J-A06037-22
2023 PA Super 136
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL GOODIS : : Appellant : No. 701 WDA 2021
Appeal from the Judgment of Sentence Entered January 8, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001278-2017
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
CONCURRING OPINION BY SULLIVAN, J.: FILED: July 28, 2023
After careful consideration of the record and the narrowly-construed
case law regarding the “knock and announce rule” and its exceptions, I am
constrained to join the majority opinion because the Commonwealth’s
evidence did not strictly comply with the rule or neatly fit into its carved-out
exceptions. However, I write separately to emphasize that the actions of the
law enforcement officers in serving the warrant in this case complied with the
general principles of the rule by balancing Goodis’s privacy interests and the
officers’ personal safety concerns in a situation where the officers perceived a
legitimate safety risk. This balance is borne out by six videos from Goodis’s
own security cameras which were admitted by stipulation at the suppression
hearing. See N.T. 7/20/18, at 6, Exhibit A, Videos 1-6.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A06037-22
This Court is bound by the trial court’s findings of fact so long as they
are supported by the record, but it reviews questions of law de novo. See
Commonwealth v. McMahon, 280 A.3d 1069, 1071 (Pa. Super. 2022)
(citing Commonwealth v. Yandamuri, 159 A.3d 503, 506 (Pa. 2017). When
the Commonwealth prevails at the suppression hearing, the Court may only
consider the evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted. See id. The Court’s scope of review
is limited to the suppression hearing record. See id.
The knock and announce rule requires that before entering a dwelling
to execute a search warrant police must announce their identity, purpose, and
authority and give the occupant a reasonable period of time after the
announcement to admit them, absent exigent circumstances that require
immediate forcible entry. See Pa.R.Crim.P. 207; Commonwealth v.
Frederick, 124 A.3d 748, 754-56 (Pa. Super. 2015). The rule seeks to
prevent resistance by an occupant to protect his privacy, prevent violence and
physical injury to police and occupants, protect an occupant’s privacy
expectation, and prevent property damage resulting from forced entry. See
Commonwealth v. Carlton, 701 A.2d 143, 146 (Pa. 1997). Exigent
circumstances permitting non-compliance with the knock and announce rule
include situations where the police have reason to believe that an
announcement prior to entry would imperil their safety. See Frederick, 124
-2- J-A06037-22
A.3d at 755. The remedy for a knock and announce violation is always
suppression. See id.
As Goodis’s own surveillance videos establish, his house is in a rural
area and Officers David Lepovsky and Brian Sadlowe, and Lieutenant Robert
Jones, who went to Goodis’s house to execute the search warrant needed
thirty seconds to walk a long pathway from the street to the house in full view
of Goodis’s security cameras. See Exhibit A, Video 1 at 0:00-0:30. A separate
video shows that before approaching the front door, the law enforcement
officers conducted a search of the perimeter of the house and garage. See
Exhibit A, Video 2 at 0:00-0:56. Officer Lepovsky testified that none of the
officers saw any evidence to suggest that anyone was in the house. See N.T.,
7/20/18, at 9-11.1
1 The police exercise of caution before approaching the house comported with
the protection of both Goodis and the officers, who face an increasing risk of ambushes from citizens particularly when they go to serve arrest or search warrants at citizens’ residences. See https://cbsnews.com/philadelphia/james-oconnor-hassan-elliott- philadelphia-police-swat-officer-shot-and-killed-while-serving-warrant-in- frankford/ (last viewed July 20, 2023) (reporting that Philadelphia Police Officer was killed while serving warrant at suspect’s home); https://www.cbsnews.com/sanfrancisco/news/gilroy-police-officer-involved- fatal-shooting-ambush-wanted-attempted-murder/ (last viewed July 20, 2023) (reporting that a man called police purportedly to surrender on an attempted murder charge, then opened fire on an officer who arrived at the address to which he had summoned police); https://www.charlotteobserver.com/news/local crime/article248942479.html (last viewed July 20, 2023) (reporting that two FBI agents attempting to execute a search warrant were killed when a gunman opened fire from inside (Footnote Continued Next Page)
-3- J-A06037-22
Another third video shows that in apparent response to a knock, Goodis
looked at the kitchen door window toward the three officers, who stood in the
sunlight. Goodis, who was wearing a shirt, held up his right finger signaling
the officers to wait and disappeared from the officers’ view. See Exhibit A,
Video 4 at 0:08-0:10, N.T. 7/20/18, at 12. Officer Lepovsky opened the
unlocked door and from outside the house and stated, “Hey, Buddy, are you
alright?” Goodis stated, “Yeah, I’m good,” and returned to the uniformed
officer’s line of vision. Still outside the house, Officer Lepovsky said, “Hey
come here, come out here and talk to me.” See id. at 0:10-0:16. Goodis
again held up his finger, said something inaudible, and again disappeared from
the officer’s sight. See id. at 0:12-0:18.
Officer Lepovsky said, “Okay, alright,” he drew his gun, pointed it at the
ground, and slowly took four steps toward the kitchen. Goodis put on
sweatpants. See id. at 0:17-0:22. Officer Lepovsky asked, “Are you by
yourself?” Goodis returned to the officer’s line of sight and answered, “Yes.”
With his gun still pointed down, Officer Lepovsky said, “I don’t like, I don’t like
it when you walk away from me, you know what I mean? I see you holding
up one finger and then you walk away.” Goodis took two steps toward the
officer. See id. at 0:23-0:31.
his home having monitored the approach of agents with a doorbell camera and shot them through the unopened door with an assault rifle).
-4- J-A06037-22
Officer Lepovsky kept his gun pointed at the ground, gestured for Goodis
to join him, backed up, and said, “Come on out here, I’m going to put this
back here,” referring to his gun, and asked, “What’s your . . . name” as he
stepped outside of the house and replaced his gun in its holster. Goodis
followed him and answered, “Michael.” See id. at 0:31-0:36. As Goodis
reached the door, Officer Lepovsky introduced himself from outside the
residence. See id. at 0:36-0:38. Officer Sadlowe and Lieutenant Jones
introduced themselves and Lieutenant Jones answered Goodis’s questioning
about how he was doing by saying, “Good. I’m here because I have a search
warrant for your residence today.” Goodis answered, “Okay.” Lieutenant
Jones stated, “I’ll let you read everything. You’re not under arrest at this
point.” See id. at 0:46-0:49.
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J-A06037-22
2023 PA Super 136
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL GOODIS : : Appellant : No. 701 WDA 2021
Appeal from the Judgment of Sentence Entered January 8, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001278-2017
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
CONCURRING OPINION BY SULLIVAN, J.: FILED: July 28, 2023
After careful consideration of the record and the narrowly-construed
case law regarding the “knock and announce rule” and its exceptions, I am
constrained to join the majority opinion because the Commonwealth’s
evidence did not strictly comply with the rule or neatly fit into its carved-out
exceptions. However, I write separately to emphasize that the actions of the
law enforcement officers in serving the warrant in this case complied with the
general principles of the rule by balancing Goodis’s privacy interests and the
officers’ personal safety concerns in a situation where the officers perceived a
legitimate safety risk. This balance is borne out by six videos from Goodis’s
own security cameras which were admitted by stipulation at the suppression
hearing. See N.T. 7/20/18, at 6, Exhibit A, Videos 1-6.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A06037-22
This Court is bound by the trial court’s findings of fact so long as they
are supported by the record, but it reviews questions of law de novo. See
Commonwealth v. McMahon, 280 A.3d 1069, 1071 (Pa. Super. 2022)
(citing Commonwealth v. Yandamuri, 159 A.3d 503, 506 (Pa. 2017). When
the Commonwealth prevails at the suppression hearing, the Court may only
consider the evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted. See id. The Court’s scope of review
is limited to the suppression hearing record. See id.
The knock and announce rule requires that before entering a dwelling
to execute a search warrant police must announce their identity, purpose, and
authority and give the occupant a reasonable period of time after the
announcement to admit them, absent exigent circumstances that require
immediate forcible entry. See Pa.R.Crim.P. 207; Commonwealth v.
Frederick, 124 A.3d 748, 754-56 (Pa. Super. 2015). The rule seeks to
prevent resistance by an occupant to protect his privacy, prevent violence and
physical injury to police and occupants, protect an occupant’s privacy
expectation, and prevent property damage resulting from forced entry. See
Commonwealth v. Carlton, 701 A.2d 143, 146 (Pa. 1997). Exigent
circumstances permitting non-compliance with the knock and announce rule
include situations where the police have reason to believe that an
announcement prior to entry would imperil their safety. See Frederick, 124
-2- J-A06037-22
A.3d at 755. The remedy for a knock and announce violation is always
suppression. See id.
As Goodis’s own surveillance videos establish, his house is in a rural
area and Officers David Lepovsky and Brian Sadlowe, and Lieutenant Robert
Jones, who went to Goodis’s house to execute the search warrant needed
thirty seconds to walk a long pathway from the street to the house in full view
of Goodis’s security cameras. See Exhibit A, Video 1 at 0:00-0:30. A separate
video shows that before approaching the front door, the law enforcement
officers conducted a search of the perimeter of the house and garage. See
Exhibit A, Video 2 at 0:00-0:56. Officer Lepovsky testified that none of the
officers saw any evidence to suggest that anyone was in the house. See N.T.,
7/20/18, at 9-11.1
1 The police exercise of caution before approaching the house comported with
the protection of both Goodis and the officers, who face an increasing risk of ambushes from citizens particularly when they go to serve arrest or search warrants at citizens’ residences. See https://cbsnews.com/philadelphia/james-oconnor-hassan-elliott- philadelphia-police-swat-officer-shot-and-killed-while-serving-warrant-in- frankford/ (last viewed July 20, 2023) (reporting that Philadelphia Police Officer was killed while serving warrant at suspect’s home); https://www.cbsnews.com/sanfrancisco/news/gilroy-police-officer-involved- fatal-shooting-ambush-wanted-attempted-murder/ (last viewed July 20, 2023) (reporting that a man called police purportedly to surrender on an attempted murder charge, then opened fire on an officer who arrived at the address to which he had summoned police); https://www.charlotteobserver.com/news/local crime/article248942479.html (last viewed July 20, 2023) (reporting that two FBI agents attempting to execute a search warrant were killed when a gunman opened fire from inside (Footnote Continued Next Page)
-3- J-A06037-22
Another third video shows that in apparent response to a knock, Goodis
looked at the kitchen door window toward the three officers, who stood in the
sunlight. Goodis, who was wearing a shirt, held up his right finger signaling
the officers to wait and disappeared from the officers’ view. See Exhibit A,
Video 4 at 0:08-0:10, N.T. 7/20/18, at 12. Officer Lepovsky opened the
unlocked door and from outside the house and stated, “Hey, Buddy, are you
alright?” Goodis stated, “Yeah, I’m good,” and returned to the uniformed
officer’s line of vision. Still outside the house, Officer Lepovsky said, “Hey
come here, come out here and talk to me.” See id. at 0:10-0:16. Goodis
again held up his finger, said something inaudible, and again disappeared from
the officer’s sight. See id. at 0:12-0:18.
Officer Lepovsky said, “Okay, alright,” he drew his gun, pointed it at the
ground, and slowly took four steps toward the kitchen. Goodis put on
sweatpants. See id. at 0:17-0:22. Officer Lepovsky asked, “Are you by
yourself?” Goodis returned to the officer’s line of sight and answered, “Yes.”
With his gun still pointed down, Officer Lepovsky said, “I don’t like, I don’t like
it when you walk away from me, you know what I mean? I see you holding
up one finger and then you walk away.” Goodis took two steps toward the
officer. See id. at 0:23-0:31.
his home having monitored the approach of agents with a doorbell camera and shot them through the unopened door with an assault rifle).
-4- J-A06037-22
Officer Lepovsky kept his gun pointed at the ground, gestured for Goodis
to join him, backed up, and said, “Come on out here, I’m going to put this
back here,” referring to his gun, and asked, “What’s your . . . name” as he
stepped outside of the house and replaced his gun in its holster. Goodis
followed him and answered, “Michael.” See id. at 0:31-0:36. As Goodis
reached the door, Officer Lepovsky introduced himself from outside the
residence. See id. at 0:36-0:38. Officer Sadlowe and Lieutenant Jones
introduced themselves and Lieutenant Jones answered Goodis’s questioning
about how he was doing by saying, “Good. I’m here because I have a search
warrant for your residence today.” Goodis answered, “Okay.” Lieutenant
Jones stated, “I’ll let you read everything. You’re not under arrest at this
point.” See id. at 0:46-0:49.
Plainly, Officer Lepovsky never aimed his gun at Goodis and once the
safety concern of Goodis’s disappearances from his sight dissipated, the officer
backed up, put his gun away, and left the house, leading to a discussion at
the door among Goodis and the three officers without any search having taken
place. After the conversation at the doorway, Goodis is seen ushering the
police into the house and showing them a computer in a backpack at the
kitchen table. See Exhibit A, Videos 5 and 6. Tellingly, there is no show of
force and the conduct appears entirely consensual. However, although I agree
with the trial court that an overly technical approach to the knock and
announce rule is inadvisable where the police conduct is reasonable and the
-5- J-A06037-22
purpose of the rule has not been offended, that is not the law. Here, testifying
more than two years after the event, none of the officers could say with
certainty that they had announced their identity and purpose prior to entry2
and Officer Lepovsky did not have a pre-existing safety concern, and that is
what the current case law focuses on.3
The exclusionary rule is intended to deter illegal police conduct and
protect against unreasonable searches and seizures. See United States v.
Calandra, 414 U.S. 338, 347 (Pa. 1974); Commonwealth v. Edmunds, 586
A.2d 887, 899 (Pa. 1991). Those purposes are not furthered by the result in
this case. I agree with the trial court’s assessment that the police had a
legitimate concern for their safety, see Trial Court Opinion, 9/13/18, at 5. We
should not have the strict letter of the rule swallow up good, commonsense
responses to law enforcement’s legitimate safety concerns, but the case law
2 The microphone from Video 4 did not fully capture sounds made outside the
house while the door was closed.
3 Notably, the videos from Goodis’s own security cameras contradict his suppression hearing testimony that he emerged naked from his shower and saw people standing outside, and did not have any clothing on, and further that he walked to his left into the kitchen upon seeing the police “to at least get a t-shirt and some boxers on, and before I . . .. Before I was able to do anything, I was basically being held point blank at gunpoint in my kitchen.” See N.T., 1/29/18, at 22-23 (intervening question omitted). Exhibit A Videos 3 and 4 show that Goodis was not naked at the time of the police entry but wore a shirt, boxer shorts, and socks. Further, footage from Video 4 shows that Goodis was not “basically being held point blank at gunpoint” in his kitchen; Officer Lepovsky kept his gun pointed to the ground at all times. See Video 4 at 0:17-0:36.
-6- J-A06037-22
in this area is clear enough to warrant reversal despite my reticence. Because
the case law concerning the safety exception in knock and announce cases is
well developed in this Commonwealth and the facts here do not comply with
the narrow exception, I concur in the majority opinion.
-7-