Waiver of Issues under Pa. R.A.P. 1925(b)(4)

Commonwealth v. Price, 244 A.3d 1250 (Pa. Super. 2020), allocatur granted July 28, 2021, appeal docket 18 WAP 2021

Nathaniel Ray Price was arrested and charged in connection with a double homicide. At the time of the arrest, police seized Price’s cell phone. A search warrant of Price’s phone records was granted based on an officer’s affidavit of probable cause, which averred in pertinent part:

During the course of the investigation, 3 suspects were identified and taken into custody. Isaiah Treyvon RUSSELL-SCOTT, Nathaniel Ray PRICE and Justin Tyler STEVENSON were those individuals. Isaiah Treyvon RUSSELL-SCOTT, and Nathaniel Ray PRICE were both found to be in possession of cellular phones. Through the course of the investigation, specifically suspect interviews, investigators learned PRICE’s phone number to be 724-762-3803 and he used a cellular phone to communicate with Isaiah Treyvon RUSSELL-SCOTT prior to the Criminal Homicides.

Nathaniel Ray PRICE was found to be in possession of a Samsung Galaxy cellular phone, which he declared as his own. Said phone is logged into evidence under A03-23981K.

A search warrant pertaining to phone number 724-762-3803 was served on Cellco Partnership d/b/a Verizon Wireless on 10/28/16. This search warrant confirmed that cellular communication devices were used prior to and after the Criminal Homicides.

Based on my training and experience, I believe there is valuable information to be obtained in Samsung Galaxy cellular phone which Nathanial Ray PRICE possessed. This information will aid in this Criminal Homicide Investigation, specifically, text messaging data, instant messaging data, contact information, image files, video files, location services data, GPS data, transactional and administrative information, settings, subscriber information, application (“app”) data, IMEI data and any other data relating to suspect location information, call lists, networks joined, list of networks joined.

Slip op. at 2-3. Price filed a motion to suppress the phone records, which the trial court granted based on its finding that the affidavit of probable cause did not establish a probability that the phone number for which the police sought records was connected to the phone that was seized, or that the phone records probably contained evidence of a crime. The Commonwealth appealed. While the Commonwealth did not address the issue of inevitable discovery in its statement of matters complained on appeal under Pa. R.A.P., the Commonwealth argued before Superior Court that even if the search warrant was not supported by probable cause, the doctrine of inevitable discovery applies. Specifically, the Commonwealth argued that it had information in its possession when it applied for the warrant for the cell phone records – that Price used his cell phone to communicate with one of the other suspects before the homicides and that Price’s number was confirmed by police interviews – which was omitted from the affidavit, but would have enabled the Commonwealth to obtain Price’s cell phone records through a subsequent warrant application. Price countered the Commonwealth waived the inevitable discovery issue by failing to include it in its statement of matters complained on appeal in accordance with Pa. R.A.P. 1925(b)(4), which provides:

(4) Requirements; waiver.

(i) The Statement shall set forth only those errors that the appellant intends to assert.

(ii) The Statement shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge. The judge shall not require the citation to authorities or the record; however, appellant may choose to include pertinent authorities and record citations in the Statement.

(iii) The judge shall not require any party to file a brief, memorandum of law, or response as part of or in conjunction with the Statement.

(iv) The Statement should not be redundant or provide lengthy explanations as to any error. Where non-redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver.

(v) Each error identified in the Statement will be deemed to include every subsidiary issue that was raised in the trial court; this provision does not in any way limit the obligation of a criminal appellant to delineate clearly the scope of claimed constitutional errors on appeal.

(vi) If the appellant in a civil case cannot readily discern the basis for the judge’s decision, the appellant shall preface the Statement with an explanation as to why the Statement has identified the errors in only general terms. In such a case, the generality of the Statement will not be grounds for finding waiver.

(vii) Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.

Superior Court agreed with the trial court that the affidavit failed to establish probable cause for police to obtain the search warrant of Price’s phone records. However, the Court disagreed with Price that the Commonwealth waived the issue of inevitable discovery, reasoning that “[i]t is a subsidiary issue of its probable cause issue. See Pa.R.A.P. 1925(b)(4)(v).” Slip op. at n.1. The court reversed the suppression order based on inevitable discovery, concluding that:

In this case, there is no evidence that the omission of the additional information establishing probable cause from the warrant application resulted from police misconduct. The only question is whether the police would have inevitably discovered the evidence by lawful means. We conclude the Commonwealth has carried its burden to establish that they would have done so. Police here left out of the affidavit of probable cause information that they had in their possession at the time, and that would have enabled them to obtain a proper, second warrant. See Commonwealth v. Henderson, 616 Pa. 277, 47 A.3d 797, 799 (2012). 

Slip op. at 6.

The Supreme Court granted allocatur to consider the following issue:

Did the Superior Court err in reversing the order entered on October 15, 2019, at paragraph 10 thereof, relating to suppression of the search warrant issued on October 28, 2016, at 1:15 P.M., which search warrant failed to state probable cause within the four-corners of its affidavit, on the basis of inevitable discovery, inasmuch as inevitable discovery was outside of that raised in the concise statement pursuant to Pa.R.A.P. 1925 and, by so doing, the Superior Court went outside the four-corners of such search warrant’s affidavit?


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