J. S71005/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ANDREW JAMES MILLER, : No. 1624 WDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, September 8, 2014,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0014034-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 19, 2016

Andrew James Miller appeals the judgment of sentence of 

September 8, 2014, following his convictions of invasion of privacy and 

criminal attempt, invasion of privacy.1 We affirm.

The trial court recited the following facts:

This matter arises out of [appellant’s] arrest 

for taking or attempting to take photographs, using 

his cell phone, up the skirt of a woman in a 

supermarket and several other women at his place of 

work. [Appellant] filed a Motion to Suppress 

evidence obtained from his cell phone alleging that 

the search warrant authorizing the seizure of his cell 

phone, on which various pictures and videos were 

found, was not supported by probable cause. In 

addition, [appellant] alleged that the warrant lacked 

the required specificity describing the phone to be 

searched and seized.

 

1 18 Pa.C.S.A. §§ 7507.1 and 901, respectively.
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The search warrant application of May 29, 

2013 alleged that on Wednesday, May 22, 2013 the 

victim reported that while she was shopping at a 

grocery store “a male followed her and on three 

occasions he was in such position, crouched down, to 

take a photograph up her skirt with his cell phone.” 

The warrant further alleged that in a personal 

interview with the victim on May 24, 2013, she 

described the following occurring in the supermarket 

over a 30 to 40 minute period:

While inside she noted the male seemed 

to be following her. She first noticed the 

male while in the isle [sic] where pasta 

products were. She did not know or 

recognize the male. She described him 

as being “really tall.” The male “invaded 

her space” a total of three times. She 

expounded by explaining the male came 

unusually close to her when she would 

stop or look for items on the shelf. The 

third incident was the most egregious. 

(She) recalled being in the cereal aisle. 

She stopped to look at an item on the 

shelf. She was standing facing the shelf 

when she sensed someone close to her. 

She immediately reacted by moving. 

When she did, her left foot bumped the 

right hand of the male. This indicated 

that the male’s right hand was close to 

the floor and directly behind her foot. 

She was startled and quickly walked 

away from the area. She looked back 

and saw the male crouched down, facing 

the shelf. His cell phone was in his right 

hand resting on his thigh. She believed 

the male may have taken a picture up 

her skirt with his cell phone. It should 

be noted that (the victim) was wearing a 

short skirt at the time. If the male took 

a photograph from where his hand was, 

[it] would be conceivable that her 

buttocks, genital and pubic area would 

have been captured in the photo.
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The search warrant further described that the 

victim then went to a self checkout lane and 

[appellant] got in line behind her even though other 

lanes were open and available. An employee advised 

[appellant] that other lanes were available, but he 

indicated that he wanted to remain in that lane, but 

eventually moved to another lane. Later, she saw 

[appellant] standing in the lobby area and he then 

reentered the store. The victim had an employee of 

the store escort her to her vehicle to load her 

groceries and as she completed loading the groceries 

she saw [appellant] sitting in a vehicle two spaces 

away from her. She then noted that [appellant’s] 

vehicle was following her as she proceeded through 

the parking lot to the exit. At the exit she waited 

until approaching cars were so close before she 

pulled out so that [appellant’s] vehicle would not be 

able to pull out directly behind her.

Detective Brace’s affidavit indicated that he 

reviewed surveillance footage from the supermarket 

which showed the victim at the checkout counter as 

she described and [appellant] following her to the 

same lane, standing behind her. The affidavit 

further states “it appears the male is holding 

something in his right hand (presumably his cell 

phone).” The affidavit further sets forth 

Detective Brace’s review of additional footage from 

the supermarket surveillance video which was 

consistent with the victim’s description of [appellant] 

following her to the checkout lane and also describes 

him being seen in the lobby “manipulating his cell 

phone in his hands while waiting.” The affidavit 

requests a warrant to search the “cell phone used by 

[appellant] while at Giant Eagle at Moon Township on 

May 21, 2013.”

The search warrant was issued and executed 

on [appellant] at his residence on May 29, 2013 

where his phone was seized and examined. There 

were no videos or images of the woman in the 

supermarket, however, several videos were found 

showing other females’ genital areas which were 
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recorded at [appellant’s] place of employment. 

Further investigation, including review of surveillance 

video from [appellant’s] place of employment, 

revealed six different occasions when [appellant] 

could be observed putting himself in a position where 

he could record co-employees’ intimate parts by 

placing his cellular phone under their skirts.

Trial court opinion, 7/7/15 at 2-4.

Appellant was convicted of the aforementioned charges following a 

non-jury trial on June 10, 2014. On September 8, 2014, the trial court 

sentenced appellant to an aggregate of seven years’ probation, and 

appellant was also ordered to register under SORNA for 15 years. Appellant 

filed notice of appeal on October 3, 2014. On October 8, 2014, the trial 

court ordered appellant to produce a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant complied on 

December 18, 2014. The trial court has filed an opinion pursuant to 

Pa.R.A.P. 1925(a).

Appellant raises the following issue for our review:

Did the lower court err in denying the motion to 

suppress insofar as the search warrant used to 

obtain the appellant’s cell phone, and ultimately, the 

photographic/video evidence, was not supported by 

probable cause when solely considering the four 

corners of the affidavit of probable cause?

Appellant’s brief at 5. 

When reviewing the denial of a defendant’s motion to suppress 

evidence, we are held to the following standard:
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[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 

allegations 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), 

quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010), 

cert. denied, 562 U.S. 832 (2010) (internal citations and quotation marks 

omitted).

Both the United States and Pennsylvania Constitutions guarantee that 

individuals shall not be subject to general investigative search warrants 

lacking in probable cause and specificity of the items to be searched. See 

Commonwealth v. Rega, 933 A.2d 997, 1011 (Pa. 2007), cert. denied, 

562 U.S. 832 (2010). 

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 
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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. 

A recent decision of this court explained our standard for determining 

whether probable cause exists:

With regard to the somewhat elusive concept of 

probable cause, we have explained as follows:

“[P]robable cause does not involve 

certainties, but rather ‘the factual and 

practical considerations of everyday life 

on which reasonable and prudent men 

act.’” Commonwealth v. Wright, 867 

A.2d 1265, 1268 (Pa.Super. 2005) 

(quoting Commonwealth v. Romero, 

449 Pa.Super. 194, 673 A.2d 374, 376 

(Pa.Super. 1996)). “It is only the 

probability and not a prima facie showing 

of criminal activity that is a standard of 

probable cause.” Commonwealth v. 

Monaghan, 295 Pa.Super. 450, 441 

A.2d 1318 (Pa.Super. 1982) (citation 

omitted); see also Illinois v. Gates, 

462 U.S. 213, 238, 103 S.Ct. 2317, 76 

L.Ed.2d 527 (1983) (holding that 

probable cause means “a fair probability 

that contraband or evidence of a crime 

will be found.”); Commonwealth v. 
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Lindblom, 854 A.2d 604, 607 

(Pa.Super. 2004) (reciting that probable 

cause exists when criminality is one 

reasonable inference, not necessarily 

even the most likely inference). To this 

point on the quanta of evidence 

necessary to establish probable cause, 

the United States Supreme Court 

recently noted that “[f]inely tuned 

standards such as proof beyond a 

reasonable doubt or by a preponderance 

of the evidence, useful in formal trials, 

have no place in the probable cause 

decision.” Maryland v. Pringle, 540 

U.S. 366, 371, 124 S.Ct. 795, 157 

L.Ed.2d 769 (2003) (citations omitted).

Commonwealth v. Freeman, 2015 WL 7756864 at *7 (Pa.Super. 

December 2, 2015), quoting Commonwealth v. Dommel, 885 A.2d 998, 

1002 (Pa.Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007) (citations 

modified). When determining whether probable cause exists, we must 

consider the totality of the circumstances. Commonwealth v. Wallace, 42 

A.3d 1040, 1048 (Pa. 2012), quoting Commonwealth v. Coleman, 830 

A.2d 554, 560 (Pa. 2003) (citations omitted).

Here, the police produced sufficient probable cause to justify the 

issuance of a search warrant for appellant’s cell phone. According to the 

search warrant application, the victim “noticed a male seemed to be 

following her.” (Affidavit of probable cause, 5/29/13 at 3.) The victim told 

the police that appellant got “unusually close to her,” three times while 

inside the Moon Township Giant Eagle. (Id.) As indicated supra, the 

victim, after quickly walking away from appellant after their third encounter 
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inside the store, noticed that appellant was, “crouched down, facing the 

shelf. His cell phone was in his right hand resting on his thigh. She believed 

[appellant] may have taken a picture up her skirt with his cell phone.” (Id.) 

The affidavit also indicated that at the time of the third encounter between 

appellant and the victim, appellant’s left hand was close to the floor and 

directly behind the victim’s left foot; the affidavit also notes that the victim 

was wearing a short skirt at the time. (Id.)

Given the totality of the circumstances surrounding the multiple 

encounters between appellant and the victim inside the Giant Eagle, the 

police have established that one could “reasonably infer” that a criminal act 

took place, pursuant to Lindblom. Therefore, appellant’s argument that the 

police lacked sufficient probable cause to justify issuing a search warrant for 

his cell phone must fail.

Appellant also makes the argument that the search warrant was 

overbroad. The Pennsylvania Rules of Appellate Procedure require an 

appellant to raise an issue with the lower court before raising it on appeal. 

Pa.R.A.P. 302(a). Failure to do so will result in the issue being waived. 

Here, appellant avers that the search warrant, which included “any and all 

electronically stored data, and/or multimedia phone and related storage 

media,” was overbroad. A careful review of the suppression hearing and 

trial transcripts and appellant’s omnibus pretrial motion reveal that appellant 
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failed to raise this issue with the trial court. The issue is therefore waived, 

and we cannot consider its merits.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016