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 fro m 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 reside nts 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).J. S69018/15

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- of the officers described the scream as “blood

- curd ling”). 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 an d 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 a nd 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 theJ. S69018/15

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- apartment but had concerns for their safety and felt vulnerable to attack from the adjacent rooms while in the apartmen t 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 d rug 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 c ourse 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 t he exception. It certainly was a protective sweep of the “arrest scene” givenJ. S69018/15

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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 a nd

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 marijuan a. 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

tria l 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:J. S69018/15

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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 b rief 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 f or 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 ar e 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 orJ. S69018/15

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seizures. See U.S. Const. Amend. IV; Pa. Const. Ar t. 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 a n 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. B uie , 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 ratio nal 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 omitte d).

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:J. S69018/15

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- [A]s an incident to the arrest the officers could, as a precautionary matter and wit hout 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 tog ether 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 adopte d 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 offic ers”). 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 i n 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 visua l

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 atJ. S69018/15

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-

1268 (citations omitted); see also Commonwealth v. Crouse , 729 A.2d

588, 598 (Pa.Super. 1999) (protecti ve 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], th e

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.Supe r. 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 po lice 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 imm ediate 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 n ot 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 officersJ. S69018/15

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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 findi ng 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 an y 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 t here was or was not [sic] any additional

people in there.” ( Id. at 34.) The officers’ testimony provides ampleJ. S69018/15

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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 w ith 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.