Com. v. Azinger, M.

• Court: Superior Court of Pennsylvania
• Decided: November 22, 2024
• Docket: 1543 MDA 2023
• Status: Unpublished

Opinion

J-A23027-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARC CHRISTOPHER AZINGER : : Appellant : No. 1543 MDA 2023

Appeal from the Judgment of Sentence Entered October 12, 2023 In the Court of Common Pleas of Union County Criminal Division at No(s): CP-60-CR-0000078-2022

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 22, 2024

Appellant, Marc Christopher Azinger, appeals from the judgment of

sentence entered October 12, 2023. We affirm.

On December 25, 2021, at approximately 11:00 p.m., a passerby, Bryce

Noon, reported a single-vehicle accident on Crossroads Drive in Union County,

Pennsylvania to the Pennsylvania State Police (“PSP”). In particular, Noon

indicated that he observed “an overturned Ford F-150 pick[-]up truck laying

on its passenger’s side.” Trial Court Opinion, 4/10/14, at 2. Noon, with the

assistance of another individual, helped the sole occupant, later identified as

Appellant, out of the pick-up truck.

Troopers Dustin Spangler and Kyle Phillips of the PSP responded to the

scene of the accident at approximately 11:20 p.m. Appellant was no longer

at the scene. Accordingly, the troopers ran the Ford F-150’s license plate and

determined that Sherri Showers was the registered owner of the vehicle and J-A23027-24

that she lived along Hollow Road in Lewisburg, Pennsylvania, located only one

mile away from the scene of the accident. The troopers proceeded to Showers’

Hollow Road residence and arrived at approximately 11:50 p.m. At that time,

Showers, who was observed pacing back and forth in the kitchen, came out

of her residence and proceeded to the front porch to meet the troopers. Upon

approach, Trooper Spangler asked Showers “who was operating the vehicle?”

N.T. Suppression Hearing, 1/6/23, at 9. Showers responded: “He [is] inside

sitting on the chair.” Id. Showers then went “back over to the door [and]

opened the door” for the troopers. Id. Trooper Spangler encountered

Appellant and noticed that “he had difficulty sitting in the chair,” “thick, slurred

speech,” and “a very strong odor of alcohol emanating from his person.” Id.

at 10. As such, Trooper Spangler asked Appellant to submit to a portable

breath test (“PBT”) test which confirmed the presence of alcohol. Based upon

the foregoing, Trooper Spangler arrested Appellant for driving under the

influence (“DUI”) and transported him to Evangelical Community Hospital for

a blood draw. The blood draw, which occurred at 12:30 a.m., revealed that

Appellant’s blood alcohol content was 0.294%.

On January 18, 2022, the Commonwealth filed a criminal complaint

against Appellant and charged him with various DUI related crimes. On May

23, 2022, Appellant filed an omnibus pre-trial motion, seeking to suppress the

evidence against him. In particular, Appellant claimed that the troopers

entered the Hollow Road residence without a warrant and arrested him without

probable cause in violation of his constitutional rights. A suppression hearing

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was held on January 6, 2023 during which Trooper Spangler, Bryce Noon and

Sherri Showers testified. The trial court denied Appellant’s motion that day.

Thereafter, on March 27, 2023, Appellant was tried on a case stated basis

without a jury and, ultimately, convicted of DUI – general impairment, DUI –

highest rate, and 10 summary offenses, none of which are germane to the

issues raised by Appellant on appeal.1 On October 12, 2023, Appellant was

sentenced to five years’ probation with restrictive conditions. In addition, the

trial court ordered Appellant to pay a total fine of $3,650.00, $100.00 to the

Substance Abuse Education and Demand Reduction fund, any court costs and

costs of prosecution. This timely appeal followed.

Appellant raises the following issues on appeal:

1. Whether the trial court erred in denying Appellant’s motion to suppress evidence when the police unlawfully entered Appellant’s residence without a warrant?

2. Assuming the police lawfully entered Appellant’s residence, was [] Appellant’s arrest based upon probable cause?

Appellant’s Brief at 11.

On appeal, Appellant challenges the trial court’s disposition of his motion

to suppress. Our standard of review for an order denying a motion to suppress

is well established.

[We are] 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 ____________________________________________

1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 1543(a), 1543(b)(1)(ii), 3714(a), 3736(a), 3309(1), 3746(a)(2), 3744(b), 3745(a), 4581(a)(2)(ii), and 3809(a), respectively.

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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, as here, 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. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019), quoting

Commonwealth v. Kemp, 195 A.3d 269, 275 (Pa. Super. 2018).

We initially consider whether the troopers violated Appellant’s

constitutional rights when they entered the Hollow Road residence without a

warrant and absent exigent circumstances or consent. The following principles

govern our assessment.

The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. Fernandez v. California, 571 U.S. 292, 298 (2014); Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007). Warrantless entry by law enforcement into a home to look for a suspect is presumptively unreasonable and is constitutionally impermissible absent an applicable exception to the Fourth Amendment's general requirement that a warrant be obtained. Payton v. New York, 445 U.S. 573, 586-603 (1980); Strader, 931 A.2d at 634; Commonwealth v. Hawkins, 257 A.3d 1, 9 (Pa. Super. 2020); Commonwealth v. Berkheimer, 57 A.3d 171, 179 (Pa. Super. 2012) (en banc). “Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.” Payton, 445 U.S. at 587, quoting Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970).

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Commonwealth v. Lehnerd, 273 A.3d 586, 589-590 (Pa. Super. 2022)

(footnote omitted).

While warrantless searches unsupported by probable cause are

generally deemed to be unreasonable, Pennsylvania courts recognize an

exception when a third-party consents to the search:

Both the federal and Pennsylvania constitutions permit third-party consent to a search. When police officers obtain the voluntary consent of a third party who has the authority to give consent, they are not required to obtain a search warrant based upon probable cause. The [Pennsylvania] Supreme Court explained that a third party possessing common authority over a premises can give valid consent to search against a non-consenting person who shares authority because it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Commonwealth v. Simmen, 58 A.3d 811, 816-817 (Pa. Super. 2012)

(citations and internal quotations omitted). As the foregoing principles make

clear, the constitution permits warrantless entry and search of a home where

an occupant with actual common authority over the premises consents to

police entry and an ensuing search. Illinois v. Rodriguez, 497 U.S. 177,

181 (1990); Commonwealth v. Hawkins, 257 A.3d 1, 9-10 n.6 (Pa. Super.

2020); Commonwealth v. Basking, 970 A.2d 1181, 1188 (Pa. Super.

2009).

As stated above, valid consent must be given voluntarily. Consent is

considered “voluntary” if it is “the product of an essentially free and

unconstrained choice – not the result of duress or coercion, express or

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implied, or a will overborn – under the totality of the circumstances.”

Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003) (en

banc). “While knowledge of the right to refuse to consent to the search is a

factor to be taken into account, the Commonwealth is not required to

demonstrate such knowledge as a prerequisite to establishing a voluntary

consent.” Commonwealth v. Powell, 994 A.2d 1096, 1102 (Pa. Super.

2010) (quotation omitted). Importantly, verbal and non-verbal cues may

constitute valid consent to enter a premise. Commonwealth v. Daniels,

421 A.2d 721 (Pa. Super. 1980) (concluding that Daniels non-verbal cues

constituted valid consent to enter the premises).

Herein, Appellant challenges the trial court’s finding that Showers

consented to the troopers’ entry into the Hollow Road residence. Importantly,

Appellant does not claim that Showers lacked authority to provide valid

consent, as it is undisputed that Showers lived at the Hollow Road residence.

See N.T. Suppression Hearing, 1/6/23, at 37 (the trial court finding that

Showers “does live at the residence that is the subject residence here”).

Rather, Appellant argues the trial court’s finding of consent is erroneous

because the Trooper Spangler did not ask to enter the residence, Showers did

not provide verbal consent to enter the residence, and Trooper Spangler did

not advise Showers of her ability to refuse entry. Appellant’s claim lacks merit.

At the suppression hearing, Trooper Spangler discussed the encounter

with Showers, as well as the troopers’ entry into the Hollow Road residence,

as follows:

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[District Attorney]: Who was the registered owner of the vehicle?

[Trooper Spanger]: Sherri Showers.

[District Attorney]: And do you remember what her address was?

[Trooper Spanger]: [Along] Hollow Road

[District Attorney]: Did you go to that address?

[Trooper Spanger]: Yes, I did.

[District Attorney]: With Trooper Phillips?

[Trooper Spanger]: Yes.

[District Attorney]: What happened when you got there?

[Trooper Spanger]: I do [not] recall exactly who was driving. As we pulled in the driveway, I observed a female, later identified as Showers, pacing back and [forth]. I could see her in the kitchen window. Upon exiting my patrol vehicle, I was met half-way on the porch. [] Showers [] c[a]me out. And I [] asked her who was operating the vehicle; and she said, [h]e [is] inside sitting on the chair.

At that point[,] she [went] back over to the door, opened the door, and I walked in and made contact with [Appellant].

[District Attorney]: Where was Showers standing when you walked into the residence?

[Trooper Spanger]: She was standing on the left of the front door.

[District Attorney]: Did she do anything to indicate that she did [not] want you to come into the residence?

[Trooper Spanger]: No, she [did not].

[District Attorney]: Did she open the door or did you open the door?

[Trooper Spanger]: She opened the door.

[District Attorney]: When you first made contact with her, was Showers outside or inside the residence?

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[Trooper Spanger]: She [] met me outside. She [] actually came outside of the residence and met me half-way from the porch, half-way up the porch.

[District Attorney]: Did she identify the driver by his name or just point to him?

[Trooper Spanger]: She just pointed. She did not identify him by his name. She said he was inside sitting on the chair.

[District Attorney]: Did you then go in the residence?

N.T. Suppression Hearing, 1/6/23, at 9-10.

The foregoing demonstrates that Showers, an individual with undisputed

actual authority, voluntarily consented to the troopers’ entry into the Hollow

Road residence. In particular, we note that Trooper Spanger’s testimony

established that Showers provided such consent by opening the door, standing

aside the doorway, and pointing to Appellant. In contrast to Appellant’s

claims, non-verbal consent is constitutionally permissible. See Daniels,

supra. We also note that there is no evidence that Showers was under

coercion or duress when she held the door open to the troopers. See

Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999) (indicating

that the “evaluation” of “consent necessarily entails consideration of a variety

of factors” including “the use of duress or coercive tactics by law enforcement

personnel”). Further, Showers did nothing to physically prevent Trooper

Spangler’s entry, nor did she express objection to the troopers’ presence

inside the residence. To the contrary, Trooper Spangler testified that Showers

sat in the kitchen, smoked cigarettes, and complained to Trooper Phillips about

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the accident. See N.T. Suppression Hearing, 1/6/23, at 11. Finally, it bears

mentioning that, during the suppression hearing, Showers testified that she

did not, in fact, consent to the troopers’ entrance into the Hollow Road

residence. See id. at 27 (Showers testifying that she did not give the troopers

“permission to enter [her] residence.”). The trial court, however, as the “sole

authority to assess the credibility of witnesses” was “entitled to believe all,

part or none of the evidence presented.” Commonwealth v. Reese, 31 A.3d

708, 721 (Pa. Super. 2011). We will not disturb the trial court’s credibility

determinations on appeal. We therefore affirm the trial court’s order denying

suppression.

We now turn to Appellant’s claim that his arrest was not supported by

probable cause. More specifically, Appellant argues that the officers lacked

probable cause to believe that he was the operator of the vehicle in question

or that he was DUI. We disagree.

This Court previously explained:

An officer has probable cause to make a warrantless arrest “when the facts and circumstances within the police officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005) (citation omitted). “Probable cause justifying a warrantless arrest is determined by the totality of the circumstances. … Furthermore, probable cause does not involve certainties, but rather the factual and practical considerations of everyday life on which reasonable and prudent persons act.” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (citations and quotation marks omitted).

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Simmen, 58 A.3d at 817.

Herein, Appellant was involved in a single-vehicle accident, which

caused his Ford F-150 to overturn onto its passenger side. After discovering

Showers owned the Ford F-150, the troopers proceed to the Hollow Road

residence and encountered Showers who identified the driver of the pick-up

truck by advising two troopers that: “He [is] inside sitting on the chair.” N.T.

Suppression Hearing, 1/6/23, at 10. Showers also “gestured to the

individual,” i.e., Appellant, “sitting inside” the residence. Trial Court Opinion,

4/10/23, at 2. Trooper Spangler then made contact with Appellant who

displayed visible signs of intoxication, including “difficulty sitting in the chair;

thick, slurred speech; [and] a very strong odor of alcohol emanating from his

person.” N.T. Suppression Hearing, 1/6/23, at 10. Accordingly, Trooper

Spangler asked Appellant to submit to a PBT test, which revealed the presence

of alcohol. Id. at 11. Based upon the foregoing, Trooper Spangler arrested

Appellant. In view of the totality of the circumstances, we conclude that the

trial court did not err in denying Appellant’s suppression motion as Appellant’s

arrest was supported by probable cause.

For the foregoing reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 11/22/2024

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