J-S10005-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN DAVION TORRES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1377 MDA 2020

Appeal from the Judgment of Sentence Entered October 23, 2020

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0003819-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.: FILED MAY 13, 2021

Jonathan Davion Torres (Appellant) appeals from the judgment of 

sentence entered after a jury found him guilty of persons not to possess 

firearms. See 18 Pa.C.S.A. § 6105(a)(1). Appellant contends the trial court 

erred in denying his suppression motion. Upon review, we affirm.

The trial court recounted the evidence presented at the suppression 

hearing as follows:

On January 25, 2019, Chyquel Young-Key was shot dead in 

the second-floor apartment located at 347 Spring Street in the 

City of Reading. Criminal Investigator Scott [E]rrington

[(Errington)] of the City of Reading Police Department was 

conducting an investigation [into] the killing. Due to statements 

made by one Lekeya Copeland, [E]rrington identified [Appellant] 

. . . as a possible suspect in the shooting. 

Knowing that [Appellant] was on state parole [for a felony 

conviction of aggravated assault], [E]rrington contacted 

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* Retired Senior Judge assigned to the Superior Court.
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Christopher Hall [(Hall)], an agent of the state parole office. Hall 

informed [E]rrington that [Appellant] was scheduled for a regular 

office visit on February 4, 2019, and that there existed an 

outstanding warrant for [Appellant’s] arrest for parole violations. 

Hall informed [E]rrington that [Appellant] was going to be taken 

into custody when he arrived for his office visit. 

[Appellant] was driven to the parole office on Cherry Street 

by [] Javier Gonzalez [(Gonzalez)], who was operating a black 

Infiniti automobile [(the Infiniti)]. Gonzalez, believing that 

[Appellant’s] meeting would last only a few minutes, was waiting

for [Appellant] on Cherry Street. When taken into custody, 

[Appellant] informed Hall that Gonzalez had brought him to the

office, and was waiting for him outside. 

Hall spoke to [E]rrington by phone, informing him that 

[Appellant] had been taken into custody and that [Appellant] had 

no cell phone or other personal belongings on his person. Hall 

also informed [E]rrington that [Appellant] had been driven to the 

parole office by Gonzalez, who was parked outside, and was 

awaiting [Appellant’s] return. Hall approached Gonzalez and 

asked him if [Appellant] had left any property in the [Infiniti]

before he came into the office. Gonzalez responded that 

[Appellant] had not left anything in the car. Hall informed 

Gonzalez that [Appellant] was in custody and would not be 

released. After being informed that [Appellant] was in custody 

and had no personal belongings with him when arrested at the 

parole office, [E]rrington contacted a patrol unit and asked the

officers therein to proceed to the Cherry Street area, observe the 

[] Infiniti, and if they observed any traffic violations, to stop the 

vehicle. 

Officers Eric Koller [(Koller)] and Mark Lacek of the City of 

Reading Police Department were in the [responding] patrol unit, 

which arrived at the area prior to Hall’s informing Gonzalez that 

[Appellant] was in custody. Koller observed that the windows of 

the Infiniti automobile were tinted to a greater extent than is 

allowed under Pennsylvania law, as well as the fact that Gonzalez 

pulled into traffic when leaving the area without utilizing his turn 

signal. Both of these observations constituted violations of the 

Pennsylvania Motor Vehicle Code on the part of Gonzalez, and the 

vehicle was stopped after a short distance.
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Upon approaching the vehicle, Officer Koller made inquiry of 

the dispatcher as to whether or not Gonzalez had any outstanding 

warrants, as well as his [motor vehicle] licensing status. Although 

there were no warrants for Gonzalez, Koller learned that 

[Gonzalez’s] driver’s license was suspended, and informed 

Gonzalez that he would not be permitted to move the vehicle

further. 

[E]rrington then arrived in the area and approached the 

[Infiniti]. He observed what appeared to be three cell phones in 

the console area of the vehicle and asked Gonzalez about

ownership. Gonzalez indicated that one cell phone, the largest in 

size, belonged to him, and that the other two, an iPhone and an 

Android, belonged to [Appellant; Gonzalez stated he] had seen 

[Appellant] make a call on the iPhone before [Appellant] left it in 

the vehicle. Because Gonzalez could not be permitted to drive the 

vehicle further, and because, when stopped, Gonzalez was 

partially blocking traffic, the vehicle was towed to a holding area 

at City Hall. After the vehicle was impounded, [E]rrington 

procured a search warrant for the contents of both the vehicle 

and the two phones belonging to [Appellant].

While executing that warrant, the search of the vehicle 

disclosed significant amounts of United States currency, as well as 

cocaine. Since those items were not included in the list of items 

to be searched for pursuant to the first warrant, [E]rrington 

procured a second warrant which was executed the following day.

From the iPhone identified as belonging to [Appellant, 

police] retrieved images of [Appellant] wielding firearms, which 

he was barred from possessing by virtue of his previous criminal 

record, including a conviction for felonious aggravated assault.

Trial Court Opinion and Order, 4/1/20, at 2-5 (emphasis added; citations, 

numbering and some capitalization omitted).

On July 31, 2019, the Commonwealth charged Appellant with a single 

count of persons not to possess firearms. On November 27, 2019, Appellant 

filed an omnibus pre-trial motion seeking suppression of any data contained

on his cell phones seized from the Infiniti. The trial court conducted a hearing 
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on February 7, 2020. On April 1, 2020, the court entered its opinion and order 

denying suppression. 

The matter proceeded to a jury trial on October 23, 2020. The jury 

found Appellant guilty of persons not to possess firearms, and the trial court 

immediately sentenced Appellant to 5 to 10 years in prison. 

Appellant did not file post-sentence motions. Appellant timely filed a 

notice of appeal. Both Appellant and the trial court have complied with 

Pa.R.A.P. 1925. Appellant states his suppression issue as follows:

Whether the trial court erred in denying Appellant’s motion to 

suppress evidence as the Commonwealth lacked probable cause 

to seize the Appellant’s phone following a traffic stop where there 

was no evidence that the phone was associated with any criminal 

conduct?

Appellant’s Brief at 4.

Appellant argues the trial court erred in denying suppression because

the police lacked probable cause to search data stored on Appellant’s cell 

phone.

1 See id. at 8-15. Appellant claims: “Law enforcement went to great 

lengths to circumvent the warrant requirement” in order to seize Appellant’s

cell phones. Id. at 14. Appellant argues that “without a warrant and without

[providing Appellant] an opportunity to allow for the retrieval of property, the 

police unlawfully seized the Appellant’s cell phone by simply towing a vehicle 

to City Hall until a warrant could be obtained.” Id. at 14-15. Appellant 

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1 Appellant repeatedly refers to “cell phone” in the singular. We presume, 

however, that his challenge pertains to both of his cell phones.
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contends, “[e]ven if a lawful search warrant was obtained after the seizure of 

the cell phone, the conduct by law enforcement in order to seize the vehicle 

that contained the phone was unlawful.” Id. at 13. 

Our standard of review is well-settled:

When we review the ruling of a suppression court, we must 

determine whether the factual findings are supported by the 

record. When it is a defendant who appealed, we must consider

only the evidence of the prosecution and so much of the evidence

for the defense as, fairly read in the context of the record as a

whole, remains uncontradicted. Assuming that there is support in

the record, we are bound by the facts as are found and we may

reverse the suppression court only if the legal conclusions drawn

from those facts are in error.

Commonwealth v. Brame, 239 A.3d 1119, 1126 (Pa. Super. 2020) (citation 

and brackets omitted). Our scope of review is limited to the record developed 

at the suppression hearing, considering the evidence presented by the 

Commonwealth as the prevailing party and any uncontradicted evidence 

presented by Appellant. Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 

2018). 

At Appellant’s suppression hearing, the Commonwealth presented the

testimony of Parole Agent Hall, Officer Koller, and Investigator Errington. 

Officer Koller and his partner stopped the Infiniti after observing two Motor

Vehicle Code violations. See 75 Pa.C.S.A. §§ 3334(a), 4524(e)(1). Appellant
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does not specifically challenge the lawfulness of the stop.2 Because Gonzalez’s 

driver’s license was suspended, and the Infiniti was located near a 

handicapped parking meter and fire hydrant where it was partially blocking 

traffic, police arranged for it to be towed. See N.T., 2/7/20, at 19-21, 29. On 

appeal, Appellant contends the police improperly failed to give him “and any

other interested party” an opportunity to remove personal possessions from

the Infiniti before it was towed. Appellant’s Brief at 13-14. 

Pertinently, the Vehicle Code addresses “Immobilization, towing and 

storage of vehicle for driving without operating privileges or registration,” and 

provides:

If a person operates a motor vehicle . . . on a highway or trafficway 

of this Commonwealth while the person’s operating privilege is 

suspended, revoked, . . . or where the person is unlicensed, . . .

the law enforcement officer shall immobilize the vehicle . . . or, in 

the interest of public safety, direct that the vehicle be 

towed and stored by the appropriate towing and storage agent . 

. ., and the appropriate judicial authority shall be so notified.

75 Pa.C.S.A. § 6309.2(a)(1) (emphasis added); see also Commonwealth 

v. Lagenella, 83 A.3d 94, 101 (Pa. 2013) (detailing the requirements to tow 

a vehicle under subsection 6309.2(a)(1)). This Court has stated, “Judges are 

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2 To the extent Appellant baldly asserts “the conduct by law enforcement in 

order to seize the vehicle that contained the phone was unlawful,” Appellant’s 

Brief at 13, this claim is waived. See In re S.T.S., Jr., 76 A.3d 24, 42 (Pa.

Super. 2013) (“[w]hen an appellant fails to develop his issue in an argument

and fails to cite any legal authority, the issue is waived”; and “mere issue

spotting without analysis or legal citation to support an assertion precludes

our appellate review”); see also Pa.R.A.P. 2119(a) (mandating an appellant 

develop an argument with citation to and analysis of relevant legal authority).
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not in a position to second-guess a police officer’s decision to tow a vehicle 

which, in the officer’s opinion, may create a traffic hazard. To do so would 

seriously handicap legitimate traffic-control activities.” Commonwealth v. 

Henley, 909 A.2d 352, 364 (Pa. Super. 2006) (citation omitted). 

Here, Appellant fails to advance any authority to support his

undeveloped claim of police error in having the Infiniti towed without first 

affording Appellant or “another interested party” the opportunity to remove 

Appellant’s personal items. Accordingly, this claim is waived. See In re

S.T.S., Jr., supra; Pa.R.A.P. 2119(a). In any event, our research discloses

no support for a claim that police – when having a vehicle towed pursuant to

subsection 6309.2(a)(1) – must delay towing to afford persons absent from

the scene an opportunity to remove personal items before the vehicle is 

towed. See generally Henley, supra; Lagenella, supra.

We next address Appellant’s claim that the search of his cell phones was 

unlawful. It is well-settled that a search of a cell phone requires a warrant. 

Fulton, 179 A.3d at 487. A request to search a cell phone must provide a 

link between the cell phone and the crimes listed in the warrant. 

Commonwealth v. Johnson, 240 A.3d 575, 577-78 (Pa. 2020). 

Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution mandate that search warrants

be supported by probable cause. Id. at 584. We have explained:
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Before an issuing authority may issue a constitutionally valid 

search warrant, he or she must be furnished with information 

sufficient to persuade a reasonable person that probable cause

exists to conduct a search. The standard for evaluating a search

warrant is a totality of the circumstances test . . . . A magistrate 

is to make a practical, common sense decision whether, given all 

the circumstances set forth in the affidavit before him, including 

the veracity and basis of knowledge of persons supplying hearsay 

information, there is a fair probability that contraband or evidence 

of a crime will be found in a particular place.

Commonwealth v. Manuel, 194 A.3d 1076, 1081 (Pa. Super. 2018) (en

banc) (citations, quotation marks, and footnote omitted).

A reviewing court’s duty, in turn, is merely to ensure the issuing 

authority had a substantial basis for concluding that probable 

cause existed. In so doing, the reviewing court must accord 

deference to the issuing authority’s probable cause determination, 

and must view the information offered to establish probable cause 

in a common-sense, nontechnical manner.

Johnson, 240 A.3d at 585 (citation and quotation marks omitted).

Here, the trial court described the affidavit of probable cause from which 

it found probable cause to search Appellant’s cell phones:

In the affidavit of probable cause, [Errington] recounted the 

details of the investigation into the murder of Chyquel Young-Key

(“Young-Key”) [on January 25, 2019], including the initial call 

from Lekeya Copeland (“Copeland”) and law enforcement’s 

response on the scene. Copeland initially told responding Reading 

Police Officers that Young-Key, an ex-boyfriend of Copeland, had 

broken into her apartment and a physical struggle ensued 

whereupon Young-Key grabbed Copeland from behind and began 

to shake her. That is when Copeland states Young-Key said 

“Watch out” and [Copeland] heard a gunshot. Copeland stated 

that she then ran downstairs and eventually called 911. 

[F]or fear that potential digital evidence might be lost, a 

search warrant for Copeland’s cell phone and the contents thereof 

was authorized and executed. [E]rrington reviewed the contents 

of Copeland’s phone and found conversations between Copeland 
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and [Appellant, Copeland’s paramour], as well as photographs and 

videos from [Appellant], whom Copeland referred to as “Pook” or 

“Pookie.” A text message from [Appellant] to Copeland depicts 

an individual holding a black Glock 9mm pistol with [Appellant] 

texting, “Stoopid, I’m talking about my gun dumbass,” and “It’s 

ah glock I call them Gigi’s stooped.” [Appellant] also sent 

Copeland [an online retailer website] link to a [firearm] magazine 

fitted for a 9mm Glock firearm. [Errington] found a Facebook 

messenger conversation between Copeland and another friend in 

which [Copeland] states, in part, that “[C]hyquel broke in Pook 

was there and he shot him.”

Copeland had two separate phone numbers for [Appellant] 

listed in her phone – one identified as an iPhone and another that 

was not. Likewise, public videos from [Appellant’s] Facebook page 

show [Appellant] with an iPhone in his hand while he is filming 

with another phone.

Continuing in the affidavit of probable cause, [Errington]

then relates the circumstances . . . regarding [Appellant’s] arrest 

and the stop and eventual lawful seizure of Mr. Gonzalez’s vehicle.

[Errington] details that, while waiting for the vehicle to be towed, 

he observed several phone calls come in to the two cell phones

identified as belonging to [Appellant,] and that one of the phones 

had [Appellant’s] photograph as background wallpaper. . . .

[Errington] called the number listed for [Appellant] from 

Copeland’s cell phone and heard one of the phones inside the 

vehicle ring.

[Errington], along with another criminal investigator, 

conducted an interview with Copeland on February 5, 2019, during 

which Copeland stated that on January 25, 2019, she and

[Appellant] were at her residence when Young-Key entered the 

apartment and began to assault Copeland. As the assault spilled 

into the hallway outside of the apartment, Copeland heard a

gunshot and both Young-Key and Copeland fell to the floor. 

Copeland professed that she did not see the shooter, but assumed 

it was [Appellant,] as he was the only other person in the 

apartment and Copeland knew [Appellant] to possess firearms.

Based on the facts as presented in the affidavit of probable 

cause set forth in the application for search warrant, we find that 

the [Magisterial District Judge] was provided with sufficient 

probable cause to issue the warrant on the basis that there existed 
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a fair probability that evidence of criminal activity would be found 

on [Appellant’s] cell phones. As such, we find that [Appellant’s]

claim lacks merit and the physical evidence should not be 

suppressed.

Trial Court Opinion and Order, 4/1/20, at 9-11.

Our review discloses that the court’s analysis is supported by the law 

and the record, the latter of which belies Appellant’s claim of lack of evidence 

linking his cell phones to criminal activity. Thus, the trial court did not abuse 

its discretion in denying Appellant’s suppression motion. See, e.g., 

Commonwealth v. Freeman, 128 A.3d 1231, 1243 (Pa. Super. 2015) (trial 

court properly denied accused’s motion to suppress data stored on his cell 

phones seized pursuant to a search warrant, where affidavit of probable cause 

“provided the issuing magistrate with a substantial basis to conclude that 

there was a fair probability that evidence of criminal activity would be found 

on [accused’s] cell phones.”); see also Brame, supra; cf. Johnson, 240 

A.3d at 589, 590 (trial court erred in denying motion to suppress contents of 

cell phone where affidavit of probable cause consisted of “barren facts and 

conclusory statements”; further stating that “what is missing here [is] some 

‘other evidence’ suggesting [the accused] was engaged in drug dealing, or 

otherwise linking his cell phone to anything criminal.” (footnote omitted)). 

Accordingly, Appellant’s suppression issue does not merit relief.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/13/2021