Com. v. Schneider, T.

J-A18005-20

2020 PA Super 218

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOD SCHNEIDER :
:
Appellant : No. 830 WDA 2019

Appeal from the Judgment of Sentence Entered May 7, 2019
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000109-2017

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2020

Appellant, Tod Schneider, appeals from the judgment of sentence of an

aggregate term of five years’ probation, imposed after a jury convicted him of

two counts of aggravated assault, 18 Pa.C.S. § 2702(a)(3), two counts of

simple assault, 18 Pa.C.S. § 2701(a)(1), one count of resisting arrest, 18

Pa.C.S. § 5104, one count of possessing a controlled substance, 35 P.S. §

780-113(a)(16), and one count of possessing drug paraphernalia, 35 P.S. §

780-113(a)(32). Appellant challenges the court’s denial of his pretrial motion

to suppress, as well as the sufficiency of the evidence to sustain his resisting

arrest conviction. After careful review, we vacate Appellant’s judgment of

sentence and remand for a new trial.

Briefly, Appellant was arrested and charged with the above-stated

offenses after he fought with police officers who had entered his home without

a warrant during a mental health check of Appellant. After Appellant was
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arrested and removed from his home, a police officer reentered the residence

and observed marijuana and a pipe in plain view, thus leading to his charges

for possessory offenses.

Prior to trial, Appellant filed a motion to suppress the drugs and

paraphernalia, as well as officers’ testimony about his assaultive conduct. In

support, he contended that the police had illegally entered his residence

without a warrant, and the evidence he sought to suppress was the fruit of

that unconstitutional action by police. A suppression hearing was conducted

on November 22, 2017. The trial court summarized the facts established at

that hearing, as follows:

Around 4:00 p.m. on January 24, 2017, Oil City Police
Department Lieutenant Jonathan Love was approached by Jake
Poindexter, a Protective, Intake, and Crisis Unit (“PICS”) worker
in Venango County, about accompanying him as a safety
precaution in conducting a mental welfare check of an individual.
That individual was later identified as [Appellant] in the instant
matter, who was located at 19 Colbert Avenue in Oil City,
Pennsylvania. Mr. Poindexter shared with Lieutenant Love a
written report that documented mental health concerns about
[Appellant]. Specifically, the report stated that [Appellant]
believed he was “Jesus Christ,” “Thor,” and “Jim Carrey.”
Lieutenant Love testified at the November 22, 2017 hearing that
the PICS Unit has made countless requests such as this, which
they refer to as “standbys,” in which police officers go with mental
health workers to ensure the scene is safe.

As such, Lieutenant Love, along with [Officer] Regina Deloe,
accompanied Mr. Poindexter to the 19 Colbert Avenue address.
Once there, Lieutenant Love knocked on the front door and
[Appellant] answered. Lieutenant Love, having previously
interacted with [Appellant] in an unrelated matter, attempted to
introduce Mr. Poindexter to [Appellant]. Both Lieutenant Love and
[Officer] Deloe testified that [Appellant] seemed friendly at first,
but his demeanor quickly changed. While staring at Mr.

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Poindexter, [Appellant] stated that Mr. Poindexter’s “eyes were
fading away and turning black.” He then turned to Lieutenant
Love and told him to “take off his peashooter,” that guns kill
people, and that the gun “needs to return to earth from which it
came and return to dust.” [Appellant] then immediately tried to
shut the door. However, Lieutenant Love positioned his foot in
between the door and the frame to prevent its closure. Hearing
these statements, Lieutenant Love testified that[,] coupled with
the allegations he read in the mental health report given to him
by Mr. Poindexter, he was concerned that there was a mental
health issue with [Appellant] and that they definitely needed to
investigate further.

After putting his foot in the doorway, Lieutenant Love
proceeded to open the door and stepped inside the living room of
the residence. Once there, he attempted to have [Appellant] take
a seat in a chair so that he could have a conversation with Mr.
Poindexter. While requesting this of [Appellant], Lieutenant Love
testified that [Appellant] was chanting incoherent chatter and he
was blinking his eyes rapidly. Then, unprovoked, [Appellant]
struck Lieutenant Love in the chest with his left hand. Lieutenant
Love then proceeded in attempting to physically put [Appellant]
in the chair, whereupon a struggle ensued. Lieutenant Love ended
up wrestling with [Appellant] for several minutes. During the
course of the struggle, [Officer] Deloe used her radio to request
another officer to respond. [Appellant] was subsequently tasered
twice and pepper sprayed once.

After several minutes, [Appellant] was finally placed in
handcuffs and led outside to be placed into a police vehicle.
Lieutenant Love testified at the hearing that it was at no time the
officers’ intention to place [Appellant] into custody before the
events of that day transpired, and that their presence was merely
for the protection of Mr. Poindexter. Lieutenant Love further
testified that he would not have been comfortable leaving the
address after his first interaction with [Appellant] when the
officers and Mr. Poindexter were still positioned outside the home,
and that it was his belief at that time, given his knowledge of the
mental health report and [Appellant’s] statements, that
[Appellant] was in need of immediate medical treatment.
However, on cross-examination, Lieutenant Love testified that in
the thirty days preceding the incident of January 24, 2017, he
personally had not received any complaints regarding
[Appellant’s] behavior. Furthermore, Lieutenant Love testified

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that it was his belief that [Appellant] was a danger to himself or
others based upon his interactions with him on that day.

In her testimony given at the November 22, 2017 hearing,
[Officer] Deloe corroborated Lieutenant Love’s recollection of the
events of January 24, 2017[,] and noted that she participates in
escorting mental health workers multiple times in a normal week.
She further explained that she also believed that [Appellant] was
a danger to himself or others. Once [Officer] Deloe left
[Appellant’s] residence, she realized that one of her gloves that
she had been wearing during the struggle with [Appellant] was no
longer on her hand. As the residence’s door was still ajar from
the other officers’ exits, she reentered the residence. Upon
reentry, [Officer] Deloe immediately saw her missing glove in the
area where the struggle with [Appellant] took place.

[Officer] Deloe additionally testified that once inside the
residence, she noticed on the floor where an overturned chair once
sat, a sandwich baggy containing a leafy green substance she
suspected to be marijuana and a pipe used for smoking marijuana.
The items were within inches of each other. As such, [Officer]
Deloe seized the suspected contraband.

When questioned about the officers’ motives and decision to
arrest [Appellant], [Officer] Deloe testified that they were not at
[Appellant’s] residence to arrest him, and that the decision to
arrest him was only made after everything had occurred inside the
residence. After being placed in a squad car, the officers first took
[Appellant] to be arraigned in front of Magisterial District Court
Judge Andrew Fish, but upon his recommendation, [Appellant]
was subsequently taken to UPMC Northwest for a mental health
evaluation.

Trial Court Opinion (TCO), 6/15/18, at 1-4.

Based on this evidence, the trial court concluded that Lieutenant Love

reasonably believed that Appellant needed mental health assistance and,

therefore, the warrantless entry into Appellant’s home was justified by the

public servant exception of the community caretaking doctrine, discussed in

further detail infra. See id. at 9. Accordingly, the court denied Appellant’s

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motion to suppress and his case proceeded to a jury trial on March 21, 2019.

At the conclusion thereof, the jury convicted Appellant of the above-stated

offenses and, on May 7, 2019, he was sentenced to the aggregate term set

forth above.

Appellant filed a timely notice of appeal, and he also complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed a Rule 1925(a) opinion stating that

it had adequately addressed the issues raised in Appellant’s Rule 1925(b)

statement in its June 15, 2018 opinion denying his motion to suppress.

Herein, Appellant states three issues for our review:

I. Did the trial court err in denying the suppression motion when
the police failed to comply with the involuntary commitment
requirements under the Mental Health Procedures Act [(MHPA),
50 P.S. §§ 7101-7503,] before charging into [Appellant’s] home
without a warrant?

II. Did the trial court’s erroneous ruling on suppression prejudice
[Appellant], thereby entitling him to a new trial?

III. Was the evidence insufficient to prove resisting arrest when
the Commonwealth failed to prove beyond a reasonable doubt
[that] a lawful arrest [occurred]?

Appellant’s Brief at 10 (capitalization and emphasis omitted).

Appellant’s first two issues challenge the court’s denial of his pretrial

motion to suppress and will be addressed together. Initially, we note:

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

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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. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned

up).

Here, Appellant sought suppression on the basis that the officers’

warrantless entry into his home was illegal. In denying Appellant’s motion,

the trial court found that the public servant exception of the community

caretaking doctrine applied to validate the officers’ actions. Our Supreme

Court has explained this exception to the warrant requirement, as follows:

Absent a recognized exception, under the Fourth Amendment to
the United States Constitution it is axiomatic that a law
enforcement officer may not make a warrantless entry into a
private dwelling. One such exception to the warrant requirement
is the “emergency aid exception,” which this Court has
characterized as belonging to a broader group of exceptions
justified by the “community caretaking doctrine.”
Commonwealth v. Livingstone, … 174 A.3d 609, 627 ([Pa.]
2017). Pursuant to the community caretaking doctrine, certain
warrantless actions of police officers do not offend constitutional
principles because they are motivated by a “desire to render aid
or assistance, rather than the investigation of criminal activity.”
Id. at 627.

Commonwealth v. Wilmer, 194 A.3d 564, 565 (Pa. 2018) (footnote

omitted). The Wilmer Court continued:

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In our recent decision in Livingstone, this Court observed
that the community caretaking doctrine encompasses three
specific exceptions to the Fourth Amendment’s warrant
requirement: the public servant exception, the automotive
impoundment/inventory exception, and the emergency aid
exception. Livingstone, 174 A.3d at 626-27. These three
exceptions share a common underpinning, namely that
police officers engage in a wide variety of activities relating
to the health and safety of citizens unrelated to the
detection, investigation and prevention of criminal activity.
Livingstone, 174 A.3d at 627 [(citation omitted)]. We also
stressed in Livingstone, however, that while community
caretaking activities are laudable endeavors, they must be
performed strictly in accordance with Fourth Amendment
protections. Id. at 629.

Id. at 568–69 (footnotes omitted).

In Livingstone, the Court more specifically explained that,

in order for a seizure to be justified under the public servant
exception to the warrant requirement under the community
caretaking doctrine, the officer must point to specific, objective,
and articulable facts which would reasonably suggest to an
experienced officer that assistance was needed; the police action
must be independent from the detection, investigation, and
acquisition of criminal evidence; and, based on a consideration of
the surrounding circumstances, the action taken by police must
be tailored to rendering assistance or mitigating the peril. Once
assistance has been provided or the peril mitigated, further police
action will be evaluated under traditional Fourth Amendment
jurisprudence.

Livingstone, 174 A.3d at 637.

In this case, Appellant focuses on challenging the trial court’s conclusion

that the first prong of the Livingstone test was met in this case, i.e, that

Lieutenant Love articulated sufficient facts to demonstrate that he reasonably

believed Appellant needed assistance when he entered his home without a

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warrant. In finding this prong of the Livingstone test met, the trial court

stated:

On January 24, 2017, Lieutenant Love was forced to make
a split-second judgment as to whether he should allow Mr.
Poindexter’s interactions with [Appellant] to cease, or prevent
[Appellant] from shutting his front door so that the mental health
welfare check could continue. Armed with a written report
concerning mental health concerns about [Appellant], and his
personal observations of [Appellant’s] odd behavior, Lieutenant
Love erred on the side of caution in keeping the door open and
entering into the residence to facilitate furthering Mr. Poindexter’s
examination of [Appellant]. As the officers knew [Appellant] was
located inside the residence, and given all of the information
available to them at the time, they both believed [Appellant] was
a danger to himself or others, and therefore needed further
evaluation by Mr. Poindexter. Consequently, we conclude there
was an objectively reasonable basis for them to believe that an
occupant of the residence was in need of immediate medical
treatment, and may very well have been a danger to himself or
others. As such, we find that the warrantless entry into
[Appellant’s] residence was reasonable based upon the officers’
reasonable belief that [Appellant] was in need of immediate aid.

In analysis of the facts at hand, we find that the first prong
of the public servant exception of the community caretaking
doctrine[,] set forth in Livingstone, is met. Lieutenant Love and
Patrolwoman Daloe both credibly testified that they are regularly
called upon by mental health professionals in the community to
assist in mental health welfare checks of Oil City residents.
Additionally, both officers testified that on January 24, 2017,
Lieutenant Love was approached in person by Mr. Poindexter in
the hope that the officers would accompany him as a safety
precaution in conducting a mental welfare check on [Appellant].

Combined with the written report provided by Mr.
Poindexter, both officers credibly testified that upon making initial
contact with [Appellant] at the door of his residence, both felt he
was a danger to himself or others, and that they would not have
been comfortable leaving his house without further evaluation by
Mr. Poindexter as to [Appellant’s] mental status. Therefore, in
analyzing all of the information available to the officers on January
24, 2017, the [c]ourt finds that the objective facts would have

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reasonably suggested to an experienced officer that their
assistance was required in facilitating a mental welfare check of
[Appellant].

TCO at 10-11.

On appeal, Appellant urges us to conclude that the facts testified to by

Lieutenant Love were insufficient to reasonably suggest that Appellant needed

assistance, or that he posed a danger to himself or anyone else. He explains:

The mental health report the police relied on was not presented
at the suppression hearing and no one testified with any first-hand
knowledge regarding the allegations in the report. The only
competent evidence presented at the suppression hearing
regarding why the police forced themselves into his home was
[Appellant’s] statement that Mr. Poindexter’s eyes looked black
and were fading away, his opinion that guns killed people and
should go back to the earth, and his referral to guns as
peashooters. At that point, [Appellant] stepped back into his
home and tried to close the door. Lieutenant Love stopped him
from closing the door and the police went inside [Appellant’s]
residence.

***

[Appellant’s] statements during twenty seconds to one
minute of police interaction on the porch do not provide an
objective basis to reasonably suggest that assistance was needed
for the community caretaker function to apply. This is especially
true considering that [Appellant] seemed fine. The police
confirmed that they received no complaints regarding
[Appellant’s] behavior within the previous thirty days, he was
dressed and groomed, the electricity was on at his home, there
were no indications that he was malnourished, there were no
reports that he had a weapon, he did not make any threatening
gestures towards authorities on the porch, there was no indication
that he had attempted suicide or had mutilated himself, and there
were no reports of any people in the home that were in danger.
The surrounding circumstances presented nothing to reasonably
suggest that [Appellant] required assistance or was in immediate
peril to the point that the police needed to force their way into his
home.

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Appellant’s Brief at 42-43.

Appellant also contends that no facts supported Lieutenant Love’s and

Officer Deloe’s conclusions that Appellant was a danger to himself or others

at the point they entered his home. He stresses that, unlike prior cases

upholding warrantless actions by police based on the community caretaking

exception, here, “there was no indication that [Appellant] possessed or

recently used a weapon, [he] was not actively engaged in activity that could

harm himself or another person, there was no visible bodily injury to

[Appellant] or anyone else, there were no reports of shots fired, and there

was no indication of danger to another person in the residence.” Id. at 46

(citing Commonwealth v. Coughlin, 199 A.3d 401 (Pa. Super. 2018) (en

banc) (finding exigent circumstances existed for a warrantless entry and

protective sweep of a home, where officers responded to reports of a suspect

firing assault rifle in neighborhood known for gun violence and the suspect

gave inconsistent answers as to whether anyone else was inside home);

Commonwealth v. Edwards, 194 A.3d 625, 635 (Pa. Super. 2018)

(concluding “that police acted reasonably and pursuant to the community

caretaking doctrine when observing [Edwards] limping, with a bloody leg, at

1:20 a.m., in that they approached and offered [Edwards] medical

assistance”)). For all of these reasons, Appellant claims that the facts known

to the officers when they entered his home without a warrant did not

reasonably suggest that he needed police assistance at that time and,

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therefore, the public servant exception of the community caretaking doctrine

did not apply.

Initially, we note that Appellant is correct that the mental health report

reviewed by Lieutenant Love prior to the incident was not entered into

evidence at the suppression hearing. However, Lieutenant Love testified

about the statements by Appellant detailed in that report — specifically, that

Appellant believed he was “Jim Carrey, Thor, and Jesus Christ” — during

Appellant’s cross-examination of the lieutenant. See N.T. Suppression

Hearing, 11/22/17, at 30. Because Appellant elicited the testimony about his

statements in the report, he cannot now object to the court’s consideration of

that evidence in assessing if the public servant exception applied.

Nevertheless, even considering those comments, we agree with

Appellant that the facts known to Lieutenant Love when he entered Appellant’s

home without a warrant were not sufficient for the lieutenant to reasonably

believe that Appellant required immediate assistance. Certainly, Appellant’s

statements in the mental health report, and to the officers on the porch of his

residence, were odd. However, none of his remarks were threatening,

combative, or violent, and Officer Deloe testified that Appellant made no

threatening gestures during the 20 to 30 second interaction the officers had

with him on his porch. See N.T. Suppression Hearing at 51. Furthermore,

Appellant’s statements did not indicate an intent to hurt himself or anyone

else, and there was no indication that he had a weapon or that anyone else

was inside his residence. Id. Moreover, both officers testified that Appellant

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was dressed, he did not look hurt or malnourished, and nothing indicated that

he was suicidal or inclined to harm himself. Id. at 29, 30-31, 51. Accordingly,

we agree with Appellant that these facts do not demonstrate that Lieutenant

Love reasonably believed that Appellant required immediate assistance

because he posed a danger to himself.

Instead, the record indicates that Lieutenant Love made the decision to

enter Appellant’s home because he reasonably believed that further

investigation of Appellant’s mental health was necessary. The Pennsylvania

Supreme Court’s decision in Livingstone demonstrates that the Court did not

intend the public servant exception to permit an officer to enter an individual’s

home without a warrant simply to ‘investigate’ if that person needs assistance.

In Livingstone, a Pennsylvania State Trooper activated his emergency lights

and pulled alongside Livingstone’s vehicle, which was parked on the side of an

interstate highway at 9:30 p.m., to “see if she needed assistance.”

Livingstone, 174 A.3d at 638. The Court concluded the trooper had seized

Livingstone, and it then held that, although the trooper’s intention was truly

to assist her, his warrantless seizure was not validated by the public servant

exception. The Court reasoned that the trooper “was unable to articulate any

specific and objective facts that would reasonably suggest that [Livingstone]

needed assistance.” Id. (emphasis added). The Court noted that the trooper

had

conceded that he had not received a report of a motorist in need
of assistance, and did not observe anything that outwardly
suggested a problem with [Livingstone’s] vehicle. Moreover,

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although it was dark, the weather was not inclement. Finally,
[Livingstone], who was inside her vehicle, did not have her hazard
lights on.

Id. In sum, because the facts did not establish that Livingstone actually

needed assistance, the trooper’s warrantless seizure of Livingstone to

ascertain if she needed help was not permitted under the public servant

exception of the community caretaking doctrine.

The same is true in the present case. As discussed supra, nothing in

Appellant’s demeanor, statements, outward appearance, or condition of his

residence indicated that he needed police assistance, or that he posed a

danger to himself or others. Thus, Lieutenant Love’s entering his home

without a warrant to further investigate whether assistance was required was

not lawful under the public servant exception, as defined and applied in

Livingstone.

Finally, we also agree with Appellant that Lieutenant Love did not validly

enter his home to involuntarily commit him pursuant to the MHPA. Under 50

P.S. § 7302(a)(2), a person may be seized without a warrant and taken to a

facility for an emergency examination if an officer personally observes

“conduct of a person constituting reasonable grounds to believe that he is

severely mentally disabled and in need of immediate treatment….” Section

7301 states that “[a] person is severely mentally disabled when, as a result

of mental illness, his capacity to exercise self-control, judgment and discretion

in the conduct of his affairs and social relations or to care for his own personal

needs is so lessened that he poses a clear and present danger of harm to

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others or himself, as defined in subsection (b), or the person is determined to

be in need of assisted outpatient treatment as defined in subsection (c).” 50

P.S. § 7301(a). A person presents a “clear and present danger” to himself or

others if, within the past 30 days, he has shown that he cannot satisfy his own

need for nourishment, personal or medical care, shelter, or safety; he has

attempted or threatened suicide or there is a reasonable probability he will

commit suicide; or he has mutilated himself or attempted or threatened to do

so. 50 P.S. § 7301(b)(2)(i)-(iii).

As set forth above, Appellant’s statements did not reasonably indicate

that he had inflicted or attempted to inflict harm upon himself or anyone else,

or that he posed a suicide risk. Additionally, there were no reports that

Appellant possessed a gun; indeed, Appellant’s statements to Lieutenant Love

indicated that he was opposed to firearms in general. Lieutenant Love and

Officer Deloe both testified that Appellant was dressed and appeared

nourished, and that he was living in a home that had electricity. They also

did not observe any injuries to Appellant.

These facts make the instant case easily distinguishable from the case

cited by the Commonwealth, In re J.M., 726 A.2d 1041 (Pa. 1999). There,

officers had received multiple reports concerning J.M.’s mental health,

including a report that J.M. had a gun. Id. at 1050. J.M. also made delusional

and paranoid comments to the officers when they arrived at her home, and

the officers could see that she was “disheveled with a contusion to her right

eye[,]” which she refused to explain. Id. Rather than enter J.M.’s home

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without a warrant, as the officers did in this case, the officers in J.M. obtained

a warrant under section 7302 of the MHPA for the emergency medical

examination of J.M. Id. at 1044. When the officers returned to execute the

warrant, J.M. again refused to permit them to enter her home, and she

threatened to shoot herself and her adult son who lived with her. Id. At that

point, the officers forcibly entered her home and found J.M. pointing a loaded

gun at them. Id. at 1051. Our Supreme Court held that not only was the

warrant to seize J.M. supported by reasonable grounds to believe that she was

severely mentally disabled and in need of immediate treatment, but even had

the warrant not been valid, the officers had lawfully entered her home under

section 7302(a)(2), as J.M. had threatened to shoot herself and her son. Id.

at 1050-51.

The facts of J.M. obviously do not control the present case. Most

notably, there was no report that Appellant had a weapon, Appellant made no

threats to himself or anyone else, and he had no visible injuries. Accordingly,

unlike in J.M., the facts did not provide reasonable grounds for Lieutenant

Love to conclude that Appellant was severely mentally ill and in need of

immediate medical treatment, such that the officers could forcibly enter his

home without a warrant.

In sum, we conclude that Lieutenant Love’s and Officer Deloe’s

warrantless entry into Appellant’s home was not justified under either the

public servant exception of the community caretaking doctrine, or the

involuntary commitment procedures of the MHPA. The officers did not state

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sufficient facts to establish that Appellant was in need of immediate assistance

at the time the officers entered his home. The officers’ intent to further

investigate whether assistance was necessary was not sufficient grounds

under Livingstone to permit them to force their way into Appellant’s

residence without a warrant. Additionally, the MHPA’s criteria for an

involuntary commitment without a court order were not met in this case.

Consequently, the trial court erred by concluding that the officers lawfully

entered Appellant’s residence.

Next, we must assess whether, based on this illegal entry, the trial court

should have suppressed the particular evidence challenged by Appellant. In

his motion to suppress, Appellant claimed that because the officers unlawfully

entered his home, “all police action inside is fruit of the poisonous tree and

must be suppressed.” Appellant’s Motion to Suppress, 1/22/18, at 13.

Specifically, he requested that the court suppress the drugs and paraphernalia

found inside his home, and “bar any testimony from law enforcement

regarding the physical interaction with [Appellant]….” Id.

In Wong Sun v. United States, 371 U.S. 471, 488 (1963), the United

States Supreme Court held that evidence constitutes poisonous fruit, and,

thus, must be suppressed, if, “granting establishment of the primary illegality,

the evidence to which instant objection is made has been come at by

exploitation of that illegality or instead by means sufficiently distinguishable

to be purged of the primary taint.” In interpreting Wong Sun and its progeny,

the Pennsylvania Supreme Court has clarified that,

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[t]he general rule excludes all evidence unlawfully seized, and this
extends to the direct and indirect products of the illegality.
Moreover, excludable evidence includes proof that is tangible and
physical materials, items observed, words overheard, confessions
or statements made by the accused, and eyewitness identification
testimony.

Further, there is no per se ban on the admission of all
evidence resulting from unlawful law enforcement conduct.
Rather, an inquiry must be made into the source of the evidence
as well as any potential tainting of the evidence due to
unconstitutional actions by police. Any evidence that comes solely
as a result of illegal conduct is tainted fruit, and is not admissible.
Conversely, the mere fact that certain evidence was
obtained illegally does not necessarily bar evidence based upon
an earlier, lawful viewing. Evidence whose origin is wholly
independent of unconstitutional action by law enforcement is
admissible. However, even evidence that originates prior
to illegal conduct may be impacted by these unconstitutional
actions, as those actions can affect the reliability of the evidence
at trial or render it inadmissible.

Commonwealth v. Santiago, 209 A.3d 912, 928 (Pa. 2019).

In this case, we initially observe that Lieutenant Love’s and Officer

Deloe’s testimony about Appellant’s conduct once they were inside his home

does not clearly fall into any of the categories of ‘excludable evidence’

discussed in Santiago. The officers were not testifying about any tangible or

physical material, item observed, words overheard, eyewitness identification,

or confession or statement by Appellant. Instead, they were describing

Appellant’s actions in assaulting Lieutenant Love and resisting the officers’

subsequent efforts to arrest him.

Moreover, we cannot conclude that Lieutenant Love’s and Officer Deloe’s

testimony about Appellant’s assault of the officers was evidence that was

“come at by exploitation of th[e] illegality” of the officers’ illegal entry into

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Appellant’s home. Lieutenant Love did not immediately arrest Appellant once

he was inside the residence. Instead, the lieutenant simply asked Appellant

to sit down, and then tried to talk to Appellant. N.T. Suppression Hearing at

14. Appellant replied in “incoherent chatter” and “was blinking his eyes really

fast….” Id. Then, without any “advance warning[,]” Appellant suddenly

“lunged out” at the lieutenant and “jab[bed the officer] in the chest.” Id. at

14, 16, 33. Appellant continued to struggle as Lieutenant Love again

attempted to have him sit in a chair, and he ultimately fought the lieutenant

and the other officers trying to subdue him, to the extent that he had to be

tasered and pepper sprayed to be contained.

We agree with the Commonwealth that the officers’ entry into

Appellant’s home, albeit illegal, did “not give Appellant a free pass to commit

the assaults he did upon the officers,” and that Appellant’s actions in this

regard “constituted a new tree of criminal conduct.” Commonwealth’s Brief

at 23. While we certainly do not condone the officers’ unconstitutional entry

of Appellant’s home, we also cannot condone Appellant’s surprise attack on

Lieutenant Love, or his combative response when the officers tried to subdue

him. Appellant’s conduct was not in response to Lieutenant Love’s exploiting

the illegality of his presence in Appellant’s home. Accordingly, the lieutenant’s

and Officer Deloe’s testimony about Appellant’s actions was not suppressible

as fruit of the poisonous tree.

On the other hand, the drugs and paraphernalia found by Officer Deloe

were at least indirectly tied to the officers’ illegal entry of Appellant’s home.

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For instance, had Appellant’s assault of the officers and subsequent arrest

happened on his porch, Officer Deloe would have never been inside Appellant’s

home to see the drugs and paraphernalia in plain view. Thus, it was only due

to Lieutenant Love’s initial illegal entry that Officer Deloe ultimately observed

the drugs and paraphernalia in the area where the scuffle between the officers

and Appellant occurred. Therefore, the drugs and paraphernalia should have

been suppressed as fruit of the poisonous tree of the officers’ unconstitutional

entry of Appellant’s residence.

Accordingly, we conclude that the trial court erred by finding that

Lieutenant Love lawfully entered Appellant’s home. Because that warrantless

entry was illegal for the reasons set forth supra, the drugs and paraphernalia

seized from Appellant’s residence should have been suppressed. The

testimony concerning Appellant’s assault on the officers, however, was

admissible, as Appellant’s actions separated his conduct from the initial illegal

entry by police. Nevertheless, we agree with Appellant that he was prejudiced

by the jury’s being informed that the officers were lawfully inside his home.

The jury considered this incorrect fact when assessing the officers’ testimony

and credibility, and in deciding whether Appellant’s conduct met the elements

of the offenses with which he was charged. Appellant was also precluded from

presenting an argument (whether valid or not) that he acted in self-defense

or was justified in his actions. Accordingly, we vacate Appellant’s judgment

of sentence and remand for a new trial, at which the drugs and paraphernalia

shall be excluded, the jury will be informed that the officers were unlawfully

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inside Appellant’s residence, and Appellant can frame his defense around that

fact.

Notwithstanding this disposition, we must address Appellant’s third

issue, in which he maintains that the evidence was insufficient to convict him

of resisting arrest, thus precluding his retrial for that offense. To begin, we

note our standard of review of a challenge to the sufficiency of the evidence:

In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

The crime of resisting arrest is defined as follows:

A person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force to
overcome the resistance.

18 Pa.C.S. § 5104. As Appellant observes, our Supreme Court has held that

“in order to be convicted of resisting arrest, the underlying arrest must be

lawful.” Commonwealth v. Biagini, 655 A.2d 492, 497 (Pa. 1995) (citation

and emphasis omitted). “A determination of the lawfulness of the underlying

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arrest necessitates a legal conclusion that the arresting officer acted with

authority and probable cause.” Id. (citation omitted).

In the present case, Appellant avers that “[t]he police had no legal

justification for the warrantless entry into [his] home[,]” and “[a]s such, the

police were not lawfully discharging their duties when arresting [Appellant]

after illegally entering his home.” Appellant’s Brief at 61. We disagree.

Appellant’s argument would carry more weight if Lieutenant Love had

immediately arrested him upon illegally entering his home. However, that is

not what occurred. Appellant was arrested only after he shoved and assaulted

Lieutenant Love and the other officers trying to subdue him. Appellant’s

conduct unequivocally provided the officers with probable cause to arrest him

for assault. Appellant provides no legal authority to support his position that,

regardless of his attack on the officers, they had no legal authority to arrest

him simply because they had unlawfully entered his residence. By this

rationale, Appellant could not have been lawfully arrested even had he shot

and killed Lieutenant Love. This argument is meritless. Appellant’s physical

assault of the lieutenant provided probable cause to arrest him and, thus, his

arrest was legal. Consequently, Appellant’s challenge to the sufficiency of the

evidence to sustain his resisting arrest conviction fails, and he may be retried

for that offense.

Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2020

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