Com. v. Berkheimer, A.

• Court: Superior Court of Pennsylvania
• Decided: May 4, 2023
• Docket: 720 WDA 2022
• Status: Unpublished

Opinion

J-S05042-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ANDREW DAVID BERKHEIMER : No. 720 WDA 2022

Appeal from the Suppression Order Entered May 17, 2022 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001312-2021

BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: MAY 4, 2023

The Commonwealth appeals from the order granting Andrew David

Berkheimer’s pre-trial motion to suppress. We affirm.

In June 2021, Berkheimer was charged with one count of possession

with intent to deliver a controlled substance, two counts of simple possession,

and 11 counts of possession of drug paraphernalia.1 The seizure of those items

resulted from a search of Berkheimer’s home. Berkheimer filed an omnibus

pre-trial motion to suppress the evidence obtained during the search. The trial

court held an evidentiary hearing on the motion on December 7, 2021.

At the hearing, the Commonwealth presented the testimony of

Lieutenant Travis Clowson of the Roaring Spring Borough Police Department.

He testified that on May 22, 2021, he was working the 4:00 p.m. to midnight

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1 See 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively. J-S05042-23

shift. N.T., Omnibus Pretrial Motion Hearing, 12/7/21, at 7. Lieutenant

Clowson stated that upon returning to the office from being on patrol shortly

after 5:00 p.m., he listened to a voicemail that was left on the police

department’s answering machine. Id. at 7, 64-66. The caller identified herself

as Berkheimer’s neighbor. Id. at 66. She stated in the message that she

believed someone might have broken into Berkheimer’s house because the

storm cellar door was ajar, and glass was broken out of a window. Id. at 66-

67. The caller also said there was a needle in Berkheimer’s yard. Id. at 66.

After listening to the voicemail, Lieutenant Clowson proceeded to

Berkheimer’s residence. Id. at 8. Upon arrival, he noticed that there was “a

storm cellar there with a door that was off to the side and a smashed window

on the door led down by a flight of steps.” Id. at 9. Lieutenant Clowson also

observed copper piping and wires at the bottom of the steps. Id. He testified

that since the storm cellar door was ajar and the window was broken, he

believed that “someone may still be in there trying to steal items.” Id. He did

not knock on the front door because he did not want to “spook” anyone who

might still be in the house. Id. at 23. He also testified that he did not attempt

to contact Berkheimer because he did not have time to search for

Berkheimer’s phone number. Id. at 24. At that point, Lieutenant Clowson

called for another officer to come to the scene to assist him. Id. at 10.

Lieutenant Clowson explained to his backup officer that there was an incident

approximately one year prior where someone was in Berkheimer’s house

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stealing things, and he believed that the same individual might be illegally in

the house again. Id.

Lieutenant Clowson and his backup officer then began to “clear the

house.” Id. at 11. They walked down the basement steps into the basement

and then proceeded to walk up another set of basement steps that led to the

first floor of the house. Id. at 11-12. While walking up those steps, Lieutenant

Clowson observed a cardboard box in plain view on the steps containing

psilocybin mushrooms. Id. at 12. He stated that he did not have to manipulate

anything to see them. Id. Lieutenant Clowson testified that he did not get a

search warrant at that point because he “had [to] clear the house to make

sure nobody else was in the house.” Id. at 59. The officers then opened the

door from the basement into the kitchen and searched the kitchen and living

room to see if anyone was there. Id. at 47. At that point, they announced

their presence stating, “Roaring Spring Police.” Id. They then searched the

next level of the house, where the bedrooms were located. Id. at 54. After

searching that floor, the officers went up to the attic and searched it. Id. at

55. The officers did not find anyone in the house or any evidence that someone

had broken into the home and tried to escape. Id. at 59.

Lieutenant Clowson testified that after securing the residence, he

applied for and was granted a search warrant. Id. at 13. He searched

Berkheimer’s home pursuant to the warrant and found a small amount of

heroin and drug paraphernalia.

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The trial court granted the suppression motion. The Commonwealth filed

a motion for reconsideration, which was denied. This appeal followed. The

Commonwealth raises the following issues:

1. Whether the lower court misapplied law to the facts in determining the law enforcement officer did not have exigent circumstances to conduct a warrantless entry into the home?

2. Whether the lower court misapplied law to the facts in placing lesser weight to a concerned citizen directly calling the police department than if they called 911?

Commonwealth’s Br. at 5.

On appeal from an order granting a motion to suppress, our review is

“limited to determining whether the record supported that court’s factual

findings and whether the legal conclusions that the suppression court drew

from those facts were correct.” Commonwealth v. Torres, 764 A.2d 532,

536-37 (Pa. 2001). We consider only “the evidence presented by the defense

and so much of the evidence for the prosecution which remained

uncontradicted when read in the context of the record as a whole.” Id. at 537.

The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of the Pennsylvania Constitution protect against unreasonable

searches and seizures. “A search conducted without a warrant is deemed to

be unreasonable and therefore constitutionally impermissible, unless an

established exception applies.” Commonwealth v. Romero, 183 A.3d 364,

396 (Pa. 2018) (citation omitted).

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In its first issue raised in its Statement of Issues Involved, the

Commonwealth contends the trial court erred in determining that Lieutenant

Clowson “did not have exigent circumstances to conduct a warrantless entry

into the home[.]” Commonwealth’s Br. at 5. However, the argument section

of its brief does not argue that exigent circumstances existed. In fact, they

are not even mentioned. Rather, the Commonwealth argues that two other

exceptions to the warrant requirement permitted a warrantless search of

Berkheimer’s house – the protective sweep and plain view doctrine. See id.

at 12-18.

Pennsylvania Rule of Appellate Procedure Rule 2119 provides that the

argument section of an appellate brief “shall be divided into as many parts as

there are questions to be argued,” and requires each section to have a

“discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P.

2119(a). “The Rules of Appellate Procedure state unequivocally that each

question an appellant raises is to be supported by discussion and analysis of

pertinent authority.” Eichman v. McKeon, 824 A.2d 305, 319 (Pa.Super.

2003) (citations omitted). The failure to follow these instructions constitutes

waiver. Id.; see also Norman for Estate of Shearlds v. Temple Univ.

Health Sys., 208 A.3d 1115, 1119 (Pa.Super. 2019) (holding claims waived

“because they are undeveloped and lack citation to pertinent legal authority”);

McCabe v. Marywood Univ., 166 A.3d 1257, 1264 (Pa.Super. 2017) (finding

issue waived where the appellant’s “argument consists of one paragraph with

no citation to authority or developed analysis”).

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Here, because the argument section of the Commonwealth’s brief failed

to develop an argument about, or even mention, its claim of exigent

circumstances, that claim is waived. See McKeon, 824 A.2d at 319.

The Commonwealth’s arguments that the protective sweep and plain

view exceptions were applicable are likewise not properly preserved, as they

do not appear in the Statement of Issues Involved. See Pa.R.A.P. 2116(a). In

any event, they are meritless. First, the Commonwealth contends a

warrantless protective sweep of Berkheimer’s house was lawful because of the

possibility that someone could have been inside the residence.

Commonwealth’s Br. at 16. It points out that the basement door was slightly

ajar and the glass in the window was broken. Id. The Commonwealth

maintains there was no evidence that the sweep was excessively long, and

Lieutenant Clowson’s body cam footage revealed that he “did not peer in every

nook and cranny within the residence.” Id. at 16-17.

The Commonwealth additionally argues that since Lieutenant Clowson

was lawfully conducting a protective sweep of the residence, he could have

seized the contraband at the time he saw it under the plain view doctrine. Id.

at 17. It argues that although Lieutenant Clowson chose not to seize the items

at that time, the items that were listed in the affidavit of probable cause for

the warrant were the items Lieutenant Clowson observed in plain view. Id.

The Commonwealth thus contends the items were seized pursuant to a lawful

search. Id. at 18.

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One exception to the warrant requirement is the protective sweep.

Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001). A protective

sweep is “a quick and limited search of premises, incident to an arrest and

conducted to protect the safety of police officers or others.” Id. (quoting

Maryland v. Buie, 494 U.S. 325, 327 (1990)). It is “not a full search of the

premises, but may extend only to a cursory inspection of those spaces where

a person may be found.” Buie, 494 U.S. at 335. The sweep must “last[] no

longer than is necessary to dispel the reasonable suspicion of danger and in

any event no longer than it takes to complete the arrest and depart the

premises.” Id. at 335-36. This Court has interpreted Buie as approving two

levels of protection:

Pursuant to the first level of a protective sweep, without a showing of even reasonable suspicion, police officers may make cursory visual inspections of spaces immediately adjacent to the arrest scene, which could conceal an assailant. The scope of the second level permits a search for attackers further away from the place of arrest, provided that the officer who conducted the sweep can articulate specific facts to justify a reasonable fear for the safety of himself and others.

Taylor, 771 A.2d at 1267 (emphasis added).

We find that the evidence presented did not support a protective sweep.

Lieutenant Clowson testified that he went into the house because he “thought

someone was in the house stealing the copper piping.” N.T. at 23; see also

id. at 9, 11, 25, 68. He noted that “[i]ndividuals still may be up there upstairs

sleeping, could be in the kitchen making something, could be in the living

room, could be in an attic hiding out, could be anywhere.” Id. at 52. However,

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Lieutenant Clowson failed to “articulate specific facts,” see Taylor, 771 A.2d

at 1267, to justify his belief that another person, who posed a threat to his

safety, might be in the home. Indeed, there were no emergent circumstances

present. There was no evidence indicating that a person was unlawfully at the

residence at that time or that anyone was in danger that would justify a

warrantless entry into the residence. Lieutenant Clowson’s reasons for

entering the premises – that he believed someone might be stealing copper

piping or may have been sleeping, making food, or somewhere else in the

house – are not circumstances indicative of a fear for safety or the safety of

others. Without any specific facts to substantiate a reasonable fear of safety,

the warrantless search of the house was not justifiable as a protective sweep.

The Commonwealth’s additional argument that the plain view doctrine

applies is also without merit. “The plain view doctrine provides that evidence

in plain view of the police can be seized without a warrant.” Commonwealth

v. Luczki, 212 A.3d 530, 546 (Pa.Super. 2019) (citation omitted). However,

“inherent in the plain view doctrine is the principle the seized object must not

have been put in plain view as a result of unlawful police conduct.”

Commonwealth v. Heidelberg, 267 A.3d 492, 504 (Pa.Super. 2021) (en

banc) (citation omitted); see also Texas v. Brown, 460 U.S. 730, 737

(1983) (stating the “question whether property in plain view of the police may

be seized [ ] must turn on the legality of the intrusion that enables them to

perceive and physically seize the property in question.”). Indeed, under the

plain view doctrine, a warrantless seizure of an item is only permissible when:

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“1) an officer views the object from a lawful vantage point; (2) it is

immediately apparent to him that the object is incriminating; and (3) the

officer has a lawful right of access to the object.” Heidelberg, 267 A.3d at

504 (citation omitted).

Here, since the search of Berkheimer’s house was an unlawful protective

sweep, Lieutenant Clowson did not observe the seized contraband from a

lawful vantage point nor had a lawful right of access to it. See id. Thus, the

plain view doctrine was not applicable.

In its second issue raised in its Statement of Issues Involved, the

Commonwealth alleges the trial court “misapplied law to the facts in placing

lesser weight to a concerned citizen directly calling the police department than

if they called 911[.]” Commonwealth’s Br. at 5. According to the

Commonwealth, “[r]ather than relying on the training and experience of an

18-year police veteran, the court placed undue weight on the fact that the

reporting neighbor called the police station rather than dialing 911.” Id. at 20.

It argues that “[w]hether an exigency existed when the police arrived to

investigate must be determined by the investigating officer and must not be

dictated by whether or not a concerned lay[]person called the police station

rather than calling 911.” Id. at 21.

This issue is without merit. Although the court referenced the fact that

Berkheimer’s neighbor called the non-emergency line instead of 911, it was

just one of the many factors that the court considered in support of its grant

of suppression. The court stated:

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[T]here was no evidence presented to establish that the break[-] in was in progress. A neighbor contacted the police department indicating certain facts that they observed. However, they did not witness anybody in or around the residence. There was no evidence to suggest that any individual was unlawfully at the residence at that time. Therefore, there was no evidence that law enforcement was in pursuit of a fleeing felon or that the suspect would escape if not swiftly apprehended prior to a warrant being obtained. In addition, there was no proof that any evidence would be destroyed if the police took time to obtain a warrant. There was no effort at contacting the lawful owner of the residence who was believed to be out of the area. While we recognize that members of the community contacting the police department at the borough building is not uncommon in Roaring Spring, the fact that the neighbor did not contact 911 also suggests that the neighbor did not view the matter as an emergency. Simply put, there was no evidence that the situation at hand was in fact exigent.

Trial Court Opinion, filed May 17, 2022, at 7.

The record supports the court’s factual findings. We agree that no

exigent circumstances existed. Thus, we affirm the order granting the motion

to suppress.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/4/2023

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