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. Frederick1appeals 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 

____________________________________________

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. . . . 

____________________________________________

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.

____________________________________________

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 

____________________________________________

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.

____________________________________________

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