J. S69018/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

CHRISTOPHER H. COZZALIO, : No. 1281 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, April 23, 2015,

in the Court of Common Pleas of Chester County

Criminal Division at No. CP-15-CR-0003113-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 13, 2016

Christopher H. Cozzalio appeals from the April 23, 2015 judgment of 

sentence following his conviction of possession of marijuana.1 We affirm.

The trial court provided the following relevant findings of fact and 

conclusions of law:

1. On August 13, 2014, Officer Richard Barth and 

Sergeant Matthew Deceder of the West 

Whitefield Township Police Department 

responded to a 911 call regarding a domestic 

disturbance at 215 Aberdeen Avenue, Exton, 

Chester County.

2. The officer and the sergeant were not familiar 

with the residents or the layout of the 

apartment at that address. They knocked on 

the front door and announced their presence. 

They heard raised voices coming from inside 

the residence and a female’s loud scream (one 

 

1 35 P.S. § 780-113(a)(31).
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of the officers described the scream as 

“blood-curdling”). The officer radioed for 

assistance and the sergeant forced open the 

front door by kicking it.

3. The officer and the sergeant saw a staircase 

leading up to the living space of the 

apartment. The defendant was standing at the 

top of the stairs and a female was standing in 

front of the defendant screaming for the 

defendant to let her go.

4. The defendant was instructed to “get down.” 

The defendant did not comply until the officers 

drew their weapons and again instructed the 

defendant to “get down.”

5. There were red marks on the female’s neck 

observed by both officers.

6. The male and female were separated. 

Officer Barth escorted the female, and the 

young child she was carrying, outside while 

Sergeant Deceder placed the defendant in 

handcuffs and had him sit on the living room 

couch.

7. Two minutes after the officer had called for 

back-up, Lieutenant Matthew Herkner of the 

West Whiteland Township Police Department 

arrived at the scene. The lieutenant saw the 

officer taking a statement from the “hysterical” 

female and was told that the sergeant was 

alone with the defendant in the apartment.

8. The lieutenant continued to the second floor 

apartment to assist Sergeant Deceder with the 

defendant.

9. The sergeant told the lieutenant that the other

rooms in the apartment had not been checked.

10. The officers did not know whether there were 

or were not any other individuals in the 
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apartment but had concerns for their safety 

and felt vulnerable to attack from the adjacent 

rooms while in the apartment with the 

defendant who was detained and subsequently 

arrested.

11. The bedroom was one of the rooms 

immediately adjacent to the living room.

12. The lieutenant conducted a protective sweep of 

the bedroom and saw what he recognized to 

be marijuana and drug paraphernalia on a 

table at the foot of the bed. The lieutenant 

also saw a loaded, semi-automatic Glock 9mm 

pistol on a shelf in the closet. 

13. The gun was seized immediately for safety 

reasons. There are no criminal charges, 

relating to the gun, pending against the 

defendant.

14. The defendant was arrested and charged with 

assault related to the domestic altercation and 

possession of a controlled substance and drug 

paraphernalia.

Conclusions of Law

. . . .

2. When the sergeant handcuffed the defendant, 

the sergeant deprived the defendant of his 

physical freedom of action. Commonwealth 

v. Medley, 531 Pa. 279, 612 A.2d 430 (1992). 

The sergeant testified that his intention, at the 

time he handcuffed the defendant, was to 

detain him during the course of their 

investigation of the domestic altercation. 

Arguably, the defendant was under arrest at 

the point he was handcuffed irrespective of the 

sergeant’s intention. If that is the case, the 

protective sweep was incident to arrest and 

falls under the exception. It certainly was a 

protective sweep of the “arrest scene” given 
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the fact that the defendant was arrested before 

the officers left the residence.

3. The officers were able to articulate their 

suspicions and concerns for their safety 

allowing them to perform a protective sweep of 

the rooms adjacent to the living room where 

they had the defendant detained. The 

situation was a violent, fluid scene.

Order of court, 11/5/14 at 1-2. Appellant was also charged with three 

counts of harassment and possession of marijuana. On September 16, 

2014, appellant filed a motion to suppress evidence seized from his 

apartment, claiming that the search and seizure conducted incident to 

appellant’s arrest was in violation of his rights under the United States and 

Pennsylvania Constitutions. A hearing was held on October 21, 2014, and 

the trial court denied appellant’s motion to suppress. 

On April 23, 2015, the day of the trial, the Commonwealth withdrew all 

charges with the exception of possession of marijuana. A bench trial was 

held and the trial court found appellant guilty and imposed a fine of $200. 

On April 24, 2015, appellant filed a post-sentence motion, which was denied 

by the trial court. Appellant filed a notice of appeal on May 5, 2015. The 

trial court ordered appellant to produce a concise statement of matters 

complained of on appeal on May 7, 2015, pursuant to Pa.R.A.P. 1925(b), 

with which appellant complied on May 27, 2015. The trial court has filed an 

opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issue for our review:
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1. Did the trial court err in denying defendant’s 

Motion to Suppress because police officers had 

no authority to conduct a “protective sweep” 

throughout the various rooms of the 

residence?

Appellant’s brief at 3.

Our standard of review for challenges to the denial of a motion to 

suppress is as follows:

Our 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, we are 

bound by these findings and may reverse only if the 

court’s legal conclusions are erroneous. Where . . . 

the appeal of the determination of the suppression 

court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding 

on an appellate court, whose duty it is to determine 

if the suppression court properly applied the law to 

the facts. Thus, the conclusions of law of the courts 

below are subject to our plenary review.

Commonwealth v. Best, 120 A.3d 329, 346 (Pa.Super. 2014), quoting 

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), appeal

denied, A.3d (Pa. 2015) (citations omitted).

Both the United States Constitution and the Pennsylvania Constitution 

guarantee that individuals shall not be subject to unreasonable searches or 
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seizures. See U.S. Const. Amend. IV; Pa. Const. Art. I, § 8. A search or 

seizure conducted without a warrant is, under the Fourth Amendment and 

Article I, Section 8, presumed to be unreasonable. Commonwealth v. 

McCree, 924 A.2d 621, 627 (Pa. 2007) (citations omitted).

Evidence obtained as a result of an unlawful search is subject to the 

fruit of the poisonous tree doctrine. The United States Supreme Court has 

stated that any material, tangible, or verbal evidence “obtained either during 

or as a direct result of an unlawful invasion” is inadmissible at trial. Wong 

Sun v. United States, 371 U.S. 471, 485 (1963).

The United States Supreme Court has recognized exceptions to the 

warrant requirement, including a search conducted incident to a lawful 

arrest, also known as a “protective sweep.” Maryland v. Buie, 494 U.S. 

325 (1990). In Buie, the Supreme Court held that, “the Fourth Amendment 

would permit [a protective sweep] if the searching officer ‘possesse[d] a 

reasonable belief based on “specific and articulable facts which, taken 

together with the rational inferences of those facts, reasonably warrante[d]” 

the officer in believing,’ that the area swept harbored an individual posing a 

danger to the officer or others.” Id. at 327, quoting Michigan v. Long, 463 

U.S. 1032, 1049-1050 (1983) (citations omitted).

The Court established the following standard in which a protective 

sweep without a warrant could take place without violating an individual’s 

Fourth Amendment rights:
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[A]s an incident to the arrest the officers could, as a 

precautionary matter and without probable cause or 

reasonable suspicion, look in closets and other 

spaces immediately adjoining the place of arrest 

from which an attack could be immediately launched. 

Beyond that, however, we hold that there must be 

articulable facts which, taken together with the 

rational inferences from those facts, would warrant a 

reasonably prudent officer in believing that the area 

to be swept harbors an individual posing a danger to 

those on the arrest scene.

Id. at 334 (footnotes omitted).

Pennsylvania adopted the protective sweep exception to the warrant 

requirement in Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001); see 

also In re J.E., 937 A.2d 421, 425 (Pa. 2007) (stating that the protective 

sweep search is limited to “ensure the safety of arresting officers”). In 

Taylor, our supreme court applied the same standard as Buie:

To decide whether the facts justified a protective 

sweep, the reviewing court must consider all of the 

facts objectively and from the position of the 

reasonably prudent police officer. Because the 

sweep in the present case extended beyond the area 

within the immediate vicinity of the arrest, there 

must be “articulable facts which, taken together with 

the rational inferences from those facts, would 

warrant a reasonably prudent officer in believing that 

the area to be swept harbors an individual posing a 

danger to those on the arrest scene.”

Id. at 1267-1268, citing Buie, 494 U.S. at 327, 334. The Taylor court also 

made clear that “the scope of a protective sweep extends only to a visual 

inspection of those places in which a person might be hiding and lasts no 

longer than is necessary to dispel the fear of danger.” Taylor, 771 A.2d at 
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1268 (citations omitted); see also Commonwealth v. Crouse, 729 A.2d 

588, 598 (Pa.Super. 1999) (protective sweeps “cannot be used as a pretext 

for an evidentiary search” and can only target “areas where a person could 

reasonably be expected to hide”), appeal denied, 747 A.2d 364 (Pa. 1999).

We also note that, “[i]f, while conducting a [protective sweep], the 

officer should, as here, discover contraband other than weapons, he clearly 

cannot be required to ignore the contraband, and the Fourth Amendment 

does not require its suppression in such circumstances.” Commonwealth 

v. Potts, 73 A.3d 1275, 1282 (Pa.Super. 2013), quoting Long, 463 U.S. at 

1049-1050. See also Commonwealth v. Witman, 750 A.2d 327, 336 

(Pa.Super. 2000) (stating that evidence observed in plain view during a 

protective sweep is admissible).

In the case sub judice, appellant avers that the police did not conduct 

a lawful protective sweep and that the police did not have the authority to 

seize evidence discovered during the protective sweep. As noted supra, in 

order for the police to conduct a protective sweep incident to arrest beyond 

the immediate vicinity of the arrest, the police must be able to articulate 

facts that would cause a reasonably prudent police officer to believe that 

there was a danger to the officer’s safety on the premises.

Here, the trial court found that the officers did not know if anyone else 

was in the apartment and they had concerns for their safety. (See trial 

court findings of facts and conclusions of law, 11/5/14 at 2.) The officers 
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were unfamiliar with appellant’s apartment, were unfamiliar with both 

appellant and the female victim, and could not say for certain whether 

anyone else was inside the apartment and, therefore, were justified in 

conducting a protective sweep beyond the immediate vicinity of the arrest. 

The record supports the trial court’s factual finding through Sergeant 

Deceder’s following testimony:

Q: Can you articulate any facts which then [led] 

you to conclude there was anyone else in the 

apartment?

A: . . . I was [in] very close proximity to the 

actual entryway doorway to the apartment, 

therefore the majority of the apartment was 

unavailable to me as far as viewing it. I could 

see the kitchen. I could not tell if anyone was 

there or not.

Q: Would it be fair to say you didn’t have any 

reason to believe either there was or was not 

anyone else in the apartment, right?

A: In my training I always assume there is [sic] 

more people in a residence than there are, so I 

do not -- I didn’t know who lived there before. 

I’d never been to the residence before.

Q: . . . Is it correct that you didn’t have any 

information that [led] you affirmatively to 

conclude there was anybody else there?

A: I had no information whether there were or 

wasn’t [sic].

Notes of testimony, 10/21/14 at 26-27. Lieutenant Herkner also testified 

that he “had no knowledge whether there was or was not [sic] any additional 

people in there.” (Id. at 34.) The officers’ testimony provides ample 
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support within the record that articulable facts existed that would cause a 

reasonably prudent police officer to believe that an individual may be hiding 

somewhere in the apartment.

We therefore find that the protective sweep of appellant’s apartment 

was in compliance with our supreme court’s decision in Taylor and that the 

police were authorized to conduct a cursory search to determine whether 

additional parties were in the apartment, and were also authorized to seize 

any contraband that was visible in plain view.2

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/2016

 

2

In his motion to suppress and in his brief, appellant did not argue with 

specificity whether, if the officers were justified in conducting a protective 

sweep, any of the contraband seized was inadmissible because it was not in 

plain view.