J-S38023-15
2015 PA Super 206
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HYSON E. FREDERICK
Appellant No. 1103 MDA 2014
Appeal from the Judgment of Sentence entered February 4, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at Nos: CP-41-CR-0000355-2012 and
CP-41-CR-0001445-2012
BEFORE: WECHT, STABILE, and MUSMANNO, JJ.
OPINION BY STABILE, J.: FILED SEPTEMBER 25, 2015
Appellant Hyson E. Frederick1 appeals from the February 4, 2014
judgment of sentence entered in the Court of Common Pleas of Lycoming
County (“trial court”), after the jury convicted Appellant of multiple robbery,
burglary, and other offenses. Upon review, we vacate and remand.
The facts and procedural history underlying this appeal are
uncontested.2 Detective Curtis Loudenslager, assigned to Lycoming County
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1
The docket indicates Appellant’s proper last name is Frederick and not
Fredericks. See Trial Court Order, 1/22/14. Accordingly, we have amended
the caption to reflect the correct last name.
2
Unless another source is cited, the facts are taken from the trial court’s
Pa.R.A.P. 1925(a) Opinion, 12/23/14, at 1-4.
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Domestic Relations, attempted to serve upon Appellant a notice of a
contempt hearing. N.T. Suppression, 11/1/12, at 8-9. In the process of
locating Appellant, Detective Loudenslager discovered Appellant resided with
Miranda Welsh (“Welsh”). Id. at 10. A background check on Welsh
revealed that she had an outstanding bench warrant in Clinton County
relating to child support. Id. It also revealed that the “Lycoming County
Adult Probation had a warrant for her arrest.” Id. Eventually, Loudenslager
identified an address where Appellant and Welsh were believed to be
residing. Id. at 10-11. Accompanied by Lycoming County Deputy Sheriff
Eric Spiegel, Loudenslager went to the address to serve the arrest warrant
and the contempt hearing notice upon Welsh and Appellant, respectively.
Id. at 11.
Spiegel and Loudenslager knocked on the back door of the residence
several times but there was no answer. Loudenslager believed he could
hear someone in the residence. Spiegel and Loudenslager then went to the
main or common entrance of the building and knocked on the front door
several times and there still was no answer. Spiegel, however, observed
that Appellant and Welsh had their names on the mailbox for the residence.
Spiegel and Loudenslager then returned to the back entrance that was
directly attached to the residence and began to knock again. Spiegel
realized that the door was locked but it could be pushed open. He opened
the door and noticed that a television was on.
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Before entering the residence, however, he and Loudenslager
announced that they were law enforcement and that they had a warrant.
They then began searching the residence room-by-room for Welsh. When
they got to a rear bedroom with its door ajar, they realized someone was
inside. They announced their presence again, but still received no response.
Spiegel then opened the bedroom door and saw Welsh and young children
lying on a bed. When Spiegel opened a closet door to see if anyone was
hiding in it, he observed a sawed-off shotgun leaning against a pile of
clothes. Given the discovery of the sawed-off shotgun in Appellant’s
residence, and Appellant’s prior criminal record, Appellant was charged with
persons not to possess a firearm (18 Pa.C.S.A. § 6105(a)(1)), and
prohibited offensive weapons (18 Pa.C.S.A. § 908(a)) at docket number
355-2012 (“First Case”).
Thereafter, in connection with a December 11, 2011 home-invasion
robbery, Appellant was charged with multiple offenses, including robbery,
burglary, theft by unlawful taking, receiving stolen property and simple
assault, at docket number 1445-2012 (“Second Case”). The sawed-off
shotgun recovered in Appellant’s residence also was used as evidence in the
Second Case.
Appellant was represented by different attorneys in both cases. In the
First Case, Appellant filed a motion to suppress the sawed-off shotgun,
arguing that the search itself was unconstitutional as it was not supported by
probable cause. The trial court denied Appellant’s suppression motion. A
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few months later, with respect to the Second Case, Appellant filed a motion
to suppress the sawed-off shotgun, arguing that Detective Loudenslager and
Deputy Spiegel violated the knock and announce rule. The trial court
conducted a suppression hearing, at which the Commonwealth presented the
testimony of Detective Loudenslager and Deputy Spiegel. Loudenslager
testified that he, in plain clothes, and Spiegel, in his sheriff’s department
uniform, arrived at the address and approached the front door of the
building but it was locked. Id. at 12, 14-15. Loudenslager also testified
that upon reaching the front door Spiegel indicated to him that both
Appellant’s and Welsh’s names appeared on the mailbox for the residence.
Id. at 12.
Loudenslager testified that he and Spiegel then went up a fire escape
to a direct entrance to the residence. Id. at 13. Loudenslager testified that
they knocked on the door loud enough that someone inside would have
heard. Id. at 18. He also testified that, although he could not see inside, he
heard someone move and turn the lock on the door, which he relayed to
Spiegel. Id. at 13-15. Loudenslager testified that they knocked several
more times but there was no response. Id. at 14. Loudenslager further
testified that he then left Spiegel at the backdoor and returned to the front
door to attempt to contact a neighbor. Id. at 15. He was unsuccessful in
his attempt. Id.
Loudenslager also testified that Spiegel, still at the backdoor, alerted
him that he had an open door, so Loudenslager returned to the backdoor.
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Id. at 16. He testified that the officers, from outside the apartment,
scanned the room but it was empty. Id. Loudenslager testified that the
officers announced several times who they were, that they were coming in,
and that they had a warrant. Id. at 17. Loudenslager testified that the
officers then entered the residence and began to clear the apartment. Id. at
18.
On cross-examination, Loudenslager acknowledged that he could not
say with any certainty whether someone looking from inside the residence
could see the officers on the fire escape. Id. at 30.
Next, the Commonwealth presented Deputy Spiegel’s testimony.
Spiegel testified that he and Loudenslager knocked on the back door
multiple times, loud enough that someone inside would have heard, but
there was no answer. Id. at 36. Spiegel also testified that at that time
Loudenslager indicated he heard someone inside of the apartment, Spiegel
was wearing an ear bud radio and could not hear anyone within. Id. at 38-
39.
Spiegel testified that the officers then attempted to look in the
windows but could not see inside so they proceeded to the building’s main
entrance. Id. at 37. He testified that they could not gain entry through the
main entrance because it was a locked common entrance for the entire
building; however, while at the front door Spiegel observed Appellant’s and
Welsh’s names on the mailbox for the residence. Id. Spiegel testified that
the officers then returned to the back door. Id. Spiegel testified that he
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reached the back door first, began to knock, and quickly realized that,
although the door was locked, if he simply pushed the door would open. Id.
at 37. Spiegel testified that he did push the door open and, while outside
the residence, announced either “police warrant” or “sheriff’s warrant” but
no one replied. Id. at 40-41. Spiegel testified that upon opening the door
he did not see anyone, but the TV was on and muted. Id. at 41. He
testified that after his initial assessment, he announced again, and he and
Loudenslager entered the apartment, and began to search it room-by-room
for Welsh. Id. at 42.
Following the hearing, the trial court denied the suppression motion in
the Second Case. In so doing, the trial court concluded that, even though a
violation of the knock and announce rule occurred, it did not trigger
suppression of the sawed-off shotgun.3 The trial court reasoned:
Despite the technical violation of knock and announce by
Spiegel and Loudenslager, the [c]ourt finds it does not trigger
exclusion as an appropriate remedy. The entry does not appear
to raise fundamental constitutional concerns such as expectation
of privacy and was not done in bad faith. Spiegel announced his
identity and purpose prior to entering the threshold of the
apartment and also entering the bedroom. Moreover, in regards
to the purpose of the knock and announce rule, the entry did not
result in injury to an individual or property. . . .
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3
The record indicates that Appellant filed a second suppression motion titled
“Motion to Suppress Nunc Pro Tunc” in the First Case. Appellant sought to
suppress the sawed-off shotgun on the basis of a knock and announce rule
violation. N.T. Suppression, 11/1/12, at 7. The trial court, however, denied
Appellant’s “nunc pro tunc” suppression motion and Appellant does not
challenge its denial in the appeal sub judice. Accordingly, this appeal
concerns only the suppression issue raised in the Second Case.
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[T]he violation of the knock and announce rule was merely
a technical non-compliance. Spiegel and Loudenslager knocked
repeatedly on the backdoor and announced their presence prior
to crossing the threshold of the apartment.
Trial Court Opinion, 12/11/12, at 6-7.
Both cases were consolidated for trial.4 On October 31, 2013, a jury
found Appellant guilty of prohibited offensive weapons in the First Case and
burglary, robbery, theft by unlawful taking, among others, in the Second
Case. After trial, Appellant pled guilty to the outstanding, severed charge of
persons not to possess a firearm in the First Case.5 On February 4, 2014,
the trial court sentenced Appellant to an aggregate of 25 to 50 years’
imprisonment for both cases. Appellant timely appealed to this Court.
Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, arguing that the trial court erred in denying his motion to suppress
the sawed-off shotgun in the Second Case. The trial court filed a Pa.R.A.P.
1925(a) opinion, incorporating its opinions issued in response to Appellant’s
respective suppression motions.
____________________________________________
4
Despite the consolidation, the two cases remain separate and independent
from one another.
5
It is worth noting that, even if Appellant had preserved a knock and
announce challenge in the First Case, the outcome of this appeal, which is
limited to the issue of suppression, would not affect Appellant’s guilty plea to
persons not to possess a firearm and the sentence received therefor. See
Commonwealth v. Rachak, 62 A.3d 389, 391 n.1 (Pa. Super. 2012)
(“When a guilty plea is entered, all grounds of appeal are waived other than
challenges to the voluntariness of the plea and the jurisdiction of the
sentencing court.”), appeal denied, 67 A.3d 796 (Pa. 2013).
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On appeal, Appellant argues only that the trial court erred in denying
his suppression motion in the Second Case, because “law enforcement
officers failed to announce their identity, authority and purpose prior to
forcibly entering and conducting a search of [his] residence in violation of
the ‘knock and announce’ Rule, Pa.R.Crim.P. 207[.]” Appellant’s Brief at 7.6
Appellant essentially argues that the trial court erred in declining to suppress
the evidence of the sawed-off shotgun, notwithstanding its conclusion that
the police officers violated the knock and announce rule.
In reviewing appeals from an order denying suppression, our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those
facts are correct. When reviewing the rulings of a [trial] court,
the appellate court considers only the evidence of the
prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole.[7] When the record supports the findings of the
[trial] court, [we are] bound by those facts and may reverse only
if the legal conclusions drawn therefrom are in error.
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6
Appellant does not argue that the violation of the knock and announce rule
implicates any rights guaranteed under the Fourth Amendment to the United
States Constitution. Even if he had, the Supreme Court has determined that
the exclusionary rule is inapplicable to Fourth Amendment knock and
announce violations. See Hudson v. Michigan, 547 U.S. 586, 594-95
(2006).
7
For cases in which the suppression hearing occurs after October 30, 2013,
the scope of review of a suppression order encompasses only the record
adduced at the suppression hearing. In the Interest of L.J., 79 A.3d
1073, 1088-89 (Pa. 2013). We may examine the entire record here,
because the suppression hearing occurred on November 1, 2012.
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Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015).
Pennsylvania Rule of Criminal Procedure 207 codifies the “knock and
announce” rule:
(A) A law enforcement officer executing a search warrant shall,
before entry, give, or make reasonable effort to give, notice of
the officer’s identity, authority, and purpose to any occupant of
the premises specified in the warrant, unless exigent
circumstances require the officer’s immediate forcible entry.[8]
(B) Such officer shall await a response for a reasonable period of
time after this announcement of identity, authority, and purpose,
unless exigent circumstances require the officer’s immediate
forcible entry.
(C) If the officer is not admitted after such reasonable period,
the officer may forcibly enter the premises and may use as much
physical force to effect entry therein as is necessary to execute
the search.
Pa.R.Crim.P. 207.9 “Although this rule is frequently referred to as ‘knock
and announce,’ the rule actually imposes no specific obligation to knock.”
Commonwealth v. Walker, 874 A.2d 667, 671 (Pa. Super. 2005) (quoting
Commonwealth v. Doyen, 848 A.2d 1007, 1012 (Pa. Super. 2004)).
Nonetheless, the rule requires that police officers announce their identity,
purpose and authority and then wait a reasonable amount of time for the
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8
Forcible entry is “any unannounced entry, regardless of the actual force
used.” Commonwealth v. Duncan, 390 A.2d 820, 824 (Pa. Super. 1978)
(citing Sabbath v. United States, 391 U.S. 585 (1968)).
9
Rule 207 came about in 2000 because of the renumbering of Rule 2007, its
predecessor. Rule 207 was amended, effective April 1, 2001. The
amendments to Rule 207 were minor and did not substantially change the
import of the rule.
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occupants to respond prior to entering any private premises.10
Commonwealth v. Crompton, 682 A.2d 286, 288 (Pa. 1996). This
requirement, however, will be relaxed only in the presence of exigent
circumstances. Carlton, 701 A.2d at 148. Our Supreme Court has
recognized only four exigent circumstances:
1. the occupants remain silent after repeated knocking and
announcing;
2. the police are virtually certain that the occupants of the
premises already know their purpose;
3. the police have reason to believe that an announcement prior
to entry would imperil their safety; [or11]
4. the police have reason to believe that evidence is about to be
destroyed.
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10
Discussing the genesis of the rule, our Supreme Court explained:
The “knock and announce” rule’s origins pre-date the United
States Constitution. It was born in English Common Law and
was subsequently adopted in America. In recent times, the
“knock and announce” rule has assumed a Constitutional
dimension. Both our Supreme Court and United States Supreme
Court have held that the Fourth Amendment’s prohibition against
unreasonable searches and seizures applies to the manner of a
warrant’s execution. Even a valid warrant may not be executed
in an unreasonable manner; unreasonableness is determined on
a case-by-case basis.
Commonwealth v. Carlton, 701 A.2d 143, 147 (Pa. 1997) (citations and
some quotations marks omitted).
11
Even though the exigencies are enumerated with the conjunctive “and,”
courts have held that “any one of the instances justifies noncompliance with
the knock and announce rule.” Commonwealth v. Piner, 767 A.2d 1057,
1059 n.1 (Pa. Super. 2000) (holding that the second exigency applied
because “a uniformed officer stood under a porch light and engaged the
attention of at least several occupants with an announcement of his identity,
authority, and purpose”).
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Commonwealth v. Chambers, 598 A.2d 539, 541 (Pa. 1991); accord
Commonwealth v. Means, 614 A.2d 220, 222 (Pa. 1992); Crompton, 682
A.2d at 288; Carlton, 701 A.2d at 147. The Commonwealth here does not
argue that exigent circumstances exist to justify noncompliance with the
knock and announce rule.
“The purpose of the ‘knock and announce’ rule is to prevent violence
and physical injury to the police and occupants, to protect an occupant’s
privacy expectation against the unauthorized entry of unknown persons, and
to prevent property damage resulting from forced entry.” Chambers, 598
A.2d at 541. The purpose of the rule may be achieved only through police
officers’ full compliance. See id. Indeed, our Supreme Court has held that
“in the absence of exigent circumstances, forcible entry without
announcement of [identity, authority and] purpose violates Article I, Section
8 of the Pennsylvania Constitution, which proscribes unreasonable searches
and seizures.” Carlton, 701 A.2d at 148 (“In a free society, the mere
presence of police does not require an individual to throw open the doors to
his house and cower submissively before the uniformed authority of the
state.”). Our Supreme Court has determined that “the remedy for
noncompliance with the knock and announce rule is always suppression.”
Crompton, 682 A.2d at 290 (emphasis added).
During a suppression hearing, the Commonwealth bears the burden of
proving that the police seized evidence without violating defendant’s
constitutional rights. Id. at 288. “The Commonwealth can satisfy its burden
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by establishing either that the police complied with the knock and announce
rule or that the circumstances satisfied an exception.” Id. (emphasis
added).
With the foregoing principles in mind, we now address Appellant’s
argument that the trial court erred in denying the remedy of suppression sub
judice upon its determination that a knock and announce violation took place
in the Second Case. As noted earlier, here the trial court correctly concluded
that the police officers violated the knock and announce rule. The facts of
this case indicate that the police failed to announce their identity, authority
and purpose until after they opened the back door to Appellant’s residence.
As we noted above, “the remedy for noncompliance with the knock
and announce rule is always suppression.” Crompton, 682 A.2d at 290
(emphasis added) (concluding that this Court “was in error when it found the
police violated the knock and announce rule but did not suppress the seized
evidence”). Here, the trial court denied the remedy of suppression based on
its conclusion that no constitutional rights were implicated and that the
police officers did not act in bad faith. We disagree. In Crompton, our
Supreme Court explained that a knock and announce violation always
infringes upon a defendant’s fundamental rights guaranteed under Article I,
Section 8 of the Pennsylvania Constitution. Id. Also, the trial court’s
determination that it can deny the remedy of suppression for a knock and
announce rule violation based on its finding that the police officers did not
act in bad faith is bereft of any legal support. The trial court does not cite
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any cases in support of this bad faith proposition and our review of the law
yields none. To the contrary, it is settled that under Article I, Section 8 of
the Pennsylvania constitution, a good faith exception to the exclusionary rule
does not exist. See Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa.
1991) (rejecting the good faith exception to the exclusionary rule set forth in
United States v. Leon, 468 U.S. 897 (1984), and concluding that a good
faith exception to the exclusionary rule would frustrate the guarantees
embodied in Article I, Section 8, of the Pennsylvania Constitution); see also
Commonwealth v. Arnold, 932 A.2d 143, 148 (Pa. Super. 2007) (citing
Edmunds for the proposition that a good faith exception to the exclusionary
rule does not exist under the Pennsylvania Constitution). Accordingly,
consistent with Chambers, Means, Crompton, and Carlton, we are
constrained to conclude that the trial court erred in denying Appellant’s
motion to suppress the sawed-off shotgun in connection with the Second
Case after it determined that a knock and announce violation occurred.
To the extent the Commonwealth relies on Commonwealth v. Davis,
595 A.2d 1216 (Pa. Super. 1991), such reliance is misplaced because the
legal effect of Davis has been limited by subsequent decisions of our
Supreme Court. In Davis, in executing a search warrant, a police officer
knocked on the front door of the appellant’s premises several times. When
the officer did not receive a response, and a few seconds had passed, a
second officer peered through a window situated to the right of the door.
That officer observed people in the living room, but they did not respond to
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the knocks. Several seconds later, the first officer knocked again and
managed to open the front door. As the door opened, the officer announced
himself and then entered the premises. Arguing a knock and announce rule
violation, the appellant moved to suppress the evidence seized from the
residence. The trial court granted the appellant’s suppression motion.
On appeal, a panel of this Court agreed with the Commonwealth and
reversed the trial court’s grant of the appellant’s suppression motion. In so
doing, the panel reasoned:
Even though there was no technical compliance with Rule 2007’s
notice requirement, this does not ipso facto necessitate a finding
that the evidence seized must be suppressed. . . . In the case at
bar, because of our conclusion that the police had a valid search
warrant, the police would have been entitled to enter the
premises forcibly and conduct a search with or without the
permission of the occupants. Moreover, the manner and method
of entry by the police was made without injury to the persons or
property, hence the purpose of Rule 2007 in preventing violence
to persons and damage to property was fulfilled.
Therefore, given the repeated knocking on the front door
to the defendant’s premises, the proximity to the occupants (in
the living room adjacent) to the entry during the repeated
notification efforts (“knocking”) and the passage of more than 15
seconds, we find the police’s identification of themselves and
their purpose would have been futile gesture.
Davis, 595 A.2d at 1223 (citations omitted) (emphasis in original).
Although Davis is factually similar to the case sub judice, its holding has
been limited by subsequent decisions of our Supreme Court, such as
Chambers, Means, Crompton, and Carlton. In these subsequent cases,
the Court has determined categorically that a knock and announce violation
requires the suppression of evidence. Thus, complete compliance with the
knock and announce rule is required unless one of the four exigencies
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applies. See Chambers, supra; Means, supra; Crompton, supra; and
Carlton, supra. Given our Supreme Court’s subsequent decisions, we
decline to follow Davis.
Similarly, we reject the Commonwealth’s reliance on Commonwealth
v. Kane, 940 A.2d 483 (Pa. Super. 2007) and Commonwealth v.
Sanchez, 907 A.2d 477 (Pa. 2006), because those decisions involved the
denial of suppression based on a Fourth Amendment violation. Instantly,
Appellant does not raise a Fourth Amendment violation.
In sum, we conclude the trial court erred in denying Appellant’s motion
to suppress the evidence, i.e., the sawed-off shotgun, with respect to the
Second Case. Accordingly, we vacate the judgment of sentence pertaining
to the Second Case only, and remand the matter to the trial court for further
proceedings.
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2015
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Com. v. Fredericks, H.
Combined Opinion