J-S23020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SEAN DUFFY CONOVER

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2374 EDA 2019

Appeal from the Judgment of Sentence Entered July 23, 2019

In the Court of Common Pleas of Chester County Criminal Division at 

No(s): CP-15-CR-0003475-2017

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 07, 2020

Sean Duffy Conover (Appellant) appeals from the judgment of sentence 

entered in the Chester County Court of Common Pleas following his non-jury,

stipulated-fact trial convictions of two counts of possession of a controlled 

substance with intent to deliver (PWID).1 Appellant avers the trial court erred 

in denying his pre-trial motion to suppress physical evidence based on the 

Pennsylvania State Police’s violation of the knock and announce rule during 

the execution of a search warrant. We affirm. 

The suppression court summarized the facts as follows:

On October 2, 2017, the Pennsylvania State Police were 

notified by the Department of Homeland Security that U.S. 

Customs and Border Protection had seized a parcel entering the 

United States that contained 306 grams of 3,4-

Methylenedioxymethamphetamine (MDMA), a Schedule I narcotic 

commonly known as “ecstasy” or “molly.” The package was 

____________________________________________

1 35 P.S. § 780-113(a)(30).
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addressed to [Appellant], and had a return label indicating it had 

originated in Düsseldorf, Germany. On October 3, 2017, the 

Pennsylvania State Police obtained an anticipatory search warrant 

for [Appellant’s] residence [ ] which would provide valid authority 

for police to enter and search that location only if the parcel was 

delivered to and was taken into the residence. The package was 

transferred to the Pennsylvania State Police, and the majority of 

the controlled substance in the parcel was seized and removed. A 

small amount, of MDMA, referred to as the “representative 

sample,” was left in the package for the purpose of a “controlled 

delivery,” a law enforcement tactic in which an officer poses as a 

courier and delivers a previously intercepted package of 

contraband.

The following day, October 4, 2017, a team of close to 

fifteen (15) law enforcement officers from multiple state and 

federal agencies arrived at [Appellant’s] residence to execute the 

warrant. The “controlled delivery” was performed by Trooper 

[Jen] Ruhl, who left the package on the doorstep of the residence 

between 10 and 11 a.m. [Appellant] thereafter opened the front 

door and brought the package into the house at approximately 11 

a.m. Approximately five (5) minutes later, the law enforcement 

agents moved to enter the house, with some “stacked up” to enter 

the front door and others covering the rear exits. PSP Sergeant 

Wysocki[2] handled the battering ram, while Trooper Jason Trupp 

was responsible for conducting the “knock and announce.” 

Trooper Trupp testified at the [suppression] hearing on November 

9, 2018 that he knocked on the door and said “state police, search 

warrant.” When there was no answer, he waited approximately 

five seconds, and knocked and announced again. This process 

was repeated four or five times, which took a total of 

approximately twenty to thirty seconds. After there was no 

response or detectable movement inside the residence, Sergeant 

Wysocki used the ram to force open the door[. Appellant] was 

located inside the residence and taken into custody. The package 

was discovered torn open on a bathroom floor, along with the 

representative sample contained therein and [Appellant’s]

shoes[.] Police also recovered other various controlled substances 

and drug paraphernalia from the residence, as well as a Mossberg 

Model 88 shotgun. 

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2 The record does not indicate Sergeant Wysocki’s first name. 
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Order, 12/20/18, at 2 n.1. 

Appellant was arrested and charged with numerous offenses. On April 

6, 2018, Appellant filed an omnibus pre-trial motion seeking suppression of 

the evidence seized from his residence, based on the alleged improper “knock 

and announce,” and the statement he made to police after his arrest. The 

trial court conducted a suppression hearing on November 9, 2018. Trooper 

Trupp testified about the circumstances surrounding this knock and announce: 

[Commonwealth:] Before you said state police, search warrant, 

had you knocked, or did you say that before knocking, or how did 

that process begin?

[Trooper Trupp:] I think generally I knock at least three times and 

I say state police, search warrant, and then I usually give it, oh, I 

don’t know, a couple seconds, and then I knock and announce 

again [sic].

Q. How many times did you knock during your time at the front 

door?

A. It was probably four to five times of three knocks.

Q. And each of those four to five times, was the pattern three 

knocks and then state police, search warrant, or how did that go?

A. Yes. It’s generally I go — I knock three times and I say state 

police, search warrant, give it a break, and then I'll knock again

—

THE COURT: I’m sorry. What was the last thing again?

* * *

[Trooper Trupp:] Break. I'll knock and then I'll say state police, 

search warrant, and then there'll be a —

THE COURT: Okay.
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[Trooper Trupp:] — break or a pause in time, and then I’ll knock 

again and say state police, search warrant.

[Commonwealth:] How long are these breaks?

[Trooper Trupp:] Maybe a couple of seconds.

Q. Meaning under five, more than five?

A. About five seconds.

Q. Approximately how long were you at the front door?

A. Oh, at the front door while we knocked and announced, 

probably about 20 to 30 seconds total.

N.T. Suppression H’rg, 11/9/18, at 18-20. 

Without objection from the Commonwealth, the trial court granted 

Appellant’s motion in part by suppressing the statements he made after his 

arrest. However, the court denied the motion in part by allowing the evidence 

recovered from the search and seizure of his residence. Order, 12/20/18. 

This matter proceeded to a non-jury trial on April 18, 2019, on two 

counts of PWID. The parties stipulated as to what testimony the 

Commonwealth’s witnesses would give if called to testify. N.T. Trial, 4/18/19, 

at 3, 12. Appellant did not testify or present any evidence. The trial court 

found him guilty of two counts of PWID.3 On July 23, 2019, the trial court 

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3 One count of PWID related to 24.80 grams of MDMA, and the second count 

related to 26.95 grams of “GHB.” N.T., 4/18/19, at 12-13.
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sentenced Appellant to an aggregate term of 111⁄2 to 23 months’ incarceration, 

to be followed by two years’ probation.

On August 12, 2019, Appellant filed a timely pro se notice of appeal.4 

On August 21st, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) 

concise statement of the errors complained of on appeal. Appellant’s trial 

counsel filed a motion for leave to withdraw, which sought appointment of 

appellate counsel on Appellant’s behalf, as well as an extension of time for 

new counsel to file a Rule 1925(b) statement. On September 5th, the trial 

court appointed current counsel, who then timely filed a Rule 1925(b) 

statement on November 4th. 

Appellant presents one issue for our review: 

Did the trial court err in denying Appellant’s motion for 

suppression of physical evidence based on the violation of the

knock and announce rule during execution of the search warrant 

thereby violating Appellant’s rights under the Fourth and 

Fourteenth Amendments and Article I Section 8 of the 

Pennsylvania Constitution?

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4 See Pa.R.Crim.P. 576(A)(4) (if represented criminal defendant submits for 

filing notice of appeal that has not been signed his attorney, clerk of courts 

shall accept it for filing, and copy of time-stamped document shall be 

forwarded to defendant’s attorney and Commonwealth within 10 days); 

Superior Ct. O.P. § 65.24 (pro se notice of appeal received from trial court 

shall be docketed, even where appellant is represented by counsel); 

Commonwealth v. Wooden, 215 A.3d 997, 1000 (Pa. Super. 2019) 

(although defendant’s attorney remained as counsel of record, it was proper 

for trial court clerk and Superior Court’s Prothonotary to docket defendant’s

pro se notice of appeal).
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Appellant’s Brief at 5. Appellant avers the Pennsylvania State Police violated 

his constitutional rights by not conducting a reasonable knock and announce. 

Appellant claims police failed to wait a reasonable amount of time after 

announcing their presence and before forcibly entering his residence to 

effectuate the search warrant. Appellant also points out that at the 

suppression hearing, the Commonwealth conceded there were no exigent 

circumstances that would have allowed police to enter the home immediately. 

Appellant’s Brief at 27-28, citing N.T., 11/9/18, at 39. No relief is due.

Our standard of review for the denial of a suppression motion is wellestablished:

[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. . . .

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation 

omitted). 

Pennsylvania’s knock and announce procedures are governed by

Pa.R.Crim.P. 207:

(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 
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premises specified in the warrant, unless exigent circumstances 

require the officer’s immediate forcible entry. 

(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(A)-(C). This Court has stated:

“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.” The purpose of the rule may be achieved only 

through police officers’ full compliance. 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.” Our Supreme Court has determined that “the remedy 

for noncompliance with the knock and announce rule is always 

suppression.”

During a suppression hearing, the Commonwealth bears the 

burden of proving that the police seized evidence without violating 

defendant’s constitutional rights. “The Commonwealth can satisfy 

its burden by establishing either that the police complied with the 

knock and announce rule or that the circumstances satisfied an 

exception.”

Commonwealth v. Frederick, 124 A.3d 748, 755 (Pa. Super. 2015) 

(citations and some emphasis omitted). 

The trial court explained the factual and legal rationale for denying, in 

part, Appellant’s motion to suppress:
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In this case, Trooper Trupp first complied with Pa.R.Crim.P. 

207(A) by knocking on the door of [Appellant’s] residence, 

identifying himself as the state police, and stating that they were 

present to serve a search warrant. After this first knock and 

announce, he waited approximately five seconds, and when there 

was no response, he knocked and announced again. This process 

was repeated four or five times, and according to the trooper it 

took between twenty to thirty seconds. Trooper Trupp’s serial 

knocking and announcing gave [Appellant], or any other occupant 

of the residence, repeated notice that the police were present to 

serve a search warrant. Police forced entry only after failing to 

receive any response; or perceiving any activity in the residence, 

after knocking on the front door and announcing “state police, 

search warrant” no less than four times. We find that this was a 

“reasonable period of time” before making entry pursuant to Rule 

207. Moreover, the search warrant was served at approximately 

11:00 a.m., distinguishing this case from a potential scenario 

where a warrant is served early in the morning or late at night, a 

time when the occupant may not be able to simply proceed 

directly to the door due to being asleep or undressed.

We are unpersuaded by [Appellant’s] argument that service 

of the warrant was unreasonable due to the police allegedly 

“planning” to take down the door and break into the house. Police 

have the right to be prepared to make a forced entry into a place 

upon which they are serving a lawful search warrant, including 

being equipped with a battering ram. There is no evidence that 

police were intending to break into the house regardless of any 

answer to the knock and announce, and they fully complied with 

the requirements of Rule 207. Counsel for [Appellant] also invited 

the court’s attention to an August 20, 2018 order . . . in 

Commonwealth v. . . . Muse, CR-4247-17, granting a motion to 

suppress filed by counsel for another client based on a violation of 

the “knock and announce” rule. However, the facts in Muse are 

distinct from those before us in this case. The Commonwealth in 

Muse alleged that there were exigent circumstances that voided 

the usual knock and announce requirements, while in this case the 

Commonwealth is not arguing exigency. Likewise, the police in 

Muse forced entry with a battering ram a mere one to five seconds 

after they knocked and announced, while in this case the police 

knocked and announced multiple times and only forced entry after 

no response was received after twenty to thirty seconds.

Order, 12/20/18, at 3-4 n.1. 
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Our review of the record supports the suppression court’s findings of 

fact, as well as its conclusion that the Commonwealth established the evidence 

was not obtained in violation of Appellant’s rights. See Smith, 164 A.3d at

1257. Appellant’s argument would require this Court to reweigh Trooper 

Trupp’s testimony and supplant the trial court’s credibility findings with our 

own; this we cannot do. See id.

In conclusion, we do not disturb the trial court’s finding that the 

Pennsylvania State Police waited a reasonable amount of time after knocking 

and announcing their presence before entering the home.

Judgment of sentence affirmed. 

President Judge Emeritus Ford Elliott joins this memorandum.

Judge Nichols concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/20