J-A16023-16 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

VINCENT PAUL CHURCH, 

 Appellant No. 1244 WDA 2015 

Appeal from the Judgment of Sentence of July 14, 2015 

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0000465-2014 

BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ. 

MEMORANDUM BY OLSON, J.: FILED AUGUST 24, 2016 

 Appellant, Vincent Paul Church, appeals from the judgment of 

sentence entered on July 14, 2015. We affirm. 

 The suppression court made the following factual findings: 

Andrew Toth, a narcotics agent from the Office of the Attorney 

General, testified that he, along with Rostraver and Clairton 

police officers, were present at [Appellant’s] home [in] Belle 

Vernon, PA [on January 8, 2014]. The officers were armed with 

a search warrant but, prior to executing the warrant, observed 

the home for approximately three hours, or until 12:14 p.m. 

when [Appellant] was seen leaving. The plan was to conduct 

surveillance and, when [Appellant] left his home, to follow and 

stop him. 

Once [Appellant] was approximately one[-]half to one mile from 

his home, a marked police car pulled him over. Police did not 

have an arrest warrant nor was any traffic violation committed. 

In fact, when police hailed his vehicle, [Appellant] pulled over 

immediately. 
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[Appellant] was informed that there was a search warrant for his 

residence and for this reason he was being detained. Prior to 

being placed in the police vehicle[,] he was handcuffed and 

searched. The search revealed a snuff can located in his back 

pocket which was opened and found to contain [illegal 

narcotics]. 

Once in transit to his home, and thereafter, [Appellant] informed 

police that no one else was in the home and repeatedly 

requested that they use his key to open the door in order to 

avoid damaging it. Police then knocked and announced their 

identity, presence, and intent, waiting 45-60 seconds before 

using the key and entering the premises. Once inside, a search 

revealed narcotics in a white mug, [$3,000.00] in cash, and a 

safe for which a second warrant was obtained. Agent Toth 

stated that [Appellant] was arrested as a result of the items that 

were located during the search of the residence. 

Suppression Court Opinion, 2/18/2015, at 1-2 (internal citations omitted). 

The procedural history of this case is as follows. On February 13, 

2014, the Commonwealth charged Appellant via criminal information with 

possession of a controlled substance1 and possession of a controlled 

substance with intent to deliver.2 On May 21, 2014, Appellant filed an 

omnibus pre-trial motion which included a motion to suppress. A 

suppression hearing was held on September 30, 2014. 

On February 18, 2015, the suppression court entered findings of fact 

and conclusions of law and granted in part and denied in part Appellant’s 

motion to suppress. The suppression court granted the motion to suppress 

____________________________________________ 

1

 35 P.S. § 780-113(a)(16). 

2

 35 P.S. § 780-113(a)(30). 
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in regards to evidence recovered from the illegal traffic stop; however, it 

denied the motion to suppress in regards to evidence found in Appellant’s 

residence. Appellant filed a motion to reconsider, which was denied by the 

suppression court. 

Appellant proceeded with a stipulated bench trial on July 14, 2015. 

The trial court found Appellant guilty of both offenses and sentenced him to 

9 to 18 months’ incarceration. This timely appeal followed.3 

Appellant presents two issues for our review: 

1. Whether the police illegally executed the search warrant at 

the home of [A]ppellant [] in violation of Article I, § 8 of the 

Pennsylvania Constitution and Rule 207 of the Pennsylvania 

Rules of Criminal Procedure by the failure to comply with the 

knock and announce rule? 

2. Whether the police, by initially illegally arresting and detaining 

[A]ppellant [] and seizing his house key during that illegal 

detention, and thereafter using the illegally seized house key to 

gain entrance to his premises, illegally executed the search 

warrant? 

Appellant’s Brief at 3. 

Our “standard of review in addressing a challenge to the denial of a 

suppression motion is limited to determining whether the suppression court’s 

____________________________________________ 

3

 On August 6, 2015, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On August 26, 2015, Appellant filed his concise 

statement. On September 21, 2015, the trial court issued an order in lieu of 

an opinion referencing the suppression court’s findings of fact and 

conclusions of law. Both of Appellant’s issues were included in his concise 

statement. 
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factual findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct.” Commonwealth v. 

Garibay, 106 A.3d 136, 138 (Pa. Super. 2014), appeal denied, 123 A.3d 

1060 (Pa. 2015) (citation omitted). “[O]ur scope of review is limited to the 

factual findings and legal conclusions of the suppression court.” In re L.J., 

79 A.3d 1073, 1080 (Pa. 2013) (citation omitted). “We may consider only 

the Commonwealth’s evidence and so much of the evidence for the defense 

as remains uncontradicted when read in the context of the record as a 

whole.” Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation 

omitted). “Once a defendant files a motion to suppress, the Commonwealth 

has the burden of proving that the evidence in question was lawfully 

obtained without violating the defendant’s rights.” Commonwealth v. 

Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted). 

Appellant’s first claim asserts that the police illegally executed the 

search warrant for Appellant’s home by failing to comply with the knock and 

announce rule. That rule, however, does not apply in this case. Our 

Supreme Court recognizes four exceptions to the knock and announce rule: 

(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 will imperil 

their safety; and (4) the police have reason to believe that 

evidence is about to be destroyed. 

Commonwealth v. Means, 614 A.2d 220, 222-223 (Pa. 1992). In order to 

invoke one of these exceptions, police officers must only possess reasonable 
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suspicion that one of the exceptions is satisfied. Commonwealth v. Kane, 

940 A.2d 483, 489 (Pa. Super. 2007), appeal denied, 951 A.2d 1161 & 951 

A.2d 1163 (Pa. 2008). 

 The Commonwealth argues that the second exception to the knock and 

announce rule applies in this case. We agree. Contrary to Appellant’s 

contention, see Appellant’s Brief at 19, this Court has held that police have 

no obligation to knock and announce when they reasonably believe that the 

residence is unoccupied. See Commonwealth v. Baker, 522 A.2d 643, 

646-647 (Pa. Super. 1987) (holding that when the house is unoccupied, the 

second Means exception applies). In addition to Appellant’s statement to 

police that the residence was unoccupied, police independently acquired 

reasonable suspicion to believe that the residence was unoccupied. Officers 

surveilled Appellant’s residence for three hours prior to entering the 

residence. While doing so, they did not observe anyone, other than 

Appellant, enter or leave the residence. N.T., 8/29/2014, at 6, 14-15. 

Accordingly, Appellant is not entitled to relief on this issue. 

In his next issue, Appellant argues that the police illegally executed 

the search warrant by using his house key. Appellant’s Brief at 29. 

Specifically, Appellant contends that the house key was illegally seized from 

him as a result of his unlawful detention. The suppression court found, and 

the Commonwealth does not contest, that Appellant’s detention was 

unlawful. Suppression Court Opinion, 2/18/2015, at 4; Commonwealth’s 
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Brief at 13. Appellant argues that consent during an unlawful detention is 

ipso facto involuntary. 

 We find most of the cases cited by Appellant in his brief inapposite to 

the case at bar. In most of the cases cited by Appellant, police lacked an 

independent, legal justification to conduct the challenged search. Instead, in 

most of the cases cited by Appellant, the police only conducted the search 

because of the illegal detention. E.g., Commonwealth v. Acosta, 815 

A.2d 1078 (Pa. Super. 2003) (en banc), appeal denied, 839 A.2d 350 (Pa. 

2003); Commonwealth v. Key, 789 A.2d 282 (Pa. Super. 2001), appeal 

denied, 805 A.2d 521 (Pa. 2002). Here, the police had a valid search 

warrant authorizing entry into Appellant’s residence long before they 

detained him. 

 Appellant argues that Commonwealth v. Melendez, 676 A.2d 226 

(Pa. 1996), is “perhaps the most similar case to the present” case. 

Appellant’s Brief at 35. Although there are some similarities between the 

case sub judice and Melendez, the factual differences between the two 

cases are legally significant. In Melendez, the police illegally stopped 

Melendez 

then transported Melendez back to her house, where they used 

her keys to gain entrance. . . . Police then secured the house 

and its occupants and waited for communication as to whether 

or not the search warrant had been approved. For 

approximately an hour, police waited at the scene with both 

occupants of the dwelling, but did not conduct a search. Finally, 

the warrant arrived and they searched the house, finding drugs, 
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cash[,] and other evidence which was used to obtain the 

convictions. 

Id. at 227. Our Supreme Court held that the drugs, cash, and other 

evidence must be suppressed because they were the fruits of an illegal 

search. Id. at 228-230. Key to this determination was the fact that (1) 

Melendez did not voluntarily consent to police searching her residence and 

(2) “[g]overnment agents may not enter private dwellings through the use 

of battering rams . . . or by effecting illegal stops and seizures as in this 

case, and secure the premises by detaining those who occupy the premises 

while police wait to learn whether their application for a warrant has 

been approved.” Id. at 231 (emphasis added). 

 In this case, police did not search the residence based upon 

Appellant’s alleged consent like the police did in Melendez. Furthermore, in 

the case at bar, police already had a search warrant for the residence prior 

to illegally detaining Appellant. Police did not detain Appellant and then wait 

for their search warrant application to be approved. This distinction is 

critical because in Melendez police had no idea whether their search 

warrant application would be approved. Thus, their use of the key to enter 

the residence prior to approval and issuance of the search warrant violated 

the occupants’ rights under the United States and Pennsylvania 

constitutions. In this case, police already had a search warrant in hand. 

Thus, they had the authority to enter Appellant’s residence whether they 

used the key, a battering ram, or some other method. 
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 We find instructive our Supreme Court’s decision in Commonwealth 

v. Carlton, 701 A.2d 143 (Pa. 1997), for two reasons. First, in Carlton our 

Supreme Court held that police are authorized to use force when executing a 

search warrant if they possess reasonable suspicion that the residence is 

unoccupied. See id. at 147, citing Means, 614 A.2d 220. As noted above, 

police possessed reasonable suspicion that Appellant’s residence was 

unoccupied and thus they had the authority to use force to enter the 

residence. One option for the use of force was a battering ram; however, 

Appellant asked police not to use that option and to instead use his key. 

The use of the key, as Appellant argues, was a use of force. Police chose to 

use the manner of force requested by Appellant. By granting Appellant’s 

request, the police merely chose the least destructive option to enter the 

residence. Thus, the police neither requested nor recovered Appellant’s key 

for purposes of securing his consent to search the home and seize 

contraband maintained therein. The use of Appellant’s house key in this 

case was plainly practical, not evidentiary, as the suppression court correctly 

found. The remedy for evidence gathered during an illegal detention is 

suppression and he received that remedy in this case. Appellant’s effort to 

extend the remedy of suppression to preclude extra-judicial utility stretches 

our search and seizure jurisprudence too far. 

 That leads to the second reason we find Carlton instructive. In 

Carlton, our Supreme Court emphasized that one of the key reasons for the 
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knock and announce rule is to “prevent[] property damage resulting from 

forced entry during the execution of a search warrant.” Id. at 146, citing

Commonwealth v. Crompton, 682 A.2d 286 (Pa. 1996). If we adopted 

the reasoning advanced by Appellant, we would eviscerate this purpose by 

holding that the police could have legally searched the residence if they used 

a battering ram but their use of Appellant’s key invalidated the search. The 

knock and announce rule, and other United States and Pennsylvania 

constitutional jurisprudence, is meant to protect the privacy interests of 

citizens. We refuse to adopt a rule that not only encourages, but requires, 

that police destroy a citizen’s property in order to prevent suppression of 

evidence gathered pursuant to a lawful search warrant. 

 Appellant’s unlawful detention did not go unaddressed. The 

suppression court correctly suppressed all evidence seized from Appellant’s 

person. Furthermore, although the record is unclear as to whether the key 

was subject to the suppression court’s suppression order, the 

Commonwealth did not offer the key into evidence. Thus, Appellant got the 

full benefit of the suppression court’s ruling. Nothing gathered as a result of 

the illegal detention was used against him at trial. Police had the right to 

enter his home by virtue of the lawfully issued search warrant. The mere 

fact that police used Appellant’s key to enter his residence does not require 

the suppression of the items found in the residence. 
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Appellant also relies on the Court of Appeals of Ohio’s decision in Ohio 

v. Thompson, 659 N.E.2d 1297 (Ohio Ct. App. 1995), appeal dismissed, 

655 N.E.2d 738 (Ohio 1995), in support of his argument that using illegally 

seized keys to conduct a search requires suppression of any evidence found 

during that search. Contrary to Appellant’s argument, however, police did 

not have a search warrant for the vehicle they opened with the illegally 

seized keys. Instead, the police relied upon the defendant’s consent, which 

they received during the course of an illegal detention, to conduct the search 

of the vehicle. See Thompson, 659 N.E.2d at 1299. Therefore, 

Thompson is distinguishable from the case at bar for the same reasons that 

Acosta, Key, and similar cases are distinguishable. 

The police in this case unlawfully detained Appellant and the 

suppression court properly excluded evidence gathered as a result of that 

illegal detention. Nevertheless, the suppression court properly denied 

Appellant’s suppression motion as to evidence recovered from a search 

conducted pursuant to a lawfully issued search warrant. Accordingly, we 

affirm Appellant’s judgment of sentence. 

Judgment of sentence affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/24/2016