Commonwealth v. Haynes

J-A35037-14

2015 PA Super 94

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DOMINICK WILLIAM HAYNES,

Appellant No. 353 WDA 2014

Appeal from the Judgment of Sentence October 4, 2013
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001600-2012

BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

OPINION BY BOWES, J.: FILED APRIL 22, 2015

Dominick William Haynes appeals from the judgment of sentence of

twelve to thirty years incarceration after a jury found him guilty of four

counts of possession with intent to deliver (“PWID”), two counts of corrupt

organizations, and one count of criminal conspiracy and hindering

apprehension. After careful review, we vacate the judgment of sentence and

remand for resentencing. In all other respects, we affirm.

The relevant facts pertaining to Appellant’s issues are as follows.

Pennsylvania State Police conducted a warrantless entry into an apartment.

Specifically, Trooper Jeffrey Brautigam was conducting surveillance on

February 22, 2012, outside the Hawksworth Garden Apartments in

Greensburg, Westmoreland County. Approximately one and one-half hour

earlier, two other troopers had been surveilling the apartments and
J-A35037-14

witnessed drug sale activity. Those officers followed the buyer and

performed a traffic stop. The driver was found with heroin and indicated

that he bought the heroin from a woman at the Hawksworth apartments.

Trooper Brautigam, as part of his surveillance, observed a woman exit

Building B of the apartments and meet a series of individuals in the parking

lot. He indicated that he had seen hundreds of drug transactions transpire

and described the woman’s interactions with these individuals as drug

transactions. Trooper Brautigam testified that the female, later identified as

Kristin Weightman, would exit the apartment building and a car would pull

into the parking lot. Weightman would then hand something to the driver or

passenger and the passenger would hand something to her. The car would

then leave, and Weightman would return to the building. This occurred

three times.

At the time, Trooper Brautigam also had information that another

individual, Chauncy “Gunner” Bray, was in the area with Weightman.

Trooper Brautigam knew Bray from past encounters and was told that Bray

may be in possession of a firearm. Trooper Edward Malloy witnessed which

apartment Weightman entered and relayed that information to Trooper

Brautigam. Trooper Brautigam and Trooper Malloy then watched Weightman

meet a white male, later identified as Kurt McCamley, and return to the

apartment building. Police intended to question Weightman before she

entered the apartment, but were unable to intercept her. Trooper Brautigam

-2-
J-A35037-14

then elected to knock on the door to speak with Weightman. As the two

officers approached, Trooper Brautigam smelled burning marijuana

emanating from inside the apartment.

Trooper Brautigam knocked on the door and an individual asked who it

was. He responded that he needed to speak to the renter and heard

rumbling inside. He then identified himself as the police and asked that

someone open the door. Those inside would not answer the door, and,

according to Trooper Brautigam, they became quiet. After twenty to thirty

seconds, the police kicked open the door. Entry occurred at approximately

12:30 in the afternoon. Bray attempted to flee and toss money away but

was captured. Four other males were inside, including Appellant, as were

Weightman and McCamley.1 In plain view was a plastic bag with nine bricks

of heroin, money on the sofa, and burnt marijuana blunts on a window sill.

Thereafter, police secured a search warrant for the apartment and

questioned those present. Appellant maintained that he was just visiting

and that the drugs were not his. The heroin inside the apartment was

confirmed to weigh 7.8 grams.

Appellant unsuccessfully litigated a suppression motion and proceeded

to trial with one other individual, James Moore. A different judge presided

____________________________________________

1
Trial testimony revealed that Appellant and Ms. Weightman arrived the
night before and spent the night. The apartment was being rented by a
Jillian Davis.

-3-
J-A35037-14

over the jury trial. As part of the investigation into the same drug ring,

police, on the same day as the apartment raid, conducted a warrant-based

search of another apartment rented by a Nicole Dudek. They recovered six

bricks of heroin, suboxone, money, and cell phones. Police then called

Dudek and informed her of their discovery. She did not turn herself in at

that time and stayed with Moore for five days and Appellant for one night.

Thereafter, she did turn herself in to the authorities. Additional testimony

from several drug addicts indicated that Appellant was involved in the sale of

heroin.

The jury found Appellant guilty of the aforementioned charges. The

court sentenced Appellant to twelve to thirty years imprisonment, including

a mandatory minimum sentence relative to the weight of the drugs involved.

The jury was not instructed to make a finding regarding the weight of the

drugs. Appellant filed a timely post-sentence motion, which the court

denied. This appeal ensued. The trial court and Appellant complied with

Rule 1925. Appellant raises four issues for this Court’s review.

I. Whether the honorable trial court erred in failing to
suppress the fruits of the raid on the Hawksworth Garden
Apartments?

II. Whether the honorable trial court erred in failing to dismiss
all of the charges filed against the Defendant as being the
fruits of the illegal search and seizure at the Hawksworth
Garden Apartments?

III. Whether the honorable trial court issued an illegal
sentence by imposing a mandatory minimum sentence at
count 16 whenever the predicate facts necessary for an

-4-
J-A35037-14

enhanced sentence were not submitted to the jury or
found to exist beyond a reasonable doubt?

IV. Whether the honorable trial court erred in failing to grant
the motion for judgment of acquittal of the harboring a
fugitive charge?

Appellant’s brief at 6.

Appellant’s first two claims pertain to the suppression of evidence. In

evaluating a suppression ruling, we consider the evidence of the

Commonwealth, as the prevailing party below, and any evidence of the

defendant that is uncontradicted when examined in the context of the

record. Commonwealth v. Sanders, 42 A.3d 325, 330 (Pa.Super. 2012).

This Court is bound by the factual findings of the suppression court where

the record supports those findings and may only reverse when the legal

conclusions drawn from those facts are in error. Id.

Appellant argues that the warrantless search of the apartment violated

both his Fourth Amendment and Article I, § 8 right to be free from

unreasonable searches and seizures. However, his main focus is on the

Pennsylvania Constitution. In this respect, he maintains that the

Pennsylvania charter provides greater protections than the Fourth

Amendment. In support, he relies on Commonwealth v. Demshock, 854

A.2d 553 (Pa.Super. 2004), and Commonwealth v. Waddell, 61 A.3d 198

(Pa.Super. 2012), and distinguishes the United States Supreme Court

decision in Kentucky v. King, 131 S.Ct. 1849 (2011).

-5-
J-A35037-14

Ordinarily, law enforcement must obtain a warrant before conducting a

search. Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013). In

this respect, warrantless searches are generally presumed unreasonable.

Commonwealth v. Taylor, 771 A.2d 1261, 1266 (Pa. 2001). Nonetheless,

there are exceptions to the warrant requirement, including those situations

where probable cause exists in conjunction with exigent circumstances.

Commonwealth v. Petroll, 738 A.2d 993, 999 (Pa. 1999).

In Demshock, police received complaints of a car theft and vandalism

in the area of an apartment complex. A detective was patrolling the area on

foot as a result. While doing so, he walked past an apartment and observed

through a one-foot vertical blind of a sliding door what appeared to be

teenagers drinking beer. Based on this observation, he radioed other

officers who were patrolling the complex. While covering the apartment’s

peep hole, the detective knocked on the door. A person inside asked who it

was and the detective said, “hey man, it is me.” Demshock, supra at 554.

An individual opened the door slightly and looked outside. Upon seeing that

it was police, the person stepped back and police pushed the door open and

entered. Police then saw marijuana in plain view.

The trial court denied a suppression motion, and Demshock was found

guilty of possession of marijuana and underage drinking. This Court

reversed on appeal, finding that the entry into the apartment violated the

Fourth Amendment. We noted that the detective did not testify that he

-6-
J-A35037-14

entered the apartment to prevent the destruction of evidence. See id. at

556. The Demshock panel continued, “Here, the officers observed the

illegal activity from outside the premises without the occupants detecting

their presence. Under these circumstances, the officers could have made

efforts to secure a search warrant and quite possibly could have secured a

warrant prior to any of the partygoers realizing that the police were outside.”

Id. at 557. According to the Demshock Court, if an exigency existed

therein, once police had probable cause, “police could simply knock upon the

door rather than go through the trouble of obtaining a warrant.” Id. at 558.

It continued stating, “The Fourth Amendment could be made substantially

impotent if this were the case.” Id.

In Waddell, this Court, relying on Demshock, ruled that suppression

was warranted on Fourth Amendment grounds where the police created their

own exigency by knocking and announcing. The facts in Waddell are as

follows. Police in Homestead, Allegheny County, received information from a

neighboring police officer that large amounts of marijuana were being sold

from a house at 314 West 12th Avenue. Homestead’s Chief of Police

contacted an informant who confirmed that the house was used to sell

narcotics and maintained that there were two black males transporting

marijuana from the house. The informant further provided a description of

the car. Police stopped the car described by the informant several blocks

from the house. Two individuals were arrested for being in possession of

-7-
J-A35037-14

thirteen pounds of marijuana. In addition, police located a firearm. One of

those men indicated that he got the marijuana “up on the hill, at the little

house.” Waddell, supra at 209.

Homestead police and Munhall officers travelled to 314 West 12th

Avenue. As they approached, a strong odor of marijuana was detected

coming from the house. Police knocked on the door and, after hearing no

response, discerned the sound of slight movement inside. Police knocked

twice more, the final time stating that it was the police and asking someone

to open the door. At that time, more movement was heard and another

officer radioed that a person had jumped out of a window from the rear of

the home. Based on the belief that someone inside might destroy evidence

or retrieve a gun, police kicked in the door and entered the house. Two

handguns, an AK-47 magazine, and marijuana were in plain view. Citing

Demshock, the panel stated, “It is well established that police cannot rely

upon exigent circumstances to justify a warrantless entry where the

exigency derives from their own actions.” Waddell, supra at 214. The

Waddell panel added that, “Hurried movement does not provide a strong

inference that evidence was being destroyed[.]” Id. at 216.

The court continued that it was reasonable to assume that the “‘knock

and talk’ was conducted with the hope that events would transpire in such a

fashion as to obviate the warrant requirement altogether.” Id. at 217. It

further reasoned, “To prevent dilution of the sanctity of a citizen’s home, the

-8-
J-A35037-14

core element of the Fourth Amendment, we must remain vigilant against

attempts by police to actively seek out exigency, no matter how well-

intentioned their efforts might be.” Id. The Waddell Court did not discuss

King, nor did the Commonwealth brief that case.

In King, police set up a controlled buy of crack cocaine outside an

apartment complex. An undercover officer watched the transaction occur

and then radioed to uniformed officers to arrest the suspect. The officers

were unable to stop the person before he entered an apartment. Unlike this

case, police did not see which apartment the suspect entered, but heard a

door close and detected a very strong odor of marijuana from one of two

apartments in the vicinity. The suspect actually entered the apartment not

at issue.2 One officer knocked loudly and announced the presence of police

at the apartment from which the marijuana smell was emanating. That

officer maintained that he could hear the sound of things being moved

inside. Therefore, he kicked down the door. Marijuana and powder cocaine

were located in plain view.

____________________________________________

2
At early American common law, this would have been an important
distinction since warrantless entry was only permitted if the felon being
pursued was actually inside the premises. See e.g., William Waller Hening,
The New Virginia Justice, 303-304 (Richmond, 2nd ed. 1810) (citing Matthew
Hale and Serjeant Hawkins, two of the most influential English legal treatise
writers at the time of America’s founding).

-9-
J-A35037-14

The Kentucky Supreme Court ruled that police improperly created their

own exigency in violation of the Fourth Amendment. The United States

Supreme Court granted certiorari to consider whether the exigent

circumstance rule applies “when police, by knocking on the door of a

residence and announcing their presence, cause the occupants to attempt to

destroy evidence.” King, supra at 1854.

The King Court reasoned that a rule precluding police from making a

warrantless entry to prevent destruction of evidence “would unreasonably

shrink the reach of this well-established exception to the warrant

requirement.” Id. at 1857. The Supreme Court discussed various state and

federal approaches that precluded a finding of exigency under similar

circumstances. With respect to cases concluding that police possessed

probable cause and sufficient time to secure a warrant, it submitted that

such an approach “unjustifiably interferes with legitimate law enforcement

strategies.” Id. at 1860. The King Court found that, “Faulting the police for

failing to apply for a search warrant at the earliest possible time after

obtaining probable cause imposes a duty that is nowhere to be found in the

Constitution.” Id. at 1861. Thus, King held that the police, by knocking

and announcing, did not impermissibly create the exigency needed for a

warrantless search.

King thus calls into question portions of Demshock and Waddell

insofar as they rely on the Fourth Amendment and the now-overruled view

- 10 -
J-A35037-14

that under the Fourth Amendment the police cannot create their own

exigency by knocking and announcing. For this reason, Appellant maintains

that Pennsylvania constitutional principles should be applied more broadly.

As noted, Appellant’s position is essentially that the police created

their own exigent circumstances by knocking on the door of the apartment

rather than securing a search warrant. He highlights that police knew that

Weightman had sold drugs to one person one and one-half hour before

entering the apartment. Appellant adds that Trooper Brautigam also saw

Weightman engage in three separate drug sales and knew what apartment

she was entering. Accordingly, Appellant posits that police had sufficient

information to secure a warrant but elected to create their own exigency by

approaching and knocking on the door.

The Commonwealth responds by arguing for the first time, though the

issue is not waived, see Commonwealth v. Hawkins, 718 A.2d 265, 268

n.3 (Pa. 1998), that Appellant did not establish an expectation of privacy in

the apartment. This argument fails in light of Commonwealth v. Arnold,

932 A.2d 143 (Pa.Super. 2006). Therein, this Court held that a visitor to an

apartment has a reasonable expectation of privacy in the place being visited.

We found that to hold otherwise “would permit police officers to provide

retroactive justifications and randomly invade homes on the pretense that

any person found not to be a non-resident after the fact could be searched.”

Id. at 149; see also Minnesota v. Olson, 495 U.S. 91, 98 (1990) (“We

- 11 -
J-A35037-14

think that society recognizes that a houseguest has a legitimate expectation

of privacy in his host's home.”).

In the alternative, the Commonwealth contends that the police had

both probable cause and exigent circumstances to enter the apartment.

Accordingly, it maintains that the warrantless entry was lawful. Here,

Appellant disputes only the exigent circumstances. The Commonwealth

relies heavily on King, supra, and asserts that, after police knocked on the

door, exigent circumstances arose because those inside refused to answer,

movement was heard, and a powerful smell of marijuana was coming from

the residence.

We begin by noting that in several contexts, the Pennsylvania

Supreme Court has interpreted Article I, § 8 to afford broader protections

than interpretations of the Fourth Amendment by the United States Supreme

Court. Theodore v. Delaware Valley School District, 836 A.2d 76 (Pa.

2003) (finding Article I, § 8 provides greater protections for suspicion-less

drug testing of students than does the United States Supreme Court’s Fourth

Amendment jurisprudence); Commonwealth v. Matos, 543 Pa. 449, 672

A.2d 769 (Pa. 1996) (rejecting the Supreme Court's decision in California

v. Hodari, 499 U.S. 621 (1991), and holding that, under Article I, § 8,

pursuit by a police officer without probable cause or reasonable suspicion

constitutes a seizure); Commonwealth v. Edmunds, 586 A.2d 887 (Pa.

1991) (declining to adopt “good faith” exception to exclusionary rule under

- 12 -
J-A35037-14

United States v. Leon, 468 U.S. 897 (1984)); Commonwealth v. Melilli,

555 A.2d 1254 (Pa. 1989) (installation of pen register requires probable

cause); Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979)

(expectation of privacy exist in bank records); Commonwealth v. Sell, 470

A.2d 457 (Pa. 1983) (retaining automatic standing rule in Pennsylvania and

declining to adopt Rakas v. Illinois, 439 U.S. 128 (1978); United States

v. Salvucci, 448 U.S. 83 (1980)).

However, in other situations, our High Court has declined to interpret

Article I, § 8 as providing greater protections than the United States

Supreme Court’s Fourth Amendment jurisprudence. See Commonwealth

v. Russo, 934 A.2d 1199 (Pa. 2007) (open fields doctrine);

Commonwealth v. Duncan 817 A.2d 455 (Pa. 2003) (no privacy right in

name and address); Commonwealth v. Glass, 754 A.2d 655 (Pa. 2000)

(anticipatory search warrants); Commonwealth v. Waltson, 724 A.2d 289

(Pa. 1998) (search warrant of house not overbroad); Commonwealth v.

Williams, 692 A.2d 1031 (Pa. 1997) (search of parolee); Commonwealth

v. Gary, 91 A.3d 102 (Pa. 2014) (plurality) (automobile searches).

We consider four factors in analyzing whether our state charter offers

more protections than does the federal constitution as interpreted by the

Supreme Court: (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

- 13 -
J-A35037-14

issues of state and local concern and applicability within modern

Pennsylvania jurisprudence. See Edmunds, supra at 895.

In addition, when considering the Pennsylvania Constitution, "great

regard should be paid to spirit and intention," and it is important to examine

the "probable intent of the makers." Commonwealth v. Rose, 81 A.3d

123, 127 (Pa. Super. 2013), allowance of appeal granted on other ground,

95 A.3d 274 (Pa. 2014) (citing Farmers' & Mechanics' Bank v. Smith, 3

Serg. & Rawle 63, 1817 WL 1771, 5 (Pa. 1817), reversed on other grounds

at 19 U.S. 131, 5 L. Ed. 224 (1821) (emphases omitted), and Firing v.

Kephart, 466 Pa. 560, 353 A.2d 833, 835-836 (Pa. 1976)).

In performing this examination, we keep in mind that “[a] constitution

is made, not particularly for the inspection of lawyers, but for the inspection

of the million, that they may read and discern in it their rights and their

duties; and it is consequently expressed in the terms that are most familiar

to them.” Monongahela Navigation Co. v. Coons, 6 Watts & Serg. 101,

114 (Pa. 1843). Thus, we construe words in their plain and natural

meaning, unless the words themselves denote a technical sense. Id.

“Concomitantly, a fundamental precept in interpreting our constitution is

that the language ‘must be interpreted in its popular sense, as understood

by the people when they voted on its adoption. Our ultimate touchstone is

the actual language of the Constitution itself.’” Rose, supra at 127 (quoting

Stilp v. Commonwealth, 588 Pa. 539, 905 A.2d 918, 939 (Pa. 2006)). In

- 14 -
J-A35037-14

short, we consider “the original public meaning of the text at issue, giving

due regard to both its spirit and the intent of the framers of the clause.”

Rose, supra at 127.

The current version of Article I, § 8 of the Pennsylvania Constitution

provides,

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 by the affiant.

Pa.Const., Article I, § 8. Similarly, the Fourth Amendment reads,

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. Am. IV.

The Fourth Amendment, proposed by Congress in 1789, was ratified

December 15, 1791. Of note, however, is that Pennsylvania’s right against

unlawful searches and seizures predates the ratification of the Fourth

Amendment. The Pennsylvania Constitution of 1776 set forth:

That the people have a right to hold themselves, their houses,
papers, and possessions free from search and seizure, and
therefore warrants without oaths or affirmations first made,
affording a sufficient foundation for them, and whereby any
officer or messenger may be commanded or required to search
suspected places, or to seize any person or persons, his or their
property, not particularly described, are contrary to that right,
and ought not to be granted.

- 15 -
J-A35037-14

Pa. Const., (1776) Chapt. 1, Article X.

This provision did not utilize the term “unreasonable” and focused on

repudiating the issuance of general warrants. Accordingly, this provision

was directly aimed at banning searches using general, i.e., overbroad

warrants. This, of course, is not surprising when considered in historical

context.

John Dickinson, a prominent Pennsylvania revolutionary leader and

signer of the federal constitution as a Delaware delegate, writing in his

Letters of a Pennsylvania Farmer, complained of the 1767 Townshend Act’s

allowance of customs officers “‘to enter into any house, warehouse, shop,

cellar, or other place in the British colonies or plantations in America, to

search for, or seize prohibited or unaccustomed goods,’ . . . on ‘writs

granted by the inferior or supreme court of justice, having jurisdiction within

such colony or plantation respectively.’” Letters of a Pennsylvania Farmer,

Letter IX, 88-89 (reprinted Philadelphia, 1774).

He noted that he was “well aware that writs of this kind may be

granted at home, under the seal of the court of exchequer: But I know also

that the greatest asserters of the rights of Englishmen, have always

strenuously contended, that such a power was dangerous to freedom, and

expressly contrary to the common law, which ever regarded a man’s house,

as his castle, or a place of perfect security.” Id. at 89; see also Gary,

- 16 -
J-A35037-14

supra at (Todd, J., dissenting) (discussing Dickinson and Pennsylvania

opposition to such writs).

Even before Dickinson’s well-known and widely disseminated “Letters”

was the Writs of Assistance case, also commonly called Paxton’s Case. The

case was widely known in Boston in 1761, although the reporting of the case

is untraditional. Much of what is known about the case comes from the

notes of John Adams regarding the argument of James Otis, Jr. (hereinafter

“Otis”). Otis would later serve in the Stamp Act Congress with Dickinson in

1765.

Writs of assistance were a type of general warrant that authorized

government officials to look for smuggled materials. “Prior to 1755, local

customs officers carried out warrantless searches under an assumed power

of forcible entry ex officio. Massachusetts residents vigorously opposed

these intrusions, thereby impelling Governor William Shirley to begin issuing

his own warrants to customs officers.” Tracy Maclin, The Complexity of the

Fourth Amendment: A Historical Review, 77 B.U.L. Rev. 925, 945 (2014)

(footnote omitted). Nonetheless, “opposition to gubernatorial warrants

forced Shirley to order his officers to obtain writs of assistance from the

judiciary.” Id. (footnote omitted).

Writs of assistance were valid for six months after the death of the

sovereign. The death of King George II in 1760, among other reasons,

resulted in Boston merchants opposing renewal of the writs. One Boston

- 17 -
J-A35037-14

customs official who had been using writs of assistance at the time was

Charles Paxton. Paxton utilized what we now would refer to as confidential

informants to learn of places where smuggled goods were being kept. See

M.H. Smith, The Writs of Assistance Case, 128 (1978).

Sixty-three Boston merchants petitioned against the continued

issuance of the writs. Id. at 131. Otis resigned his position as advocate

general to the vice-admiralty court in order to avoid defending the writ and

was retained by the Boston merchants. The Boston surveyor general of

customs, Thomas Lechmere, issued a “memorial” to the Massachusetts

Superior Court asking that his council be heard on the subject so that writs

of assistance could be issued to his officers.3 Id. at 130. The case was

heard in February and November of 1761.

Otis began by stating that such writs were “the worst instrument of

arbitrary power, the most destructive of English liberty and the fundamental

principles of law, that ever was found in an English law-book.” Gary, supra

at 145 (Todd, J., dissenting). While Otis was unsuccessful in persuading the

colonial Massachusetts Superior Judicial Court, it would become difficult for

such writs to be enforced in various colonies even in the face of direct
____________________________________________

3
It appears that in November 1760, James Cockle, a Salem, Massachusetts
customs official, had petitioned for a writ of assistance prior to the death of
King George II. The question was to be considered in February of 1761 by
the Massachusetts Superior Court. See M.H. Smith, The Writs of Assistance
Case, 135-148 (1978) (providing a thorough discussion on how the case
arrived before the Massachusetts Superior Court).

- 18 -
J-A35037-14

parliamentary authorization. See Gary, supra at 146 (Todd, J., dissenting)

(discussing Pennsylvania and Connecticut opposition).

John Adams, many years later, would write, “Then and there, the child

Independence was born.” See Frank v. Maryland, 359 U.S. 360, 364 n.3

(1959). Adams himself would introduce the use of the phrase

“unreasonable” into constitutional search and seizure provisions when

crafting the Massachusetts prohibition against unlawful searches and

seizures for the 1780 Massachusetts Constitution.4 According to one modern

leading Fourth Amendment scholar, Adams construed “unreasonable” as

meaning “inherent illegality or unconstitutionality[.]” Thomas Y. Davies,

Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 555

(1999); see also id. at 555 n.5.

____________________________________________

4
The original Massachusetts provision read:

Every subject has a right to be secure from all unreasonable
searches, and seizures, of his person, his houses, his papers,
and all his possessions. All warrants, therefore, are contrary to
this right, if the cause or foundation of them be not previously
supported by oath or affirmation; and if the order in a warrant to
a civil officer, to make search in all suspected places, or to arrest
one or more suspected persons, or seize their property, be not
accompanied with a special designation of the persons or objects
of search, arrest, or seizure; and no warrant ought to be issued,
but in cases and with the formalities prescribed by the laws.

Mass.Const. Declaration of Rights, Art. XIV (1780), reprinted in The
Constitutions of the Several Independent States of America, at 45-46
(London, 2nd ed. 1783).

- 19 -
J-A35037-14

One of this Commonwealth’s most illustrious attorneys and an early

constitutional commentator, William Rawle, described the Fourth

Amendment as follows. “Here again we find the general terms which

prohibit all violations of these person rights, and of course extend both to

the state and the United States.[5] The term unreasonable is used to

indicate that the sanction of a legal warrant is to be obtained, before such

searches or seizures are made.” William Rawle, A View of the Constitution

of the United States of America, at 127 (Philadelphia, 2nd ed. 1829).

Importantly, it was not just in Massachusetts where opposition to

general warrants was voiced. In Pennsylvania, “our Court's colonial

predecessor, along with that of Connecticut, was unique in basing its refusal

to issue such writs on the fact that they failed to restrict searches to only

specific places and enumerated items and did not require an official to

disclose to a judicial officer, prior to a search, his reasons for conducting it.”

Gary, supra at 146 (Todd, J., dissenting).

There is, of course, little dispute that the framers of the Pennsylvania

Declaration of Rights and those who framed and ratified the Fourth

____________________________________________

5
Rawle was writing before Chief Justice John Marshall’s decision in Barron
v. Baltimore, 32 U.S. 243 (1833), which held that the Fifth Amendment did
not apply to the states. Rawle himself distinguished between which
amendments he believed applied to the states and those that did not. The
Fourteenth Amendment has subsequently been interpreted to require the
application of much of the first eight amendments in the federal constitution
to the states.

- 20 -
J-A35037-14

Amendment did not intend for warrants to be required for all searches and

seizures. As of 1790, there were recognized common law exceptions to the

prohibition against warrantless arrests and searches. These exceptions

applied to both private citizens and law enforcement.

Framing-era law enforcement could only justify felony warrantless

arrests if a felony in fact had been committed, and such an arrest was

ordinarily required to be based on exceptional circumstances. Wakely v.

Hart, 6 Binn. 316, 318 (Pa. 1814) (emphases in original) (“it is no where

said, that there shall be no arrest without warrant. To have said so would

have endangered the safety of society. The felon who is seen to commit

murder or robbery, must be arrested on the spot or suffered to escape. So

although not seen, yet if known to have committed a felony, and pursued

with or without warrant, he may be arrested by any person.”); see also

Davies, at 578 (citing James Wilson’s law lectures of 1790-1791 contained in

2 The Works of James Wilson, 685 (Robert G. McCloseky ed., 1967)).

The exceptions generally applied to prevent escape. Wakely, supra;

William Waller Hening, The New Virginia Justice, 71, 303-305 (Richmond, 2nd

ed. 1810) (warrantless arrests allowed where person views a felony,

dangerous wounding, breach of peace, and is in fresh pursuit); compare id.

at 51 (“a constable hath no power to arrest a man for an affray done out of

his own view, without a warrant from a justice, unless a felony were done,

- 21 -
J-A35037-14

or likely to be done”);6 see also Kimball v. Munson, 2 Kirby 3 (Conn.

1786). Law enforcement could also make a warrantless entry to prevent an

escape if there was an affray or breach of the peace. Knot v. Gay, 1 Root

66, 67 (Conn. 1774); Hening, supra at 74.

Of course, a public offense committed or attempted in the person’s

presence could permit any person to arrest even for a misdemeanor.

Hening, supra at 50-51, 71. Importantly, during the 18th century, most

crimes were misdemeanors. See 5 Tucker’s Blackstone, 216 (Philadelphia,

1803) (defining assaults, batteries, wounding, false imprisonment, and

kidnapping as misdemeanors).7 Serious crimes such as aggravated assault

and kidnapping were not felonies; indeed, the term “felony” at common law

was largely synonymous with capital crimes.

In addition to arrest authority being extremely limited unless the crime

was observed by the arrestor, so too was the ability to enter a residence

without permission. “From the earliest days, the common law drastically

limited the authority of law officers to break the door of a house to effect an
____________________________________________

6
An affray was defined by William Waller Hening, in his justice of the peace
manual, as “the fighting of two or more persons in some public place, to the
terror the people.” William Waller Hening, The New Virginia Justice, 49 (2 nd
ed. Richmond, 1810).
7
Blackstone’s Commentaries on the Laws of England consisted of four
books. St. George Tucker, frequently referred to as America’s Blackstone,
was one of America’s earliest constitutional commentators and annotated
Blackstone for purposes of teaching law at the College of William and Mary.
His annotated commentaries consisted of five volumes.

- 22 -
J-A35037-14

arrest[,]” Miller v. United States, 357 U.S. 301, 306 (1958), even when

the officer had a warrant. The home as a person’s castle dates back to at

least Semayne’s Case, 77 Eng.Rep. 194 (1603). Therein, the court

declared that “in all cases when the King is party, the sheriff (if the doors be

not open) may break the party’s house, either to arrest him or to do other

execution of the King’s process, if otherwise he cannot enter. But before he

breaks it, he ought to signify the cause of his coming, and to make request

to open doors[.]” Ker v. California, 374 U.S. 23, 47 (1963) (quoting

Semayne’s Case, supra at 195); see also Miller, supra at 308; Hening,

supra at 73-75, 303-304.

Importantly, Semayne’s Case was referencing when a sheriff actually

was executing the King’s process, i.e., a warrant. Similarly, William

Hawkins, in his influential 18th century criminal treatise, maintained: “where

one lies under a probable Suspicion only, and is not indicted, it seems the

better Opinion at this Day, That no one can justify the Breaking open Doors

in Order to apprehend him.” Miller, supra at 308. Nonetheless, another

leading English legal commentator, Matthew Hale, in his well-known Pleas of

the Crown, did opine, “A man, that arrests upon suspicion of felony, may

break open doors, if the party refuse upon demand to open them[.]” Ker,

supra at 48 n.1 (quoting 1 Hale, Pleas of the Crown, 583 (1736)); Henings,

supra at 73. Citing Hale and Hawkins, William Blackstone in his influential

- 23 -
J-A35037-14

Commentaries condemned general warrants and also voiced disapproval of

general criminal warrants. See 5 Tucker’s Blackstone, 291.

Since the constitutional prohibitions against general warrants was

because such warrants provided discretionary authority to constables,

customs officers, and other peace officers, “it is wholly implausible that the

Framers would have approved of broad use of warrantless intrusions,

because such intrusions would necessarily have rested solely on the officers’

own judgment.” Davies, supra at 582.

A warrantless seizure or search at that time, unlike today, permitted

resistance,8 allowed a civil suit for trespass damages and false imprisonment

against magistrates and police, see Grumon, supra,9 and could potentially

result in criminal prosecution. Federalist Paper 83, reprinted in The

Federalist Papers, 499 (Charles R. Kesler, ed. 1961) (Alexander Hamilton

discussing bringing criminal charges for customs officers who exceeded their

____________________________________________

8
State v. Curtis, 2 N.C. 471 (1797) (“as the officer did not tell Curtis for
what he arrested him, and the warrant he had was not under seal, Curtis
who resisted, and beat him for making the arrest, was acquitted.”); Coyle v.
Hurtin, 10 John 85 (N.Y. 1813); State v. Worley, 33 N.C. 242, 243 (1850)
(“a seal is essential to every warrant, issued by a magistrate to arrest any
person upon a criminal charge. If there be no seal, the precept is void and
affords no protection to the officer attempting to execute it; and, if its
execution is resisted by the defendant, he is guilty of no offence against the
law, though, in doing so, the person of the officer be assaulted.”).
9
See also Roger Root, The Originalist Case for the Fourth Amendment
Exclusionary Rule, 45 Gonzaga L.Rev. 1, 10 n.45 (2010) (collecting cases).

- 24 -
J-A35037-14

authority); cf. State v. Armfield, 9 N.C. 246 (1822); State v. Brown, 5

Del. 505 (1854). Hence, warrantless searches were, in general, unlawful

and, therefore, unreasonable.

As mentioned, at English and early American common law, law

enforcement officials could only enter a private home, even with a warrant,

where those inside were made aware of the presence of someone outside

and those inside refused a demand to open the door. Semayne’s Case,

supra;10 Curtis’ Case, 168 Eng.Rep. 67 (1756); 2 Hawkins, Pleas of the

Crown, 86-87 (1721) (asserting that an officer could enter a house if he

believed violence was occurring inside or was in pursuit of a person he

witnessed commit an affray or felony); 1 Hale, Pleas of the Crown, 582-583,

588-589 (1736);11 1 Joseph Shaw, The Practical Justice of Peace, 76 (4 th ed.

1744); Hening, supra at 73-75; 1 Burn, Justice of the Peace, 275-276 (28th

ed. 1837).

American cases authorizing forcible entry into a home required

exceptional circumstances. For example, if a felon escaped after arrest, an

officer or private citizen in fresh, i.e., hot pursuit, could enter a house that
____________________________________________

10
In Semayne’s Case, Lord Coke indicated that a warrantless entry was
authorized only where the criminal retreated into the home and was
pursued, i.e., hot pursuit of a fleeing felon. 77 Eng. Rep. at 196.
11
In discussing warrantless entries, Hale also generally maintained that the
person being pursued must be present. 2 Hale, Pleas of the Crown at 92,
95, 103.

- 25 -
J-A35037-14

the escapee took refuge in by breaking down the door. Ker, supra at 54-

55; see also 5 Tucker’s Blackstone, 293; Hening, supra 73-74, 218

(“wherever a person is lawfully arrested for any cause, and afterwards

escapes, and shelters himself in a house, the doors may be broken open to

take him, on refusal of admittance”); compare also Read v. Case, 4 Conn.

166 (1822).

However, there was no common law authority for a warrantless search

in a home, other than a search for the fleeing individual or of an individual’s

person incident to an arrest. See generally William Cuddihy, The Fourth

Amendment, Origins and Original Meaning (2009); cf. Sailly v. Smith, 11

Johns 500 (N.Y. Sup. 1814) (questioning, in dicta, a statute’s authorization

of warrantless home searches by a customs official, despite New York having

no constitutional prohibition against unreasonable searches or seizures at

the time).

In sum, at the time of Pennsylvania’s early constitutions, it was

generally recognized by the people that an unreasonable search and seizure

occurred unless a specific warrant authorized the search or seizure. Hot

pursuit after observing a felony was one exception to the warrant

requirement. Further, it was unreasonable to enter a home with or without

a warrant without knocking and announcing. No destruction of evidence

exception to a specific warrant requirement before entering a home was

regularly claimed at the time of the founding.

- 26 -
J-A35037-14

Two Pennsylvania Supreme Court cases regarding exigent

circumstances, which have been the subject of criticism and curtailed on

other grounds, Commonwealth v. Mason, 637 A.2d 251 (Pa. 1993), and

Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996), are implicated in

this case. In Mason, an undercover police officer met with an individual to

purchase cocaine. That person and a police informant traveled to an

apartment complex to purchase the cocaine with money the officer provided.

A different undercover officer witnessed the individual enter a specific

apartment and return to a car occupied by the other undercover officer and

informant.

After the undercover officer exited the car, police arrested the

individual two blocks from the apartment. The arrested individual identified

the apartment where he bought the cocaine and stated that it housed

additional cocaine. Police then elected to get a search warrant. However,

before the warrant was secured, another officer forcefully entered the

apartment, fearful that the cocaine would be destroyed. Specifically, an

officer knocked on the door for two minutes without receiving a response.

He did not identify himself as police. Police then used a battering ram to

break down the door.

The Mason Court stated that the “sole issue in the case is whether the

trial court properly denied Mason’s motion to suppress evidence seized in

alleged violation of Article I, Section 8 of the Constitution of Pennsylvania.”

- 27 -
J-A35037-14

Mason, supra at 253. Ultimately, the Mason Court found such a violation.

Mason argued that the entry was illegal, there were no exigent

circumstances, and that the independent source doctrine in Pennsylvania

was not identical to federal constitutional jurisprudence. Beginning with the

premise that the entry was unlawful under the Pennsylvania Constitution,12

the Court rejected adopting the federal independent source rule in Murray

v. United States, 487 U.S. 533 (1988). But see Commonwealth v.

Henderson, 47 A.3d 797 (Pa. 2012).

The Mason Court concluded by holding that forcefully entering the

apartment without exigent circumstances and a warrant was an

unconstitutional violation of Article I, § 8. In doing so, the Court opined that

there must be more than suspicion that destruction of evidence might occur.

Thereafter, in Melendez, supra, the Court found a warrantless entry into a

home illegal. There, police were watching a residence for three weeks.

While awaiting approval of a search warrant, police stopped the defendant in

her car after she left the house. A search revealed a handgun and large

amount of cash. This stop and search was deemed unlawful by the

Melendez Court. Police then drove the defendant back to the house and

used her keys to enter. Upon entering, the police saw an individual with a

bag of cocaine.
____________________________________________

12
If the entry had been considered lawful, then the Court would not have
had to engage in any discussion of the independent source doctrine.

- 28 -
J-A35037-14

The Melendez Court opined, “if the police created a danger that their

surveillance might be discovered because they stopped Melendez’s car, they

can hardly be allowed to rely on that to justify a warrantless intrusion. Had

the police simply waited for the search warrant, they could have searched

the dwelling[.]” Melendez, supra at 229. It then maintained, under the

Pennsylvania Constitution, “If the concern was that police activity might

have been witnessed by a person remaining in the house who might begin to

destroy evidence, such a possibility is of no legal consequence, for police

may not create their own exigencies, which they then use as justification for

exclusion from normal warrant requirements.” Id. at 230.

Most recently, in Commonwealth v. Johnson, 68 A.3d 930

(Pa.Super. 2013), this Court discussed Mason, Melendez, Demshock,

Waddell, and, in two footnotes, quoted extensively from King. In

Johnson, police received information from two anonymous sources

regarding ongoing drug activity at a trailer park. One informant reported

that an older white female with red hair was involved. Police responded to

the area and encountered a person matching that description. They did not

arrest her and, after informing her that they were police, asked her to leave

the vicinity. The officers, as they climbed the steps to a residence earlier

identified as the place where drugs were being sold, detected a strong odor

of marijuana. They then knocked and the door was opened by the

defendant.

- 29 -
J-A35037-14

The officers observed that the trailer was smoke-filled and the odor of

burning marijuana was even stronger. Police asked if they could speak with

the defendant inside. The defendant refused, swearing at the officers. The

officers instructed the defendant that they would return with a warrant and

attempted to restrain the defendant from re-entering the premises while

they secured the warrant. The defendant struggled with police before they

placed him under arrest. In response to a question, he indicated that

another person was inside the residence. Accordingly, two officers again

knocked and asked for the occupant to respond. When no one answered,

the police entered. The police then encountered the defendant’s wife, who

asked them to leave. Police informed her that they were securing the

residence for the arrival of a warrant and looked into several rooms to see if

anyone else was present. They did not search for contraband, and only

observed a burning marijuana cigarette in plain view. We upheld the police

actions.

In light of the above constitutional analysis and consistent with Mason

and Melendez, we decline to jettison long-standing Pennsylvania

constitutional law that prohibits actual police-created exigencies to justify a

warrantless arrest. Nonetheless, we do not find that, under the facts of this

case, the police created an exigency since their actions were consistent with

the limited authority afforded peace officers at the time of the passage of

Pennsylvania’s 1776 and 1790 constitutions.

- 30 -
J-A35037-14

Here, police personally observed the drug transactions. They then

pursued the culprit, knocked, asked to speak to the renter, and announced

that it was police before entering. These actions are consistent with

allowable, i.e., reasonable, 18th century common law practice. See also

Commonwealth v. Govens, 632 A.2d 1316, 1326-1327 (Pa.Super. 1993)

(en banc) (discussing Fourth Amendment and police created exigency law).

Police only forcibly entered after the renter refused to open the door, again a

practice not prohibited by the 1776 and 1790 constitutions. Further, police

did not uncover the drugs in question by undertaking an overbroad and

prohibited search of the entire residence on the grounds that it was incident

to arrest. Rather, the drugs were seized in plain view. Thus, this case is

markedly different from Mason, Melendez, and even Demshock and

Waddell, which both relied on the Fourth Amendment.

The defendant in Mason was not personally observed committing a

crime. Instead, police witnessed a different individual commit the drug

transaction after leaving the residence of the defendant. Further, while a

police officer did knock, he did not announce that he was an officer and

testified that he intended to pose as a maintenance worker.13 Hence, the

____________________________________________

13
We are aware that at trial, but not during the suppression hearing, one
officer in this case did indicate that he initially identified himself as a
maintenance worker and covered the outside peep hole. However,
consistent with the suppression hearing testimony of a separate officer, the
police did announce their presence before entering. Pursuant to In re L.J.,
(Footnote Continued Next Page)

- 31 -
J-A35037-14

forced warrantless entry in Mason was not consistent with the common law

warrant exceptions when the early Pennsylvania Constitutions went into

effect. Phrased differently, there was no fresh pursuit of a felon after

personally witnessing the commission of the crime and an announcement

after knocking.

Melendez involved even more egregious police action. There, police

did not have grounds to stop the defendant, having observed no suspicious

activity on her part. Police then transported the defendant back to her

residence and directed her to open her door. Not a single common law

exception to warrantless entry into a defendant’s home applied. With

respect to Demshock, police witnessed a minor offense, underage drinking,

occur inside the home. While knocking, police intentionally did not announce

their presence. The minor nature of the offense and the failure to indicate

they were police in order to gain entry are distinguishable facts from the

present case.

Similarly, Waddell, though focusing on a Fourth Amendment analysis,

is consistent with this decision and Pennsylvania constitutional

jurisprudence. The distinction between Waddell and this matter is that

therein the police did not observe any drug transactions, and the defendant
_______________________
(Footnote Continued)

79 A.3d 1073 (Pa. 2013), in analyzing suppression issues, we no longer
consider evidence outside the suppression record. However, the L.J.
decision was prospective and occurred after the suppression hearing in this
matter. Thus, it does not affect this case.

- 32 -
J-A35037-14

was no longer inside, having exited out a window. Waddell, supra at 215.

Under the common law at the time of the passage of Pennsylvania’s first two

constitutions, forced entry would have been unlawful because the fleeing

felon was not inside and police were not in fresh pursuit after seeing the

crime. For the aforementioned reasons, we find that the police in this

matter did not violate Article I, § 8.

Having resolved Appellant’s first two issues, we now consider his

remaining claims. Appellant contends that his sentence is unconstitutional

under Alleyne v. United States, 133 S.Ct. 2151 (2013). Alleyne held that

facts that increase a defendant’s mandatory minimum sentence are

elements of the crime and must be proven beyond a reasonable doubt or a

defendant’s jury trial right is violated. Accordingly, many mandatory

minimum sentencing statutes in Pennsylvania are no longer constitutionally

sound. See Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en

banc). More recently, this Court has held that the statute governing drug

mandatories, at issue here, is unconstitutional as a whole and that a

sentence under such a provision is illegal.14 Commonwealth v. Cardwell,

____________________________________________

14
Writing solely for myself in the case herein, I note that I have disagreed
with the rationale expressing that our mandatory minimum sentencing
statutes are not severable. See Commonwealth v. Bizzel, 107 A.3d 102
(Bowes, J., concurring); Commonwealth v. Wolfe, 106 A.3d 800 (Bowes,
J., concurring). I continue to adhere to that view. Nonetheless, even absent
the severability decisions relative to the mandatory sentencing statutes,
Appellant’s sentence does not fall within the Alleyne harmless error analysis
(Footnote Continued Next Page)

- 33 -
J-A35037-14

105 A.3d 748 (Pa.Super. 2014); see also Commonwealth v. Thompson,

93 A.3d 478 (Pa.Super. 2014) (defendant entitled to resentencing pursuant

to Alleyne where the weight of the drugs was not determined by a jury

beyond a reasonable doubt). Accordingly, Appellant is entitled to sentencing

relief.

Appellant’s final claim contests the sufficiency of the evidence as to his

hindering apprehension conviction. Ordinarily, we address sufficiency claims

at the outset because they entitle the defendant to discharge. See

Commonwealth v. Toritto, 67 A.3d 29 (Pa.Super. 2013) (en banc)

However, since Appellant was convicted of multiple charges, he would only

be entitled to discharge on this crime and his remaining issues pertained to

his other convictions. Accordingly, we have addressed the issue in the order

presented.

In conducting a sufficiency of the evidence review, we view all of the

evidence admitted, even improperly-admitted evidence. Watley, supra at

113. We consider such evidence in a light most favorable to the

Commonwealth as the verdict winner, drawing all reasonable inferences

from the evidence in favor of the Commonwealth. Id. When evidence
_______________________
(Footnote Continued)

posited by myself in Bizzel or the majority in Commonwealth v. Watley,
81 A.3d 108 (Pa.Super. 2013) (en banc). Phrased differently, the jury
verdict in this case does not make it clear that it determined that Appellant
possessed the requisite weight of heroin beyond a reasonable doubt. See
Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014).

- 34 -
J-A35037-14

exists to allow the fact-finder to determine beyond a reasonable doubt each

element of the crimes charged, the sufficiency claim will fail. Id.

The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id. In addition, the Commonwealth can prove its case by circumstantial

evidence. Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief. This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

Instantly, Appellant’s challenge relates to his allowing Nicole Dudek to

stay with him when she was wanted by police. Dudek had informed

Appellant that police were seeking to arrest her based on discovering heroin

at her home. The crime of hindering apprehension is defined in pertinent

part as follows, “A person commits an offense if, with intent to hinder the

apprehension, prosecution, conviction or punishment of another for crime or

violation of the terms of probation, parole, intermediate punishment or

Accelerated Rehabilitative Disposition, he: (1) harbors or conceals the

other[.]” 18 Pa.C.S. § 5105(a)(1).

Appellant argues that Ms. Dudek’s testimony revealed that he told her

to turn herself in after she stayed one night at his residence. According to

Appellant, his instructions to her reveal a lack of criminal intent to harbor

- 35 -
J-A35037-14

Ms. Dudek. Appellant continues that, even if the jury believed Ms. Dudek

was lying about him telling her to turn herself in to police, there was no

other evidence that he harbored her.

The Commonwealth responds that Appellant’s own argument defeats

his claim. It maintains that Appellant concedes that he allowed Ms. Dudek,

a known fugitive, to stay with him. The Commonwealth submits that it is

immaterial that he asked her to turn herself in after he already harbored her

for one night. It asserts that Appellant gave shelter to a fugitive, which is

sufficient evidence to sustain the jury’s finding. We agree. Viewing the

evidence in a light most favorable to the Commonwealth, Appellant

permitted a known fugitive to stay with him and only expressed his desire

that she turn herself over to police after he allowed her to spend the night.

Appellant’s sufficiency claim fails.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/22/2015

- 36 -