, removing its battery, or placing a cell phone in an enclosure that "isolates the phone from radio waves").

In his fourth and final issue, appellant contends that his classification as an SVP is unconstitutional pursuant to our decision in Commonwealth v. Butler , 173 A.3d 1212 (Pa.Super. 2017). Appellant further contends that "[w]ithout the SVP designation, [a]ppellant would be subject to a fifteen year period of registration as a Tier I offender. 42 Pa.C.S.A. § 9799.15(a)(6)." (Appellant's brief at 32 (footnote omitted).) Appellant's claim misses the mark.

In the instant appeal, appellant was convicted of luring a child into a motor vehicle and sexual abuse of children, both of which are Tier I offenses under SORNA. 42 Pa.C.S.A. § 9799.14(b)(4) and (9). Appellant pled guilty to indecent assault on January 17, 2012, a Tier I offense under SORNA. See id. at § 9799.14(b)(6). Under SORNA, a conviction of two or more Tier I or Tier II offenses is tantamount to a conviction of a Tier III offense for the purposes of registration requirements. Id. at § 9799.14(d)(16). A defendant convicted of a Tier III offense is required to register as a sex offender for life, regardless of whether an SVP adjudication has been made. Id. at § 9799.15(a)(3). See A.S. v. Pennsylvania State Police , 143 A.3d 896, 908 (Pa. 2016) (holding that SORNA "requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses" that would otherwise trigger a shorter period of registration); see also Commonwealth v. Lutz-Morrison , 143 A.3d 891, 895 (Pa. 2016) (same). Accordingly, regardless of whether appellant was designated as an SVP in the instant case, he would still nonetheless be subject to a lifetime registration requirement pursuant to SORNA.

Our analysis, however, cannot end here. Despite appellant still being subject to a lifetime registration requirement pursuant to SORNA, we must determine whether his classification as an SVP is constitutional. The Commonwealth concedes that appellant's classification constitutes an illegal sentence. (Commonwealth's brief at 34.)

In Butler , we found 42 Pa.C.S.A. § 9799.24(e)(3) (governing assessments and classifications of individuals as SVPs) unconstitutional and directed trial courts to apply only the applicable tier-based registration period, and those periods apply based on the conviction itself, and not due to any additional fact not found, under SORNA's procedures, by the fact-finder. Butler , 173 A.3d at 1218. As such, we reversed the order designating the defendant as an SVP and remanded to the trial court for the sole purpose of issuing appropriate notice of the defendant's tier-based period. Id.

As noted by both the trial court and the Commonwealth, appellant was adjudicated as an SVP in a previous case on April 1, 2012. (Notes of testimony, 3/27/17 at 28, 74, 79.) A review of appellant's April 1, 2012 adjudication as an SVP, however, is not an issue currently before us. Accordingly, we affirm appellant's conviction and vacate that portion of appellant's sentence finding appellant to be an SVP.

We further note that appellant's previous adjudication as an SVP also subjected him to lifetime sex offender registration requirements.

Judgment of sentence affirmed in part and vacated in part. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/27/18


Summaries of

Commonwealth v. Arters

SUPERIOR COURT OF PENNSYLVANIA
Aug 27, 2018
J. S15042/18 (Pa. Super. Ct. Aug. 27, 2018)
Case details for

Commonwealth v. Arters

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. KEVIN ARTERS, Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Aug 27, 2018

Citations

J. S15042/18 (Pa. Super. Ct. Aug. 27, 2018)