J-S16040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY JOSEPH MARSICANO

Appellant No. 1047 MDA 2014

Appeal from the Judgment of Sentence April 16, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0003916-2012

BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED MAY 06, 2015

Anthony Joseph Marsicano appeals from the judgment of sentence 

entered on April 16, 2014, in the Court of Common Pleas of Luzerne County. 

Following a non-jury trial, Marsicano was found guilty of possession with 

intent to deliver marijuana, possession of a controlled substance –

marijuana, possession of a controlled substance – cocaine, and possession of 

drug paraphernalia.1 The trial court imposed an aggregate sentence of one 

day to 18 months’ incarceration and a consecutive six-month probationary 

term, and granted immediate parole. The sole issue raised by Marsicano in 

this appeal is “[w]hether [the] Trial Court erred in failing to suppress the 

physical evidence found in [Marsicano’s] apartment as a result of a 

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1 35 P.S. § 780-113(a)(30), (a)(16), (a)(16) and (a)(32), respectively.

 
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‘[p]rotective [s]weep’ performed by members of the Hazelton City Police 

Department.” Marsicano’s Brief at 1.2 Based upon the following, we affirm. 

We set forth the court’s findings of facts and those conclusions of law 

that specifically relate to the issue of the “protective sweep”:3

FINDINGS OF FACT:

1. On September 24, 2012, Anthony Pacelli, a resident of a 

first floor apartment located at 1017 East Broad Street, 

Hazleton, Pennsylvania, telephoned the 911 operator to 

complain of an odor of marijuana in the building. (N.T. 6)

2. Anthony Pacelli recognized the odor as marijuana from his 

work assignments. (N.T. 7)

3. Anthony Pacelli believed the odor of marijuana was 

emanating from the basement apartment, although, he 

could not make a definite determination.(N.T. 7; 9-10)

4. The basement apartment was occupied by the defendant 

Anthony Marsicano. (N.T. 7; 15)

5. Lt. Leonard and Officer Tray of the Hazleton Police 

Department responded to the basement apartment on 

September 24, 2012. (N.T. 32)

____________________________________________

2 Marsicano timely complied with the order of the trial court to file a 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, after 

the trial court granted Marsicano an extension of time to file the concise 

statement. Marsicano’s Rule 1925(b) statement is reflected on the trial 

court’s docket, and is numbered on the docket sheet for purposes of the 

certified record, but is missing from the certified record. A copy of the 

concise statement appears in the reproduced record.

3 The trial court’s findings are based upon the testimony provided at 

Marsicano’s preliminary hearing conducted on November 8, 2012, which was 

the only evidence submitted for the suppression hearing on June 17, 2013. 
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6. Upon arrival the officers knocked on the door of the 

apartment and [Marsicano] answered. (N.T. 32)

7. Lt. Leonard detected the extremely pungent odor of 

marijuana emanating from the basement apartment. (N.T. 

32)

8. While speaking with [Marsicano], Lt. Leonard could hear 

someone in the rear of the residence. When questioned 

about the noise, [Marsicano] denied there was anyone else 

in the apartment. (N.T. 33)

9. Lt. Leonard testified that [Marsicano] appeared to be under 

the influence of a controlled substance. (N.T.33)

10. While speaking to [Marsicano], Lt. Leonard observed a 

bulge in [Marsicano’s] right pocket. (N.T. 33)

11. While in the presence of Lt. Leonard [Marsicano] made 

repeated movements of his hand toward his pocket. (N.T. 

34)

12. As a result of his experience Lt. Leonard was aware that 

drug dealers often carry guns. (N.T. 34)

13. The presence of the bulge in [Marsicano’s] pocket and the 

movement of [Marsicano’s] hand toward the pocket caused 

Lt. Leonard to fear for his safety and as a result Lt. 

Leonard conducted a pat down search of [Marsicano] for 

weapons. (N.T. 34)

14. The presence of the bulge, the strong odor of marijuana 

and the noise coming from the apartment caused Lt. 

Leonard to suspect that there may be drug dealing going 

on in the apartment. (N.T. 33-34)

15. During the pat down Lt. Leonard detected a sandwich-size 

bag in [Marsicano’s] pocket which he recognized from his 

experience to be marijuana (N.T. 34)

16. When Lt. Leonard attempted to remove the packet from 

[Marsicano’s] pocket, [Marsicano] forcibly grabbed the 

officer’s hand. (N.T. 35).
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17. At this point [Marsicano] was placed in handcuffs. (N.T. 

35)

18. Lt. Leonard continued to hear noises in the apartment and 

noticed a figure, at which point he directed the individual 

to come forward and in response, Morgan Marcillio came 

out of the kitchen area. (N.T. 35)

19. Upon discovery of Ms. Marcillio, Lt. Leonard did a 

protective sweep to determine if anyone else was in the 

apartment. (N.T. 36)

20. During the protective sweep, Lt. Leonard opened a [living 

room] closet door; observed a Benson & Hedges gym bag, 

partially open, with green vegetable like substance, which 

he recognized to be marijuana. (N.T. 36)

21. [Marsicano] was then taken into custody and transported to 

Hazleton Police Department where a search of his person 

revealed five small clear plastic baggies containing 

suspected cocaine. (N.T. 37)

22. The items where [sic] field tested and results were positive 

for marijuana and cocaine. (N.T. 37-38)

CONCLUSIONS OF LAW:

....

5. Probable cause alone will not support a warrantless search 

or arrest in a residence ... unless some exception to the 

warrant requirement is also present ... Commonwealth v. 

Santiago[,] 736 A.2d 624, 631 (Pa. Super. 1999)[,] 

quoting Commonwealth v. Governs[,] 632 A.2d 1316, 

1322 (Pa. 1993); Commonwealth v. Johnson[, 68 A.3d 930 

(Pa. Super. 2013)].

6. The Pennsylvania Supreme Court has recognized the 

exigency created by the existence of hidden third parties 

during an arrest. Commonwealth v. Taylor[,] 771 A.2d 

1261 (Pa. 2001) citing Commonwealth v. Norris[,] 446 

A.2d 246 (Pa. 1982).
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7. The noises heard by Lt. Leonard coupled with the 

appearance of Ms. Marcill[i]o after [Marsicano] claimed to 

be alone created the exigency of hidden third parties 

during an arrest. Such exigent circumstances warranted 

the officers performing a protective sweep of the various 

rooms to make sure no one else was present. 

Commonwealth v. Johnson[, 68 A.3d 930 (Pa. Super. 

2013)].

8. One well-recognized exception to the warrant requirement 

is the protective sweep which is “a quick and limited 

search of premises, incident to an arrest and conducted to 

protect the safety of police officers and others[.]” Maryland 

v. Buie[,] 494 U.S. 325, 327 (1990); Commonwealth v. 

Taylor[,] 771 A.2d 1261 (Pa. 2001); Commonwealth v. 

Bostick[,] 958 A.2d 543 (Pa. Super. 2008)[.]

9. The Benson and Hedges bag which contained suspected 

marijuana was found in plain view during the protective 

sweep. Commonwealth v. Johnson[, supra], [Cf.] 

Commonwealth v. Galvin[,] 985 A.2d 783 (Pa. Super[.] 

2009)[.]

10. The contraband in the Benson and Hedges bag was 

lawfully seized.

Trial Court Order, 7/10/2014.

At the outset, we state our standard of review:

Our 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, we 

are bound by these findings and may reverse only if the 

court's legal conclusions are erroneous. The suppression
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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. Jones, 605 Pa. 188, 988 A.2d 649, 654 (Pa. 

2010), cert. denied, 562 U.S. 832, 131 S. Ct. 110, 178 L. Ed. 2d 

32 (U.S. 2010) (citations, quotations and ellipses omitted). 

Moreover, appellate courts are limited to reviewing only the 

evidence presented at the suppression hearing when examining 

a ruling on a pre-trial motion to suppress. See In the Interest 

of L.J., 79 A.3d 1073, 1083-1087 (Pa. 2013).

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2013). 

Marsicano states, “[u]nder the Pennsylvania Constitution ‘protective 

sweeps’ for persons must be supported by articulable facts and inferences

giving rise to a reasonable suspicion that the area to be swept harbors [an] 

individual posing danger to the police.” Marsicano’s Brief at 8, 11 (citation 

omitted). In this regard, Marsicano contends:

The [lieutenant] proceeded on an “inclination” the “possibility” 

that something may go wrong. This clearly does not meet the 

Constitutional requirement that First: the Pennsylvania 

Constitution guarantees individuals freedom from unreasonable 

searches and seizures; Second that [w]arrantless searches and 

seizures are unreasonable per se, unless conducted pursuant to 

a specifically established and well-delineated exception to the 

warrant requirement; Third in a private home searches and 

seizures without a warrant violate the Fourth Amendment absent 

PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES. Neither 

factor is alleged or set forth in the instant case.

Marsicano’s Brief at 11 (emphasis in original). 

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

appeal denied, 747 A.2d 364 (Pa. 1999), this Court explained that properly 

conducted protective sweeps violate neither the Fourth Amendment of the 
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United States Constitution nor Article I, Section 8 of the Pennsylvania 

Constitution. Generally, a warrant is required for a lawful search of a 

premises; however,

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

protective sweeps are a well-recognized exception to the 

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.
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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, 1281–1282 (Pa. Super. 2013), 

appeal denied, 83 A.3d 415 (Pa. 2013). 

A properly conducted sweep is for persons.

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. 

Crouse, supra, 729 A.2d at 598. 

Upon review, we conclude that the evidence of record supports the 

trial court’s factual findings and the court’s conclusions of law are correct. 

Upon Marsicano’s arrest in the threshold/hallway of the residence,4 pursuant 

to the “first level” of a protective sweep, the police officers could 

automatically “look in closets and other spaces immediately adjoining the 

place of arrest from which an attack could be immediately launched[.]” 

Potts, 73 A.3d at 1281. Furthermore, the evidence in this case 

demonstrates that Lieutenant Leonard had “articula[ble] specific facts to 

justify a reasonable fear for the safety of himself and others,” thereby 

warranting a “second level” protective sweep that exceeded the areas 

immediately adjacent to the location of the arrest. Id. at 1282.

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4 See N.T., 11/8/2012, at 35.
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The noise the officers continued to hear after Marsicano’s arrest 

coupled with the emergence of another person from the kitchen area, after 

Marsicano had claimed there was no one else in the apartment, provided an 

adequate basis for the officers to suspect that other people might be 

concealed in the residence. This exigency permitted police to check areas 

that might harbor other potential attackers further away from the arrest. 

Potts, 73 A.3d at 1282; see also Crouse, 729 A.2d at 598 (protective 

sweep of second floor of residence was permissible because in course of 

executing arrest warrant on first floor, police became aware that there were 

persons on the second floor hidden from view). The evidence shows that the 

protective sweep in this case was quick and was limited to spaces where a 

person could hide. See N.T., 11/8/2012, at 50. Therefore, Lieutenant 

Leonard lawfully opened a full-size door in the living room, finding a small 

closet behind, wherein marijuana was in plain view in a partially unzippered 

Benson and Hedges bag.5

Although the purpose of a protective sweep is to assure officer safety, 

police officers are not required to ignore contraband they encounter in the 

course thereof. Potts, 73 A.3d at 1282 (“If, while conducting a protective 

sweep, the officer should ... discover contraband other than weapons, he 

clearly cannot be required to ignore the contraband, and the Fourth 

____________________________________________

5 See N.T., 11/8/2012, at 50. 
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Amendment does not require its suppression in such circumstances.”); 

Crouse, 729 A.2d at 593 (evidence observed in plain view during a 

protective sweep is admissible).

As the officers had articulable facts to believe that there was a 

concern for their safety, the protective sweep was permissible. Accordingly, 

we find Marsicano’s argument presents no basis upon which to disturb the 

trial court’s denial of Marsicano’s motion to suppress.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/2015