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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ODELL EPPS , : : Appellant : No. 1410 EDA 2015 Appeal from the Judgment of Sentence May 1, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP
- 51 - CR - 0005747 - 2014 BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J. : FILED JUNE 28, 2016 Odell Epps (“Epps”) appeals from the judgment of sentence imposed following his conviction of posses sion of a controlled substance (heroin), and possession with intent to manufacture or deliver (heroin). 1 We affirm. In its Opinion, the trial court set forth the relevant factual and procedural background, which we adopt for purposes of this appeal. Se e Trial Court Opinion, 1/19/16, at 1
- 4. 2 On appeal, Epps raises the following question for our review: Whether the lower court abused its discretion in denying [Epps’s] Motion to Suppress Physical Evidence[] where police made [a] warrant[]less entry into [the] dwelling without probable cause and exigent circumstances, rendering all evidence observed and recovered as a result of the warrantless entry and subsequently

1 See 35 P.S. §§ 780 - 113(a)( 16), (30).

2 With regard to the trial court’s reference to an “unknown substance” found in two open bags in an upstairs bedroom, our review of the record discloses no determination as to the nature of the substance. See Trial Court Opinion, 1/19/16, at 4.J - S44042 - 16

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executed tainted search warrant, fruit of the poisonous tree, and therefore, inadmissible[ ] under the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania State Constitution? Brief for Appellant at 4. Epps contends that Officer Carl Diaz’s (“Officer Diaz”) stated reason for entering 3018 N. 8 th Str eet (hereinafter “the premises”), i.e ., that someone inside was shot and injured, did not give rise to reasonable suspicion, probable cause or exigent circumstances. Id . at 18. Epps points out that police had received similar anonymous calls on the two p receding days, with negative results, and asserts that the anonymous call on the date in question “was a mere pretext to justify a warrantless entry and search of the [premises].” Id . Epps claims that the initial warrantless search and seizure, which ser ved as the basis for the issuance of a search warrant, violated Epps’s constitutional rights under the United States Constitution and Article 1, Section 8 of the Pennsylvania State Constitution. Id . Epps argues that all of the evidence recovered during t he execution of the search warrant constitutes fruit of the poisonous tree and should be declared inadmissible. Id . Epps contends that the trial court abused its discretion in determining that the issuing magistrate had a substantial basis for concluding that probable cause existed. Id . at 21. Epps asserts that, when Officer Diaz and Officer Jason Hernandez (“Officer Hernandez”) entered the premises and conducted a search thereof, there was “no fair probability that they would encounter a gunshot victim or any other indicia of crime, where [p]olice hadJ - S44042 - 16

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responded to the same report of a possibly dead shooting victim the two previous days, with negative results.” Id . at 23. Epps claims that the police “were on another wild goose chase[,] and there was n o evidence of a shooting or other criminal activity observed by the [o]fficers before they forced their way inside.” Id . at 23 - 24. Epps points to Officer Diaz’s testimony that he heard a male voice before a visibly nervous Shavonna Baker told Officer Dia z that she was alone in the premises, and argues that this was “clearly insufficient corroborative evidence to support reasonable suspicion, let alone probable cause[] to justify a warrant[]less entry and search of the premises.” Id . at 24. Epps contends that police had no credible or reliable independent evidence of drug activity to support the issuance of a search warrant. Id . at 25 - 26. Epps asserts that the absence of a credible source of information, independent of the illegal search and seizure con ducted by Officers Diaz and Hernandez, tainted the search warrant, rendering all of the evidence recovered during its execution as fruit of the poisonous tree. Id . at 26 - 27. The trial court set forth the relevant law, addressed Epps’s issue, and conclude d that both probable cause and exigent circumstances justified the initial search of the premises. See Trial Court Opinion, 1/19/16, at 4
- 5, 5 - 7. We agree with the sound reasoning of the trial court, which is supported by the record, and affirm on this b asis. See id . Judgment of sentence affirmed.J - S44042 - 16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/28/2016§§ A30) and Intentional Possession of a Controlled Substance by a Person Not Registered (35 §

Manufacture/Delivery/Possession with intent to Manufacture or Deliver (PWID) (35 § 780-113 On February 11, 2015, Defendant was found guilty following a jury trial, of Quash was heard and denied
. denied. On October 2, 2015, the Defendant's Motion to Reconsider the Ruling on the Motion to ~ On September 18, 2014 , the Defendant's Motion to Suppress Evidence was heard and Possession of a Firearm Prohibited (18 § 6105 §§ Al)
. Motion to Quash was granted in part , with respect to the charges of Conspiracy (18 § 903) and Substance by a Person Not Registered (35 § 780-113 §§ A16)
. On October 2 , 2015, Defendant's Possession of a Fire a rm Prohibited (18 § 6105 §§ Al) and Intentional Possession of a Controlled 

# - -

_ , , ~ ~ - "" ' intent to Manufacture or Deliver (PWID) (35 § 780-113 §§ A30), Conspiracy (18 § 903), On April 2, 2014, the Defendant was charged with Manufacture/Delivery/Possession with



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Op i nion COVINGTON, J. OPINION

ODELL EPPS 1410 EDA 2015 v. CP-51-CR-0005747-2014 COMMONWEALTH OF PENNSYLVANIA IN THE COURT ~ OF COMMON PLEAS

_ . ,, , ,!''

.. , FIRST JUDICIAL DISTRICT OF

- PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION Circulated 05/25/2016 04:16 PM2

Factual History Police Officer Carl Diaz testified at a suppression hearing that he and his partner, Officer Jason Hernandez, responded to a radio call

- on April 2 t 2014, around l la.m., in the area of 3018 North 8t h Street in Philadelphia , Pennsylvania. N.T. 9/18/15 at 9-10
. The radio call consisted of an anonymous tip of a person with a gun and a person shot inside of the home at 3 018 North 8th Street , further stating there was possibly a male with a self-inflicted gun wound. Id. at 29
. The officers approached the home and Officer- Diaz knocked on the door but did not receive an
answer. Id. at 15. After a second knock, Officer Diaz heard a male voice ask who was at the door. Id. Officer Diaz announced that it was the police and the male voice asked, "[t]he police?" Id. Officer Diaz responded , " [y ]es, the police". Id. A few seconds later before Officer Diaz knocked a third time, a young female, Shavonna Baker , opened t he front door
. Id. Ms
. Baker appeared to be nervous. Id. Officer Diaz asked if anyone was hurt or shot inside the home. Id. Ms
. B a ker hesitantly replied no. Id. Officer Diaz then asked if anyone else was present in the home , and Ms. Baker denied the presence of any other persons in the home. Id. A few seconds later, Office Diaz saw a male, Defendant.Davenport, ~ alk through the downstairs level of house, toward the rear. Id. Officer Diaz immediately summoned Defendant Davenport to the front door and asked if anyone was shot in the home and if anyone else was inside of the home
. N
. T. 9/18/15 at 18-19. Mr. Davenport and Ms. Baker exchanged glances and Mr. Davenport Defendant's Motion to Suppress
. 780-113 §§ A16. On March 1, 2015, the Defendant was sentenced to two to four years incarceration followed by six years of state probation. On May 8 , 2015 , Defendant filed a timely Notice of Appeal of the Courts granting3

box on top on the dining room table, whichcontained arproximately fifteen ( 15) or more plastic cylindrical vials of a green leafy substance
. N. T
. 9/18/15 at 23. Then the Officers conducted a pat rest of the lower level of the home
. Id. at 23
. In the dining room, Officer Diaz saw a small , open paraphernalia on top of a dresser in the back room. Id. at 42-43. Officer Diaz then cleared the room he observed a scale on the window 

## J .ill and a bla, ~ k plastic grocery bag containing plastic
v i als sitting on the floor near the window sill. Id. at 23-24. He further observed heroine threats, and injuries. Id

. at 22-23. Office Diaz cleared all the rooms upstairs, but in the middle Office Diaz proceeded to check the upper level of the home for additional people, safety Defendant Davis to exit the room with h , ~s hands up. ,,,_ . Id. Defendant Davis was subsequently frisked for weapons and sent downstairs with the minor child
. Id. Defendant Davis, in the front bedroom , with a minor child. Id. at 21. Officer Diaz instructed him to go downstairs. Id. at 20-21. Officer Diaz then turned around and observed another male, drawn his gun and requested that Defendant
. Epps exit t~e back room with his hands up. Id. at 20. Defendant Epps complied, and the Officers frisked Defendant Epps for weapons then instructed where he smelled a pungent odor of marijuana. Id. at 22, 40. Once upstairs, Officer Diaz had Officer Diaz informed his partner, Officer Hernandez , of his observation and proceeded upstairs, male , Defendant Epps, quickly move from the middle room to the back room of the home. Id. Officer Diaz could see the upstairs of thehome from where he was standing and observed a : ~ - - · ·: ... to them , but then heard footsteps coming from the upper level of the home
. N.T. 9/18/15 at 19. The Officers instructed Mr. Davenport and Ms. Baker to sit down on the couch to speak the home to confirm that there are no injured persons inside. Id. informed Mr. Davenport and Ms
. Baker t!ic:!the and his partner, Officer Hernandez would check

. .. " • responded that no one was hurt and that no one else was inside the home
. Id. Officer Diaz4

Commonwealth's witnesses together with the evidence of the defense that , when read in the must follow "a clearly defined standard of review and consider only the evidence from the those findings. 

### Id. When the defendant appeals from a suppression order, the appellate court appellate court is bound by the findings of fact of the suppression court, if the record supports are reasonable. Commonwealth v. Smith, 917 A.2d 848, 850 (Pa. Super. 2007). Furthermore, the supported by the record and whether the inferences and legal conclusions drawn from those facts settled. The appellate court must ascertain whether the trial court's factual findings are The applicable standard of review in
. an appeal from an order of suppression is well

, . ,; .. · . ..: ... . Standard

of Review marijuana and alleged heroin was packed
. N.T. 9/18/15 at 53-54. recovered unused packaging materials similar to the containers and bags in which the alleged

. . . - ~ . five (5) clear baggies knotted at the top containing heroine. N.T. 5/15/2014 at 14-15. NSF also two open bags with an unknown substance , later determined to be and a black shopping bag with marijuana. Upstairs, in the middle room, NSF recovered the Driver's License of Defendant Epps, box on the dining room table containing t wenty-four (?4) clear cylinders containers with hydro residence at 3018 North 8th Street. Id
. at 50-52
. From the living room, the task force recovered a Strike Force ("NSF") served and executed a signed and approved search warrant for the At approximately 6:30pm, on April 2, 2014, Officer Anne Rutherford of the Narcotics while they called the Narcotics Strike Forc, ~ ,Ad. at 23. ~ , Defendant Epps. 

### Id. at 47. The Officers placed the three defendants and Ms. Baker in handcuffs substance and nine hundred and forty-eight U.S. Dollars ($948.00) from the hoodie pockets of down of the Defendants. Id. Officer Hernandez recovered two cylinders containing a green leafy5

police or other persons inside or outside dwelling. Id. Probable cause exists if, at the moment of likelihood that evidence will be destroyed if police take time to obtain warrant, or danger to circumstances justified warrantless search are whether there is hot pursuit of fleeing felon, time of the entry. Id. Factors that may be considered in determining whether exigent that the suspect will escape if not swiftly apprehended, whether the entry was peaceable, and the strong reason to believe the suspect is within premises being entered, whether there is likelihood armed, whether there is an above and beyond clear showing of probable cause, whether there is search exist are: the gravity of the offense, whether the suspect is reasonably believed to be 1994). Factors to be considered in determining whether exigent circumstances for warrantless probable cause or exigent circumstances exist Commonwealth v . Roland , 63 7 A.2d 269 (Pa
. Entry of a home without a warrant is prohibited under the Fourth Amendment , unless I. The Motion To Suppress Was Properly Denied Because There Were Exigent Circumstances And Probable Cause To Justify Entry and Search Of The Home. Discussion warrant is fruit of the poisonous tree. cause or exigent circumstances and thus the evidence uncovered under the subsequently issued appeal : the Trial Court abused its discretion denying appellant's Motion to Suppress Physical Evidence where the was evidence obtain ; d by a warrantless entry of a home without probable Pursuant to the Defendant's 1925(b) Statement of Errors, the Defendant asserts one error on Statement of Errors: 589 (PA Super 2008). context of the entire record, remains uncontradicted." Commonw e alth v. Mack , 953 A.2d 587,6

the arrest or search, the facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the person arrested had committed , or was committing an offense, or there was contraband , weapons, or other evidence on the premises. H e nry v . U.S., 361 U.S. 98 (1959). In the instant case, there is sufficient probable cause and exigent circumstances to justify the police officers' entry and search of the home. The totality of the circumstances and an evaluation of the factors , clearly demonstrate the officers had probable cause to believe that people were in danger inside the property. The initial anonymous tip of a person being shot, a person possessing a gun, and a possibly self-inflicted gunshot wound establish a gravely dangerous scenario. The gravity of a crime involving a shooting is high. Information of a possible shooting immediately demands police officers to exercise caution in investigating the safety of themselves and others , inside and outside the premises. The anonymous tip was reinforced by the circumstances of the officers ' attempted investigation of the house. At first , a male voice answered through the closed front door, then after another knock, Ms. Baker answered the door, appearing nervous and hesitant to answer if anyone was shot inside the house
. Although Ms
. Baker denied any shooting inside the house, she also denied the presence of anyone else inside the property. The officers then observed a male walk by behind Ms. Baker. As the officers had already observed a male walk by , contradicting MsrBaker's statement, and had observed Ms. Baker acting nervous, it was reasonable for the officers to believe that Ms. Baker was herself in danger of specific harm from the unidentified armed man, and unable to answer truthfully
. After the officers established the possibility of danger, they proceeded to make a peaceable entry, merely instructing Ms
. Baker and Defendant Davenport to sit on the couch while they searched for any7

reasons the Court's denial of the motion should be upheld
. The Trial Court properly denied ' " the Motion to Suppress Evidence. For the foregoing Conclusion probable cause and exigent circumstances to justify the entry and search of the home. entrance to the property ' and the misrepresentation by one of the occupants are sufficient possible danger. Given the extreme nature of the anonymous tip, the suspicious behavior at the