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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NEIL ARMSTRONG :
:
Appellant : No. 3315 EDA 2016
Appeal from the Judgment of Sentence June 2, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011915-2012
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED MAY 14, 2018
Appellant, Neil Armstrong, appeals from the judgment of sentence
entered on June 2, 2015, following his bench trial conviction for possession
with intent to deliver a controlled substance (PWID), 35 P.S.
§ 780-113(a)(30). We affirm.
The trial court set forth the facts of this case as follows:
On July 12, 2012, at approximately 12:30 a.m., Officer Simon
Murray went to [a residence on] East Champlost Avenue in
Philadelphia to investigate reported screaming. [The female
complainant] ran out of the house and told Officer Murray that
Appellant had attacked her. [The complainant] was crying,
bruised and bleeding from her mouth. Appellant then came to
the doorway of his house, and [the complainant] and Officer
Murray went into the house to discuss the incident with
Appellant. At no point did Appellant ask Officer Murray to leave
or tell him that he did not have permission to remain in the
house.
Eventually, [the complainant] told Officer Murray that she
wanted to leave the house. Officer Murray escorted her into the
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kitchen to collect some of her belongings, including a plastic bag.
When [the complainant] opened the bag, Officer Murray smelled
marijuana. He told [the complainant] to put the bag down, and
then called his supervisors to request a search warrant.
Following Officer Murray’s observations, two police detectives
executed a search warrant of Appellant’s home.
In Appellant’s bedroom nightstand, the officers found a
Commerce Bank Visa debit card in Appellant’s name, one .357
[caliber] revolver loaded with six live rounds, one black metal
handgun magazine loaded with six .380 rounds, one large blue
tinted Ziploc bag containing marijuana, one small Ziploc bag
containing marijuana and one small glass jar containing
marijuana. In Appellant’s bedroom dresser, the officers found a
plastic box containing .380 [caliber] ammunition, and one clear
plastic sandwich bag containing nine clear bags of marijuana. In
the closet in the same bedroom was one small handgun loaded
with a magazine containing four rounds. The officers also found
various paperwork in Appellant’s name in the bedroom and in
the downstairs living room. In Appellant’s kitchen, the officers
recovered a digital scale and five Ziploc bags containing
marijuana. They found five large Ziploc bags of marijuana in
Appellant’s basement, as well as a Pennsylvania vehicle
registration in Appellant’s name. In total, the officers seized
more than seven pounds of marijuana from Appellant’s house.
Trial Court Opinion, 6/9/2017, at 2-3 (record citations omitted).
Procedurally, the case progressed as follows:
On July 12, 2012, police arrested and charged Appellant [] with
numerous drug-related offenses. Following a [bench] trial on
March 10, 2015, [the trial court] found Appellant guilty of
[PWID] [m]arijuana. On June 2, 2015, [the trial court]
sentenced Appellant to time served to twenty-three months of
incarceration followed by two years of probation.
On October 16, 2015, Appellant filed a [] petition [pursuant to
the Post Convicted Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546,] which he amended, through counsel, on June 9,
2016. [The trial c]ourt granted reinstatement of Appellant’s
direct appeal rights on October 18, 2016, and Appellant filed a
timely notice of appeal on October 19, 2016. On November
18, 2016, [the trial c]ourt ordered Appellant, pursuant to
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Pa.R.A.P. 1925(b), to file [] a [c]oncise [s]tatement of [errors]
[c]omplained of on [a]ppeal. On December 8, 2016, Appellant
[complied]. [The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on June 9, 2017.]
Id. at 1-2.
On appeal, Appellant presents the following issues for our review:
1. Did the [trial] court err in denying [A]ppellant’s motion to
suppress physical evidence as the [] search and seizure was not
based on probable [cause] in violation of Article 1 Section 8 of
the Pennsylvania Constitution and the 4th and 14th Amendments
of the United States Constitution, and the recovery of all physical
evidence in question was the fruit of an unlawful arrest?
2. Evidence presented at trial was insufficient as a matter of law to
find [Appellant] guilty beyond a reasonable doubt.1
Appellant’s Brief at 7.
In his first issue presented, Appellant claims that the trial court erred
by denying his motion for suppression. Id. at 11-13. Appellant argues that
neither he nor the complainant gave police verbal or written consent to enter
Appellant’s residence. Id. at 12. He suggests that police could have stayed
outside with Appellant and allowed the complainant to “enter the home
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1 Because Appellant does not present any argument on his second issue, he
has abandoned and waived it. See Pa.R.A.P. 2119(a)
(stating argument shall be divided into as many sections as there are
questions presented, followed by discussion with citation to relevant legal
authority); see also Commonwealth v. Johnson, 985 A.2d 915 (Pa.
2009) (explaining appellant waives an issue on appeal where
she fails to present the claim with citations to relevant authority or to
develop the issue in a meaningful fashion, capable of review). We further
note that Appellant’s brief barely meets the legal authority requirements on
his first issue, as well, providing three boilerplate citations to general
suppression law. However, we will review the merits of his first claim.
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herself to retrieve her belongings[.]” Id. Finally, Appellant argues that
there were no exigent circumstances necessitating police entry without a
warrant. Id. at 12-13. In sum, he claims that everyone involved was
outside of the house and no one fled inside, no crimes were being committed
when police arrived, and there were no allegations that a weapon was
involved or there was destruction of evidence inside the home. Id. at 13.
Our standard of review is as follows:
An appellate court's standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court's factual findings are supported
by the record and whether the legal conclusions drawn from
those facts are correct. Because the Commonwealth prevailed
before the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the suppression court's factual
findings are supported by the record, the appellate court is
bound by those findings and may reverse only if the court's legal
conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court's legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts. Thus,
the conclusions of law of the courts below are subject to plenary
review.
Commonwealth v. Jones, 121 A.3d 524, 526–527 (Pa. Super. 2015)
(internal brackets and citation omitted).
“A search conducted without a warrant is deemed to be unreasonable
and therefore constitutionally impermissible, unless an established exception
applies.” Commonwealth v. Smith, 177 A.3d 915, 920 (Pa.Super., 2017)
(citation omitted. “Those exceptions include voluntary consent.” Id. “The
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central Fourth Amendment inquiries in consent cases entail assessment of
the constitutional validity of the citizen/police encounter giving rise to
the consent; and, ultimately, the voluntariness of consent.” Id. Although
Appellant appears to insist that consent must be verbal or obtained through
a signed consent form,2 Pennsylvania case law holds that the validity of
consent is resolved through an examination of the totality of the
circumstances, but cannot be met by showing mere acquiescence to police
commands. See Commonwealth v. Daniels, 421 A.2d 721, 723, (Pa.
Super. 1980) (citation omitted). Courts should consider the nature of the
on-scene questioning, the subjective mind of the person who consents, his
educational background, and the presence or lack of probable cause to
arrest or search the subject. Id.
Our Court’s decision in Daniels is factually similar and instructive. In
that case, police responded to an anonymous call that a screaming woman
was dragged from a vehicle into a residence. When an officer arrived at the
residence, he knocked on Daniels’ door and asked if everything was all right.
Daniels “unlocked the door, did not respond to the policeman's questions,
and allowed the policemen to enter [without verbal permission].” Daniels,
421 A.2d at 722. The officer followed Daniels through the apartment and
saw heroin in plain view. The officer arrested Daniels and seized the
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2 Appellant’s Brief at 12.
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contraband. Prior to trial, Daniels sought suppression of the narcotics
based upon lack of consent to enter the premises and the trial court denied
relief. In affirming the trial court’s ruling, we concluded that the totality of
the circumstances showed that Daniels voluntarily consented. We reasoned
that the officer did not ask for or demand entry, Daniels opened the door
when he saw a uniformed police officer, did not respond to questioning, and
allowed the officer to enter the residence without objection. We concluded
that Daniels’ non-verbal cues constituted valid consent to enter the premise
and that police then properly seized evidence inadvertently seen in plain
view. Id. at 725.
Here, upon review of the evidence presented at the suppression
hearing, we agree that suppression was unwarranted because Appellant
consented to having the police officer enter his residence. Officer Murray,
responding to a telephone call concerning a woman screaming, arrived on
the scene to see the complainant coming out of Appellant’s residence,
bleeding from her mouth. N.T., 1/8/2015, at 7. Officer Murray was in full
uniform. Id. at 24. Appellant was standing in the doorway of the residence.
Id. at 8. The officer spoke with both the complainant and Appellant outside
of the residence, “to figure out what was going on.” Id. at 9. Officer Murray
testified that Appellant and the complainant let him into the residence. Id.
at 9. He clarified that no one specifically invited him in, but that he and the
complainant “were actually walking in the house and she was saying what
was going on and [Officer Murray] was trying to get her to calm down.” Id.
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at 11. Officer Murray, the complainant, and Appellant went into the living
room to continue the discussion. Id. at 12. Appellant did not ask Officer
Murray to leave or otherwise tell him he did not have permission to be inside
the residence. Id. Instead, Appellant stated that there had been a “little
disagreement, but] nobody beat [the complainant] up.” Id. at 13. The
complainant did not ask police to leave the residence either. Id. at 16; see
also id. at 17-18 (“We all went in the house. … They walked in ahead of me.
No one said leave, don’t come into my house. They all came in the living
room and started explaining what happened.”).
It is clear from the uncontradicted testimony that Appellant opened his
door to a uniformed officer and permitted the officer to enter his residence
to continue discussing the alleged incident. Appellant did not object to the
officer’s presence inside and never asked the officer to leave. Based upon
the foregoing, we conclude that Appellant gave non-verbal consent3 to enter
his residence and, thus, a warrant was not required.4 As such, it was proper
to deny suppression and Appellant’s sole preserved appellate issue fails.
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3 In this case, the trial court determined that “Officer Murray legally entered
Appellant’s home based on a reasonable perception of third-party consent
[by the complainant.]” Trial Court Opinion, 6/9/2017, at 6. However, we
may affirm the trial court’s decision on any basis appearing in the record.
See Commonwealth v. Elia, 83 A.3d 254, 264 (Pa. Super. 2013).
4 As Appellant only challenges the initial entry into the residence, we need
not examine the subsequent discovery of the marijuana in the kitchen under
the plain view/smell doctrine.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/18
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