J-A11036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BERNARD J. TERRELL

 Appellant No. 236 EDA 2015

Appeal from the Judgment of Sentence January 12, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0011246-2014

BEFORE: SHOGAN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2016

Appellant, Bernard J. Terrell, appeals from the judgment of sentence 

imposed in the Philadelphia County Court of Common Pleas following his 

convictions for carrying a firearm on public streets or property in 

Philadelphia.1 Appellant argues that the trial court erred by failing to 

suppress evidence and by admitting evidence in contravention of the corpus 

delicti rule. We affirm.

The trial court summarized the underlying facts as follows:

On January 12, 2015, Officer Ronald Kwiatkowski, a 

probation and parole officer with the Juvenile Division, 

YVRP (Youth Violence Reductionship Program), Juvenile 

Warrant, credibly testified that on August 8, 2014 at 

around 7:45 a.m. he was working with the Juvenile 

Warrant Division at 1646 West Nedro Avenue, 3rd Floor, in 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 6108.
J-A11036-16

- 2 -

Philadelphia, Pennsylvania. Officer Kwiatkowski stated 

that he has been with the Juvenile Warrant Department, 

specifically the YVRP for eight (8) years. Officer 

Kwiatkowski stated that he was looking for Nyree Terrell 

[Appellant’s brother] on the morning in question . . . .

Officer Kwiatkowski stated that when his team 

approached the front door of the apartment it knocked and 

announced. The Officer stated that at that time the team 

received a radio [c]all from police covering the side of the 

building notifying them that someone was trying to come 

out via the fire escape. The team continued to knock and 

announce at the front door, until it was opened by 

[Appellant’s] father. Officer Kwiatkowski stated two (2) 

officers entered before him and proceeded towards the 

kitchen area. These officers apprehended [Appellant] in 

the kitchen, where the fire escape is located. He stated 

that he started to clear the house for officer safety and 

search with the rest of the team. 

Officer Kwiatkowski testified that he entered the 

hallway and then the first bedroom on the left to look for 

Nyree Terrell. The door was not locked. He began to clear 

the bedroom looking for Nyree Terrell, searching 

“anywhere a body can be hiding.” This included looking 

under the bed, at which time Officer Kwiatkowski observed 

a handgun. He immediately saw what looked like a steel 

pipe that resembled a baton at that time. Upon further 

investigation, the officer went to the side of the bed and 

saw the firearm on the other side of the baton. Officer 

Kwiatkowski notified his supervisor and the police at the 

scene, who then came to the bedroom and recovered the 

gun. 

Officer Kwiatkowski was then directed to go in the living 

room and guard [Appellant] to make sure that he was 

secured while the other officers completed the search of 

the premises. Shortly after the gun was recovered, Nyree 

Terrell was located. Officer Kwiatkowski testified that 

while he was in the living room [Appellant’s] father was 

notified of the gun found under the bed, and turned to 

[Appellant] and disappointedly asked, “A gun?” 

[Appellant] replied facing his father, “It’s mine. I found it 

about a week ago in a red Camaro.” Officer Kwiatkowski 
J-A11036-16

- 3 -

stated that he did not ask [Appellant] any questions while 

in the living room nor did any other officers present with 

him.

* * *

On cross-examination, Officer Kwiatkowski affirmed that 

he was on a warrant sweep, going from residence to 

residence collecting individuals who are wanted on active 

warrants. . . . Officer Kwiatkowski stated that the warrant 

issued for Nyree Terrell was for failing to appear. He also 

stated that he had no information on [Appellant], and no 

information that either posed any safety threat. He 

explained that prior to executing the warrant, he reviews 

pictures and was aware of what Nyree Terrell looked like to 

an extent. Officer Kwiatkowski explained that when he 

enters a house, all persons are secured inside until they 

can be positively identified. 

Officer Kwiatkowski testified that when he opened the 

door to the bedroom he did not see an outline of a person 

under the bed and when he actually looked under the bed, 

no one was there. He reiterated that he first saw a steel 

pipe under the bed and that when he moved the bed away 

from the wall to identify the object, he saw the gun 

between the pipe and the wall. Officer Kwiatkowski stated 

that there were two young children, aged seven (7) to nine 

(9), who did not pose a safety threat as they were on top 

of the bed. Once the gun was found, he instructed a 

female officer that was in the hallway to take the two 

children into the living room to sit with the father. Officer 

Kwiatkowski stated that as he searched the bed he 

received information that Nyree Terrell had been found at 

the back of the house in the hallway. 

Officer Kwiatkowski testified that he did not see a 

wallet, license or anything else that initially identified the 

ownership of the gun. He stated that before finding the 

gun, he saw that [Appellant] was handcuffed after he was 

found trying to exit the kitchen onto the fire escape. 

Officer Kwiatkowski explained that [Appellant] was seated 

in a chair in the living room across from his father, who 

was seated next to the two little children. Officer 

Kwiatkowski’s supervisor notified [Appellant’s] father that 
J-A11036-16

- 4 -

a weapon was found. The gun was in a bag when officers 

showed it to [Appellant]. Officer Kwiatkowski stated that 

police were not standing over [Appellant] and that 

[Appellant] was not read his Miranda rights prior to his 

statement. 

Evidence was introduced at trial by way of stipulation by 

and between counsel that the firearm found in the 

bedroom by Officer Kwiatkowski was recovered by Officer 

Rockemore and Officer Bruhns and that [Appellant] was 

not licensed to carry a firearm. That firearm was an 

operable Firestar 40 caliber gun loaded with five (5) 

rounds and was placed on [a] property receipt. 

Trial Ct. Op., 4/27/15, at 2-6 (citations omitted).

Appellant was initially charged with carrying a firearm without a 

license,2carrying a firearm on public streets or property in Philadelphia,3and 

possession of a controlled substance.4 On January 8, 2015, Appellant filed a 

motion to quash, and on December 12, 2014, Appellant filed a motion to 

suppress physical evidence, including the firearm here at issue. On January 

15, 2015, the trial court conducted a suppression hearing followed by a 

stipulated non-jury trial. The court denied Appellant’s motion to quash and 

motion to suppress. The court found Appellant guilty of carrying a firearm 

on public streets or property in Philadelphia, and sentenced him to time 

served to twelve months’ incarceration followed by forty-eight months’ 

 

2 18 Pa.C.S. § 6106.

3 18 Pa.C.S. § 6108.

4 35 P.S. § 780-113.
J-A11036-16

- 5 -

reporting probation. This timely appeal followed. Appellant timely filed a 

court-ordered Pa.R.A.P. 1925(b) statement and the trial court filed a 

responsive Pa.R.A.P. 1925(a) opinion. 

Appellant raises the following issues for our review:

1. Did not the lower court err in denying [A]ppellant’s 

motion to suppress evidence where the [A]ppellant was 

detained and evidence was subsequently seized without 

probable cause or a search warrant or an exception to the 

warrant requirement; specifically, after [Appellant] had 

already been detained, a warrant officer, while conducting 

a protective sweep of [Appellant’s] residence pursuant to 

the effectuation of a warrant to arrest another resident of 

the home, exceeded the scope of the permissible search by 

moving a bed, thus uncovering a firearm, after the officer 

ascertained that there was no person hiding under the bed 

and before the officer saw any item whose nature as a 

weapon or contraband was apparent to the officer?

2. Did not lower court err in failing to quash the indictment 

and in permitting [Appellant’s] statement (that he 

possessed a firearm found at the location) to be introduced 

in evidence against him at trial without the Commonwealth 

first establishing the corpus [delicti] of a crime through 

evidence independent of the statement?

Appellant’s Brief at 4.

In his first issue, Appellant argues that the trial court erred by failing 

to suppress evidence of the gun because Officer Kwiatkowski exceeded the 

scoop of a search permitted pursuant to a “protective sweep” incident to an 

arrest. Specifically, Appellant avers that Officer Kwiatkowski effectively 

conducted an impermissible search when he “moved a bed” in order to 

recover the gun. Appellant contends that because the bed was moved, the 

gun was not subject to the “plain view” exception to the warrant 
J-A11036-16

- 6 -

requirement. Further, he asserts that the metal pipe initially detected by 

Officer Kwiatkowski did not constitute evidence of a weapon or contraband in 

need of further investigation. We disagree. 

When considering the trial court’s denial of a motion to suppress, this 

Court employs the following standard of review: 

[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 the courts below are 

subject to [ ] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) 

(citation omitted).

“A warrantless search or seizure is presumptively unreasonable under 

the Fourth Amendment and Article I, § 8, subject to a few specifically 

established, well-delineated exceptions.” Commonwealth v. McCree, 924 

A.2d 621, 627 (Pa. 2007). A “protective sweep” is one such exception: 

[i]t is well settled that “[u]nder emergent circumstances,

protective sweeps are a well-recognized exception to the
J-A11036-16

- 7 -

warrant requirement.” Commonwealth v. Witman, 2000 

PA Super 92, 750 A.2d 327, 335 (Pa. Super. 2000), appeal

denied 564 Pa. 138, 764 A.2d 1053 (Pa. 2000), cert.

denied, 534 U.S. 815, 122 S. Ct. 42, 151 L. Ed. 2d 15 

(2001).

A protective sweep is “a quick and limited search of 

premises, incident to an arrest and conducted to protect 

the safety of police officers or others.” Maryland v. Buie, 

494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 27 

(1990). Buie sets forth two levels of protective sweeps. Id. 

at 334, 110 S. Ct. 1093. The two levels are defined thus:

[A]s an incident to the arrest the officers could, as a 

precautionary matter and without probable cause or 

reasonable suspicion, look in closets and other 

spaces immediately adjoining the place of arrest 

from which an attack could be immediately launched.

Beyond that, however, we hold that there must be 

articulable facts which, taken together with the 

rational inferences from those facts, would warrant a 

reasonably prudent officer in believing that the area 

to be swept harbors an individual posing a danger to 

those on the arrest scene.

Id. Pursuant to the first level of a protective sweep, 

without a showing of even reasonable suspicion, police 

officers may make cursory visual inspections of spaces 

immediately adjacent to the arrest scene, which could 

conceal an assailant. The scope of the second level permits 

a search for attackers further away from the place of 

arrest, provided that the officer who conducted the sweep 

can articulate specific facts to justify a reasonable fear for 

the safety of himself and others.

Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261, 

1267 (Pa. 2001), cert. denied, 534 U.S. 994, 122 S. Ct. 

462, 151 L. Ed. 2d 380 (2001).

Commonwealth v. Potts, 73 A.3d 1275, 1281–82 (Pa. Super. 2013).

A properly conducted sweep is for persons:
J-A11036-16

- 8 -

It cannot be used as a pretext for an evidentiary search. 

It cannot be lengthy or unduly disruptive. It must be swift 

and target only those areas where a person could 

reasonably be expected to hide.

Commonwealth v. Crouse, 729 A.2d 588, 598 (Pa. Super. 1999).

In addition, “[t]he ‘plain view’ doctrine is often considered an 

exception to the general rule that warrantless searches are presumptively 

unreasonable . . . .” McCree, 924 A.2d at 627 (quoting Horton v. 

California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2306, 110 L. Ed. 2d 112 

(1990)).

We note the following legal precepts regarding the plain view doctrine:

The plain view doctrine permits the warrantless seizure of 

evidence in plain view when: (1) an officer views the 

object from a lawful vantage point; and (2) it is 

‘immediately apparent’ to him that the object is 

incriminating.

In determining ‘whether the incriminating nature of an 

object is immediately apparent to the police officer,’ we 

look to the totality of the circumstances.’ An officer can 

never be one hundred percent certain that a substance in 

plain view is incriminating, but his belief must be 

supported by probable cause.

Commonwealth v. Johnson, 921 A.2d 1221, 1223 (Pa. Super. 2007) 

(citations omitted). 

When reviewing whether an object’s criminal nature is “immediately 

apparent,” we note that probable cause

merely requires that the facts available to the officer would 

warrant a man of reasonable caution in the belief, that 

certain items may be contraband or stolen property or 

useful as evidence of a crime; it does not demand any 
J-A11036-16

- 9 -

showing that such a belief be correct or more likely true 

than false. A practical, non-technical probability that 

incriminating evidence is involved is all that is required.

Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super. 1995) 

(citations, emphasis, and internal quotation marks omitted) (emphasis 

omitted).

In the case sub judice, we conclude that the trial court properly 

determined that the gun in question was discovered pursuant to the plain 

view exception to the warrant requirement during a permissible protective 

sweep incident to the arrest of Appellant’s brother, Nyree Terrell. 

Specifically, officers arrived at Appellant’s residence pursuant to a valid 

search warrant on Appellant’s brother for failing to appear in juvenile court. 

Trial Ct. Op. at 9. Accordingly, Officer Kwiatkowski, for purposes of the 

officer’s own safely and protection under the protective sweep doctrine, 

properly searched under a bed to see if Nyree Terrell was present there. 

See Potts, 73 A.3d at 1281-82; Crouse, 729 A.2d at 598. 

However, instead of the fugitive, Officer Kwiatkowski saw an object 

that caught his immediate attention. The object appeared to be metal and 

baton-like but in order to be sure it was not a weapon or contraband, the 

officer moved the bed slightly, at which time he was able to plainly observe 

the gun in question. We hold that a ‘practical non-technical’ view of the 

facts available to Officer Kwiatkowski, including the object’s placement in a 

corner under the bed and the valid warrant on Appellant’s brother, supports 
J-A11036-16

- 10 -

the conclusion that a person of reasonable caution would have probable 

cause to believe that the object initially viewed under the bed could 

constitute a weapon or contraband. See Johnson, 921 A.2d at 1223; 

McEnany, 667 A.2d at 1148. Thus, Officer Kwiatkowski’s further 

investigation of the object was lawful and led to the discovery of the gun in 

plain view. Accordingly, we hold that Officer Kwiatkowski properly seized the 

gun pursuant to the plain view doctrine because (1) he lawfully engaged in a 

search under the subject bed pursuant to the protective sweep doctrine 

incident to a valid warrant for Appellant’s brother’s arrest and (2) he had 

probable cause, under the totality of the circumstances, to believe that the 

object he observed under the bed was evidence of criminal activity. See 

Johnson, 921 A.2d at 1223; McEnany, 667 A.2d at 1148. Therefore, we 

conclude that the trial court did not err by declining to suppress the gun and 

Appellant’s first issue lacks merit. 

Turning to his second issue, Appellant contends that the trial court 

erred by admitting Appellant’s incriminatory statement in violation of the 

corpus delicti rule. Appellant argues that the Commonwealth failed to 

present sufficient evidence of the commission of a crime, prior to the 

admission of Appellant’s statement confessing to illegal possession of the 

gun. Specifically, Appellant avers that the evidence presented was 

insufficient to prove, either by a preponderance of the evidence or beyond a 
J-A11036-16

- 11 -

reasonable doubt, that he had carried a firearm on a public street or 

property in Philadelphia, absent his statement. We do not agree.

As a prefatory matter, we note our standard of review:

[t]he corpus delicti rule is an evidentiary one. On a 

challenge to a trial court’s evidentiary ruling, our standard 

of review is one of deference.

The admissibility of evidence is solely within the discretion 

of the trial court and will be reversed only if the trial court

has abused its discretion. An abuse of discretion is not 

merely an error of judgment, but is rather the overriding 

or misapplication of the law, or the exercise of judgment 

that is manifestly unreasonable, or the result of bias, 

prejudice, ill-will or partiality, as shown by the evidence of 

record.

Commonwealth v. Hernandez, 39 A.3d 406, 410-411 (Pa. Super. 2012) 

(citations omitted).

“The corpus [delicti] rule places the burden on the prosecution to 

establish that a crime has actually occurred before a confession or admission 

of the accused connecting him to the crime can be admitted.” 

Commonwealth v. Dupre, 866 A.2d 1089, 1097 (Pa. Super. 2005) 

(citations omitted). However, “[t]he Commonwealth need not prove the 

existence of a crime beyond a reasonable doubt as an element in 

establishing the corpus delicti of a crime, but the evidence must be more 

consistent with a crime than with accident.” Id. at 1098 (citation omitted). 

In addition, it is well settled that the corpus delicti may be proven by 

circumstantial evidence. Commonwealth v. Hogans, 584 A.2d 347, 349 

(Pa. Super. 1990). Further, we note:
J-A11036-16

- 12 -

Establishing the corpus delicti in Pennsylvania is a two-step

process. The first step concerns the trial judge’s admission

of the accused’s statements and the second step concerns

the fact finder’s consideration of those statements. In 

order for the statement to be admitted, the 

Commonwealth must prove the corpus delicti by a 

preponderance of the evidence. In order for the statement

to be considered by the fact finder, the Commonwealth 

must establish the corpus delicti beyond a reasonable 

doubt.

Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006).

In this case, we conclude that the trial court was well within its 

purview when finding that ample evidence supported the admission and 

consideration of Appellant’s incriminating statement under the corpus delicti 

rule, under both a preponderance of the evidence standard and a beyond a 

reasonable doubt standard, where the evidence presented was consistent 

with criminal activity and not mistake. See Young, 904 A.2d at 956. 

Dupre, 866 A.2d at 1097. As aptly noted by the court, the Commonwealth 

established that Officer Kwiatkowski discovered a loaded gun, situated in a 

corner under a bed at Appellant’s residence, in the presence of young 

children. Appellant was not licensed to carry a gun. Further, the officers 

found Appellant adjacent to the fire escape, moments after a radio call 

indicating that someone had been seen trying to exit via the fire escape. 

Accordingly, we conclude that the trial court did not abuse its discretion by 

admitting Appellant’s incriminating statement in light of the significant 

circumstantial evidence presented to establish the requisite corpus delicti. 
J-A11036-16

- 13 -

See Hogans, 584 A.2d at 349. Therefore, Appellant’s second issue on 

appeal must also fail and we affirm his judgment of sentence.

Judgment of sentence affirmed.

Judge Mundy joins this Memorandum.

Judge Shogan files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2016