Judges Opinions Public Notices, — December 2, 2020 10:21 — 0 Comments

Public Notices, December 2, 2020

Volume 58, No. 18

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

ORPHANS’ COURT DIVISION NOTICES

 

TABLE OF CONTENTS

Commonwealth of Pennsylvania v. Lindley Thelismond

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF KARL PAUL ADEY, late of the Palmyra, Lebanon County, Pennsylvania, died 09/24/2020. Letters of Administration have been granted to the undersigned Administratrix.

Karen B. Adey, Administratrix

 

George W. Porter, Esquire

909 Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF PAUL G. CRUM, late of the Township of Swatara, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Brion Crum

1789 Grace Avenue

Lebanon, PA 17046

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF ADAM KLINE, JR., late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Kim M. Whitmoyer, Executor

111 Mountain Trail Road

Newmanstown, PA 17073

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF BRENDA J. GALLAGHER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Mary Taylor, Executrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF HARVEY F. RITTLE, A/K/A HARVEY FRANKLIN RITTLE, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Robert L. Rittle, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF LEROY L. LEHMAN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

John S. Kunder, Jr., Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MARY B. WILLMAN, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Kathleen M. Minnich, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF PATRICIA R. CARVELL, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased (died September 18, 2020). Letters Testamentary have been granted to the undersigned Executor.

Michael C. Carvell, Executor

940 Carriage House Court

Hershey, PA 17033

 

Peter R. Henninger, Jr., Esquire

Jones & Henninger, P.C.

339 W. Governor Rd., Ste. 201

Hershey, PA 17033

 

SECOND PUBLICATION

 

ESTATE OF ARTHUR M. KELLER, JR., late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Kristin M. McLerran, Executrix

312 S. 13th Street

Lebanon, PA 17042

 

Stephanie DiVittore, Esquire

Barley Snyder

213 Market Street, 12th Floor

Harrisburg, PA 17101

 

ESTATE OF RONALD W. WISE, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Donna M. Borgnis, Executrix

 

Cheryl J. Allerton, Esquire

Allerton, Bell & Muir P.C.

1095 Ben Franklin Highway East

Douglassville, PA 19518

 

ESTATE OF JAQUELINE W. MOYER, late of the Borough of Myerstown, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Mary J. Warner, Administrator

 

Lindsay M. Schoeneberger, Esquire

Russell, Krafft & Gruber, LLP

108 West Main Street

Ephrata, PA 17522

 

ESTATE OF ARLENE M. TILBERRY, late of the Borough of Palmyra, Lebanon County, Pennsylvania, died 10/28/2020. Letters Testamentary have been granted to the undersigned Executrix.

Cathy L. Repko, Executrix

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF MILDRED L. FARVER, late of the Borough of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

S. Scott Farver, Executor

221 E. Broad Street

Palmyra, PA 17078

 

David R. Warner, Jr. Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF EVA W. BRUBAKER, late of the Borough of Richland, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Richard L. Brubaker, Executor

491 W. Lincoln Avenue

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

THIRD PUBLICATION

 

ESTATE OF ANN MARIE CUMMINGS, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Thomas J. Cummings, Executor

203 Fox Grove Place

Hummelstown, PA 17036

 

ESTATE OF BETTY ANN SMITH, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael Smith, Executor

 

Rich Raiders, Esquire

Raiders Law PC

1150 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF RICHARD K. MAXWELL A/K/A RICHARD KEITH MAXWELL, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Scott Little, Executor

 

Keith D. Wagner, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF GRACE E. BROWN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Christopher W. Hylton, Executor

900 Kimmerlings Road

Annapolis, MD 21403

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

P.O. Box 113

Palmyra, PA 17078

 

ESTATE OF THOMAS P. SWOYER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Sheila M. Folmer, Executrix

913 North 8th Street

Lebanon, PA 17046

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF KENNETH E. ENDERS, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Karen M. Rhine, Executrix

71 Ridge Road

Jonestown, PA 17038

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF MELVIN K. EBY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Linda L. Morris, Executrix

  1. Charles Benner, Attorney
    200 East Main Street

Leola, PA 17540

 

ORPHANS’ COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

 

Notice is hereby given that the following accounts in decedents estates, Guardianships and trusts

have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon

County, and that the same will be presented to the Court of Common Pleas-Orphans’ Court

Division of said County for Confirmation NISI on

 

Monday, December 7, 2020

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION

FILED BY EXECUTORS OR ADMINISTRATORS

 

  1. Patton, Ruth E., aka Patton, Ruth Ellen, dec’d., Martin D. Waldensberger, Exr., Charles A. Ritchie, Jr., Atty.
  2. Sonnon, Lloyd R., dec’d., Richard L. Sonnon, Exr., Edward J. Coyle, Atty.
  3. Gundrum, Patricia A. aka Gundrum, Patricia Ann, dec’d., Paul Francis Gundrum, Exr., Paul C. Bametzreider, Atty.
  4. Painter, Patricia A. aka Painter, Patricia Ann, dec’d., Karen L. Painter, Exrx., Patrick M. Reb, Atty.

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed

ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are

filed within twenty (20) days after the same are confirmed NISI.

 

Brian Craig

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

 

JUDGES OPINION

 

Commonwealth of Pennsylvania v. Lindley Thelismond

 

Criminal Action-Law-Criminal Homicide-Omnibus Pretrial Motion-Suppression of Evidence-Gunshot Residue Swab Test-Warrantless Search-Apartment-Legitimate Expectation of Privacy-Consent to Search by Lessor-Joint Control of Premises-Inevitable Discovery Exception

 

Defendant, who was charged with one (1) count of Criminal Homicide, filed an Omnibus Pretrial Motion seeking to suppress evidence of a gunshot residue swab test that was performed upon his hands after he had been taken into custody and had requested an attorney and four (4) bullets that matched the caliber and model of the gun located at the scene of the homicide that were located inside a bags during a warrantless search of the apartment where Defendant was apprehended.

 

  1. When a motion to suppress evidence has been filed, the burden is upon the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible and was not obtained in violation of the defendant’s rights.

 

  1. Gunshot residue swab tests generally are admissible at trial.

 

  1. A gunshot residue swab test performed incident to a lawful arrest supported by probable cause does not implicate significant privacy concerns and may be necessary to promote the Commonwealth’s legitimate governmental interest of ensuring public safety and welfare and preserving evidence for trial.

 

  1. Where the Commonwealth established that Defendant’s arrest was lawful and supported by probable cause, the gunshot residue swab testing was performed at the first opportunity to administer it and the Commonwealth has a significant governmental interest in obtaining the evidence to confirm Defendant as the potential shooter and to preserve the fragile evidence, the gunshot residue swab test results were not obtained in violation of Defendant’s constitutional rights.

 

  1. To contest the search of a property, a defendant must establish a legitimate expectation of privacy relating to the area from where the items were seized.

 

  1. For a reasonable expectation of privacy to exist, one must show intent to exclude others from the property.

 

  1. A search warrant is not required where a person with the proper authority to do so unequivocally and specifically consents to the search.

 

  1. A landlord or lessor cannot consent to the search of a tenant’s premises regardless of the landlord or lessor’s right to enter and to inspect the premises.

 

  1. A warrantless search may be made with the voluntary consent of a third party who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected.

 

  1. Where there is joint access to or control of a premises, there can be no reasonable or legitimate expectation of privacy.

 

  1. The evidence did not establish that Defendant had an expectation of privacy in the bedroom of the apartment where the bullets were located where the individual who gave consent to the search indicated that she and her son’s names were the only names appearing on the lease to the apartment, there was no indication that Defendant was a resident of that individual’s household or a co-tenant despite indicating that he stayed in the bedroom, paid rent to the individual or resided there on a regular basis, the door of the bedroom appeared wide open and only two (2) bags belonged to Defendant in the room that was filled with various household goods that did not belong to Defendant.

 

  1. Under the inevitable discovery exception to the exclusionary rule, evidence that would have been discovered as a result of illegal government conduct sufficiently is purged of the original illegality to allow admission of the evidence.

 

  1. Even if the search of the room and seizure of the bags had been illegal, the evidence obtained during the search eventually would have been discovered by lawful means, as Defendant had been taken into custody at the premises and police would have obtained a search warrant before entering the bedroom and seizing the bags had valid consent from the resident not been procured.

 

L.C.C.C.P. No. CP-38-CR-0000539-2019, Opinion by Charles T. Jones, Jr., Judge, August 18, 2020.

 

 

 

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                              :

PENNSYLVANIA                                          :

:

  1. :                       CP-38-CR-539-2019

:

LINDLEY THELISMOND,                            :

Defendant                                                                :

 

 

ORDER

 

AND NOW, this 18th day of August, 2020, after a pretrial hearing held on May 27, 2020, and the briefs submitted by the parties, Defendant’s Motion to Suppress Evidence is
DENIED
. Defendant shall remain scheduled for the Call of the List on October 6, 2020, and for Jury Trial for the week of October 26, 2020.

 

 

 

BY THE COURT:

 

____________________________, J.

CHARLES T. JONES, JR.

 

 

 

Cc:      Kevin Dugan, Esquire
Pier Hess Graf, Esquire (District Attorney’s Office)
Leslie Fillak/Court Administration

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                              :

PENNSYLVANIA                                          :

:

  1. :                       CP-38-CR-539-2019

:

LINDLEY THELISMOND,                            :

Defendant                                                                :

 

APPEARANCES:

 

Pier Hess Graf, Esquire                                                                 For Commonwealth

District Attorney’s Office

 

Kevin Dugan, Esquire                                                                    For Defendant

 

OPINION BY JONES, J.:

Before this Court is Defendant’s Pretrial Motion to Suppress Evidence.

  1. FACTUAL/PROCEDURAL HISTORY

On February 27, 2019, James Jeter died as a result of multiple gunshot wounds at approximately 10:20 p.m. at 1036 Orchard Avenue in Lebanon City. Notes of Testimony (hereinafter “N.T.”) 5/27/2020 P. 8. The Lebanon City Police Department was dispatched to the address shortly after the incident after receiving reports of a homicide. N.T. 5/27/2020 P. 8. Richard Andino, the homeowner of 1036 Orchard Avenue and eyewitness to the crime, helped police identify the shooter through Facebook as Defendant, Lindley Thelismond. N.T. 5/27/2020 P. 8-9.

Police also used previous information obtained regarding Defendant to help identify him as the shooter. N.T. 5/27/2020 P. 9. In January of 2019, Officer Lieutenant Jonathan Hess of the Lebanon City Police Department received a call from U.S. Marshals Deputy Gary Duncan. N.T. 5/27/2020 P. 10. Deputy Duncan advised Lieutenant Hess that he was in the Lebanon Area looking for Defendant. N.T. 5/27/2020 P. 10. Deputy Duncan stated Defendant was somewhere in the ten hundred block of Orchard Avenue and was wanted in connection with a shooting in New York City. N.T. 5/27/2020 P. 10. Later that month, the New York Police Department informed Lieutenant Hess that Defendant goes by the name of Lindley Escobar on Facebook. N.T. 5/27/2020 P. 10.

Around 3:00 a.m. on February 28, 2020, eyewitness Richard Andino agreed to call Defendant to help police locate him. N.T. 5/27/2020 P. 11. During the initial phone call, Mr. Andino spoke to Matthew Correa who was staying at 381 North 12th Street. N.T. 5/27/2020 P. 11. Mr. Correa indicated Defendant was currently at the 381 North 12th Street address. N.T. 5/27/2020 P. 11. Mr. Andino made a second phone call to Mr. Correa and spoke with Defendant. N.T. 5/27/2020 P. 11. The conversation with Defendant indicated he had in fact done the shooting. N.T. 5/27/2020 P. 11. At this point, Lieutenant Hess decided to travel to 381 North 12th Street to arrest Defendant. N.T. 5/27/2020 P. 12.

Upon arriving at the scene, Lieutenant Hess shouted loudly that it was the Lebanon City Police Department and that the occupants of 381 North 12th Street should exit the residence with their hands up. N.T. 5/27/2020 P. 12. The occupants began to exit the residence, including Mr. Correa and Jessica Bleecker. N.T. 5/27/2020 P. 13. Mr. Correa then informed Lieutenant Hess that a 9-year-old boy and Defendant were still in the home. N.T. 5/27/2020 P. 13. Lieutenant was fearful for the child’s safety and did not want a hostage situation to develop. N.T. 5/27/2020 P. 13. At this point, he entered the residence through the rear entrance. N.T. 5/27/2020 P. 13.

Lieutenant Hess continued to shout instructions and moments later Defendant began to walk down the steps from the second floor. N.T. 5/27/2020 P. 14. Defendant complied with verbal commands and was taken into custody. N.T. 5/27/2020 P. 14. Defendant indicated immediately that he wanted a lawyer and was immediately transported to the Lebanon Police Department. N.T. 5/27/2020 P. 14.

Once Defendant arrived at the Police Department, Sergeant Keith Uhrich performed a Sirchic Scanning Electron Microscopy Kit test (hereinafter “gunshot residue test”) on Defendant’s hands at approximately 5:08 a.m. N.T. 5/27/2020 P. 39, 41. Sergeant Uhrich did not obtain a search warrant to perform the test. N.T. 5/27/2020 P. 42. Due to the fragility of this evidence, Defendant’s hands were quickly tested upon arrival before any potential residue washed or wore off his hands. N.T. 5/27/2020 P. 40. The test Sergeant Uhrich used came in a sealed container with four plastic stubs. N.T. 5/27/2020 P. 40. Sergeant Uhrich dabbed the four stubs across the top and bottom of each of Defendant’s hands and the test was sent to the State Police Laboratory for testing. N.T. 5/27/2020 P. 41.  

After Defendant was in custody, Lieutenant Hess spoke with Jessica Bleecker, a resident of 381 North 12th Street at that location. N.T. 5/27/2020 P. 14. Ms. Bleecker indicated that she and her 9-year-old son were the only individuals on the lease for the apartment. N.T. 5/27/2020 P. 14. Lieutenant Hess was concerned there may be firearms in the home with a child present. N.T. 5/27/2020 P. 15. Ms. Bleecker allowed Lieutenant Hess back into the residence and told police they could search her home. N.T. 5/27/2020 P. 15. Lieutenant Hess believed Ms. Bleecker’s consent was sufficient to search the home and did not obtain a warrant. N.T. 5/27/2020 P. 15.

Ms. Bleecker informed Lieutenant Hess that Defendant stayed in a second floor bedroom.  When Lieutenant Hess went to that bedroom, he found the door wide open.  N.T. 5/27/2020 P. 35.  Ms. Bleecker identified the items that belonged to Defendant. N.T. 5/27/2020 P. 16. Lieutenant Hess seized these items, which included a gray and black backpack and a clear plastic bag. N.T. 5/27/2020 P. 20. The bedroom also contained a large amount of general household goods that did not belong to Defendant. N.T. 5/27/2020 P. 18. There was also a mattress on the floor. N.T. 5/27/2020 P. 29.

The two items were brought back to the Lebanon City Police Department and secured in evidence storage. N.T. 5/27/2020 P. 18. Detective Fields obtained a search warrant before photographing the items within the bags. N.T. 5/27/2020 P. 19. Five bullets were found in the bags. N.T. 5/27/2020 P. 21. Four of the five bullets found matched the same caliber and model of gun found at the crime scene. N.T. 5/27/2020 P. 21.

On February 28, 2019, Defendant was charged with one (1) count of 18 § 2501 §§ A Criminal Homicide (F1). Defendant filed an Omnibus Pre-Trial Motion on November 8, 2019, to suppress evidence of the gunshot residue test and the warrantless search of the home. A hearing was held on the Motion on May 27, 2020. Both parties have submitted briefs on the issues and the matter is now ripe for disposition.

 

  1. STANDARD OF REVIEW

The Rules of Criminal Procedure allow a defendant or the defendant’s attorney to make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights. Pa. R. Crim. P. 581.  When a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible and was not obtained in violation of the defendant’s rights. Pa. R. Crim. P. 581(H); Commonwealth v. Ruey, 892 A.2d 802, 807 (Pa. Super. 2006). The suppression of evidence is only appropriate where a violation upon which the motion to suppress is based touches upon fundamental, constitutional concerns, was conducted in bad faith, or has substantially prejudiced the defendant. Commonwealth v. Gentile, 632 A.2d 573 (Pa. Super. 1993). Questions of credibility and the weight to be accorded to witness testimony are issues within the sound discretion of the trial court. In re R.P., 918 A.2d 115 (Pa. Super. 2007).

 

 

 

  • DISCUSSION
  1. Gunshot Residue Test

Defendant argues that the warrantless gunshot residue test was unlawful. Defendant states that upon arrest, he clearly requested to speak with an attorney. After he was in custody, Defendant argues the police had the ability to secure Defendant in a holding cell and should have obtained a warrant prior to performing the test on his hands. Defendant claims he had a clear privacy interest in his body and should be free from warrantless searches. As such, Defendant argues any and all evidence obtained as a result of the warrantless gunshot residue test of his hands should be suppressed.

The Commonwealth argues the test performed was a search incident to arrest and does not implicate significant privacy concerns. In addition, due to the fragility of the residue on Defendant’s hands, a warrant was not necessary before performing the test. As such, the results of the gun residue test should not be suppressed.

In general, gunshot residue swab tests are admissible. Commonwealth v. Simonson 148 A.3d 792 (Pa. Super. 2016). In Commonwealth v. Simonson, the Court found the gunshot residue swab test to which the defendant was subjected incident to his arrest did not implicate significant privacy concerns. Id.; U.S. Const. Amend. 4; Pa. Const. art. 1, § 8. The Court went on to say that as the defendant had a reduced expectation of privacy as he was under lawful arrest supported by probable cause when the test was administered, the physical intrusion of the test was negligible. Id. In addition, the Court concluded the test was necessary for the promotion of the Commonwealth’s legitimate governmental interests for ensuring public safety and welfare and preserving evidence for trial. Id.

Defendant argues that a warrantless search incident to arrest is valid only if “it is substantially contemporaneous with the arrest,” and that the Commonwealth failed to prove that the test was performed at a time which was not too remote from the time of arrest to fulfill this requirement.  We disagree with this contention.

At the pretrial hearing, Lieutenant Hess testified that once Defendant was taken into custody at the 381 North 12th Street location, he was immediately transported to the Lebanon Police Department.  N.T. 5/27/2020 P. 14.  Lieutenant Hess explained that he was not involved in the administration of the gun residue test on Defendant, but that he may have called the Lebanon Police Department from 381 North 12th Street to instruct Sergeant Keith Uhrich to perform the test when Defendant arrived at the station.  N.T. 5/27/2020 P. 32-33.  Sergeant Uhrich testified that he was at the police station when Defendant was taken into custody and brought back by other officers.  N.T. 5/27/2020 P. 39.  He explained that due to the fragile nature of gun powder residue, it was important that he conduct the testing as quickly as possible.   N.T. 5/27/2020 P. 40.  Sergeant Uhrich noted that the call for units for 381 North 12th Street came through EMA Computer Aided Dispatch at 4:51 a.m. and confirmed that the specimen was collected from Defendant immediately upon his arrival back at the station at 5:08 a.m. on February 28, 2019 before he was even taken to Central Booking.  N.T. 5/27/2020 P. 42-45. 

This case is factually similar to Commonwealth v. Simonson. Defendant was lawfully arrested in the residence. Lieutenant Hess had probable cause to arrest Defendant based on the previous information obtained from New York, the confirmation from eyewitness Richard Andino, and Defendant’s proximity to the homicide. Once Defendant was in custody, there was a significant governmental interest in obtaining the evidence to confirm Defendant was the potential shooter and to preserve the fragile residue evidence before Defendant washed his hands or the residue wore off. In addition, the test was minimally invasive and only involved brief swabs to Defendant’s two hands. We believe that this time frame is sufficiently contemporaneous with Defendant being taken into custody to constitute a search incident to his arrest for which no warrant was necessary.  The test, which required the use of a kit which was located in the police station, was taken immediately upon Defendant’s arrival at the police station.  This was the first opportunity Sergeant Uhrich would have had to administer the test and it was completed as promptly as possible under the circumstances.  Therefore, the gunshot residue swab test results are admissible and will not be suppressed.

  1. Warrantless Search of the Home

Defendant argues the warrantless search of the home at 381 North 12th Street was not valid. Specifically, Defendant argues permission from Ms. Bleecker was not sufficient to search what Defendant claims was his personal bedroom. Due to the bedroom of the Defendant being in an area Defendant rented from the homeowner and a place of intimacy within the home, Defendant states there is a heightened expectation of privacy. As a result, Defendant claims the fellow renter had no legal authority to grant the police permission to search his room. Thus, Defendant argues, the search of the gray Nike backpack and the clear plastic bag found within the bedroom of the Defendant and any evidence obtained thereafter are fruits of the initial warrantless search of the bedroom and must be suppressed.

The Commonwealth argues that he search of the home and seizure of Defendant’s bags was valid and a warrant was not required. The Commonwealth states that the consent of Ms. Bleecker was sufficient to search the room because the room in which the two small bags were found was not Defendant’s bedroom and Ms. Bleecker had the authority to consent to the search.   Second, the Commonwealth argues the situation justified the search and seizure of the bags. The Commonwealth states Lieutenant Hess was concerned there may be a firearm or weapons in the home. Based on this apprehension, Lieutenant Hess was justified in searching the room. Finally, the Commonwealth argues that regardless of whether the warrantless search and seizure of the bags from the room was valid, a warrant to search the bags was eventually obtained and the items seized would have eventually been discovered.

When performing a search incident to a lawful arrest, a police officer may conduct a warrantless search of an arrestee’s person. Commonwealth v. Ingram, 814 A.2d 264 (Pa. Super. 2002). The fact that an arrestee has been brought under the control by the police does not, in itself, negate the need for a search incident to arrest; as long as it is reasonable for an arresting office to believe that the individual arrested might be able to seize weapons or evidence from an area within his immediate control, that area may be searched incident to arrest. Commonwealth v. Bess, 382 A.2d 1212 (Pa. Super. 1978). Areas within an arrestee’s immediate control may be searched to prevent danger to the officers and to prevent destruction of evidence. Commonwealth v. Stanley, 446 A.2d 583 (Pa. Super. 1982). A protective sweep incident to an arrest and conducted to protect the safety of police officers and others, is a well-recognized exception to the warrant requirement. Commonwealth v. Potts, 73 A.3d 1275 (Pa. Super. 2013). When arresting a defendant within a home, police officers can, as a precautionary measure and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched. Commonwealth v. Taylor, 771 A.2d 1261 (Pa. Super. 2001).

In this case, the search and seizure of the items within the second floor bedroom was not a search incident to a lawful arrest. While Lieutenant Hess had probable cause to arrest the Defendant within the home, the search of the upstairs bedroom was not within an area that would be considered a protective sweep or within Defendant’s immediate control. Defendant walked down the stairs and was arrested on the main level. Defendant complied with the police commands and calmly exited the premises. A search of the main living area where Defendant was arrested would have been justified for police safety. However, specifically asking which bedroom is Defendant’s, traveling to the second story of the house, and confiscating Defendant’s backpack and bag does not fall under this exception.

In order to contest a search of property, a defendant must establish a legitimate expectation of privacy relating to the area search of the items seized. Commonwealth v. Lowery, 451 A.2d 245 (Pa. Super. 1982). To have reasonable expectation of privacy, one must intend to exclude others and must exhibit that intent. Id. A search warrant is not required … where a person with the proper authority unequivocally and specifically consents to the search.  Commonwealth v. Reid, 811 A.2d 530, 544 (Pa. 2002).  A landlord or lessor cannot consent to a search of the tenant’s premises, regardless of the lessor’s right to enter and inspect. Lowery, 451 A.2d at 247. However, a warrantless search may be made with the voluntary consent of a third party who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. Lowery, 451 A.2d at 248; United States v. Matlock, 415 U.S. 164 172, 94 S.Ct. 988 (1974). Where joint access or control exists, there can be no reasonable or legitimate expectation of privacy. Commonwealth v. Latshaw, 392 A.2d 1301 (Pa. 1978).  If police act on the consent of a third party who does not have actual authority to render such consent, evidence seized during the search is still admissible if the police reasonably, though mistakenly, rely upon that consent if the circumstances support their belief that they are acting reasonably and lawfully.  Commonwealth v. Blair, 575 A.2d 593, 597 (Pa. Super. 1990).

In Defendant’s Brief, he repeatedly refers to Lieutenant Hess’s “mistake” in accepting Ms. Bleecker’s consent.  However, there was no evidence pointing to any mistake adduced at the hearing and we find none based upon the facts presented by the Commonwealth.

We first note that the evidence established that Defendant did not have an expectation of privacy within the bedroom. From prior police contacts, Lieutenant Hess had information linking Defendant to the Orchard Avenue residence where the shooting occurred.  Ms. Bleecker informed Lieutenant Hess that she and her son were the only names on the lease of 381 12th Street. Although she indicated that Defendant had stayed in the bedroom, there was no indication that he was a resident of her household or a co-tenant.  There was no clear evidence that Defendant paid rent to Ms. Bleecker or was subletting the room. There was no evidence that he resided there on a regular basis.  While there was a mattress on the floor and two of Defendant’s bags, there was no other indication that Defendant resided within the bedroom. The room was filled with various household goods not belonging to Defendant. N.T. 5/27/2020 P. 18.  The door to the room was wide open. N.T. 5/27/2020 P. 35.  Defendant only had the two bags within the room; both contained socks, bullets, and a change of clothes.

We believe that Ms. Bleecker’s consent to search the bedroom was sufficient for the seizure of the two bags belonging to Defendant as she had actual authority to render a valid consent.  In Commonwealth v. McCollum, 602 A.2d 313 (Pa. 1992), it was held that the tenant of a property who paid the rent and lived there with her children had authority sufficient to validate her consent to a search which led to incriminating evidence against a houseguest.  The evidence adduced at the pretrial hearing in this case indicate that Ms. Bleecker was the sole legal lessee of the premises.  During the search, she pointed out only the two bags in the bedroom as belonging to Defendant.  There was no dresser in the room to suggest Defendant’s regular occupancy.  No other items connected to Defendant were found in the entire house.

The police knew of Defendant’s connection to the Orchard Avenue property and they were not required to take the time to consult with Ms. Bleecker’s landlord or inspect the lease to determine whether her statement was true.  There was no testimony as to any mistake on the part of the police at the hearing.  Even if we were to accept Defendant’s argument that the police were mistaken and that Ms. Bleecker’s statement was not accurate, the facts would establish that she had the apparent authority to consent to the search.  Moreover, if Defendant had established that he had some expectation of privacy, Ms. Bleecker would have still had at least common authority or a sufficient relationship to the bedroom to give a valid consent.  However, as the Commonwealth established that Ms. Bleecker’s consent was voluntarily given and Defendant did not have an expectation of privacy within the room, we find that the search was lawful and Defendant’s motion to suppress these items will be denied.

Even if the search of the room was questionable, the items recovered would have inevitably been discovered. Under the inevitable discovery exception to the exclusionary rule, the fact that challenged evidence was obtained as a result of illegal government conduct does not end the inquiry into whether the evidence was admissible at trial. Commonwealth v. Gonzalez, 979 A.2d 879 (Pa. Super. 2009). The exception provides that “evidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence.” Commonwealth v. Ingram, 814 A.2d 264 (Pa. Super. 2002). In other words, if the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, then the evidence is admissible. Gonzalez, 979 A.2d at 890; Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984).

In this case, even if the search of the room and seizure of the bags was illegal, police would have eventually discovered the items by lawful means. Defendant was already in custody and police on the premises when the room was searched. Instead of searching the room based on Ms. Bleecker’s consent, police could have obtained a warrant before entering the bedroom and seizing the bags. As the items would have inevitably and lawfully been discovered, regardless of Ms. Bleecker’s consent to search the room, the evidence is admissible.

 

  1. CONCLUSION

For the reasons set forth above, Defendant’s Pre-Trial Motion is denied. Neither the gunshot residue test results nor the evidence obtained from the home shall be suppressed.

 

About the author

Lebanon County Legal Journal has written 703 articles for Lebanon County Legal Journal

Search