Com V Williams S
J-A11038-25
2025 PA Super 159
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT R. WILLIAMS :
:
Appellant : No. 544 MDA 2024
Appeal from the Judgment of Sentence Entered March 25, 2024
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001169-2021
BEFORE: MURRAY, J., KING, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: JULY 24, 2025
Appellant Scott R. Williams appeals the judgment of sentence entered
by the Court of Common Pleas of Centre County after the trial court convicted
Appellant of Rape by Forcible Compulsion and Aggravated Assault. After
careful review, we affirm.
In his bench trial held in 2024, Appellant was found to be responsible
for the May 13, 1995 violent rape and beating committed upon T.L., a student
at Penn State University in State College, Pennsylvania. The trial court set
forth the following findings of fact:
1. On May 13, 1995, T.L. was found severely beaten and in a state
of undress after being raped by an unknown assailant.
2. At the scene where T.L. was found, there was blood pooling on
the nearby sidewalk, a trail of blood leading toward a nearby
flowerbed, significant amount of blood spatter in the nearby
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* Former Justice specially assigned to the Superior Court.
J-A11038-25
flower bed and the surrounding areas, along with a pair of
jeans, underwear, and shoes.
3. After T.L. was rushed to a nearby hospital and subsequently
"life-flighted" to Geisinger Medical Center due to the severity
of her injuries, Officer Chris Weaver requested that a sexual
assault examination be conducted.
4. T.L.'s injuries and trauma were so severe that she suffered
minor brain damage and, consequently, was not able to clearly
recall what her assailant had looked like.
5. Detectives Thomas Jordan, John Wilson, and Ralph Ralston,
with the help of other State College Police Officers, processed
the crime-scene and collected numerous pieces of evidence. Of
particular importance, these officers collected photographs of
the scene, blood samples from every area and surface where
blood could be found, the aforementioned clothing found in the
flower bed, and a cigarette butt found in the aforementioned
pool of blood.
6. After thoroughly processing the scene for additional hair,
fibers, and bodily fluids, the officers then canvassed the area
for witnesses.
7. Detectives Jordan and Wilson, after logging the evidence
collected, began reviewing the photographs and information
regarding persons who had previously been arrested for
committing assaults and sexual assaults.
8. The above-named detectives continuously interviewed
potential suspects, as well as acquaintances of T.L., all the
while monitoring T.L.'s bank card and credit card, believed to
have been stolen by her assailant, over the course of several
months after the incident.
9. The detectives also had T.L. meet with a psychologist in the
hopes that said psychologist would be able to refresh her
memory.
10. This meeting proved to be somewhat effective, as T.L. was
subsequently able to provide a general description of her
assailant.
11. This description was used by an [Federal Bureau of
Investigation (FBI)] artist to produce a sketch rendering, and
Detectives Jordan and Wilson issued advisories for patrol
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officers regarding a man who had committed a similar assault
one week prior, and who[se] appearance matched T.L.'s
description and the FBI artist’s rendering.
12. Patrol Officers further interviewed potential suspects and
prepared "Field Observation Reports," which were submitted to
Detectives Jordan and Wilson.
13. The Patrol officers also took calls from citizens who believed
they may have relevant information.
14. From May 13, 1995, through May 20, 1996, Detectives
Jordan, Wilson, and Ralston, along with other officers with the
State College Police Department, collectively authored at least
36 reports pertaining to the assault and rape of T.L. See, e.g.,
Comm. Exs. 1, 2, 3, 66.
15. Detective Jordan submitted numerous pieces of physical
evidence to the FBI for the purposes of creating a DNA profile
and testing for potential DNA matches. Such submissions
included the clothes T.L. was wearing when she was admitted
to the hospital, the clothing found in the flower bed, all the
collected blood samples from the crime-scene, the hair and
fiber evidence, soil samples from the flower bed, photographs
of a footprint found in the flower bed, and the "SUJI sex crimes
kit" containing T.L.'s blood samples, body and vaginal swabs,
fingernail scrapings, hair, pulled hair, and hair clippings. See
N.T. September 27, 2022 at 36-38.
16. The FBI analysis revealed seminal fluid in the vaginal swabs
taken from T.L., and consequently performed a D.N.A.
analysis.
17. As a result of this D.N.A. analysis, the FBI generated D.N.A.
profiles for "genetic loci D2S44, D17S79, D1S7, D4S139,
D10S28, and D5S110." See Comm. Ex. 3.
18. The FBI created this initial DNA profile using a Restriction
Fragment Length Polymorphism test (hereafter RFLP).[FN1]
[FN1:] RFLP is performed by extracting DNA from a
sample and then cutting it into pieces. These pieces are
then placed in a gel that separates said DNA pieces by
size, after which said DNA pieces are transferred onto a
membrane. After the transfer, the DNA pieces are
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probed at regions of interest in a process that creates an
RFLP DNA profile.
19. Generally, the "tremendous variability" of a six-loci DNA
profile is "extremely useful ... for distinguishing between
individuals," as the frequency with which an identical profile
would occur between individuals would be between 1 in every
110 million individuals and 1 in every 15.6 sextillion
individuals. See N.T. January 12, 2023 (A.M.) at 26, 77-78.
20. However, with regards to the particular RFLP profile
generated in this case, the odds of another human possessing
the same profile would be 1 in 25.1 billion. See Id. at 27.
21. Similarly, the odds of an identical match in a specific
population group, such as Caucasians or Europeans, are as low
as 1 in 1.7 trillion.
22. The RFLP profile created by the FBI, along with its lab report,
was provided to Detective Jordan on or around January 2,
1996. See Comm. Ex. 3.
23. However, this initial FBI report did not include this statistical
incidence of the subject RFLP DNA profile, as the FBI Lab's
internal policy is to only include statistical analysis where a
separate and matching DNA sample from a suspect is provided
for the purposes of comparison and analysis. See N.T. January
12, 2023 (A.M.) at 118 -19; N.T. January 12, 2023 (P.M.) at
19.
24. Shortly thereafter, Detective Ralston took over as the
primary investigator due to Detective Jordan's medical leave
and Detective Wilson's promotion to patrol supervisor. See
N.T. December 19, 2022 at 22.
25. Detective Ralston conducted interviews with and collected
DNA samples from a number of potential suspects during this
time, and requested a comparison of the DNA collected from
T.L. with the DNA collected from Pennsylvania State Police in
their investigation of the rape of a different woman, K.H. Id.
at 22-24, 39-40, 49-50.
26. However, none of the DNA collected or compared was a
match for T.L.'s assailant. Id.
27. State College police investigated and interviewed numerous
persons of interest between January 2, 1996 and September
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8, 1999, but were unable to find a person with DNA matching
the FBI generated RFLP DNA profile even after collecting
several DNA samples from said persons of interest.
28. On September 8, 1999, Detective Jordan wrote a letter to
the FBI DNA analysis unit asking for this case, if not already
entered into the newly-created Combined DNA Index System
(hereafter "CODIS"), to be entered into CODIS "so that the
DNA can be compared to the suspect database." See Comm.
Ex. 4.
29. The FBI Lab confirmed that the subject RFLP DNA profile had
been uploaded to CODIS automatically, as it had already been
placed in the FBI Local DNA Index System (hereafter "LDIS")
on September 24, 1999. See Comm. Ex. 65.
30. The subject RFLP DNA profile was first searched against
entries in the National DNA Index System (hereafter "NDIS")
on February 24, 2000, and was searched weekly thereafter.
Id.
31. After learning of a Milwaukee detective's successful use of a
John Doe DNA profile complaint for a violent rape case in
Wisconsin to avoid the expiration of the applicable statute of
limitations, Detective Jordan spoke with said detective and
Milwaukee District Attorney Norman Galin, Esquire, about the
legal theories supporting John Doe complaints. See N.T.
September 27, 2023 at 48-51.
32. Using a template he received from the Milwaukee detective,
Detective Jordan prepared a criminal complaint (hereafter the
"Complaint") against T.L.'s assailant based on the DNA profile
and other information provided by the FBI lab, which was
approved by the then-serving Centre County District Attorney,
Ray Gricar, Esquire. See N.T. September 27, 2022 at 49-53.
33. Detective Jordan next sent the Complaint to the FBI Lab to
ensure he had correctly described the RFLP DNA profile. Id. at
50-52.
34. Melissa Smrz, the FBI DNA analyst who had conducted the
RFLP testing, confirmed that Detective Jordan had correctly
described the DNA profile. Id.
35. Shortly thereafter, on March 29, 2000, Detective Jordan
filed the Complaint against "John Doe, Unknown Male with
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Matching Deoxyribonucleic Acid (DNA) Profile developed at
Genetic Locations D2S44, D17S79, D1S7, D4S139, D10S28,
and D5S110...," charging the same with Rape, Aggravated
Assault, Robbery, Indecent Assault, Simple Assault, Recklessly
Endangering Another Person, Theft by Unlawful Taking, and
Receiving Stolen Property. See Comm. Ex. 67 (emphasis
added).
36. In the Affidavit of Probable cause attached to and filed
contemporaneously with the Complaint, Detective Jordan then
specifically elaborated on how the DNA was collected, how the
RFLP DNA profile was generated for these loci, where the DNA
profile was being stored, and that the "John Doe" described
could be expected to have a "DNA profile that matches the
foreign DNA profile from the semen taken from the vaginal and
genital swabs taken from [T.L.] on 5/13/1995." Id.
37. While the Complaint and the Affidavit of Probable Cause do
incorporate and reference the DNA profile contained within the
FBI Lab Report and maintained on the CODIS database, an
image or copy of this DNA profile were not attached to the
Complaint or the Affidavit.
38. Similarly, because Detective Jordan was not provided with
a statistical incidence evaluation for the RFLP DNA profile by
the FBI Lab, such statistical incidence could not be and was not
listed in the Complaint or the Affidavit of Probable Cause. [FN2]
[FN2:] The Court notes that the Commonwealth’s
experts testified that, while RFLP tests can result in
incredibly specific DNA profiles with a very low frequency
of common occurrence, one of the shortcomings of RFLP
testing is that RFLP test results cannot be reported in as
concise, discrete, and well defined of a manner as later
iterations of DNA testing. See N.T. January 12, 2023
(A.M) at 97, 106; N.T. January 12, 2023 (P.M.) at 15,
44-48.
39. In 2002, Detective Jordan retired from the State College
Police Department, and Detective Ralston fully took over T.L.'s
case.
40. In 2002, Detective Ralston learned that the FBI lab had
switched from RFLP DNA testing to short tandem repeat
(hereafter "STR") testing,[FN3] and that CODIS "was
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transitioning from RFLP to STR." See N.T. December 19, 2022
at 30.
[FN3:] The transition from RFLP testing to STR testing
was due to the high efficiency of STR testing. While RFLP
testing can result in a more specific and less frequently
occurring DNA profile than an STR test done with the
same amount of DNA loci, the RFLP testing process
requires a larger sample of DNA, and takes several days
to complete. In contrast, an STR test can be done much
more quickly, on a much smaller DNA sample, and can
be performed overnight. While an STR test would need
to be conducted across 13 DNA loci to reach the same
level of genetic specificity as a 6 DNA loci RFLP test, STR
profiles are more easily and accurately compared with
one another, while RFLP comparisons require a more
intensive comparison and analysis process that is
ultimately less precise than the comparison between STR
profiles. See N.T. January 12, 2023 (A.M.) at 78-79, 97,
106-09; N.T. January 12, 2023 (P.M.) at 5-7.
41. In 2002, Detective Ralston also became aware of the
possibility that the semen sample collected from T.L.'s vaginal
swab could have been from T.L.'s former paramour, with whom
T.L. may have had consensual intercourse with at some point
prior to her assault.
42. Accordingly, Detective Ralston collected a DNA sample from
T.L.'s former paramour and submitted the same to the FBI
Laboratory, along with a request that the FBI Lab generate an
STR profile from the seminal fluid collected from T.L. on May
13, 1995, and compare the same with the DNA collected from
T.L.'s former paramour.
43. On or around January 21, 2004, the FBI Laboratory provided
Detective Ralston with a Lab Report indicating that the DNA
collected from T.L. was not a match for the DNA submitted by
her former paramour, and containing an STR DNA profile from
the seminal fluid collected from T.L.'s vaginal swab. See
Commonwealth Ex. 8.
44. On February 11, 2004, that STR DNA profile was uploaded
onto CODIS, and was searched weekly until the summer of
2014, biweekly from the summer of 2014 until 2017, and daily
from 2017 onward. See N.T. January 12, 2023 (p.m.) at 73-
75.
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45. Despite the efforts of State College Police and frequent
CODIS searches as detailed above, no viable leads were
generated until approximately 2019.
46. In early 2019, Detective Steven Bosak (hereafter "Detective
Bosak") [of the State College Police] asked that T.L.'s case be
assigned to him so that he could attempt the then-novel
process of utilizing genetic genealogy. See N.T. December 19,
2022 at 109-10.[FN4]
[FN4:] Detective Bosak had previously utilized genetic
genealogy processes to apprehend a serial rapist, after
learning about the technique following its use to locate
and apprehend the "Golden State Killer" in 2018.
47. After confirming with the FBI Lab that there were sufficient
samples of the previously collected DNA to conduct further DNA
analyses, Detective Bosak contacted Parabon, a private
company that conducts genetic genealogy investigations, to
confirm that such an investigation into the identity of T.L.'s
assailant would be possible. Id. at 110-15.
48. Having so confirmed that a genetic genealogy investigation
would be possible, Detective Bosak sent seminal fluid samples
"Q1/Q2" to DNA Solutions [FN5] for analysis. Id. at 116-18.
[FN5:] DNA Solutions is a private lab that works in
conjunction with Parabon.
49. After DNA Solutions conducted its tests, Parabon uploaded
said test results into two databases that maintain DNA profiles
for genealogical purposes, GEDMatch and Family Tree DNA. Id.
at 118.
50. On November 23, 2020, Parabon sent Detective Bosak a
preliminary report that listed potential characteristics of T.L.'s
assailant based on his genetic information. However, Detective
Bosak did not find this preliminary report to be particularly
useful. Id. at 120.
51. In December of 2020, Parabon sent Detective Bosak the first
official genetic genealogy report generated from the DNA left
behind by T.L.'s assailant. This report confirmed the existence
of persons, though not by name, with whom T.L.'s assailant
shared DNA "centimorgans."
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52. Detective Bosak next requested the names of the persons
with whom T.L.'s assailant shared these centimorgans, then
began working with a genealogist at Parabon to interview such
persons in order to construct a family tree for T.L.'s assailant.
Id. at 126-30.
53. Some of the persons interviewed gave DNA samples to
assist in the investigation, and consented to Parabon using
their existing genealogical profiles to further assist this
process. Id. at 132-36.
54. These interviews and investigations eventually led to a
woman named Wanda Williams, who also provided a DNA
sample. Id. at 137-40.
55. Testing of Ms. Williams’ DNA revealed that she was the
mother of T.L.'s assailant. Id.
56. Conversation with Ms. Williams revealed that she had three
children, two of whom were male: Marc Williams, and
[Appellant], Scott Williams. Id. at 139-40.
57. Detective Bosak also attempted to contact Richard Edward
Williams, Wanda Williams' former husband and the father of
Marc and Scott Williams, in-person and by phone, but Richard
Edward Williams was uncooperative. Id. at 140.
58. Subsequent investigation revealed that Marc Williams had
lived in Alaska since leaving college in his senior year, and that
[Appellant] lived in Reedsville, Pennsylvania. Id. at 140-42.
59. Further investigation into [Appellant’s] family led Detective
Bosak's partner, Detective Nicole Eckley (hereafter "Detective
Eckley") to monitor [Appellant’s] wife's social media posts.
From this monitoring, Detective Bosak learned that
[Appellant’s] son would soon be attending a banquet for his
high school football team in February of 2021. Id. at 146.
60. Detective Bosak and Detective Eckley then got permission
to attend the aforementioned banquet undercover by posing as
custodial staff, in an attempt collect [Appellant’s] DNA from
discarded food items, utensils, plateware, etc. Id.
61. However, [Appellant] did not eat or drink at the banquet, so
the detectives were unable to collect [Appellant’s] DNA at this
time. Nevertheless, they were able to retrieve the DNA of
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[Appellant’s] son, Z.W., from trash Z.W. had discarded into the
trash can. Id. at 146-47.
62. Testing of Z.W.'s DNA then revealed that Z.W. was the
biological son of T.L.'s assailant. Id. at 151.
63. Finally, the detectives confirmed that Defendant was a
match for the DNA collected by collecting a DNA sample from
[Appellant’s] spit bottles. Said bottles were left in the trash that
[Appellant] had taken to the street, and were initially picked
up by a local waste management company before being seized
by Detectives Bosak and Ripka. Id. at 152-54.
64. No warrants were issued for the seizure of Z.W.'s DNA or for
the seizure of [Appellant’s] trash.
65. After testing [Appellant’s] DNA, the detectives were able to
confirm that [Appellant] was the same person whose DNA was
collected from T.L. after her assault.
66. On October 4, 2021, a warrant was issued for the arrest of
[Appellant], and [Appellant] was subsequently arrested on
October 5, 2021.
Trial Court Opinion (T.C.O.), 10/6/23, at 2-12.
On November 29, 2021, the Commonwealth filed a criminal information
charging Appellant with Rape by Forcible Compulsion, Aggravated Assault,
Robbery with Fear of Serious Bodily Injury, Indecent Assault, Simple Assault,
Recklessly Endangering Another Person, Theft by Unlawful Taking, and
Receiving Stolen Property.
On June 30, 2022, Appellant filed an omnibus pretrial motion raising
numerous motions to quash the counts set forth in the criminal information as
well as a motion seeking to suppress evidence. First, Appellant claimed that
all counts against him should be quashed as the initial warrant identifying the
perpetrator as John Doe and setting forth a genetic profile (hereinafter “John
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Doe DNA warrant”) failed to satisfy the specificity and particularity
requirements set forth in both the federal and Pennsylvania Constitutions.
Second, Appellant claimed that he was entitled to dismissal of the entire action
based on the Commonwealth’s violation of Pa.R.Crim.P. 600. Third, Appellant
argued his constitutional right to a speedy trial was violated. Fourth, Appellant
asserted that his due process rights were violated. Fifth, Appellant requested
the dismissal of several of the charges based on the applicable statutes of
limitations. Sixth, Appellant asked the trial court to suppress evidence
obtained from warrantless seizures of trash discarded by both Appellant and
Z.W. The Commonwealth provided written responses to each of Appellant’s
individual pretrial motions.
The trial court held multiple evidentiary hearings on Appellant’s omnibus
pretrial motion on September 27, 2022, December 19, 2022, January 12,
2023, and May 30, 2023. The trial court heard testimony from the State
College criminal investigators involved in this case: Detective Jordan,
Detective Wilson, Detective Ralston, and Detective Bosak. The trial court also
evaluated the testimony of Dr. Michael Holland, professor of molecular biology
at Penn State University, Alan Giusti, a DNA caseworker and analyst employed
by the FBI, and Dr. Thomas Callaghan, chief biometric scientist for the FBI
laboratory division.
On October 6, 2023, the trial court entered a memorandum and order
denying the majority of Appellant’s claims for relief in its omnibus pretrial
motion. The trial court partially granted Appellant’s pretrial motion in that it
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dismissed the counts of Indecent Assault, Simple Assault, and REAP, as the
Commonwealth had agreed to their dismissal on the basis that the applicable
statutes of limitations had expired.
After waiving his right to a jury trial, on February 8, 2024, Appellant
proceed to a stipulated bench trial held at which the trial court convicted
Appellant of Rape – Forcible Compulsion and Aggravated Assault. The
remaining charges were nol prossed.
On March 25, 2024, the trial court sentenced Appellant to four and one
half (4½) to nine (9) years’ imprisonment on the rape conviction and a
consecutive term of five and one half (5½) to eleven (11) years’ imprisonment
on the aggravated assault conviction. As such, Appellant received an
aggregate sentence of ten (10) to twenty (20) years’ imprisonment.
On April 4, 2024, Appellant filed this timely appeal. On May 2, 2024,
Appellant complied with the trial court’s direction to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
A. Did the Doe DNA Complaint and Warrant fail to meet the
specificity and particularity requirements of Article I, § 8 of the
Pennsylvania Constitution, the Fourth and Fourteenth
Amendments of the federal constitution, and Pa.R.Crim.P. 504,
thus failing to toll the statute of limitations and barring the
instant prosecution?
B. Did the prosecution fail to exercise due diligence to bring
[Appellant] to trial within the period required by Pa.R.Crim.P.
600?
C. Were [Appellant’s] rights to a speedy trial, under the Sixth and
Fourteenth Amendments of the federal constitution and Article
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I, § 9 of the Pennsylvania Constitution, violated where the
prosecution commenced the prosecution over 21 years after
the filing of the Doe DNA Complaint and Warrant?
D. Did the warrantless search and seizure of trash outside
[Appellant’s] home through which items containing DNA were
seized and DNA extracted violate Article I, § 8 of the
Pennsylvania Constitution, requiring that all evidence derived
by, and tainted as a result of, the warrantless search and
seizure be suppressed?
E. Did the warrantless search, seizure, and extraction of DNA from
the items seized from the trash search and Z.W.'s utensils, and
the creation of DNA profiles therefrom, violate [Appellant’s]
rights to be free from unreasonable searches and seizures, and
his right to privacy, protected by the Fourth and Fourteenth
Amendments of the federal constitution and Article I, § 8 of the
Pennsylvania Constitution, requiring that all evidence derived
by, and tainted as a result of, the warrantless seizures,
searches; extractions and creation of DNA profiles be
suppressed?
Appellant’s Brief, at 5-6.
Challenge to Specificity and Particularity of Initial Complaint
Appellant first claims that the initial John Doe DNA complaint and
warrant filed on March 29, 2000 were invalid as they failed to describe
Appellant with the specificity and particularity required by both the Fourth
Amendment of the U.S. Constitution and Article I, Section 8 of the
Pennsylvania Constitution. Appellant argues that the challenged complaint
and warrant, which reference the six genetic locations (loci) at which the
perpetrator’s DNA profile was developed, failed to identify a specific individual
as the accused as the Commonwealth failed to attach the full DNA profile or
discuss the statistical probability that the DNA profile could be associated with
someone other than the perpetrator. As a result, Appellant argues that the
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invalid complaint/warrant did not toll the applicable statute of limitations for
the charges for which he was convicted.
A criminal prosecution must be commenced within the applicable statute
of limitations. 18 Pa.C.S.A. § 108. Our Supreme Court has recognized that
“only the filing of a valid complaint or the issuance of a valid warrant is
sufficient to toll the statute of limitations.” Commonwealth v. Laventure,
586 Pa. 348, 362, 894 A.2d 109, 117 (2006) (citation omitted). As it is
undisputed that the Commonwealth filed the initial complaint in this matter
accusing Appellant rape and aggravated assault within the applicable statutes
of limitations, we proceed to review whether the initial complaint and arrest
warrant were valid.1
The Fourth Amendment of the United States Constitution provides that
“no 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 (emphasis added).
Article I, Section 8 of the Pennsylvania Constitution provides that “no warrant
____________________________________________
1 The Commonwealth filed the initial complaint on March 29, 2000 within five
years of the May 13, 1995 attack. Thus, the five-year statute of limitations
periods for rape and aggravated assault effective at that time had not yet
expired. 1995, March 31, P.L. 959, No. 10 (Spec. Sess. No. 1), § 16, effective
in 60 days; 1996, March 29, P.L. 51, No. 17, § 1, effective in 60 days; 1998,
Dec. 21, P.L. 1086, No. 145, § 2, effective in 60 days; 42 Pa.C.S.A. § 5552.
Although we recognize that the Pennsylvania Legislature subsequently
created an exception to the statute of limitations for cases where DNA
evidence was collected from unknown perpetrators, such exception is
inapplicable here as it was enacted subsequent to the expiration of the statute
of limitations in this case. See 42 Pa.C.S.A. § 5552(c.1).
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to search any place or to seize any person or things shall issue without
describing them as nearly as may be.” Pa. Const. art. I, § 8. See also
Pa.R.Crim.P. 504(2) (requiring every complaint to contain “a description of
the defendant as nearly may be”) (emphasis added).
Our Supreme Court has determined that while these two constitutional
provisions are similar, “the text of the Pennsylvania Constitution, ‘as nearly
as may be,’ requires more specificity than the federal particularity
requirement.” Laventure, 586 Pa. at 363, 894 A.2d at 118 (citation omitted).
As such, “the ‘as nearly as may be’ language of the Pennsylvania Constitution
(and correspondingly that of Rule 504(2)) subsumes the requirement of the
Fourth Amendment that a warrant must ‘particularly describe’ the person to
be seized.” Id.
The clear meaning of the language in the Pennsylvania Constitution that
requires a warrant to describe items “as nearly as may be” requires officers
“describe the items as specifically as is reasonably possible.”
Commonwealth v. Rivera, 816 A.2d 282, 290 (Pa.Super. 2003) (citation
omitted). However, “the mere specification of all information that is available
is not in and of itself enough; rather, actual reasonable particularity is required
sufficient to limit governmental discretion in the execution of the warrant and
pursuit of the associated criminal process.” Laventure, 586 Pa. at 364, 894
A.2d at 118.
Although there is scant precedent in Pennsylvania law discussing John
Doe warrants, the Supreme Court in Laventure suggested that a John Doe
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warrant would satisfy the Commonwealth’s particularity requirements if it set
forth reasonably specific identification characteristics of an unknown suspect
that provide officers executing the warrant ample guidance and little discretion
as to whom to arrest. Id. at 364, 894 A.2d at 119 (emphasis added). While
the Laventure Court found that the John Doe arrest warrant in that case was
not sufficiently specific when it only identified the suspect as “Steve,” a white
male in his thirties with an unknown address, the Supreme Court noted with
approval that other jurisdictions had upheld John Doe arrest warrants that
included a description of the defendant’s location, a particularized physical
description, a combination of physical description and location, or
“identification of the accused according to his unique genetic information.” Id.
(emphasis added) (citing cases).
In suggesting that certain John Doe arrest warrants with DNA
identification information could be valid, our Supreme Court in Laventure
cited State v. Dabney, 663 N.W.2d 366, 372 (Wis.Ct.App. 2003), in which
the Wisconsin Court of Appeals determined that a complaint and arrest
warrant identifying the unknown suspect as John Doe and setting forth a
specific DNA profile were sufficient to satisfy the state’s statutory requirement
that warrants contain sufficient description to identify the person to be
arrested with “reasonable certainty.”2
____________________________________________
2 While we acknowledge that the portion of the Supreme Court’s decision in
Laventure discussing the validity of “John Doe” DNA warrants is dicta as the
(Footnote Continued Next Page)
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The Dabney court concluded that “for purposes of identifying ‘a
particular person’ as the defendant, a DNA profile is arguably the most
discrete, exclusive means of personal identification possible. ‘A genetic code
describes a person with far greater precision than a physical description or a
name.’” Id. (quoting Meredith A. Bieber, Comment, Meeting the Statute or
Beating It: Using “John Doe” Indictments Based on DNA to Meet the Statute
of Limitations, 150 U.Pa.L.Rev. 1079, 1085 (2002)).
After Dabney was filed, several courts of our sister states and federal
courts adopted the conclusion reached therein; the Minnesota Court of
Appeals observed that “[a] growing consensus has developed around the
central holding of Dabney that a DNA profile meets both the particularity
requirements of the Fourth Amendment and the states’ ‘reasonably certain’
statutory requirements because of its ability to describe a person with much
greater accuracy than a person’s name or physical description.” State v.
Carlson, 845 N.W.2d 827, 831 (Minn.Ct.App. 2014) (collecting cases). See
also State v. Younge, 321 P.3d 1127, 1132 (Ut. 2013) (finding “a DNA
profile is as close to an infallible measure of identity as science can presently
obtain”); Commonwealth v. Dixon, 938 N.E.2d 878, 885 (Mass. 2010) (“[a]
____________________________________________
facts of Laventure involved a general warrant with a vague description of the
suspect, the Laventure Court’s citation to the Dabney decision of the
Wisconsin Court of Appeals serves to focus our analysis in this case. Further,
although “decisions of federal courts, as well as those from ‘sister states,’ are
not binding on this Court, [they] may be used as persuasive authority.”
Commonwealth v. Lang, 275 A.3d 1072, 1083 (Pa.Super. 2022) (quoting
Commonwealth v. Arthur, 62 A.3d 424, 429 n. 9 (Pa.Super. 2013)).
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DNA profile is not merely a word of “description,” it is metaphorically an
indelible ‘bar code’ that labels an individual’s identity with nearly irrefutable
precision”) (citation omitted).
Consistent with these decisions, we also find that an arrest warrant
setting forth a DNA profile satisfies both the particularity requirement of the
Fourth Amendment as well as Pennsylvania’s constitutional requirement that
arrest warrants describe the person to be seized “as nearly as may be.” A
John Doe DNA warrant identifies the perpetrator using a genetic profile with
incredible precision and describes the perpetrator with sufficient particularity
to prevent arbitrary or capricious arrests. The discretion of the officers
executing the warrant is directly limited by scientific methodology employed
by forensic laboratories which determines whether a suspect’s DNA matches
the perpetrator’s DNA obtained from the crime scene.3
We recognize that Appellant also argues that John Doe DNA complaint
and warrant in this case were not sufficiently specific to identify Appellant as
neither attached the full DNA profile of the alleged perpetrator, but merely
referenced the six genetic loci at which the DNA profile was developed.
Appellant asserts that the Commonwealth was required to attach the actual
____________________________________________
3 The Legislature has also recognized the value that DNA forensic analysis
provides to criminal prosecutions as demonstrated by its expansion of the
statute of limitations for felony offenses and certain misdemeanor sexual
offenses in which DNA evidence is obtained but unable to be matched to a
particular individual until a later date. See 42 Pa.C.S.A. § 5552(c.1). We
reiterate that the extended statute of limitations period does not apply in this
case as it was not effective until after the applicable statute of limitations had
already expired.
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DNA profile to the complaint and warrant and to set forth the range of
statistical probability that the DNA profile that was developed could be
associated with someone other than the actual perpetrator. Appellant asserts
that the Doe DNA complaint and warrant in this case were meaningless as
officers could not use these documents to identify the perpetrator without
additional inquiry from the FBI. Appellant’s Brief, at 34-35.
We reject Appellant’s suggestion that the Doe DNA complaint and
warrant in this case did not identify any specific individual. As noted above,
the Complaint in this case sought the apprehension of “John Doe, Male with
Matching Deoxyribonucleic Acid (DNA) Profile developed at Genetic Locations
DS244, D17S79, D1S7, D4S139, D10S28, and D5S110.” Complaint, 3/29/00,
at 1 (emphasis added). The affidavit of probable cause attached to and filed
contemporaneously with the complaint thoroughly discussed how the DNA was
collected, how the RFLP DNA profile was generated for the six loci, and where
the DNA profile was stored with the FBI on the CODIS database. The affidavit
of probable cause reiterated that the perpetrator to be seized could be
expected to have a “DNA profile that matches the foreign DNA profile from the
semen taken from the vaginal and genital swabs taken from [T.L.] on
5/13/1995.” Affidavit of Probable Cause, 3/29/00, at 2 (emphasis added).
As such, the language contained in the Doe DNA complaint/warrant filed
in this case accurately identified the perpetrator as an individual with a DNA
profile that matched the referenced DNA profile at six specified genetic loci,
which was developed from seminal fluid collected from T.L.’s vaginal and
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genital swabs after the attack. Although the Commonwealth did not include
any discussion of statistical probability within the John Doe DNA complaint or
warrant, the Commonwealth’s expert, Dr. Holland, testified that the
probability that the six-loci DNA profile referred to in the John Doe DNA
complaint/warrant created by the FBI using RFLP technology would randomly
occur in the population fell between 1 and 25.1 billion at a conservative
estimate, and between 1 and 1.7 trillion in a specific population group like
Europeans or Caucasians. See Notes of Testimony (N.T.), 1/12/23 (a.m.), at
26-27.
Our conclusion is supported by the decision in Washington v.
Boughton, 884 F.3d 692 (7th Cir. 2018), in which the Seventh Circuit Court
of Appeals rejected identical arguments made by the defendant who argued
that the complaint and arrest warrant were not sufficiently specific to identify
the perpetrator because they did not attach a full DNA profile, but merely had
“included the locations of six DNA markers that are common to all human
beings.” Id. at 699. The Seventh Circuit held as follows:
Washington's suggestion that the complaint and warrant do no
more than describe the defendant as having unspecified genetic
material at each of six universally common genetic locations
overlooks the narrative portion of the complaint entirely. It also
ignores the meaning of the word “matching” in both the complaint
and the warrant. When the instruments are read together and in
their entirety, the word “matching” means that the specific genetic
markers at the identified locations on John Doe #5's genetic code
are the same as the genetic markers found at those same
locations on the genetic code of the assailant, as determined
based on an analysis of his semen.
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Id. at 700.
Further, while the Seventh Circuit acknowledged in Boughton that the
complaint and warrant, which did not include a full DNA profile, “did not
describe the genetic markers using numbers to represent the discrete ‘allele
systems’ observed at the identified genetic locations,” it pointed out DNA
experts had explained that “the DNA technology in use at the time the John
Doe complaint and warrant were issued ‘just was not advanced enough’ to do
so.” Id. Nevertheless, the Seventh Circuit concluded that the complaint and
warrant identified the defendant “with particularity and specificity” by
describing John Doe's DNA profile as “matching” DNA profiles they developed
using the technology available at that time. Id.
Similarly, in this case, we are not persuaded by Appellant’s suggestion
that the complaint and warrant were invalidated because the full DNA profile
developed by the FBI was not attached to either document. We emphasize
that warrants “should not be invalidated by hypertechnical interpretations.”
Commonwealth v. Rega, 593 Pa. 659, 684, 933 A.2d 997, 1012 (2007).
Although the Complaint and Affidavit of Probable Cause incorporated
and referenced the DNA profile maintained by the FBI on the CODIS database,
investigators indicated that they did not provide a full DNA profile with the
John Doe DNA complaint and warrant as the FBI Lab had never reported the
technical details of the RFLP DNA testing results to the police. At the pretrial
motion hearing, Alan Giusti, a DNA analyst for the FBI, testified that when the
FBI reported the 1996 RFLP testing results to the State College investigators,
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they did not provide the full RFLP profile or any of the information contained
at each loci, as one of the limitations with RFLP testing was that “there was
no way to characterize the RFLP results in a discrete, well-defined manner as
[can be done with later developed] STR testing.” N.T., 1/12/23 (a.m.), at
110-12, N.T., 1/12/23 (p.m.), at 14-15. Giusti also testified that the FBI Lab
did not provide any statistical frequency or probability analysis in the RFLP
report given to State College investigators as the FBI had an internal policy to
only include such statistical analysis to compare the created DNA profile with
a separate DNA sample from a potential suspect. N.T., 1/12/23 (a.m.), at
118-119; N.T., 1/12/23 (p.m.), at 16-19.
Even assuming arguendo that the full RFLP profile could have been
attached to the John Doe complaint/warrant, Appellant fails to demonstrate
how access to the full DNA profile would have been useful to investigators in
executing the warrant. Giusti testified the FBI did not send any graphical
depictions of the RFLP profile to the State College investigators, explaining
that “there would be no benefit to sending data to non-DNA scientists to
review it. It wouldn’t mean anything to them.” N.T., 1/12/23 (a.m.), at 111.
Even if the Commonwealth had attached the DNA profile to the
complaint and warrant, extrinsic evidence would have been needed to allow
the officers to execute the arrest warrant of a suspected perpetrator.
Investigators could not arrest any individual pursuant to the John Doe DNA
warrant unless they submitted a DNA sample from the suspect to the FBI
laboratory to confirm whether it matched the DNA profile of the perpetrator.
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Given that the John Doe DNA complaint and warrant in this case
specifically required the person to be seized to have genetic markers that
matched the incredibly specific DNA profile mentioned above, the description
contained in the John Doe DNA complaint and warrant narrowly limited the
possibility of identifying the wrong person and eliminated any discretion on
the part of officers seeking to execute the warrant. We agree with the trial
court’s observation that the identification of the perpetrator through this DNA
profile had a “level of specificity that goes well beyond that of a mere name
and physical description, that it would be nearly impossible that any individual
other than the person who contributed the semen sample to T.L. would be
seized.” T.C.O. at 33.
Accordingly, we conclude that the trial court did not err in finding that
the John Doe DNA complaint and warrant filed in this case satisfied the
relevant federal and Pennsylvania specificity and particularity requirements
and tolled the applicable statutes of limitations to allow for Appellant’s
prosecution.
Alleged Violation of Pa.R.Crim.P. 600
Appellant next argues that the trial court erred in failing to dismiss this
action for violating Pa.R.Crim.P. 600. We generally review the trial court’s
disposition of a Rule 600 motion for an abuse of discretion. Commonwealth
v. Harth, 666 Pa. 300, 323, 252 A.3d 600, 614 n.13 (2021).
In evaluating Rule [600] issues, our standard of review of a trial
court's decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
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facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on the record
of the Rule [600] evidentiary hearing, and the findings of the
[trial] court. An appellate court must view the facts in the light
most favorable to the prevailing party.
Additionally, when considering the trial court's ruling, this Court is
not permitted to ignore the dual purpose behind Rule [600]. Rule
[600] serves two equally important functions: (1) the protection
of the accused's speedy trial rights, and (2) the protection of
society. In determining whether an accused's right to a speedy
trial has been violated, consideration must be given to society's
right to effective prosecution of criminal cases, both to restrain
those guilty of crime and to deter those contemplating it.
However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental
speedy trial rights of an accused, Rule [600] must be
construed in a manner consistent with society's right to
punish and deter crime. In considering [these] matters ...
courts must carefully factor into the ultimate equation not only the
prerogatives of the individual accused, but the collective right of
the community to vigorous law enforcement as well.
Commonwealth v. Horne, 89 A.3d 277, 283–84 (Pa.Super. 2014)
(emphasis added & citation omitted).
Rule 600 requires that, in a case in which a written complaint is filed,
trial must commence within 365 days of the date the complaint is filed.
Pa.R.Crim.P. 600(A)(2)(a). If a defendant is not brought to trial within the
required time, he “may file a written motion requesting that the charges be
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dismissed with prejudice on the ground that this rule has been violated.”
Pa.R.Crim.P. 600(D)(1). The trial court must then conduct a hearing on the
motion. Id. Subsection (C) further provides that when computing time for
Rule 600 purposes, “periods of delay at any stage of the proceeding caused
by the Commonwealth when the Commonwealth has failed to exercise due
diligence shall be included in the computation of time within which trial must
commence[, but a]ny other periods of delay shall be excluded from the
computation.” Pa.R.Crim.P. 600(C)(1). Therefore, a Rule 600 analysis entails
the following three steps:
First, Rule 600(A) provides the mechanical run date. Second, we
determine whether any excludable time exists pursuant to Rule
600(C). We add the amount of excludable time, if any, to the
mechanical run date to arrive at an adjusted run date.
If the trial takes place after the adjusted run date, we apply the
due diligence analysis set forth in Rule 600([D]). As we have
explained, Rule 600[] encompasses a wide variety of
circumstances under which a period of delay was outside the
control of the Commonwealth and not the result of the
Commonwealth's lack of diligence. Any such period of delay
results in an extension of the run date.
Addition of any Rule 600[ ] extensions to the adjusted run date
produces the final Rule 600 run date. If the Commonwealth does
not bring the defendant to trial on or before the final run date, the
trial court must dismiss the charges.
Commonwealth v. Faison, 297 A.3d 810, 821–22 (Pa.Super. 2023), appeal
denied, 320 A.3d 82 (Pa. 2024) (citation omitted).
Determining whether the Commonwealth exercised due diligence is a
fact-specific inquiry, which “does not require perfect vigilance and punctilious
care, but merely a showing the Commonwealth has put forth a reasonable
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effort.” Pa.R.Crim.P. 600, comment (quoting Commonwealth v. Selenski,
606 Pa. 51, 61, 994 A.2d 1083, 1089 (2010)). Matters of “due diligence must
be judged by what was done by the authorities rather than by what was not
done.” Commonwealth v. Lynch, 57 A.3d 120, 125 (Pa.Super. 2012)
(citation omitted). The Commonwealth’s “efforts need only be reasonable;
lack of due diligence should not be found simply because other options were
available or, in hindsight, would have been more productive.”
Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.Super. 1991) (citation
omitted).
Appellant argues that the Commonwealth did not act with due diligence
during the entire twenty-one year period from the filing of the John Doe DNA
complaint to Appellant’s 2021 indictment. Appellant argues that while the
prosecution was initially active in its investigation, it cannot be found to have
exercised due diligence when it simply waited for a DNA match through the
FBI’s database. Further, Appellant points out that although the
Commonwealth knew T.L. had a boyfriend in 1995, prosecutors did not seek
to determine whether the semen found in T.L.’s swabbing belonged to T.L.’s
boyfriend until 2002.
During the nearly five-year period from the attack to the filing of the
initial John Doe DNA complaint, investigators conducted a meticulous
investigation, including the collection of numerous DNA samples of the crime
scene which were submitted to the FBI for testing and inclusion in a nationwide
law enforcement DNA database (CODIS). By the time the initial complaint
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was filed in 2000, the officers had exhausted their investigative leads and the
perpetrator’s DNA profile was subject to weekly, and eventually daily,
searches on CODIS for multiple years. As technology progressed, Detective
Bosak initiated a genealogical DNA investigation to create a family tree of the
relatives of the perpetrator and ultimately identified the mother of the
perpetrator. Investigators subsequently obtained samples of Appellant’s son’s
DNA and Appellant’s DNA through seizures of discarded items containing
genetic material, through which they confirmed Appellant was the perpetrator.
We are not convinced that the Commonwealth failed to exercise due
diligence when it did not test the DNA of T.L.’s boyfriend in the early stages
of the investigation, as T.L. initially told police that she did not have
consensual sexual intercourse with anyone on the day she was attacked. It
was not until investigators conducted a subsequent interview with T.L. in 2002
that she revealed that she may have had consensual intercourse with her
boyfriend a day or two before the attack. As such, the investigators were not
initially aware that there could have been an alternate source for the semen
discovered in T.L.’s vaginal swab other than the perpetrator of the attack. The
investigators promptly submitted a DNA sample from T.L.’s boyfriend for
analysis, and it was ultimately determined that he was not a match for the
DNA sample collected after the attack.
Moreover, we agree with the trial court’s finding that although the
twenty-one year delay between the filing of the complaint and the indictment
was extraordinary, the reason for the delay was the Commonwealth’s failure
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to identify the perpetrator of the crime despite their due diligence. Although
Appellant claims that the investigators failed to take substantive actions to
move the case forward during the twenty-one year period between the filing
of the initial complaint and his indictment, Appellant fails to recognize that the
investigators had exhausted all viable leads through which they could seek to
identify a perpetrator through conventional investigative methods. As such,
the trial court did not err in determining that Appellant was not entitled to
have the charges against him dismissed as the Commonwealth exercised due
diligence in seeking to identify the perpetrator and the delay in the prosecution
was caused by circumstances beyond the Commonwealth’s control.
Alleged Violation of the Constitutional Right to a Speedy Trial
Appellant also argues that the trial court erred in denying his pretrial
motion to dismiss based on a violation of his constitutional right to a speedy
trial. In evaluating speedy trial issues, our standard of review is “whether the
trial court abused its discretion, and our scope of review is limited to the trial
court's findings and the evidence on the record, viewed in the light most
favorable to the prevailing party.” Commonwealth v. Womack, 315 A.3d
1229, 1237 (Pa. 2024) (citation omitted).
Speedy trial analysis requires a two-step inquiry: “we first consider
whether the delay violated Pa.R.Crim.P. 600, and if not, we may proceed to
the four-part constitutional analysis set forth in Barker [v. Wingo, 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)].” Commonwealth v. Martz, 232
A.3d 801, 812 (Pa.Super. 2020) (citation omitted). As we have conducted a
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Rule 600 inquiry and discerned no violation of Appellant's rights, we proceed
to review Appellant’s independent constitutional speedy trial claim.
“The Sixth Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution guarantee a criminal defendant the
right to a speedy trial.” Commonwealth v. DeBlase, 542 Pa. 22, 32, 665
A.2d 427, 432 (1995) (footnote omitted). In Barker, the United States
Supreme Court set forth a four-part balancing test to determine whether a
defendant’s speedy trial rights had been violated, requiring consideration of
(1) the length of the delay, (2), the reason for the delay, (3) whether the
defendant asserted his or her right to a speedy trial, and (4) prejudice to the
defendant as a result of the delay. Barker, 407 U.S. at 530–32, 92 S.Ct. at
2192–93. The Barker Court clarified that prejudice “should be assessed in
the light of the interests of defendants which the speedy trial right was
designed to protect,” such as “(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired.” Id. at 532, 92 S. Ct. at 2193.
It is important to note that a speedy trial violation does not necessarily
occur when a court finds in favor of the defendant on any one of the four
factors; “[r]ather, each of the four factors are related and each must be
weighed carefully in the court's evaluation of a criminal defendant's claim that
his speedy trial rights were violated.” DeBlase, 542 Pa. at 32, 665 A.2d at
432 (citing Barker, 407 U.S. at 533, 92 S.Ct. at 2193-94).
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Appellant argues that the twenty-one year delay between filing of the
initial complaint and his arrest was presumptively prejudicial. Appellant also
argues that he did not cause the delay, asserted his speedy trial rights early
in the prosecution, and claims he was prejudiced by the delay as the significant
passage of time hampered his ability to present a defense. Appellant argues
that it is nearly impossible to recall what he was doing or where he was
twenty-one years ago or to find alibi witnesses to testify on his behalf.
We acknowledge that there is no relevant Pennsylvania precedent to
govern our analysis of delay in prosecution associated with identifying a “John
Doe” perpetrator through DNA analysis. However, other jurisdictions have
rejected similar constitutional speedy trial claims. In Guerrero v. LaManna,
325 F.Supp.3d 476 (S.D.N.Y. 2018), the U.S. District Court for the Southern
District of New York concluded that the defendant’s speedy trial rights had not
been violated by a thirteen-year delay in prosecution which was caused by the
state’s practical inability to identify the perpetrator despite the creation of a
DNA profile from the evidence obtained at the crime scene. The Guerrero
Court emphasized that the defendant had not been subjected to any
incarceration or anxiety as an accused, but rather had benefited from the
delay which allowed him to remain free for more than twelve years. Id. at
486. Further, the Guerrero court found that the defense was not impaired
by the delay “due to the nature and conclusiveness of the DNA evidence” and
the fact that “there was no indication that the trial would have proceeded any
differently if it had proceeded” years earlier. Id.
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In Younge, the Utah Supreme Court found the defendant’s speedy trial
rights were not violated by a nine-year delay between the filing of a John Doe
information and the amendment of the complaint to identify Younge by name.
The Utah Supreme Court found the delay was beyond the control of the
prosecution which was unable to determine the perpetrator’s identity until it
was notified of a DNA match through the FBI database. Younge, 321 P.3d at
1136. Further, the Younge Court found that the defendant was not
prejudiced by the delay given the compelling, uncontradicted DNA evidence
and rejected any claim that a jury would have acquitted him but for the loss
of potential witness testimony as a result of the passage of time. Id.
In applying the Barker balancing test in this case, we wholly agree with
the trial court’s assessment that the twenty-one year delay between the filing
of the initial complaint and Appellant’s arrest was extraordinarily long.
However, while the first factor weighs in Appellant’s favor, we do not feel that
the length of the delay alone is sufficient to entitle Appellant to relief. We
reiterate that our Legislature passed Section 5552(c.1) of the Crimes Code,
which expanded the statute of limitations for felonies and certain
misdemeanor sex offenses where genetic identification evidence is collected
from unknown perpetrators, to allow the prosecution for the offense to
commence “one year after the identity of the individual is determined.” See
42 Pa.C.S.A. § 5552(c.1)). This statute highlights the Legislature’s
appreciation for the utility of DNA analysis in criminal prosecutions despite an
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understanding that there may be significant delays in the prosecution of a
suspect where the only identification evidence is a DNA sample.
The second factor, the reason for the delay, weighs against Appellant.
The trial court again emphasized that the significant delay was caused by the
prosecution’s inability to identify the perpetrator despite the exercise of due
diligence. Thus, the prosecution had a valid reason for the delay in Appellant’s
prosecution as he had not been matched to the DNA profile listed in the initial
complaint. The third factor, the defendant’s assertion of his rights, weighs in
Appellant’s favor, as the trial court found that Appellant did timely raise his
speedy trial rights after this action was commenced.
With regard to the fourth factor, the trial court reasonably concluded
that Appellant did not establish prejudice in this case. The trial court found
Appellant did not suffer any oppressive pretrial incarceration during the
twenty-one year delay between the filing of the complaint and the
commencement of this action. In addition, the trial court noted that the delay
did not cause Appellant to suffer any anxiety or concern during such period,
but rather benefited Appellant by allowing him to remain a free man for
twenty-one years as evidenced by his own argument that he “started a family,
had two children, was very active in their lives, and had an excellent job.”
See Appellant’s Brief in Support of Omnibus Pretrial Motion, at 52.
The trial court did acknowledge that Appellant’s ability to present a
defense has been impaired by the lengthy delay which risked the loss of
exculpatory evidence and the deterioration of the memory of witnesses that
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could testify on behalf of the defense. However, as the trial court noted that
Appellant had not identified any specific evidence or witness testimony that
was lost or compromised as a result of the delay, the trial court found that
such evidence was “entirely speculative.” T.C.O. at 36.
Moreover, we emphasize that given the accuracy and precision of the
compelling DNA evidence linking Appellant to the assault of the victim, we fail
to see how Appellant was prejudiced by the delay as he has not demonstrated
that the trial would have proceeded differently had the prosecutors identified
Appellant as the perpetrator years earlier. The conclusiveness of the DNA
evidence weighs heavily against Appellant as one of the FBI laboratory reports
indicates there is only a one in two quadrillion chance4 that there would be an
individual other than Appellant with a DNA profile that randomly matched the
sample DNA obtained in T.L.’s rape kit swabbing. Commonwealth Exhibit 30,
FBI Laboratory Report, 9/16/21, at 2. Appellant does not present any evidence
to refute or contradict the forensic evidence presented by the Commonwealth.
Given the aforementioned analysis of Appellant’s claim according to the
Barker balancing test, we conclude that the trial court properly exercised its
discretion in determining that Appellant’s speedy trial rights were not violated.
Challenge to Denial of Suppression Motion
Lastly, Appellant raises two separate arguments to challenge the trial
court’s denial of his suppression motion, contending that officers violated
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4 One quadrillion is 1,000,000,000,000,000, or a 1 followed by 15 zeros.
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Article I, Section 8 of the Pennsylvania Constitution in conducting (1) a
warrantless search and seizure of Appellant’s trash outside his home and (2)
a warrantless search, seizure, extraction and profiling of DNA from items
seized from that trash as well as eating utensils that Appellant’s son, Z.W.,
discarded at a public banquet.
Our standard of review in addressing a challenge to a denial of a
suppression motion is well settled.
[Our] 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.
Commonwealth v. Metz, 332 A.3d 92, 97–98 (Pa.Super. 2025) (citations
omitted).
Our courts have aptly explained that:
[b]oth the Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution protect
individuals from unreasonable searches and seizures by police in
areas where individuals have a reasonable expectation of privacy.
An expectation of privacy exists if a person has a subjective
expectation of privacy that society is willing to recognize as
legitimate and reasonable. Where there exists a reasonable
expectation of privacy, Article I, Section 8 and the Fourth
Amendment generally require police to obtain a warrant, issued
by a neutral and detached magistrate and founded upon probable
cause, prior to conducting a search or seizure of a person and/or
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a person's property, unless one of the few well delineated
exceptions apply.
Commonwealth v. Hall, 305 A.3d 1026, 1032–33 (Pa.Super. 2023) (citation
omitted). To determine whether “a person's expectation of privacy is
legitimate or reasonable, we must consider the totality of the circumstances[,]
and the determination ultimately rests upon a balancing of the societal
interests involved.” Id. (quoting Commonwealth v. Kane, 210 A.3d 324,
329 (Pa.Super. 2019)).
Appellant first argues that officers violated his right to be free from
unlawful searches or seizures under Article I, Section 8 in confiscating trash
bags left for collection. The trial court found Appellant had no objectively
reasonable expectation of privacy in spit bottles he voluntarily abandoned in
trash bags outside of his home left for pickup by a private waste-management
company. Thus, the trial court determined that the bottles were lawfully
seized after they were transferred to the waste-management company.5
Appellant acknowledges that the United States Supreme Court has
ruled that the Fourth Amendment does not prohibit a “warrantless search and
seizure of garbage left for collection outside the curtilage of a home.”
California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 1627, 100
L.Ed.2d 30 (1988). The Supreme Court provided that “[a]n expectation of
____________________________________________
5 Similarly, the trial court found that Appellant’s son, Z.W., had no expectation
of privacy in eating utensils he threw away in the trash at a public banquet.
Further, the trial court emphasized that Appellant could not seek suppression
based on another individual’s privacy rights. Appellant does not challenge the
officers’ seizure of Z.W.’s discarded utensils on appeal.
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privacy does not give rise to Fourth Amendment protection ... unless society
is prepared to accept that expectation as objectively reasonable.” Id. at 39–
40, 108 S.Ct. at 1628 (emphasis added).
The Greenwood Court reasoned that the respondents lacked an
expectation of privacy in garbage bags left outside the curtilage of their home
as “[i]t is common knowledge that plastic garbage bags left on or at the side
of a public street are readily accessible to animals, children, scavengers,
snoops, and other members of the public.” Id. at 40, 108 S.Ct. at 1628–29
(footnotes omitted). The Supreme Court also noted that “respondents placed
their refuse at the curb for the express purpose of conveying it to a third party,
the trash collector, who might himself have sorted through respondents’ trash
or permitted others, such as the police, to do so.” Id. at 40, 108 S.Ct. at
1629. As such, the Supreme Court determined that the Fourth Amendment
allows officers to conduct warrantless searches and seizures of garbage
discarded in areas subject to public inspection, as society would not accept as
reasonable the respondents’ claim to an expectation of privacy in trash left for
collection in an area accessible to the public. Id. at 41, 108 S.Ct. at 1629.
However, Appellant requests that this Court decide as an issue of first
impression that Pennsylvania should depart from federal law and the holding
in Greenwood and determine that warrantless searches and seizures of trash
left for collection outside the curtilage of an individual’s home are prohibited
by Article I, Section 8. Our state constitutional analysis will be guided by the
Pennsylvania Supreme Court’s decision in Commonwealth v. Edmunds, 526
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Pa. 374, 586 A.2d 887 (1991) in that we will examine “(1) the text of the
Pennsylvania constitutional provision; (2) the history of the provision,
including Pennsylvania case-law; (3) related case-law from other states; [and]
(4) policy considerations, including unique issues of state and local concern,
and applicability within modern Pennsylvania jurisprudence.” Id. at 390, 586
A.2d at 895.
The text of the Fourth Amendment provides as follows:
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 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 text of Article I, Section 8 of the Pennsylvania Constitution provides
as follows:
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.
Appellant has not made any textually-based arguments to assert that
the language of Article I, Section 8 should be construed differently than the
Fourth Amendment in this context. Article I, Section 8 protects individuals
from unreasonable searches and seizures of their “persons, houses, papers,
and possessions.” Our Supreme Court has interpreted the term “possessions,”
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pursuant to the doctrine of ejusdem generis, in context with the three
preceding terms, all of which generally refer to “intimate things about one’s
person.” Commonwealth v. Russo, 594 Pa. 119, 130–31, 934 A.2d 1199,
1206 (2007). The Supreme Court noted in Russo that if the term
“possessions” was interpreted as everything one owned, there would be no
need to specifically delineate separate categories of “houses, papers, and
possessions.” Id. Further, there is nothing in the text of Article I, Section 8,
that suggests that trash left for collection outside one’s home is entitled to the
same degree of privacy as one’s person, house, papers, and possessions.
Regarding the “history of the provision” prong of the Edmunds analysis,
Appellant generally asserts that our courts have established that Article I,
Section 8 embodies “a strong notion of privacy, carefully safeguarded in the
Commonwealth for the past two centuries,” which has been employed to
“guard individual privacy rights against unreasonable searches and seizures
more zealously than the federal government does” under the Fourth
Amendment. Appellant’s Brief (quoting Edmunds, 526 Pa. at 394-98, 586
A.2d at 897-99).
In claiming this Court should extend additional privacy protections to
prevent the search and seizure of an individual’s trash that is accessible to the
public and transferred to a collection company, Appellant argues that our
Supreme Court extended heightened privacy protection to bank records in
which an individual voluntarily allows to be held by another party. In
Commonwealth v. DeJohn, 486 Pa. 32, 49, 403 A.2d 1283, 1291 (1979),
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the Supreme Court held that pursuant to Article I, Section 8, bank customers
have a legitimate expectation of privacy in records pertaining to their affairs
kept at the bank.” Appellant relies on DeJohn for the proposition that Article
I, Section 8 protects an individual’s possessions from unreasonable searches
and seizures “[s]o long as a person seeks to preserve his effects as private,
even if they are accessible to others.” Id. at 1289.
Although we acknowledge that Article I, Section 8 implicates heightened
privacy protections for individuals, we do not believe that bank records, which
are by nature confidential, are closely analogous to discarded trash that has
been abandoned by its owner. Our long-standing precedent establishes that
a defendant does not have standing to contest the search and seizure of items
which he has voluntarily abandoned as the defendant has no reasonable
expectation of privacy in abandoned items. Commonwealth v. Byrd, 987
A.2d 786, 790 (Pa.Super. 2009) (citations omitted); Commonwealth v.
Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976)). Our courts have
set forth the following analysis to determine whether an abandonment has
occurred:
[a]bandonment is primarily a question of intent, and intent may
be inferred from words spoken, acts done, and other objective
facts. All relevant circumstances existing at the time of the alleged
abandonment should be considered. The issue is not
abandonment in the strict property-right sense, but whether the
person prejudiced by the search had voluntarily discarded, left
behind, or otherwise relinquished his interest in the property in
question so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of the search.
Byrd, 987 A.2d at 791 (quoting Shoatz, 469 Pa. at 553, 366 A.2d at 1220).
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In Shoatz, our Supreme Court found that defendants abandoned suitcases
they had dropped while fleeing from police as they “relinquish[ed] both control
of the luggage as well as any expectation of maintaining the privacy of its
contents.” Shoatz, 469 Pa. at 553, 366 A.2d at 1220.
This Court has consistently held that the heightened privacy protections
in Article I, Section 8 do not apply to abandoned property. In
Commonwealth v. Kane, 210 A.3d 324, 329-30 (Pa.Super. 2019), this Court
found that officers were authorized to conduct a warrantless search and
seizure of a cell phone that was discovered in a university dormitory bathroom
that was actively recording individuals using the toilet. The appellant, who
was determined to be the owner of the cell phone, challenged the legality of
the search pursuant to the Fourth Amendment and Article I, Section 8. The
Superior Court upheld the trial court’s denial of the appellant’s motion, finding
that “once [the a]ppellant voluntarily abandoned his cell phone in a public
bathroom, he abandoned any legitimate expectation of privacy in its
contents.” Id. at 331.
Although Pennsylvania courts have not expressly determined whether
warrantless trash pulls are permitted under Article I, Section 8, this Court has
consistently characterized an individual’s decision to place trash out for pickup
as an act of abandonment. In Commonwealth v. Minton, 432 A.2d 212,
217 (Pa.Super. 1981), a decision that predated the U.S. Supreme Court’s
decision in Greenwood, this Court determined that “placing trash for
collection is an act of abandonment which terminates any [F]ourth
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[A]mendment protection.” Id. See also Commonwealth v. Perdue, 564
A.2d 489, 492 (Pa.Super. 1989) (finding the appellant had no reasonable
expectation of privacy in items he abandoned in the garbage can next to
parsonage); Commonwealth v. Cihylik, 486 A.2d 987, 990-91 (Pa.Super.
1985) (appellant did not have any reasonable expectation of privacy in
discarded trash as he demonstrated intent to abandon contents of trash pit
beside a barn on leased property).
We highlight the decision in Commonwealth v. Bagley, 596 A.2d 811
(Pa.Super. 1991) in which this Court determined that a defendant’s act of
discarding items in the trash outside his home “manifested a clear intention
to abandon any reasonable expectation of privacy in such property.” Id. at
819. Although this Court did not explicitly determine whether the officers’
warrantless search of the appellant’s trash violated Article I, Section 8, it
referenced this constitutional section in multiple instances in the decision.
Turning to third prong of the Edmunds analysis, we analyze related
case law from other states. Appellant asks this Court to adopt the holdings of
other jurisdictions that have departed from the United States Supreme Court’s
decision in Greenwood and found that an individual has a protectable privacy
interest in trash left out for collection by a private trash removal company.
First, Appellant cites State v. Granville, 142 P.3d 933 (N.M. 2006) in
which the New Mexico Court of Appeals recognized an individual’s right to
privacy in sealed garbage left for collection in an alley behind a single-family
home, finding that “[t]he contents of a person’s garbage are evidence of his
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most private traits and intimate affairs.” Id. at 941. Appellant notes that the
Granville court rejected any suggestion that an individual has no expectation
of privacy in their garbage bags simply because they are accessible to the
public and are given to third party collectors as it reasoned that
“unconstrained government inspection of people’s trash is not consistent with
a free and open society.” Id. at 944 (citation omitted).
Next, Appellant notes that the Granville court relied heavily on the
decision in State v. Hempele, 576 A.2d 793 (N.J. 1990), in which the New
Jersey Supreme Court found that a warrantless search of curbside garbage
violated its state constitution. The Hempele court reasoned that an individual
has a reasonable expectation of privacy in keeping his or her garbage private
as “[a]lmost every human activity ultimately manifests itself in waste
products[,] and … any individual may understandably wish to maintain
confidentiality of his refuse.” Hempele, 576 A.2d at 802. Further, the
Hempele court determined that individuals do not “compromise their privacy
interest” in their trash when they entrust a trash collector to dispose of their
trash bags. Id. at 806.
Appellant also cites State v. Galloway, 109 P.3d 383 (Or.App. 2005),
State v. Morris, 680 A.2d 90 (Vt. 1996), and State v. Tanaka, 701 P.2d
1274 (Haw. 1985) for the proposition that individuals have a reasonable
expectation of privacy in their sealed garbage bags as they do not “implicitly
authorize anyone else to paw through their garbage and view and take items
of garbage,” but rather, expect that “only the garbage collection company []
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would remove the bags from the cans and carry them away.” Galloway, 109
P.3d 388. Id. See also Morris, 680 A.2d at 96 (individuals expect that their
curbside garbage “will be collected, taken to the landfill, and commingled with
other garbage without being intercepted and examined by police”); Tanaka,
701 P.2d at 1276 (finding “people reasonably believe that police will not
indiscriminately rummage through their trash bags to discover their personal
effects”).
Further, Appellant notes that courts in California, New Hampshire, North
Carolina, and Washington have also determined that an individual has a
reasonable expectation of privacy in trash left out for pickup by a private
collection company. State v. Goss, 834 A.2d 316, 319-20 (N.H. 2003); State
v. Boland, 800 P.2d 1112, 1113 (Wash. 1990); People v. Krivda, 486 P.2d
1262 (Cal. 1971) (en banc), vacated, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45
(1972) (remanding for a determination of whether holding was based on
federal or state law), 504 P.2d 457 (Cal. 1973) (confirming state constitution
furnished independent ground for decision); State v. Rhodes, 565 S.E.2d
266, 267 (N.C.App. 2002), appeal denied, 569 S.E.2d 273 (N.C. 2002).
Although these cases do support Appellant’s position, the majority of
other jurisdictions have adopted the United States Supreme Court’s holding in
Greenwood which authorizes warrantless searches of trash bags left curbside
for collection. Courts in Connecticut, Colorado, and Delaware have determined
that warrantless seizures of trash are permitted under their state constitutions
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which contain provisions that are nearly identical to Article I, Section 8 of the
Pennsylvania Constitution and provide greater privacy protection.
In State v. DeFusco, 620 A.2d 746 (Conn. 1993), the Connecticut
Supreme Court held that Article I, Section 7 of the Connecticut Constitution
which “provides broader protection of individual rights than does the federal
constitution,” does not require officers to obtain a warrant to search and seize
trash bags placed at the curb for collection in which there is no reasonable
expectation of privacy. Id. at 749-753; Conn. Const. art. I, § 7. Similarly,
the Colorado Supreme Court held in People v. Hillman, 834 P.2d 1271 (Colo.
1992) that Article II, Section 7 of the Colorado Constitution does not prohibit
the warrantless search and seizure of garbage left at the curb for collection as
there is no reasonable expectation of privacy in such garbage which is readily
accessible to the public. Id. at 1276-78; Colo. Const. art. II, § 7.
Notably, the Delaware Court of Appeals examined Pennsylvania’s Article
I, Section 8 and applicable precedent in determining that its own state
constitution permitted the warrantless seizure of trash bags. State v.
Ranken, 25 A.3d 845 (Del.Super.Ct. 2010), affirmed, 21 A.3d 597 (Del.
2011). The Delaware Superior Court noted that its own applicable
constitutional provision is nearly textually identical to Article I, Section 8, and
both reflect a higher standard of commitment in protecting the privacy of their
citizens than that of the U.S. Constitution. Id. at 853-54 (citing Del. Const.
art. I, § 6). The Delaware Superior Court emphasized that this Court had
determined in Bagley that the defendant had abandoned any reasonable
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expectation of privacy of trash put outside his house. While the Ranken Court
conceded that it was uncertain whether Bagley was decided on state
constitutional grounds pursuant to Article I, Section 8 of the Pennsylvania
Constitution, it noted that the Bagley court’s references to this constitutional
provision in multiple points in the opinion “strongly suggests that it saw no
violation of the provision.” Id. at 856.
Moreover, numerous other jurisdictions have determined that
warrantless seizures of trash are permitted under their state constitutions.
See State v. Frye, 108 N.E.3d 564, 584 (Ohio 2018); State v. McMurray,
860 N.W.2d 686, 693 (Minn. 2015); Barekman v. State, 200 P.3d 802, 809-
810 (Wyo. 2009); State v. 1993 Chevrolet Pickup, 116 P.3d 800, 805
(Mont. 2005); Litchfield v. State, 824 N.E.2d 356, 363-64 (Ind. 2005);6
State v. Schwartz, 689 N.W.2d 430, 435-36 (S.D. 2004); Rikard v. State,
123 S.W.3d 114, 119-20 (Ark. 2003); State v. Donato, 20 P.3d 5, 8-10 (Id.
2001); Commonwealth v. Carriere, 545 N.W.2d 773, 776 (N.D. 1996);
Commonwealth v. Pratt, 555 N.E.2d 559, 567-68 (Mass. 1990); State v.
Stevens, 367 N.W.2d 788, 797 (Wis. 1985); State v. Jackson, 937 P.2d
____________________________________________
6 Notably, the Indiana Supreme Court qualified its holding to indicate that a
warrantless search and seizure of trash left for collection would be deemed
reasonable if the officers retrieved the trash “in substantially the same manner
as the trash collector would take it” and were able to establish articulable
reasonable suspicion to do so. Litchfield, 824 N.E.2d at 363-64. See also
Beltz v. State, 221 P.3d 328 (Alaska 2009) (adopting Litchfield analysis and
noting that “a garbage search is a sufficiently minimal intrusion on privacy
expectations to require only reasonable suspicion that the trash contains
evidence of a crime causing serious harm to persons or property”).
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545, 549-50 (Utah Ct. App. 1997), cert denied, 945 P.2d 1118 (Utah 1997);
People v. Thivierge, 435 N.W.2d 446, 447 (Mich.App. 1988), appeal denied
(May 31, 1989); Cooks v. State, 699 P.2d 653, 656 (Okla.Crim.App. 1985),
cert denied, 106 S. Ct. 268 (Okla. 1985).
Appellant does not specifically address the final Edmunds factor but
suggests a policy consideration supporting the prohibition of warrantless trash
searches is that individuals have “no realistic option but to arrange for trash
disposal” at the curbside of their residence. Appellant’s Brief, at 79.
While Appellant has raised a valid concern, we are more persuaded by
prevailing Pennsylvania law in which our courts have repeatedly held that an
individual’s decision to voluntarily discard items in trash bags left for collection
“manifest[s] a clear intention to abandon any reasonable expectation of
privacy in such property.” See Bagley, supra, Perdue, supra, Cihylik,
supra, Minton, supra. Individuals relinquish any reasonable expectation of
privacy in trash once it is left for collection by third party waste management
companies in an area accessible to the public.
In response to Appellant’s claim that police should not be permitted
access to a citizen’s trash bags which may contain personal or confidential
information, we find persuasive the rationale set forth by the United States
Supreme Court in Greenwood and the Supreme Court of Connecticut in
DeFusco in observing the following:
[it is a] matter of common knowledge that garbage placed at the
curb is subject to intrusion by a variety of people, with a variety
of purposes, including bottle and coupon collecting, antique
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hunting, food searching and snooping. Finally, we regard it to be
common knowledge among citizens of this state that dogs,
raccoons, or other creatures may intrude upon and expose the
contents of garbage that has been placed for collection in an
accessible area.
In light of our recognition of these potential intrusions on garbage
placed at the curb for collection, the defendant's argument for
state constitutional protection against police searches of his
garbage devolves into an argument that a person may harbor
different expectations of privacy, all of which are reasonable, as
to different classes of intruders. We cannot countenance such a
rule. A person's reasonable expectations as to a particular object
cannot be compartmentalized so as to restrain the police from
acting as others in society are permitted or suffered to act. A
person either has an objectively reasonable expectation of privacy
or does not; what is objectively reasonable cannot, logically,
depend on the source of the intrusion on his or her privacy.
DeFusco, 620 A.2d 746, 752–53 (citing Greenwood, supra) (other citations
and footnotes omitted).
Specifically, in this case, officers recovered Appellant’s trash bags that
were left curbside for pickup after they had been collected by a third-party
waste management company and held separately by sanitation workers who
drove down the street and subsequently turned the trash bags over to the
police. N.T. 12/19/22, at 153-155. We find Appellant’s alleged expectation
of privacy in trash he voluntarily discarded for pickup by a third-party
collection company is not one that society is prepared to accept as reasonable.
As a result, the trial court did not err in determining that the officers’
warrantless search of Appellant’s trash bags did not violate his rights under
Article I, Section 8 of the Pennsylvania Constitution.
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Lastly, we evaluate Appellant’s alternative claim that the officers were
not permitted to conduct a warrantless extraction and analysis of DNA
evidence obtained from Appellant’s trash and from eating utensils that
Appellant’s son, Z.W., discarded at a public banquet. Appellant claims that
the processing of the DNA itself constitutes its own separate search from the
physical collection of the items. Appellant argues that individuals do not
voluntarily abandon their DNA in shedding genetic material, such as skin cells,
hair, and saliva, which reveals deeply personal information. As such,
Appellant argues that DNA testing cannot be performed without a warrant as
it infringes on a reasonable privacy interest in his “bodily integrity and genetic
information.” Appellant’s Brief, at 88.
Although this Court has not directly addressed whether the
Commonwealth is required to obtain a warrant to perform DNA analysis on
abandoned items, Appellant cites to this Court’s decision in Commonwealth
v. Smith, 164 A.3d 1255 (Pa.Super. 2017) for the proposition that police may
only perform warrantless DNA analysis on items obtained from arrestees and
pretrial detainees after it has been determined that there is probable cause to
believe the arrestee committed a crime.
Appellant has mischaracterized this Court’s decision in Smith, which
actually undermines the arguments he is trying to make. In Smith, the
appellant sought suppression of DNA testing performed on his blood-stained
shoes and shirt that officers confiscated upon his arrest and the execution of
a search warrant. Smith argued that while the items were lawfully seized, the
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extraction and analysis of the DNA samples represented an additional search
that required a warrant as DNA can “reveal physiological data and a host of
private medical facts” and “intrude on expectations of privacy that society has
long recognized as reasonable.” Id. at 1257-58.
The Smith Court determined that officers were permitted to conduct
warrantless DNA analysis on items seized from an arrestee as a “DNA sample
of the accused taken upon arrest, while more revealing, is no different in
character than acquiring fingerprints upon arrest.” Id. at 1260 (citing U.S. v.
Mitchell, 652 F.3d 387, 410-12 (3rd Cir. 2011) (other citations omitted)).
This Court found that Smith had failed to demonstrate a “protectable privacy
interest in the DNA samples taken from his shirt and shoe prior to their
analysis.” Id. While this Court recognized that DNA evidence has the potential
to reveal sensitive information, the prosecution’s purpose in DNA testing is to
determine the identity of the source by comparing two DNA samples to
evaluate whether they match. This Court found it was mere speculation for
Smith to argue that the government would use his DNA sample to obtain
private medical information. Id.
Appellant asks us to construe the Smith decision to hold that officers
may only perform warrantless DNA analysis on items seized from an arrestee,
felon, or parolee. However, this argument completely misses the mark as the
Smith court only addressed whether police may conduct DNA analysis on
items obtained incident to arrest or may compel arrestees to submit to DNA
testing for identification purposes. In this case, the key issue is whether police
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need a warrant to extract DNA from abandoned items that were lawfully
obtained. We reiterate that an individual has no standing to contest the search
and seizure of items which he has voluntarily abandoned as the defendant has
no reasonable expectation of privacy in such items. Byrd, supra.
We also reject Appellant’s suggestion that he is entitled to relief based
on his assertion that an individual does not voluntarily abandon their DNA.
We find persuasive the logic set forth in State v. Athan, 158 P.3d 27, 37
(Wash. 2007) in concluding that individuals cannot claim an expectation of
privacy in discarded genetic material.
In Athan, officers suspected that Athan was the perpetrator of the 1982
rape and murder of a 13-year old girl. After the officers were able to develop
a DNA profile for the perpetrator decades later from evidence obtained from
the crime scene, they attempted to obtain a DNA sample from Athan by posing
as attorneys inviting him to join a fictitious class action. Detectives were able
to analyze DNA from saliva Athan used to seal a mailed letter in which he
expressed a desire to be part of the class action. Athan’s DNA was a match
to the DNA found at the crime scene of the 1982 rape and murder.
The Washington Supreme Court ruled that “[t]he analysis of DNA
obtained without forcible compulsion and analyzed by the government for
comparison to evidence found at a crime scene is not a search under the
Fourth Amendment.” Athan, 158 P.3d at 37. Thus, the Athan court
specifically found that Athan had no expectation of privacy in his saliva used
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to seal an envelope that he placed in the mail. Further, the Athan court aptly
noted that:
[p]olice may surreptitiously follow a suspect to collect DNA,
fingerprints, footprints, or other possibly incriminating evidence,
without violating that suspect's privacy. No case has been cited
challenging or declaring this type of police practice unreasonable
or unconstitutional. People constantly leave genetic material,
fingerprints, footprints, or other evidence of their identity in public
places. There is no subjective expectation of privacy in discarded
genetic material just as there is no subjective expectation of
privacy in fingerprints or footprints left in a public place. Physical
characteristics which are exposed to the public are not subject to
Fourth Amendment protection. United States v. Mara, 410 U.S.
19, 21, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).
Id. (emphasis added).
The Supreme Court of Maryland has similarly held that:
[the] DNA testing of ... genetic material, not obtained by means
of a physical intrusion into the person's body, is no more a search
for purposes of the Fourth Amendment, than is the testing of
fingerprints, or the observation of any other identifying feature
revealed to the public-visage, apparent age, body type, skin color.
Raynor v. State, 99 A.3d 753, 767 (Md. 2014). See also State v.
Vannieuwenhoven, 8 N.W.3d 63, 73 (Wis.Ct.App. 2024) (finding officers did
not need warrant to extract DNA from items lawfully obtained by law
enforcement when the only purpose of the analysis was to compare the
perpetrator sample with the sample obtained from the crime scene); State
v. Burns, 988 N.W.2d 352, 364-65 (Iowa 2023) (warrantless DNA analysis
on a drinking straw discarded by a suspect at a restaurant deemed lawful);
State v. Williford, 767 S.E.2d 139, 144 (N.C.Ct. App. 2015) (warrantless
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extraction of DNA from cigarette butt discarded by the defendant on the
ground of a parking lot did not constitute a search).
Consistent with the logic set forth by our sister states, we conclude
individuals do not have an expectation of privacy in discarded genetic
material. More specifically, we conclude that Appellant did not have an
expectation of privacy in his saliva discovered inside of discarded spit bottles
that were lawfully confiscated by police.
To the extent that Appellant challenges the officers’ extraction and
analysis of DNA from utensils that his son, Z.W., discarded at a public banquet,
we emphasize that Appellant could not establish an expectation of privacy in
another person’s DNA sample. See Smith, 164 A.2d at 1260 (defendant could
not establish privacy interest in DNA samples as they were determined to
belong to the victim of the relevant crime).
Accordingly, the trial court did not err in denying Appellant’s motion to
suppress the items obtained in trash bags left for collection and the DNA found
in items voluntarily discarded by Appellant and his son, Z.W.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 07/24/2025
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