J-S14029-24

2024 PA Super 130

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DAVID A. MCMASTER, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1354 MDA 2023

Appeal from the Order Entered August 17, 2023

In the Court of Common Pleas of Adams County 

Criminal Division at No(s): CP-01-CR-0000266-2023

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

OPINION BY PANELLA, P.J.E.: FILED JUNE 25, 2024

The Commonwealth of Pennsylvania appeals from the Adams County 

Court of Common Pleas’ order granting in part David A. McMaster, Jr.’s motion 

to suppress evidence. After careful review, we reverse and remand for further 

proceedings. 

In its opinion, the suppression court summarized its findings of fact

leading to the court’s decision to grant, in part, suppression, as follows: 

1. Officer Corey Ammerman (hereinafter “Officer Ammerman”) is 

employed by the Conewago Township Police Department. Officer 

Ammerman has been a law enforcement officer for approximately 

fourteen years.

2. Officer Ammerman has been involved in hundreds of 

encounters dealing with individuals suspected to be under the 

influence of controlled substances.

3. Detective Burnell Bevenour (hereinafter “Detective Bevenour”) 

is employed as a Detective with the Conewago Township Police 
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Department and has been a police officer for approximately 

seventeen years.

4. Detective Bevenour has been involved in hundreds of 

encounters dealing with individuals suspected to be under the 

influence of controlled substances.

5. On December 7, 2022, at approximately 3:00 p.m., Officer 

Ammerman was dispatched to the residence located at 2982 

Hanover Pike, Conewago Township, Adams County, Pennsylvania 

for the report of an unclothed male subject screaming in the back 

yard of a neighbor. While traveling to the residence, Officer 

Ammerman was advised the male subject had moved to the front 

of the residence and was in the roadway on Hanover Pike.

6. When Officer Ammerman arrived at the residence, he observed 

[McMaster] walking along Hanover Pike in front of his residence, 

completely naked.

7. Officer Ammerman approached [McMaster] and observed 

[McMaster] was naked, incoherent, excited, jumping around and 

appeared to be under the influence of controlled substances.

8. Based on Officer Ammerman's observation of [McMaster], and 

for [McMaster]’s safety, Officer Ammerman secured [McMaster] 

with handcuffs. Officer Ammerman advised [McMaster] that an 

ambulance was called.

9. For proper medical treatment, Officer Ammerman questioned 

[McMaster] as to what controlled substances he had taken.

10. [McMaster] appeared incoherent, but eventually advised 

Officer Ammerman that he had consumed Ketamine and had 

huffed butane gas.

11. Officer Ammerman asked [McMaster] if anyone else was in the 

residence and [McMaster] did not respond. Officer Ammerman 

asked [McMaster] several times if he lived alone, and [McMaster] 

subsequently responded, “I live by myself”.

12. Officer Ammerman did not observe any injuries on 

[McMaster].
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13. Detective Bevenour arrived at the residence approximately 

three minutes after Officer Ammerman.

14. In the rear of the residence, Detective Bevenour observed that 

a doorway to an exterior porch and a doorway into the residence 

through the porch were both open. From outside the porch, 

Detective Bevenour observed that the inside of the house 

appeared to be in disarray, and there were items thrown on the 

floor and trash everywhere.

15. Detective Bevenour observed a butane lighter on the ground 

outside of the rear porch.

16. Based on Detective Bevenour's observations of [McMaster], 

[McMaster]’s statements that he had ingested Ketamine and 

inhaled butane, [McMaster]’s lack of response to the question 

whether anyone else was present in the residence, and Detective 

Bevenour’s observation that the kitchen was in disarray, Detective 

Bevenour conducted a protective sweep of the residence. 

Detective Bevenour was concerned there could be person(s) in the 

residence suffering from a potential overdose or medical 

emergency.

17. Before entering the residence, Detective Bevenour announced 

his presence as a police officer.

18. During the protective sweep of the residence, Detective 

Bevenour observed, in plain view, suspected controlled 

substances, drug paraphernalia and a mushroom growing 

operation.

19. The sweep lasted less than five minutes and no individuals 

were present in the residence.

20. Following the sweep, Conewago Township Police secured 

[McMaster]’s residence, obtained a search warrant for the 

residence, and seized numerous items of suspected controlled 

substances and drug paraphernalia.

21. After receiving medical attention, [McMaster] was 

subsequently charged with manufacture or possession with intent 

to manufacture a controlled substance, possession of a controlled 

substance, possession of drug paraphernalia, disorderly conduct 
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as a misdemeanor of the third degree and indecent exposure as a 

misdemeanor of the first degree.

22. Officer Ammerman was wearing a body camera during the 

incident. The video footage and audio recording were marked as 

Commonwealth Exhibit 1 and entered into evidence during the 

suppression hearing on July 20, 2023. This [c]ourt reviewed the 

body camera footage, including the audio.

23. This [c]ourt finds the testimony of Officer Ammerman and 

Detective Bevenour credible.

Suppression Court Opinion, 8/17/23, at 1-4. 

The Commonwealth charged McMaster with public drunkenness, 

indecent exposure, disorderly conduct, and various drug possession offenses 

including possession with intent to deliver. 

McMaster filed an omnibus pre-trial motion for suppression of evidence, 

namely his statements made to police, and any physical evidence obtained 

from the searches of his residence. 

On July 20, 2023, the court held a suppression hearing during which the 

Commonwealth presented the testimony of Officer Ammerman and Detective 

Bevenour. McMaster did not present any testimony. After taking the matter 

under advisement, the suppression court entered an order granting the motion 

to suppress in part and denying the motion in part. Specifically, the court 

denied suppression of McMaster’s statements made to police. However, the 

court granted suppression of evidence seized based on the initial warrantless 

entry into McMaster’s residence. This timely appeal followed. 
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On appeal, the Commonwealth argues the suppression court erred 

“when it granted in part the portion of [McMaster]’s omnibus motion 

requesting suppression of evidence discovered in a warrantless search of 

[McMaster]’s residence.” Appellant’s Brief, at 4. 

When this Court reviews a Commonwealth appeal from an order 

granting suppression, as we are tasked to do here, we may only consider the 

evidence produced at the suppression hearing by the defendant’s witnesses, 

along with the Commonwealth’s evidence that remains uncontradicted. 

Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021). We must determine, 

in the first instance, whether the suppression court’s factual findings are 

supported by the record and if they are, we are bound by those findings. See 

id. We must also keep in mind that the suppression court, as fact-finder, has 

the exclusive role of passing on the credibility of witnesses. See 

Commonwealth v. Fudge, 213 A.3d 321, 326 (Pa. Super. 2019). Therefore, 

“we will not disturb a suppression court’s credibility determinations absent a 

clear and manifest error.” Id. at 326 (citation omitted).

Here, the record supports the suppression court’s factual findings as set 

forth at the suppression hearing. However, unlike the deference we give to 

the suppression court’s factual and credibility findings, we have de novo

review over the suppression court’s legal conclusions. See Commonwealth 

v. Brown, 996 A.2d 473, 476 (Pa. 2010). Accordingly, we must determine 
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whether the legal conclusions the suppression court drew from its factual 

findings are correct. See Barr, 266 A.3d at 39.

The court explained that it granted suppression of the physical evidence 

seized during a search of McMaster’s residence because it found the initial 

warrantless search was not justified as a protective sweep. See Suppression

Court Opinion, 8/17/23, at 12-13.

In a brief memorandum filed with the court in response to McMaster’s 

suppression motion, the Commonwealth asserted the police entry into 

McMaster’s residence was permitted under the protective sweep doctrine. In 

support of this argument, the Commonwealth cited to Commonwealth v. 

Davido, 106 A.3d 611 (Pa. 2014) and Commonwealth v. Caple, 121 A.3d 

511, 514 (Pa. Super. 2015). 

In Davido, the police responded to an anonymous 911 call to

“investigate a ‘domestic situation’ that involved a ‘man .... hitting a woman[,]’ 

and were informed en route that loud screaming had been heard from inside 

the residence.” Davido, 106 A.3d at 616 (record citation omitted). When they 

arrived minutes later, the residence was quiet, and no one answered the door. 

Accordingly, “[r]responding to a ‘gut feeling’ that someone inside might be 

injured or otherwise in need of assistance, one officer entered the residence 

through an unsecured window, unlocked a deadbolt on the front door, and 

admitted the other officer.” Id. at 616-17 (record citation omitted). The 
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officers announced themselves as they proceeded to search the residence for 

any injured persons. See id. at 617. 

In reviewing Davido’s appeal, the Pennsylvania Supreme Court 

emphasized that “the potential for imminent physical harm in the domestic 

context implicates exigencies that may justify a limited police intrusion into a 

dwelling.” Id. at 623 (citation omitted). While it refused to hold that domestic 

abuse cases create a per se exigent need for warrantless entry, the Court 

stated:

We do recognize, however, that the police have a duty to respond 

seriously to reported domestic conflict situations, and in doing so, 

they must be accorded some latitude in making on-the-spot 

judgments as to what actions to take and what actions are 

reasonably necessary to protect themselves and potential victims 

of abuse. 

... 

... Here, the 911 call reporting domestic violence contained the 

fairly specific details that a man was beating a woman within a 

specifically identified residence, and a separate report indicated 

that screaming could be heard emanating from within that 

residence. Yet, when the officers arrived at the scene shortly 

before 8:00 a.m. on that Sunday morning, approximately three 

minutes after the 911 call had been received, no one answered 

the door, and no sound could be heard except the unanswered 

ringing of a telephone within the residence. 

Id. at 623-24. The Davido Court noted the officer's initial search was limited 

to a search for persons in need of assistance; a subsequent search for 

evidence was conducted only after a warrant was secured. See id. at 625.

Upon these facts, the Supreme Court concluded “the officers’ entry into the 
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home was justified under the recognized ‘persons in immediate need of 

assistance’ exigency exception to the warrant requirement[.]” Id. 

In Caple, officers were dispatched to a motel for a report of a domestic 

assault. The victim called 911 and sounded “extremely hysterical.” Caple, 121 

A.3d at 518 (record citation omitted). The victim stated she had been 

assaulted, that the assault had occurred in room 115, and that she had been 

in rooms 115 and 215. See id. Upon arrival at the motel, the officers spoke 

with two women who were occupying room 115 and learned that an assault 

had just occurred. The women directed the officers to room 210. In the 

meantime, the officers received another radio transmission that the victim 

could possibly be in room 215. The officers knocked loudly on the door of room 

215 and announced "police", attempting to locate the victim, to no avail. The 

officers asked the manager to open the door. A female was located within the 

room who was not the assault victim. The officers observed two metal crack 

pipes on top of a dresser in room 215. Room 215 was secured, and a search 

warrant was obtained for the room. The assault victim was identified, and it 

was determined that the domestic assault occurred in room 115 of the motel. 

When police encountered the victim, they observed her face was swollen, she 

had a cut on her lip, and she was visibly upset. Based on the totality of the

circumstances, the Court concluded the police were justified in their 

warrantless entry of Room 215. See id. at 519. The exigent circumstances of 

the information the officers had received, and the fact that they had not 
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located the victim, “allowed the officers to take ‘immediate action’ and enter 

Room 215 without a warrant to prevent further harm.” Id. 

The suppression court found the Commonwealth’s reliance on Davido 

and Caple under the current facts was “misplaced and not supported by the 

facts.” Suppression Court Opinion, 8/17/23, at 11. We disagree. 

While the facts may not be as specific as the reports of domestic violence 

in Davido and Caple, we nevertheless conclude the suppression court erred 

when it found Detective Bevenour’s minimally invasive protective sweep to 

confirm that no one was injured or overdosing, was improper.

Here, the circumstances presented to Detective Bevenour — McMaster’s 

erratic behavior, McMaster’s statements that he had ingested Ketamine and 

inhaled butane, McMaster’s lack of response to the question whether anyone 

else was present in the residence, and Detective Bevenour's observation that 

the kitchen was in disarray — along with Detective Bevenour’s experience with 

overdose and medical emergency situations, provided him with an objectively 

reasonable belief that someone inside the residence may be in need of 

immediate aid.

Indeed, the suppression court itself found that Detective Bevenour’s 

motive for conducting the protective sweep – to ensure there was no one in 

the residence who needed medical attention or was suffering from a potential 

overdose – was sincere. See Suppression Court Opinion, 8/17/23, at 12-13

(“This [c]ourt finds that Detective Bevenour’s motive for conducting the 
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protective sweep of [McMaster]’s residence was sincere to ensure there was 

no one in the residence who needed medical attention or was suffering from 

a potential overdose.”). Notwithstanding this finding, the court concluded a 

protective sweep was not warranted because there was no reasonable 

evidence of a domestic abuse situation. See id. at 13. 

However, the exception in question does not require the existence of a 

domestic situation. The legal standard to be applied where police will be 

excused from the warrant requirement has been set forth as follows:

Generally, the police will be excused from compliance with 

the warrant and probable cause requirements of the Fourth 

Amendment to the United States Constitution in only limited 

circumstances. One of these circumstances is when the police 

reasonably believe that someone within a residence is in need of 

immediate aid. Additionally, it is widely recognized that situations 

involving the potential for imminent physical harm in the domestic 

context implicate exigencies that may justify limited police 

intrusion into a dwelling in order to remove an item of potential 

danger. The relevant inquiry is whether there was an objectively 

reasonable basis for believing that medical assistance was 

needed, or persons were in danger. [T]he calculus of 

reasonableness must embody allowance for the fact that police 

officers are often forced to make split-second judgments in 

circumstances that are tense, uncertain and rapidly involving. 

Commonwealth v. Potts, 73 A.3d 1275, 1280-81 (Pa. Super. 2013) 

(citations and internal quotation marks omitted). 

While this exigency often occurs in domestic situations, such as the case 

in Davido and Caple, the reasoning regarding exigencies in general is 

nevertheless sound in other contexts as well. See Commonwealth v. Hand, 

2579 EDA 2016 (Pa. Super. Filed July 25, 2017) (unpublished memorandum) 
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(concluding investigating officer's minimally intrusive act of moving aside 

drapes to confirm no one was in immediate need of aid after a potential armed 

home invasion did not violate constitutional rights); Commonwealth v. 

Wilmer, 296 MDA 2016 (Pa. Super. Filed December 5, 2016) (unpublished 

memorandum) (finding initial warrantless entry into sorority house justified 

due to emergency circumstances involving an inebriated person on the roof). 

Here, the police discovered McMaster behaving in a bizarre and erratic 

manner, and concluded he was clearly under the influence of controlled 

substances. After asking a few times if he lived alone, McMaster claimed to 

live alone. However, McMaster did not respond when the officers asked if there

were anyone else in the residence. After arriving at the scene, Detective 

Bevenour walked around the property to check if anybody else might be there 

and might need medical attention. See N.T, 7/20/23, at 22. Detective 

Bevenour observed that at the rear of the house, an exterior screen door and 

interior door to the house were both open. From the porch, Detective 

Bevenour observed that the inside of the house was in disarray. Based on his

experience with overdose and medical emergency situations, Detective 

Bevenour was concerned there may have been somebody else in inside the 

house. See id. at 24. Detective Bevenour decided to make a protective sweep 

of the residence to ensure nobody else needed medical attention or help. See 

id. Detective Bevenour announced himself as the police and requested that 

anybody show themselves during the search. The search covered three floors 
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and took less than five minutes. The search was only of general areas where 

people might be laying and did not include opening any drawers. 

Detective Bevenour credibly testified that he was concerned there could 

be a person in the residence suffering from a potential overdose or medical 

emergency. Detective Bevenour’s concern was based on his observations of 

McMaster, McMaster’s statements that he had ingested Ketamine and inhaled 

butane, McMaster’s lack of response to the question whether anyone else was 

present in the residence, and Detective Bevenour's observation that the 

kitchen was in disarray.

Based on the totality of the circumstances, we agree with the 

Commonwealth’s contention that the officer’s actions were proper. 

Accordingly, we conclude the suppression court erred when it 

determined the detective’s minimally intrusive protective sweep violated 

McMaster’s constitutional rights. Accordingly, we reverse that part of the 

suppression order which granted suppression of physical evidence, and 

remand for further proceedings. All other parts of the suppression order to 

remain the same. 

Order reversed in part. Case remanded for proceedings consistent with 

this opinion. Jurisdiction relinquished.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 06/25/2024