J-A06037-22

2023 PA Super 136

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL GOODIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 701 WDA 2021

Appeal from the Judgment of Sentence Entered January 8, 2021

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0001278-2017

BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*

OPINION BY COLINS, J.: FILED: July 28, 2023

Appellant, Michael Goodis, appeals from the judgment of sentence 

imposed for his convictions of dissemination of child pornography, possession 

of child pornography, and criminal use of a communication facility.

1

 Because 

the trial court erred in denying Appellant’s motion to suppress evidence 

obtained from a search of his house that violated his rights under the 

Pennsylvania Constitution, we are constrained to vacate Appellant’s 

convictions and judgment of sentence and remand this case for a new trial. 

This case arises out of events in 2014. Between May 14, 2014 and June 

1, 2014, Detective Robert Erdley, an Indiana County internet crimes against 

children investigator, ran searches for child pornography on the internet using 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6312(c) and (d) and 18 Pa.C.S. § 7512, respectively. 
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a law enforcement version of the BitTorrent file sharing program. N.T. Trial 

at 72-77, 80-82. In this investigation, Detective Erdley downloaded 22 files 

that contained child pornography from IP address 71.60.15.7. Id. at 82-92, 

95-96, 104. The BitTorrent program that the IP address 71.60.15.7 was using 

to transmit these files was uTorrent 3.4.1, a program that runs on Windows 

and Mac computers. Id. at 108. In response to a court order, Comcast, the 

internet company that issued the IP address, identified IP address 71.60.15.7 

as belonging to Appellant at his house in Export, Pennsylvania in 

Westmoreland County. Id. at 99-102.

Detective Erdley provided the information from his investigation to 

Lieutenant Robert Jones, a Greensburg, Westmoreland County police officer, 

who on September 18, 2014 applied for and obtained a search warrant for 

Appellant’s house authorizing search for and seizure of computer hardware, 

computer processing units, including storage devices, and computer input and 

output devices. N.T. Trial at 102, 135, 186, 205-06; Defendant’s Ex. D. 

Lieutenant Jones and two Murrysville police officers executed the search 

warrant the same day and seized a computer tower, a tablet computer, a 

Synology DiskStation network-attached storage device (NAS), and some other 

external hard drives and flash drives. N.T. Trial at 135, 137-40, 146, 152,

155, 205-06.

Lieutenant Jones did a full forensic examination of the computer tower 

and all of the external drives other than the NAS and found no child 
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pornography on any those items. N.T. Trial at 141-43, 146-48, 211, 215, 

217-18. Lieutenant Jones examined the tablet using the access code provided 

by Appellant through his counsel and found no child pornography on it. Id.

at 148-51, 211. Lieutenant Jones did not examine the NAS until February 15, 

2017, and when he began to make a forensic image of one of the four drives 

of that device, the NAS had degraded to 33% and the drive made sounds 

indicating imminent failure. Id. at 155-58, 162-63, 225-26, 243. Because 

Lieutenant Jones believed that the NAS was likely to fail before forensic 

imaging could be completed, he put the drive back in the NAS and instead 

attached the NAS to his router, which had no internet access, and accessed 

the NAS through its web interface. Id. at 158-65. The NAS did not require 

inputting of a password to access its contents. Id. at 162, 229.

Lieutenant Jones found more than 30 child pornography files on the NAS 

in a folder labeled “mtemp” with the file path “MEGABIZV3/Data/C/Users/Michael/Desktop/mtemp” that appeared to be backup from 

a Windows computer with the network name MEGABIZ-V3. N.T. Trial at 165-

82, 184-88. Many of these files bore names that indicated that they related 

to sex acts with minors. Id. at 177-81, 185-86; Commonwealth Exs. 7-8, 10, 

14, 16. Lieutenant Jones made a copy onto another device of the NAS’s entire 

backup of the MEGABIZ-V3 computer. N.T. Trial at 165-66, 191, 230-31.

No computer with the name MEGABIZ-V3 was found in the search of 

Appellant’s house. N.T. Trial at 167, 202. The child pornography files found 
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by Lieutenant Jones on the NAS were different from the child pornography 

files downloaded by Detective Erdley and none of the files downloaded by 

Detective Erdley was found on the NAS or any other computer devices seized 

from Appellant’s house. Id. at 178-80, 184-88, 239. 

On February 21, 2017, Appellant was charged with dissemination of 

child pornography, possession of child pornography, and criminal use of a 

communication facility. Appellant filed a motion to suppress the evidence 

seized from his house on the ground that the search was conducted in violation 

of the requirement that police announce their identity, purpose, and authority 

before entering. The trial court held two evidentiary hearings on the motion 

to suppress at which Appellant, Lieutenant Jones, and the two Murrysville 

police officers who executed the search warrant with Lieutenant Jones all 

testified. In addition, security camera video and audio recordings of the 

officers’ entry into Appellant’s house to execute the search warrant were

admitted in evidence. On September 17, 2018, the trial court entered an 

order denying Appellant’s motion to suppress. Appellant filed a motion for 

reconsideration of the denial of his suppression motion, which the trial court 

denied. 

The NAS, which Lieutenant Jones had left running after he made his 

copy of the MEGABIZ-V3 backup, crashed and ceased being able to function 

in 2020. N.T. Trial at 241-42. Before the NAS failed, expert witnesses for 
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Appellant had an opportunity to examine the NAS in November 2018 and 

September 2019. Id. at 243-44. 

A jury trial was held from October 7, 2020 to October 9, 2020. The 

Commonwealth called Detective Erdley and Lieutenant Jones, who testified 

concerning their investigations and what they found as set forth above. Both 

of these witnesses testified as expert witnesses, Detective Erdley as an expert 

in the field of internet crimes against children, file sharing, and internet 

protocol and Lieutenant Jones as an expert in the field of forensic computer 

examination. N.T. Trial at 58, 128. It was stipulated by Appellant that the 

files downloaded from Appellant’s IP address and more than 30 files found in 

the MEGABIZ-V3 mtemp folder on Appellant’s NAS contained photographs, 

videotapes or computer depictions of children under the age of 18 engaging 

in prohibited sex acts. Id. at 104, 187-88. Appellant testified on his own 

behalf and called two expert witnesses, a computer forensics expert who had 

examined the NAS and an expert in computer security and computer 

networks. 

Appellant testified that he was unaware of the child pornography files 

that were sent by his IP address and found on the NAS and that he never put 

any child pornography and his computers and devices or shared or possessed 

child pornography. N.T. Trial at 319-21. Appellant testified that he purchased 

the NAS in March or May of 2013 and that he set up the NAS for remote 

access. Id. at 309, 370. Appellant testified that MEGABIZ-V3 was a computer 
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that he had owned and gave away to a friend in 2013 and that the MEGABIZV3 folders on the NAS came from previous backup devices that were 

subsequently backed up on the NAS, but testified that he put some files in 

MEGABIZ-V3 folders after he had the NAS and no longer had MEGABIZ-V3. 

Id. at 313-17, 331-32. Appellant testified that he was in the business of 

producing audio for television commercials, games, and other video 

productions and that he used his computers for that work. Id. at 299-303. 

Appellant testified that his wireless router was not password protected in 2014 

because clients and people he was working with used the computers and he 

did not want to have to constantly give out the password. Id. at 304, 336-

37. Appellant testified that one of his neighbors was within wireless range of 

his house. Id. at 304-06, 336. Appellant also identified a screenshot of his 

wireless router’s port configuration that he testified that he took in 2014 

before his NAS and other computer equipment were seized, and that 

screenshot was admitted in evidence. Id. at 371-75; Defendant’s Ex. E. 

Appellant’s computer forensics expert testified that third parties within 

range of the owner’s wireless router can access a computer from outside the 

owner’s network if the network is not password protected. N.T. Trial at 280-

81, 291-93, 296-97. The computer forensics expert also testified that he 

obtained system logs from the NAS when he examined it in 2019 and those 

logs were admitted in evidence. Id. at 268-70; Defendant’s Ex. C. Appellant’s 

computer security and computer networks expert testified that the port 
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configuration in the screenshot identified by Appellant made Appellant’s NAS 

vulnerable to internet access by outsiders. N.T. Trial at 397-401. He also 

testified that the NAS system logs showed that the NAS was not turned on 

between September 18, 2014 and March 20, 2017 and was not turned on in 

February 2017, when Lieutenant Jones testified that he examined it and found 

the child pornography. Id. at 410-18, 431.

On October 9, 2020, the jury convicted Appellant of one count of 

dissemination of child pornography, 30 counts of possession of child 

pornography, and one count of criminal use of a communication facility. N.T. 

Trial at 547-49. The trial court, on January 8, 2021, sentenced Appellant to 

a term of imprisonment of one year less one day to two years less one day for 

the dissemination of child pornography conviction and seven years’ probation 

for the criminal use of a communication facility conviction and each of the 

possession of child pornography convictions. Sentencing Order. The trial 

court ordered that all of the probation sentences were to be served 

consecutive to the imprisonment sentence and concurrent to the other 

probation sentences and also imposed 25-year registration under the Sex 

Offender Registration and Notification Act2 on Appellant. Id.

Appellant filed a timely post sentence motion challenging the sufficiency 

and weight of the evidence and also seeking a new trial on the grounds that 

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2 42 Pa.C.S. §§ 9799.10-9799.42.
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the Commonwealth spoliated evidence by allowing the NAS to degrade and 

fail without obtaining a forensic image, that the trial court erred in admitting

in evidence an internet forum post concerning the firmware in the router port 

configuration to which Appellant testified, and that trial counsel was ineffective 

in failing to object to statements by the Commonwealth in its opening and 

closing. The trial court held a hearing on Appellant’s post sentence motion on 

March 12, 2021 at which it heard testimony from Lieutenant Jones on the 

spoliation issue and heard argument on the other issues in the post sentence 

motion. On May 18, 2021, the trial court entered an order denying Appellant’s 

post sentence motion. This timely appeal followed. 

In this appeal, Appellant presents the following six issues for our review: 

1. At trial, did the court err when it admitted wholesale an 

anonymous internet forum post, which the prosecutor then relied 

on repeatedly to challenge the credibility of the defendant and a 

defense expert? 

2. At trial, did the court err when it allowed the prosecutor to 

challenge a defense expert to forensically examine a computer 

device in court, when the Commonwealth had destroyed that 

device and conceded that it could not be examined? 

3. At trial, did the prosecutor’s inflammatory rhetoric and personal 

opinions prejudice the jury, and was defense counsel ineffective 

in failing to object? 

4. Did the trial court err in denying defendant’s pretrial motion to 

suppress where video evidence plainly showed that officers 

executing a search warrant failed to announce their presence and 

purpose before entering, and no exigency applied? 

5. Did the trial court err in finding that the evidence was sufficient 

to sustain the verdict, where no evidence of defendant’s 

knowledge was presented? 
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6. Did the trial court abuse its discretion in finding that the verdict 

was not against the weight of the evidence? 

Appellant’s Brief at 4-5 (trial court’s answers omitted). We first address 

Appellant’s fifth issue, the sufficiency of the evidence claim, and then address 

Appellant’s fourth issue, the denial of Appellant’s motion to suppress. Because 

we conclude that the trial court erred in denying the motion to suppress and 

that a new trial on all charges is required as a result of that error, we need 

not and do not address Appellant’s first, second, third, and sixth issues, all of 

which seek a new trial on other grounds. 

Our standard of review in a challenge to the sufficiency of the evidence 

is well-settled:

The standard we apply in reviewing the sufficiency of evidence is 

whether, viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for that of the factfinder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant’s guilt 

may be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of fact may 

be drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence.

Commonwealth v. Sauers, 159 A.3d 1, 11 (Pa. Super. 2017) (quoting 

Commonwealth v. Colon–Plaza, 136 A.3d 521 (Pa. Super. 2016)). In 

applying this standard, we consider all of the evidence that was admitted at 

trial. Sauers, 159 A.3d at 11; Colon–Plaza, 136 A.3d at 526.
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The elements of the offense of dissemination of child pornography are 

that the defendant knowingly sold, distributed, delivered, disseminated, 

transferred, displayed or exhibited to others a depiction of a child under the 

age of 18 engaged in a prohibited sex act or simulation of such an act or 

knowingly possessed such a depiction for the purpose of sale, distribution, 

delivery, dissemination, transfer, display or exhibition. 18 Pa.C.S. § 6312(c). 

The elements of possession of child pornography are that the defendant either 

knowingly possessed or controlled a depiction of a child under the age of 18 

engaged in a prohibited sex act or simulation of such an act or intentionally 

viewed such a depiction. 18 Pa.C.S. § 6312(d); Colon-Plaza, 136 A.3d at 

526 & n.7. The offense of criminal use of a communication facility requires 

proof that the defendant knowingly, intentionally, or recklessly committed or 

facilitated a felony by use of a communication facility. 18 Pa.C.S. § 7512(a); 

Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004). A home 

computer with internet connection is a “communication facility.” 18 Pa.C.S. § 

7512(c); Commonwealth v. Crabill, 926 A.2d 488, 493 (Pa. Super. 2007). 

Appellant claims that the Commonwealth failed to prove the element of 

knowledge, that Appellant knew that he had child pornography on one of his 

computers and knew that he was transmitting child pornography from his 

computer network. We do not agree. 

The evidence at trial showed that child pornography was transmitted 

through an IP address that belonged to Appellant, that over 30 child 
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pornography files, many of which had names referencing children and sex 

acts, were on a computer storage device owned by Appellant in a folder 

labeled with Appellant’s name and a network name assigned by Appellant to 

a computer that had belonged to him. N.T. Trial at 86-92, 95-96, 99-102, 

104, 165-82, 184-88, 313-15; Commonwealth Exs. 7-8, 10, 14, 16. The 

evidence also showed that Appellant was the sole resident of the house to 

which the IP address was assigned and where computer storage device in 

question was found, and that the MEGABIZ-V3 computer backup in which child 

pornography was found contained documents that were Appellant’s. N.T. 

Trial at 100-02, 135-39, 197-99, 316. 

This is sufficient to prove that Appellant knew that he was possessing 

and transmitting child pornography. Sauers, 159 A.3d at 4, 11-12 (evidence 

that police downloaded child pornography from a computer with defendant’s 

IP address and username and that examination of defendant’s computer 

showed use of program to download and share child pornography was 

sufficient to show knowing possession and dissemination); Colon-Plaza, 136 

A.3d at 524, 526-29 (evidence that police downloaded child pornography from 

defendant’s computer through file sharing program and that child 

pornography was found on defendant’s computer under his username was 

sufficient to show knowing possession and criminal use of communications 

facility even though another person also lived in defendant’s apartment); 

Commonwealth v. Koehler, 914 A.2d 427, 431-32, 437 (Pa. Super. 2006)
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(evidence that police found child pornography on computer in defendant’s 

bedroom that had a screen name, systems properties name, and software 

registration name that referred to defendant’s name was sufficient to show 

knowing possession despite absence of direct evidence that defendant 

accessed the files at issue and defendant’s claim that others in house could 

have accessed the computer). Although Appellant denied knowledge of the 

child pornography and introduced evidence that a third party could have 

accessed his computer network, the jury was not required to believe Appellant 

and his witnesses or believe that the child pornography was put on Appellant’s 

computer network or disseminated by such an unknown third party. 

In his fourth issue, Appellant argues that the police officers executing 

the search warrant violated his rights under the Pennsylvania Rules of Criminal 

Procedure and the Pennsylvania Constitution by entering his home without

announcing their purpose and that the trial court therefore erred in denying 

his motion to suppress the NAS that they seized and evidence derived from it. 

Our standard and scope of review of the denial of a motion to suppress 

evidence is well established:

Appellate review of a suppression decision is limited to the 

suppression record, considering the evidence presented by the 

Commonwealth as the prevailing party and any uncontradicted 

evidence presented by the defense. This Court is bound by the 

facts as found by the suppression court so long as they are 

supported by the record, but our review of its legal conclusions is 

de novo.
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Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa. 2018) (citations 

omitted).

Pennsylvania Rule of Criminal Procedure 207 and Article I, Section 8 of 

the Pennsylvania Constitution require that police, before entering a dwelling 

to execute a search warrant, announce their identity, purpose and authority 

and give the occupant a reasonable period of time after such announcement 

to let them in, unless exigent circumstances require immediate forcible entry. 

Pa.R.Crim.P. 207; Commonwealth v. Crompton, 682 A.2d 286, 288, 290

(Pa. 1996); Commonwealth v. Frederick, 124 A.3d 748, 754-56 (Pa. Super. 

2015). The purposes of this requirement, known as the “knock and announce 

rule,” are to prevent resistance by an occupant protecting his dwelling, to

prevent violence and physical injury to the police and occupants, to protect an 

occupant’s privacy expectation against the unauthorized entry, and to prevent 

property damage resulting from forced entry. Commonwealth v. Carlton, 

701 A.2d 143, 146 (Pa. 1997); Crompton, 682 A.2d at 288; Commonwealth 

v. Frederick, 124 A.3d at 755.

The knock and announce rule is not limited to entry that involves 

breaking down a door or damage to the dwelling; it applies to any entry into 

a dwelling without the occupant’s permission, including entry through an 

unlocked door. Crompton, 682 A.2d at 287, 290 (suppressing evidence 

where police entered house through unlocked screen door without complying 

with knock and announce rule); Frederick, 124 A.3d at 752-53, 754 n.8, 756-
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57 (suppressing evidence where police opened door simply by pushing on it 

without damaging it and did not announce who they were or their purpose 

until after door was open); Commonwealth v. Douventzidis, 679 A.2d 795,

796, 798-800 (Pa. Super. 1996) (suppressing evidence where front door was 

partially open and police entered by opening a screen door without complying 

with knock and announce rule). 

Moreover, even where police knock and clearly announce their identity 

as police, failure to announce their purpose before entering the premises 

violates Rule 207 and Article I, Section 8 of the Pennsylvania Constitution and 

suppression is required unless exigent circumstances for the failure to 

announce are shown. Carlton, 701 A.2d at 147-49; Commonwealth v. 

Wagstaff, 911 A.2d 533, 537-38 (Pa. Super. 2006); Douventzidis, 679 A.2d

at 798-800. 

[T]here is no requirement that anyone open the door to their 

dwelling in the absence of police statement of their authority and 

purpose. 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. ...

[I]n the absence of exigent circumstances, forcible entry without 

announcement of purpose violates Article 1, Section 8 of the 

Constitution of Pennsylvania, which prohibits unreasonable 

searches and seizures.

Carlton, 701 A.2d at 147-48.

The burden is on the Commonwealth to prove that the police fully 

complied with the knock and announce rule or to prove one of the following 

four exigent circumstances: 1) that the occupants fail to respond after 
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repeated knocking and announcing; 2) that the police are virtually certain that 

the occupants already know their purpose; 3) that the police have reason to 

believe that an announcement prior to entry would imperil their safety; or 4) 

that the police have reason to believe that evidence is about to be destroyed. 

Carlton, 701 A.2d at 147; Crompton, 682 A.2d at 288; Frederick, 124 A.3d 

at 755, 757. If the Commonwealth does not satisfy that burden, the evidence 

seized in the noncompliant search must be suppressed, even though a valid 

warrant for the search existed. Carlton, 701 A.2d at 147-49; Crompton, 

682 A.2d at 290; Frederick, 124 A.3d at 755-57. “Even a valid warrant may 

not be executed in an unreasonable manner.” Carlton, 701 A.2d at 147 

(quoting Commonwealth v. McDonnell, 516 A.2d 329 (Pa. 1986)). 

Here, the trial court found that the police who came to execute the 

search warrant knocked on Appellant’s door and that an officer opened 

Appellant’s unlocked, closed door and entered Appellant’s house with his gun 

drawn after he knew that Appellant was responding to their knock. Trial Court 

Opinion, 9/17/18, at 5. These findings are supported by the record. N.T. 

Suppression Hearing, 7/20/18, at 11-12, 14, 16-17; Defendant’s Suppression 

Hearing Ex. A, Video 4. The trial court found that the police announced their 

presence, but did not find that they announced their purpose or that they 

waited a significant length of time for Appellant to let them in before entering. 

Trial Court Opinion, 9/17/18, at 5; Trial Court Opinion, 1/8/19, at 3. 

Moreover, any finding that the police announced their purpose or waited a 
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reasonable period of time before entering would be unsupported by and

directly contrary to the record. The uncontradicted evidence from the 

suppression hearings shows that the police did not announce their purpose at 

any time before entering Appellant’s house and that an officer opened 

Appellant’s door and came inside the house with his gun drawn within a few 

seconds after he knew that Appellant was responding. N.T. Suppression 

Hearing, 7/20/18, at 11-14, 16-18, 23-24; Defendant’s Suppression Hearing 

Ex. A, Video 4. The record is therefore clear that the police did not comply 

with the requirement that they knock and announce before entry. Carlton, 

701 A.2d at 147-48 (failure announce purpose is violation); Commonwealth 

v. Means, 614 A.2d 220, 223 (1992) (absent proof of exigent circumstances, 

5 to 10 second wait after announcing purpose is not a reasonable length of 

time to allow occupant to respond). 

The trial court ruled that the entry did not violate Appellant’s rights on 

the ground that immediate entry was necessary for officer safety. Trial Court 

Opinion, 9/17/18, at 5-6; Trial Court Opinion, 1/8/19, at 3.3 The record, 

however, cannot support this legal conclusion.

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3 The trial court did not find that any of the other three exigent circumstances 

that excuse compliance with the knock and announce rule applied here. 

Moreover, there is no support in the record for any of those exceptions. The 

police admitted that there was no failure to respond by Appellant after they 

knocked on his door. N.T. Suppression Hearing, 7/20/18, at 11-12, 14, 16. 

There was no testimony by any of the officers that they believed that 

immediate entry without announcement was necessary to prevent destruction 

(Footnote Continued Next Page)
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At the first suppression hearing, Appellant and Lieutenant Jones 

testified. Appellant testified that when the police arrived to execute the 

warrant, he noticed that there were people standing outside his door, but did 

not hear any announcement of who they were and did not know who they 

were. N.T. Suppression Hearing, 1/29/18, at 20, 22-23, 25-26. Appellant 

testified that he put a finger up to signal for them to wait because he wanted 

to put on clothes before opening the door and that he went out of view of the 

door to put on clothes, but that before he could finish dressing, police officers 

had come in and were holding him at gunpoint. Id. at 22-24, 26-28. 

Lieutenant Jones testified that he thought that one of the Murrysville officers 

knocked on the door and did not remember whether anything was said before 

entering the house. Id. at 33-34. He testified that he thought that Appellant 

came to the door before the officers went in, but admitted that he did not 

have a specific recollection of what happened. Id. at 35-39.

At the second suppression hearing, the recordings from Appellant’s 

security system were introduced in evidence and the two Murrysville police 

officers, Officer Lepovsky and Officer Sadlowe, testified. Officer Lepovsky 

____________________________________________

of evidence. While, as discussed below, Appellant knew that the people at the 

door were police officers after they opened the door but before they entered, 

there was no basis for any claim or finding that the officers were virtually 

certain that Appellant knew why they were there. The transmission of child 

pornography on which the search warrant was based occurred over three 

months before the search occurred. 
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testified that he knocked “about two times” on the door and then almost 

immediately saw Appellant inside about 10 or 12 feet away facing the door. 

N.T. Suppression Hearing, 7/20/18, at 11, 16. Officer Lepovsky testified that 

he saw Appellant hold up a finger “as if to motion, like, wait” and then turn 

and walk out of view of the door. Id. at 11-12. Officer Lepovsky testified 

that this caused him to enter the house because he was concerned when 

Appellant went out of view that Appellant could be going for a weapon and 

that he entered the house with his gun drawn and directed Appellant to come 

back to the doorway. Id. at 12-14, 17. Officer Lepovsky testified that he did 

not know whether he ever verbally identified himself and the other officers as 

police or announced that they were there to serve a search warrant before he 

entered the house. Id. at 17-18. Officer Sadlowe testified that Officer 

Lepovsky knocked on the door and that after knocking, Officer Lepovsky 

indicated that there was someone in the house. Id. at 20. Officer Sadlowe 

testified that Officer Lepovsky entered the house only seconds after he said 

there was someone inside and that he followed Officer Lepovsky into the 

house, but did not draw his gun. Id. at 20-21, 23-24. Officer Sadlowe 

testified that he could not recall whether Officer Lepovsky made any 

announcement of identity or purpose before entering. Id. at 24.

One of the six security camera recordings that were introduced in 

evidence, Video 4, was from a camera inside the house that shows the door

through which the police entered with the kitchen area of house in the 
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foreground and contains both video and audio of the police entry and the 

events leading up to it. This recording shows that the top part of the door has 

a window, but nothing is visible through it on the video because of sun glare, 

so it is not possible to tell where the officers were positioned or whether 

Appellant could see that police were at the door. The video shows Appellant 

walking in the kitchen area on the left side of the screen toward a short 

entranceway that leads to the door, putting up his first finger to indicate to 

whoever is at the door to wait, and then turning around and walking back out 

of view of the door to where he had been. Defendant’s Suppression Hearing 

Ex. A, Video 4. One second later, one of the officers opens the door. Id. The 

officer is in uniform and clearly visible to someone looking from inside the 

house toward the door and stands in the doorway. Id. Appellant walks back 

to where he can be seen from and see the doorway and again holds up his 

first finger. Id. Appellant then walks back out of view of the door again, and 

the officer within two seconds enters the house with his gun drawn. Id. The 

officer then confronts Appellant in the kitchen, directs Appellant to come to 

the door of the house, and brings him to the doorway. Id. Appellant was 

apparently putting pants on when he was out of view of the officers as this 

video shows him pulling something up on himself and that he has sweatpants 

on when he goes with the officer to the door and another of the recordings 

shows that he was wearing boxer shorts when he first went to answer the 

door. Defendant’s Suppression Hearing Ex. A, Video 4, Video 3.
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The audio of Video 4 shows that the police did not verbally identify 

themselves as police and did not state that they were there to enforce a 

warrant before opening the door and entering Appellant’s house. There is no 

verbal communication by Appellant or the police on the audio until after 

Appellant first signals to the door with his finger and walks away. When the 

police officer opens the door, he does not identify himself as police or state 

any reason why he is there, but says only “Hey, buddy, you all right?,” to 

which Appellant responds “Yeah, I’m good” and begins to return to where he 

can see and be seen from the doorway. Defendant’s Suppression Hearing Ex. 

A, Video 4. The officer says “Hey, come here, come out here and talk to me,” 

and Appellant, who is now in sight of the doorway and can see that the person 

in the doorway is a uniformed police officer, responds “Hold on a second” while 

putting up his finger the second time. Id. The officer says “OK, all right,” 

and then immediately enters the house with his gun drawn after Appellant 

walks away. Id. The first time any of the officers mentions a warrant is after 

the officer entered with his gun drawn, when the officer has brought Appellant 

back to the doorway. Id.

The sole basis for the trial court’s conclusion that there was a danger to 

officer safety was Officer Lepovsky’s testimony that he immediately entered 

because he was concerned that Appellant could be going for a weapon and 

that when “the person disappears that’s an immediate safety concern.” N.T. 

Suppression Hearing, 7/20/18, at 12, 17. However, exigent circumstances 
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concerning officer safety exist only where there is a reasonable basis for the 

police to believe that announcing their identity and purpose would endanger 

their safety and subjective good faith of the officers is not sufficient to excuse 

noncompliance with the knock and announce rule. Frederick, 124 A.3d at 

155-56. 

 It is clear, in light of the video and audio evidence, that there was not 

a reasonable basis for not announcing the officers’ purpose before Officer 

Lepovsky entered Appellant’s house with his gun drawn. The video shows no 

furtive or evasive movements by Appellant; it shows him walking in view of 

the doorway and out of view at a normal walking speed with no unusual 

motions or gestures indicating any hostility or resistance. No evidence was 

introduced that the police had any information about Appellant that suggested 

that he was armed or violent. The crime that the police were investigating, 

while serious, involved use of computers, not weapons of any sort. 

There was also no reason that the officer could not have announced his 

purpose, rather than saying “Hey, buddy, you all right?,” when Appellant 

walked away the first time. No officer testified that announcing that they were 

there to execute a search warrant created any danger to their safety. 

Moreover, to the extent that the mere fact of moving out of view created a 

safety concern, there is no evidence that there was any reason why the officer 

could not have told Appellant that he had a search warrant and directed him 

to come out without further delay before the officer entered the house, rather 
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than asking Appellant to come to the door without stating any reason for his 

authority and saying “OK, all right” in response to Appellant’s request that he 

wait briefly. There was also no reason for the officers to believe that making 

such an announcement and stating that Appellant had to come to the door 

immediately would have been futile. Appellant had already once come back 

into view in response to the officer’s request and he walked away again only 

after asking the officer to briefly wait and being told “OK, all right” by the 

officer. 

The trial court’s only other justification for not suppressing the evidence 

was that the police did not damage property in making their entrance. Trial 

Court Opinion, 1/8/19, at 3. That rationale, however, is not legally valid. As 

discussed above, the fact that police enter a house through an unlocked door 

and no physical harm occurs does not negate a knock and announce violation 

and is not a ground for denying suppression. Crompton, 682 A.2d at 287, 

290; Frederick, 124 A.3d at 752-53, 754 n.8, 756-57; Douventzidis, 679 

A.2d at 796, 798-800. 

Commonwealth v. Kane, 940 A.2d 483 (Pa. Super. 2007), relied on 

by the trial court and the Commonwealth, does not support the denial of 

Appellant’s suppression motion. In Kane, there was no issue of whether a 

claim of danger to the police was reasonable. Id. at 490. Rather, this Court 

held that there was no violation of the knock and announce rule because the 

police had repeatedly announced their identity and purpose both before 
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entering the adjoining building and inside the adjoining building and that, as 

a result, any person inside the building in question was necessarily aware that 

police were seeking entry to execute a search warrant before the police 

opened the door between the buildings. Id. at 491-92. Kane therefore has 

no applicability here, where the police never announced their purpose before 

an officer entered Appellant’s house with his gun drawn.

Because the record establishes that the police did not announce their 

purpose before they entered Appellant’s house and the Commonwealth did 

not prove that the police had any reason to believe that announcement of 

their purpose prior to entry would imperil their safety, the search of 

Appellant’s house violated Appellant’s rights under Article I, Section 8 of the 

Pennsylvania Constitution. The trial court’s denial of Appellant’s motion to 

suppress the NAS and other items seized from his house in that search and 

evidence derived from the NAS was therefore error. “[T]he remedy for 

noncompliance with the knock and announce rule is always suppression.” 

Crompton, 682 A.2d at 290; Frederick, 124 A.3d at 755 (quoting 

Crompton) (emphasis omitted).

At Appellant’s trial, the NAS, screenshots and documents downloaded 

from it, and testimony concerning what was found on it were introduced in

evidence. See, e.g., N.T. Trial at 165-82, 184-88; Commonwealth Exs. 4-24. 

This improperly admitted evidence played a central role in Appellant’s trial. 

Not only was this evidence used by the Commonwealth to prove the 
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possession of child pornography charges against Appellant, it was also used 

by the Commonwealth to support its contention that the dissemination of child 

pornography by Appellant’s wireless router was knowing and not the result of 

a third party’s access to his wireless network. N.T. Trial at 506-09, 511-18, 

522. Appellant is therefore entitled to a new trial on all of the charges against 

him. Accordingly, we reverse the order denying suppression, vacate all of 

Appellant’s convictions and sentence, and remand for a new trial at which no 

evidence derived from the search and seizure shall be admitted. 

Judgment of sentence vacated. Case remanded with instructions to 

grant Appellant’s motion to suppress and for new trial. Jurisdiction 

relinquished.

Judge Murray joins the opinion.

Judge Sullivan files a Concurring Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2023