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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KYLE WHITE, : No. 2466 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 26, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009289-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 18, 2017
Kyle White appeals from the judgment of sentence entered on
June 26, 2015 in the Court of Common Pleas of Philadelphia County after his
conviction in a waiver trial of possession of a firearm, possession with intent
to manufacture or deliver, intentional possession of a controlled substance
by person not registered, and possession of instruments of crime. 1 The trial
court sentenced appellant to an aggregate term of imprisonment of four to
eight years, followed by three years of probation. We affirm.
The trial court set forth the following factual history:
On May 16, 2014, at approximately 9:45 p.m.,
Officer [Jonathan] Czapor set up plainclothes
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 6105(a)(1), 35 P.S. § 780-113(a)(30), 35 P.S.
§ 780-113(a)(16), and 18 Pa.C.S.A. § 907(a), respectively.
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surveillance in an unmarked vehicle at the
intersection of Darien and Lycoming Streets to
investigate illegal narcotics sales. He parked there
for a few minutes and noticed [appellant] driving a
silver Chrysler. [Appellant] parked the car across
the intersection and was on the same side of the
street as Officer Czapor. [Appellant] exited the car
and walked into the property of 4100 Darien Street
and remained inside for a few minutes. In the
meantime, a silver Chevrolet Astro van, driven by
Kenneth Cobbs, double parked in front of the
property. [Appellant] came out, engaged in a
conversation with Mr. Cobbs, and told him to park
while he “come[s][2] out with it.” [Appellant] again
went inside the property while Mr. Cobbs parked.
[Appellant] exited the property and walked towards
Mr. Cobbs’ vehicle with a clenched fist. He went to
the passenger side’s window and reached his entire
arm inside that window. When [appellant] took out
his arm, Officer Czapor observed United States
Currency in [appellant’s] hand, which he was
counting while walking back towards the property.
[Appellant] reentered the property and Mr. Cobbs
drove away from the area. Officer Czapor, with six
years of experience and who conducted thousands of
narcotics [investigations], believed this to be a
narcotics transaction. The back-up officers stopped
Mr. Cobbs and recovered six packets of crack
cocaine, which was [sic] tested positive. Meanwhile,
[appellant] exited the property and went inside the
Chrysler. Officer Czapor notified back-up officers,
who stopped [appellant] and placed him under
arrest.[Footnote 2]
[Footnote 2] Money was recovered on
the [appellant], which included nine $20
bills, ten $10 bills, five $5 bills, and
seven $1 [bills], totaling up to be $312.
Officer Czapor, Sergeant [Wali] Shabazz, and
Officer [John] Seigafuse proceeded to secure the
property that the [appellant] was seen entering and
2
Brackets in original.
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leaving. When they arrived at the property, the door
was unlocked. Officer Czapor testified that the first
floor lights were on, while the second floor was
completely dark. The officers went inside the house,
located a male and female sleeping upstairs and
brought them downstairs in order to secure the
house. Officer Shabezz [sic] conducted a general
safety frisk of the bedroom to ensure that there were
no weapons. Officer Czapor testified that the officers
did not search until they received consent. The
officers only lifted up the cushions to check for
weapons before they placed the male and female on
the couch.
[Appellant’s] mother, Vertell Whaley-Whiting,
who was also the owner of the house, came home
minutes later and gave verbal and written consent to
the search. She was calm and cooperative about the
search. Sergeant Shabezz [sic] explained to
Ms. Whaley-Whiting about the consequences and
other specific details with regards to the search,
including her right not to consent. She made no
objections nor asked any questions. Sergeant
Shabezz [sic] recovered three handguns inside the
dresser drawer in the dining room on the first
floor[.Footnote 3] Officer Seigafuse recovered one
clear baggie containing 48 packets of crack cocaine
and a digital scale from a separate drawer of the
same dresser.[Footnote 4]
[Footnote 3] Counsels [sic] stipulated
that the three operable handguns that
were recovered and placed on property
receipt included a black Rock Island
.45 caliber loaded with four live
round [sic], a black Smith & Wesson
.357 loaded with six live rounds, and a
silver and white small caliber handgun
that was unloaded.
[Footnote 4] Counsels [sic] stipulated
that the drugs that was [sic] recovered
and placed on property receipt were [sic]
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tested positive for cocaine-based [sic]
and marijuana.
Defense called two witnesses to testify. Aaron
Cooper, [appellant’s] sister’s boyfriend, testified that
he was upstairs with [appellant’s] sister when the
police arrived on that day in question. He testified
that there were four officers present, but could not
recall the description of the fourth officer. He
recalled that all the lights, except for the second
floor TV lights, were off. Mr. Cooper testified that he
never saw the officers recover guns from the dining
room, and that the only gun in the house was a
small gun that he owned in the upstairs bedroom.
Ms. Whaley-Whiting, [appellant’s] mother and owner
of the house, also testified. Both Ms. Whaley-
Whiting and Mr. Cooper testified that the officers
showed her the contrabands [sic] that they found
from [sic] the dining room drawers when she came
inside the house before she signed the consent form.
She testified that she did not see the officers search
for anything while she was present.
Trial court opinion, 11/23/15 at 2-4 (citations to notes of testimony
omitted).
Appellant raises the following issue for our review:
WHETHER THE COURT ERRED IN FAILING TO GRANT
THE MOTION TO SUPPRESS THE PHYSICAL
EVIDENCE?
Appellant’s brief at 4.
Our standard of review for challenges to the denial of a suppression
motion is as follows:
[We are] 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
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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, we are bound by these 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 our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).
Preliminarily, we note that appellant raises an argument in his brief
that police lacked probable cause to arrest him because Officer Czapor’s
testimony regarding the observations he made outside of appellant’s
residence was insufficient to establish probable cause that a drug transaction
occurred between appellant and Mr. Cobbs. Because appellant failed to raise
this issue in his Pa.R.A.P. 1925(b) statement, he waives it on appeal.
Pa.R.A.P. 1925(b)(4)(vii) (issues not included in the statement are waived).
Appellant next contends that the trial court erred in failing to suppress
the physical evidence seized from 4100 Darien Street (the “Residence”).
Appellant claims that the warrantless entry into the Residence was
unconstitutional for lack of probable cause and exigent circumstances, and
therefore, the homeowner’s subsequent consent to search was tainted.
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Consequently, appellant claims that all physical evidence seized should have
been suppressed.
The Fourth Amendment to the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protect citizens against
unreasonable searches and seizures. Both constitutions forbid police to
enter a private home without a warrant absent probable cause and an
exception to the warrant requirement, such as exigent circumstances or
consent. Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa.Super.
2013). Probable cause exists where “the facts and circumstances which are
within the knowledge of the officer at the time of the arrest, and of which he
has reasonably trustworthy information, are sufficient to warrant a man of
reasonable caution in the belief that the suspect has committed or is
committing a crime.” Commonwealth v. Thompson, 985 A.2d 928, 931
(Pa. 2009) (citation omitted). We need not discern whether the officer’s
belief was more likely correct than incorrect. Id. A probability of criminal
activity, rather than a prima facie showing thereof, is sufficient. Id. To
answer the question, we examine the totality of the circumstances. Id.
Here, the record reflects that Officer Czapor, a member of
Philadelphia’s 25th district narcotics team, was investigating illegal narcotics
sales at the intersection of Lycoming and Darien Streets in Philadelphia at
approximately 9:45 p.m. on May 16, 2014. (Notes of testimony, 4/27/15 at
6-7.) While surveilling that intersection in an unmarked parked police
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vehicle, Officer Czapor witnessed appellant arrive at the location in a silver
Chrysler. (Id. at 7-8.) After parking his vehicle, appellant went inside the
Residence where he remained for a few minutes. (Id. at 8.) While inside, a
Chevy Astro van operated and occupied by Kenneth Cobbs pulled up and
parked outside the Residence. Appellant then exited the Residence and
engaged in a conversation with Mr. Cobbs which Officer Czapor could not
hear. Officer Czapor then observed appellant turn around and, while walking
toward the Residence, turned back toward Cobbs’ vehicle and yelled,
“Park up. I’ll come out with it.” (Id. at 9.) Appellant then went into the
Residence, and Cobbs moved his vehicle to the next block of Darien Street.
Appellant remained in the Residence for a short time and then exited with a
clenched right fist. Appellant walked to Cobbs’ vehicle, reached his arm
inside the open passenger’s window, and put his right clenched fist inside.
After a few seconds, appellant removed his fist, and he was holding
currency. Appellant began to walk towards the Residence, and as he did, he
fanned the money and began to count it. (Id. at 9-10.) Appellant
re-entered the Residence, and Mr. Cobbs drove away. (Id. at 10.) The
record further reflects that Officer Czapor relayed the description of Cobbs’
vehicle to other officers who pursued Cobbs and then arrested him after
finding alleged crack cocaine. (Id.)
As Officer Czapor continued his surveillance, he then observed
appellant exit the Residence and get into the Chrysler that appellant had
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parked earlier. (Id.) Officer Czapor called for backup, and appellant was
arrested. (Id. at 11.) Officer Czapor, Sergeant Shabazz, and
Officer Seigafuse then entered the Residence through an open and unlocked
front white screen door for the purpose of securing the Residence. (Id. at
11, 36.)
Considering the totality of the circumstances, the record supports the
trial court’s conclusion that probable cause existed to warrant the reasonable
belief that criminal activity was afoot inside the home; specifically, the
possession and sale of illegal drugs.
We must next determine whether the record supports the trial court’s
finding that exigent circumstances existed to justify the warrantless entry.
[V]arious factors need to be taken into account to
assess the presence of exigent circumstances; for
example: (1) the gravity of the offense; (2) whether
the suspect is reasonably believed to be armed;
(3) whether there is a clear showing of probable
cause; (4) whether there is a strong reason to
believe that the suspect is within the premises being
entered; (5) whether there is a likelihood that the
suspect will escape if not swiftly apprehended;
(6) whether the entry is peaceable; (7) the timing of
the entry; (8) whether there is hot pursuit of a
fleeing felon; (9) whether there is a likelihood that
evidence will be destroyed if police take the time to
obtain a warrant; and (10) whether there is a danger
to police or other persons inside or outside of the
dwelling to require immediate and swift action. In
analyzing exigent circumstances, courts must
balance the needs of law enforcement against the
rights and liberties of private citizens.
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Johnson, 68 A.3d at 937 (citation omitted). The Commonwealth bears the
burden of presenting clear and convincing evidence that the circumstances
surrounding the opportunity to search were truly exigent and that the
exigency was in no way attributable to the decision by the police to forego
seeking a warrant. Commonwealth v. Bostick, 958 A.2d 543, 556-557
(Pa.Super. 2008) (citation omitted). Moreover, all decisions made pursuant
to the exigent circumstances exception must be made cautiously because it
is an exception that by its nature can very easily swallow the rule unless
applied in only restricted circumstances. Id. at 557.
Here, as discussed above, based on Officer Czapor’s observations,
police had probable cause to believe that drugs were being sold out of the
Residence. Possessing and selling illegal drugs are serious offenses.
Because police had already apprehended appellant prior to entering the
Residence, however, they would have no reason to believe that appellant
was inside and armed or that he would escape. Additionally, nothing in the
record demonstrates that a danger to police existed inside the Residence or
that evidence would be destroyed if the police took the time to obtain a
search warrant. With respect to entry, there was no evidence that the police
entered the Residence with force; rather, they entered through an unlocked
door. Additionally, their entry occurred at night when only the home’s
downstairs lights were on. Finally, nothing in the record demonstrates that
police had any reason to believe that there were individuals inside the
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Residence. Therefore, we find that the record fails to support the trial
court’s finding that exigent circumstances existed to justify the warrantless
entry. That, however, does not end our inquiry.
The record reflects that police did not search the Residence until
appellant’s mother, the homeowner who arrived at the Residence minutes
after the police entered through the unlocked door, gave police oral and
written consent to conduct the search. Therefore, although the warrantless
entry was illegal for want of exigency, that unlawful police conduct did not
lead to the discovery of the physical evidence that appellant sought to
suppress. Rather, it was the homeowner’s oral and written consent to
search that lead to the discovery of the physical evidence. Appellant failed
to establish that this consent was coerced. Accordingly, although the record
fails to support the trial court’s finding that exigent circumstances existed,
the search was nevertheless constitutional because it commenced after
police had probable cause to believe criminal activity was afoot and after
police received the homeowner’s oral and written consent to conduct the
search.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2017
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Com. v. White, K.
Combined Opinion