J-S06014-22 & J-S06015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD MARTIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1099 EDA 2020

Appeal from the Judgment of Sentence Entered February 25, 2020,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0004520-2019, 

CP-51-CR-0004521-2019.

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD MARTIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1100 EDA 2020

Appeal from the Judgment of Sentence Entered February 25, 2020,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0004520-2019, 

CP-51-CR-0004521-2019.

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 26, 2022

Edward Martin appeals from the judgment of sentence imposed 

following his bench trial and conviction of aggravated assault, strangulation, 

possession of an instrument of crime, simple assault, reckless endangerment, 
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and various drug possession offenses.

1

 Martin challenges the denial of his 

pre-trial motion to suppress. We affirm.

The trial court set forth the facts of this case.

On May 31, 2019, Brianna Bennett, [Martin’s] girlfriend and 

mother of his child, went to [Martin’s] home at 969 East Price 

Street in Philadelphia with the intent to discuss their relationship 

and the welfare of their child. [Martin] and Ms. Bennett arrived at 

his home simultaneously. [Martin], annoyed that Ms. Bennett had 

come to his home, asked her why she was there. When she told 

him her reasons, he became even more upset and told her to “Get 

the F out[.]” Ms. Bennett prepared to leave, however prior to 

leaving she attempted to gather some of her and her child’s 

personal items from [Martin’s] bedroom. In the course of 

collecting her things, [Martin] placed both hands around Ms. 

Bennett’s throat, threatened to kill her, punched her multiple 

times in her abdomen, and choked her for at least a minute. 

Unable to breathe, Ms. Bennett fought back, and [Martin] 

eventually let go of her.

After [Martin] released her, Ms. Bennett went to the living 

room and gathered more of her property, when [Martin] 

immediately tackled her from behind. [Martin] then grabbed Ms. 

Bennett’s shirt and pulled it over her face. When she was able to 

remove her shirt from her face, [Martin] grabbed a black plastic 

bag, sat on Ms. Bennett, and covered her face with the bag. He 

continued to threaten her and stated that he would take away 

their child and shoot her. Appellant did not relent until his cousin, 

who was also present at his apartment, told him to get off of her.

Eventually, Ms. Bennett was able to crawl down the steps 

and get outside where she waved down a police car. She was 

transported to Frankford Hospital for treatment at which time she 

spoke with Detective William Lackman.

Based on the information provided by Ms. Bennett, 

specifically [Martin’s] threat to shoot her and his ownership of a 

handgun, Detective Lackman obtained a search warrant for 

[Martin’s] home at 969 East Price Street. [Detective Lackman] 

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1 18 Pa.C.S.A. §§ 2702, 2718, 907, 2701, and 2705 and 35 P.S. § 780-

113(a)(30), (16), and (32).
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executed the warrant the next morning, and in the course of 

searching for a gun, in locations where a gun could be found, he 

recovered marijuana, a small amount of U.S. currency, and used 

and new drug paraphernalia.[2] There were 105 unused, 20 used, 

and 46 jars of various color and size, containing marijuana. 

Officer Kevin Keyes, an expert in drug packaging and delivery, 

testified that there were forty-one (41) $5 jars of marijuana, and 

five $10 jars of marijuana or “dime containers” as they are known 

colloquially. The trial court accepted Officer Keyes expert opinion 

testimony that the marijuana was possessed with the intent to 

distribute.

Trial Court Opinion, 3/22/21, at 1–2 (record citations omitted).

On November 15, 2019, Martin filed a counseled one-page motion to 

suppress. On December 2 and 3, 2019, the trial court heard the suppression 

motion, denied the motion to suppress, and held a non-jury trial. The court 

found Martin guilty of the above offenses. On February 25, 2020, Martin was 

sentenced to an aggregate term of 3 to 6 years of imprisonment followed by 

3 years of probation. On March 27, 2020, Martin filed a notice of appeal listing 

both docket numbers, which was docketed only at Case CP-51-CR-4520-2019. 

The notice of appeal incorrectly stated that Martin was appealing from the 

sentence entered on December 16, 2019. On May 6, 2020, Martin filed a 

photocopy of the same notice of appeal at Case CP-CR-51-4521-2019. Both 

notices of appeal were forwarded to this Court on May 21, 2020. The trial 

court ordered Martin to file a concise statement of errors complained of on 

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2 Relevant to this appeal, Ms. Bennett had reported that Martin might keep 

the handgun in a safe in his closet. The safe did not open the first time 

Detective Lackman tried it. In searching for a key to the safe, he opened a 

dresser drawer and found a black bag that was tied shut. Detective Lackman 

ripped open the bag and found marijuana. The safe was later found to be 

unlocked and empty. Martin’s Brief, Appendix 4 (N.T., 12/2/19, at 17–26).
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appeal; Martin complied. The trial court entered its Rule 1925(a) opinion on 

March 22, 2021.

On June 11, 2020, this Court issued a rule to show cause why this appeal 

should not be quashed for (1) being taken from an order not entered on the 

appropriate docket of the trial court, (2) being untimely, and (3) failure to 

comply with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Martin 

filed an answer on June 15, 2020. As to the first issue, although the notice of 

appeal included the handwritten date of December 16, 2019, the actual 

judgment of sentence was entered February 25, 2020. As to the second issue, 

Martin’s notices of appeal were timely under the emergency order of our 

Supreme Court entered April 28, 2020. In re: General Statewide Judicial 

Emergency, 230 A.3d 1015 (Pa. filed April 28, 2020) (per curiam) (ordering 

that certain legal papers required to be filed between March 19, 2020 and May 

8, 2020 shall be deemed to be timely filed if they are filed by the close of 

business on May 11, 2020).

As to the third issue, Walker had held that when a single order resolves 

issues arising on more than one lower court docket, failure to file separate 

notices of appeal would result in quashal of the appeal. Walker, 185 A.3d at 

977 (interpreting Pa.R.A.P. 341(a)). Here, Martin initially filed one notice of 

appeal with both docket numbers on March 27, 2020, at CP-51-CR-4520-

2019. This violated Walker. However, Martin corrected the error by filing a 

separate copy of the notice of appeal at the second docket, CP-51-CR-4521-

2019, on May 6, 2020. Critically, that notice of appeal was also filed within 
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the effective time period. General Statewide Judicial Emergency, supra.

3

 

Therefore, the timely filing of a photocopy of the notice of appeal corrected 

the error of the initial single filing. Under these circumstances, we conclude 

that quashal and remand are not necessary, and we proceed to address the 

merits of this appeal. 

Martin raises two issues for our consideration:

1. Did the [trial] court err in denying Appellant’s motion to 

suppress physical evidence where the four corners of the 

warrant did not establish probable cause[?]

2. Did the [trial] court err in denying Appellant’s motion to 

suppress physical evidence where such recovered items 

were outside the scope of the warrant?

Martin’s Brief at 6.

Martin first claims that the search warrant for his house lacked probable 

cause because the information in the affidavit (i.e., Ms. Bennett’s claim that 

Martin had a gun in the house) was stale and came from an unreliable source. 

Martin’s Brief at 13–18. He emphasizes that the police did not investigate 

when Ms. Bennett saw a video of him with a gun in the house. Id. at 17. 

Martin also suggests that Ms. Bennett had a motive to lie because of a pending 

custody case, where she believed that her report would get Martin in trouble 

with parole and probation. Id. at 17–18 (applying the criteria for an 

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3 We also note that our Supreme Court recently considered the relationship 

between Rules 341(a) and 902 and held that “where a timely appeal is 

erroneously filed at only one docket, Rule 902 permits the appellate court, in 

its discretion, to allow correction of the error, where appropriate.” 

Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021). 
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informant’s reliability articulated in Commonwealth v. Barba, 460 A.2d 

1103, 1105 (Pa. Super. 1983)).

The Commonwealth responds that due to Martin’s threat to shoot Ms. 

Bennett, which was made the day that the warrant was issued, the information 

that he had previously showed her a handgun was not stale. Commonwealth’s 

Brief at 14–15 (citing Commonwealth v. Jones, 323 A.2d 879 (Pa. Super. 

1974)). The Commonwealth distinguishes the test for reliability of confidential 

informants, noting that ordinary citizens are presumed to be reliable. Id. at 

13–14 (citing Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa. 2013)). 

Moreover, the Commonwealth indicates that Ms. Bennett’s account was 

corroborated by Detective Lackman’s observations of her injuries. Id. at 14. 

The Commonwealth therefore submits that the trial court properly determined 

that there was a substantial basis for the issuing authority to find probable 

cause to search for a gun.

In reviewing [suppression] 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, 231 A.3d 10, 15 (Pa. Super. 

2020) (citation and ellipses omitted). Our scope of review is 

limited to the evidence presented at the suppression hearing. 
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Commonwealth v. Bellamy, 252 A.3d 656, 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, 121 A.3d 511, 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, 27 A.3d 1042, 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 “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, 995 A.2d 

879, 886 n.3 (Pa. Super. 2010).

Commonwealth v. Heidelberg, 267 A.3d 492, 498–99 (Pa. Super. 2021) 

(en banc).

In reviewing a challenge to a search warrant based on an affidavit of 

probable cause, our review is limited to “the information within the four 

corners of the affidavit.” Commonwealth v. Batista, 219 A.3d 1199, 1202 

(Pa. Super. 2019) (quoting Commonwealth v. Rogers, 615 A.2d 55, 62 (Pa. 

Super. 1992), and citing Pa.R.Crim.P. 203(D)). A reviewing court ensures 

that the issuing authority “had a substantial basis for concluding that probable 

cause existed,” instead of conducting a de novo review of that determination. 

Id. (quoting Illinois v. Gates, 462 U.S. 213, 238–39 (1983), and 

Commonwealth v. Huntington, 924 A.2d 1252, 1259 (Pa. Super. 2007)). 

“Probable cause exists where the facts and circumstances within the affiant’s 
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knowledge and of which he [or she] has reasonably trustworthy information 

are sufficient in and of themselves to warrant a [person] of reasonable caution 

in the belief that a search should be conducted.” Commonwealth v. Jacoby, 

170 A.3d 1065, 1081–82 (Pa. 2017). A search should be conducted when 

“the police officers have a reasonable belief that the items to be seized are 

related to criminal conduct and that those items are presently located in the 

place to be searched.” Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa. 

1998) (citing Commonwealth v. Jackson, 337 A.2d 582 (Pa. 1975)).

Probable cause may not exist if the information supporting it is “stale.” 

Commonwealth v. Novak, 335 A.2d 773, 775 (Pa. Super. 1975). Whether 

information in an affidavit is stale depends on the totality of the 

circumstances, such as the age of the information and how long the items to 

be seized are likely to be kept at the location to be searched. 

Commonwealth v. Green, 204 A.3d 469, 484 (Pa. Super. 2019). For 

example, information about stolen guns was not stale after five weeks because 

the guns were “hot” and thus hard to dispose. Commonwealth v. 

Klimkowicz, 479 A.2d 1086, 1088–89 (Pa. Super. 1984); see also Jones, 

323 A.2d 879 (holding that information about guns used to commit a crime 

was not stale after three weeks).

When information in a search warrant affidavit depends on a tip from a 

confidential informant, this “may constitute probable cause where police 

independently corroborate the tip, or where the informant has provided 

accurate information of criminal activity in the past, or where the informant 
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himself participated in the criminal activity.” Commonwealth v. Manuel, 

194 A.3d 1076, 1083 (Pa. Super. 2018) (en banc) (emphasis omitted) (citing 

Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011)).

In contrast, Pennsylvania courts do not require an averment of facts to 

establish the credibility and reliability of an ordinary citizen. Lyons, 79 A.3d 

at 1064–65; accord Commonwealth v. Brogdon, 220 A.3d 592, 600 (Pa. 

Super. 2019) (“[A] citizen informer, identified eyewitness[,] or ordinary citizen 

reporting his or her observations of a crime stands on a different ground than 

a police informer.” (quoting with favor the suppression court opinion)). 

Notably, the statement of a victim of a crime is sufficient to establish probable 

cause. Commonwealth v. George, 878 A.2d 881, 884 (Pa. Super. 2005) 

(citing Commonwealth v. Stokes, 389 A.2d 74, 77 (Pa. 1978), abrogated 

on Aguilar/Spinelli grounds by Gates, supra).

Here, in relevant part, the search warrant summarizes an interview 

between the affiant (Detective Lackman) and Ms. Bennett (BB) on May 31, 

2019:

[Detective] Lackman #667 interviewed BB inside NWDD, in brief 

she stated that she and the offender have a 5 month old child 

together, who was present for the incident and assault this 

morning. Earlier, preceding midnight, she was on the phone with 

the offender who is her boyfriend, and he told her that he wanted 

money from her. Around 11:45 pm (5-30-19) BB went to the 

offenders residence, 969 E Price St, 2nd floor, with her their 

daughter, Martin let her in and they got into an argument, he 

wanted money from her, she felt like he was leading her on, and 

didn’t want to give him money. While arguing, the offender 

pushed BB back and choked her, both hand around the [throat],

squeezing for approximately 30 seconds. BB described not being 
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able to breathe. She added that during this Martin threatened to 

shoot and kill her.

BB went on to say she moved to another room in the apartment, 

the offender followed and he pushed her to the ground. The 

offender then climbed on top of her, sitting on her and grabbed a 

plastic bag laying there, covering her face, smothering her. She 

described these actions as going on for about 2 minutes, only 

stopping when the offender[’]s cousin (later ID’ed as JB), who 

lives there also, came out and stopped him. BB believed that 

Martin was going to kill her, adding that he threatened her that he 

was going to kill her during the second strangulation/smothering 

event.

[Detective] Lackman observed faint redness in the area at the 

base of BB’s throat and left bicep, photographing those injuries.

In addition to Martin making verbal threats to shoot BB, BB added 

that she has observed Martin before in possession of a black 

colored handgun, adding that Martin had contacted her via a 

messenger app, a video conversation, she did not recall exactly 

when but within the last 30 days she believed. During that 

conversation the offender, Martin, showed her a black handgun, 

which she immediately recognized as a firearm. BB added that 

before that point in time, she had purchased a black colored safe 

for the offender, at his request, that safe is kept in the offender[’]s 

bedroom and she believes the gun is stored in there.

[Detective] Lackman conducted a criminal history check on the 

offender, finding he has [a robbery conviction that renders him 

unable to possess firearms].

Martin’s Brief, Appendix 1.

Based on the affidavit in support of the search warrant, we find no error 

in the trial court’s determination that the issuing authority had a substantial 

basis to find probable cause to search for the gun. See Trial Court Opinion at 

4–5. Although Martin showed Ms. Bennett the handgun some 30 days prior, 

he threatened to shoot and kill her on the day that the warrant was issued. 

Because Martin was a person who could not legally possess a firearm, there is 
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a reasonable probability that Martin would keep the handgun throughout the 

30 days since he showed it to Ms. Bennett. Therefore, the information about 

the handgun was not too stale to support a determination that the handgun 

would be located in Martin’s residence. Klimkowicz, supra; Jones, supra. 

Furthermore, Ms. Bennett’s identity as a victim reporting an offense, 

corroborated by Detective Lackman’s observations of her injuries, provides 

sufficient reliability to find probable cause. George, supra. Therefore, we 

affirm the denial of Martin’s motion to suppress for lack of probable cause.

In his second issue, Martin claims that the bagged marijuana recovered 

from his dresser was outside the scope of the warrant. Martin argues that the 

tied bag could not contain a handgun, and the bag was not readily identifiable 

as contraband under the “plain view doctrine.” Martin’s Brief at 19 (citing 

Commonwealth v. Harvard, 64 A.3d 690, 698 (Pa. Super. 2013)). Further, 

there was no need for Detective Lackman to look for a key to the safe because 

the safe was unlocked. Id.

The Commonwealth responds that the search warrant authorized 

officers to search for gun accessories, which would include a key to a case 

that could hold a gun. Commonwealth’s Brief at 15–17. The scope of a 

warranted search “extends to the entire area where the object of the search 

may be found and properly includes the opening and inspection of containers 

and other receptacles where the object may be secured.” Id. at 16 (quoting 
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Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa. 1998)4). Additionally, 

the tied bag in the dresser could have contained the plastic bag that Martin 

used in his attack on Ms. Bennett, which the police were also permitted to 

search for and seize pursuant to the warrant. Id. at 17.

At the suppression hearing, although it “[didn’t] know if [the bag] would 

be in plain view,” the court concluded that it was reasonable for Detective 

Lackman to look for the gun inside the dresser drawer. N.T., 12/2/19, at 38.5 

On that basis, the court denied suppression of the drugs. Id. The court later 

explained its reasoning that the marijuana and paraphernalia were discovered 

“in areas where guns can normally be found” while the police were executing 

a valid warrant to search for a gun. Trial Court Opinion at 5 (citing 

Commonwealth v. Korn, 139 A.3d 249, 256 (Pa. Super. 2016) (in turn 

quoting Waltson, supra)).

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4 The Waltson Court gave an example that police officers could not search 

for a stolen car in one’s dresser drawers but could search “any places where 

the contraband may be found.” Id. at 292 n.2. Thus, officers executing a 

search warrant for drugs and money can search in a safe, Commonwealth 

v. Irvin, 134 A.3d 67, 75 (Pa. Super. 2016), a backpack, Commonwealth 

v. Caple, 121 A.3d 511, 521 n.2 (Pa. Super. 2015), or clothing not being 

worn, Commonwealth v. Reese, 549 A.2d 909, 911–12 (Pa. 1988) (jacket);

Commonwealth v. Petty, 157 A.3d 953, 957 (Pa. Super. 2017) (pants).

5 Detective Lackman testified that when he opened the dresser drawer, he 

was looking for keys to the safe where the gun could have been, not the gun 

itself. N.T., 12/2/19, at 22. However, the constitutional inquiry does not 

depend on the officer’s subjective intent. Commonwealth v. Livingstone, 

174 A.3d 609, 637 (Pa. 2017) (quoting Brigham City, Utah v. Stuart, 547 

U.S. 398, 404 (2006) (“The officer’s subjective motivation is irrelevant” “as 

long as the circumstances, viewed objectively, justify [the] action.”))
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Here, Martin claims that the Commonwealth did not prove that the 

marijuana was validly obtained under the plain view doctrine, which

permits a valid warrantless seizure of an item where: (1) the 

police have not violated the Fourth Amendment in arriving at the 

location from which the item could be viewed; (2) the item is in 

plain view; (3) the incriminating character of the item is 

immediately apparent; and (4) the police have a lawful right of 

access to the item itself.

Commonwealth v. Luczki, 212 A.3d 530, 546–47 (Pa. Super. 2019) 

(quoting Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010)). If police 

have a valid search warrant, they do not violate the Fourth Amendment in 

arriving at the location and in searching for the items permitted by the search 

warrant. E.g., Commonwealth v. Anderson, 40 A.3d 1245, 1249 (Pa. 

Super. 2012); see Waltson, supra (limiting the scope of a warranted search 

to include containers and receptacles of the items to be searched for and 

seized).

In this case, we agree with the trial court that Detective Lackman was 

permitted to search for a handgun in a dresser drawer that could contain a 

handgun. Having instead found a black bag that was tied shut, it was 

reasonable for Detective Lackman to suspect that the black bag could contain 

the key to a safe that could contain the handgun. Once Detective Lackman 
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ripped open the bag, he saw marijuana in his plain view, whose incriminating 

nature was immediately apparent.6

Further, we agree with the Commonwealth that the search warrant 

permitted the police to search the tied bag for other items subject to the 

search warrant that would fit inside the tied bag. The search warrant was for 

“Any/all evidence of assault, including plastic bag(s), photos of property 

damage, etc/ any/all evidence of firearms, includin[g] any gun/long gun, 

ammo, accessories for firearms, etc/ safes, including for[c]ed entry if needed/ 

proof of residence such as mail, IDs etc.” Martin’s Brief, Appendix 1 

(emphasis added). The plastic bags that Martin used to try to smother Ms. 

Bennett, as well as Martin’s mail and identification, could fit inside the tied 

bag. Therefore, the warrant permitted Detective Lackman to search inside 

the tied bag for these items. Waltson, supra. Although the trial court did 

not rely on this reasoning, we find that this is an additional basis to deny 

suppression. Commonwealth v. Jones, 193 A.3d 957, 965 (Pa. Super. 

2018) (noting that we may affirm a suppression order for any reason 

supported by the record). Therefore, we affirm the denial of suppression. 

Judgment of sentence affirmed.

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6 Although “marijuana [is] no longer per se illegal in this Commonwealth” 

following the Medical Marijuana Act (MMA), “possession of marijuana [is still] 

illegal for those not qualified under the MMA.” Commonwealth v. Barr, 266 

A.3d 25, 41 (Pa. 2021). Under the MMA, unused medical marijuana must be 

kept in its original package, which is subject to labeling requirements. 35 P.S. 

§ 10231.303(b)(6), (8). Here, the illegal nature of marijuana in a tied-up 

black bag was immediately apparent. Martin has not argued otherwise.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2022