J-S35028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL
Appellant No. 2041 MDA 2013
Appeal from the Judgment of Sentence of October 16, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-CR-0000426-2013
BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 07, 2014
sentence. We affirm.
The trial court summarized the relevant factual and procedural history
of this case, as follows:
On November 1, 2012, [two police officers] were dispatched to
the officers arrived, they could hear male and female voices yelling inside the apartment. Upon knocking on the door, the
and finally, [McKinney] opened the door and refused to permit entry to the officers. The officers wanted to check on the welfare of the female [that] they had heard inside, but [McKinney] refused to move or allow entry.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S35028-14
Finally, the officers physically removed [McKinney] from the door and restrained him so that they could enter. [McKinney] fought him and screamed at police until other occupants of the apartment building came out of their apartments to see the commotion. Upon entering the apartment to check the welfare of the female and to determine if anyone else was present, [a police officer] located two baggies of
[McKinney] was charged with disorderly conduct1 and possession[ ]small amount of marijuana.2 On June 19, 2013, [McKinney] filed a motion to suppress evidence and a suppression hearing was held on October 15, 2013. The
findings that the totality of the circumstances justified the police
apartment to ensure that the female . . . was not in danger or in immediate need of aid and that the police were not required to ignore marijuana that they see in the living room while conducting a legal sweep of the apartment. A jury trial followed the suppression hearing. The jury found [McKinney] guilty of the disorderly conduct [charge] and the judge found [McKinney] guilty of the possession[ ]small amount of marijuana [charge]. [On October 16, 2013, McKinney] was sentenced to [one] year of probation for the disorderly conduct [conviction] and thirty days of probation for the [marijuana possession conviction], with the sentences to run concurrently. 1 18 Pa.C.S. § 5503(a)(2). 2 35 P.S. § 780-113(a)(31).
-2 (citations omitted or
modified, minor modifications to capitalization).
On November 15, 2013, McKinney filed a timely notice of appeal. On
November 19, 2013, the trial court ordered McKinney to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On December 9, 2013, McKinney timely filed his Rule 1925(b) statement
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statement. On December 20, 2013, the trial court filed an opinion pursuant
to Pa.R.A.P. 1925(a).
McKinney presents two issues for our review:
(1) motion, where no exigent circumstances supported a protective sweep of the entire apartment when both parties to the domestic dispute were located, questioned, and secured in the entrance hallway to the apartment?
(2) Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that [McKinney] was in constructive possession of the marijuana found in the living room of his apartment?
Brief for McKinney at 5.
In his first issue, McKinney alleges that the trial court erred in denying
during a protective sweep which was not conducted incident to the arrest of
taken together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbor[ed]
Id. (quoting
Commonwealth v. Potts, 73 A.3d 1275, 1281-82 (Pa. Super. 2013)).
Our s
motion is well-settled:
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[I]n addressing a challenge to a trial court's denial of a suppression motion [we are] limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the [Commonwealth] prevailed in 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 record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010) (quoting
Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003)).
Commonwealth v. White, 669 A.2d 896, 900
(Pa. 1995). Absent the application of one of a few clearly delineated
exceptions, a warrantless search or seizure is presumptively unreasonable.
Id. (citing Horton v. California, 496 U.S. 128, 134 n.4 (1990)). This is the
law under both the Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v.
McCree, 924 A.2d 621, 627 (Pa. 2007).
apartment was constitutionally proper, we first must assess whether the
warrant. One such exception to our well-established warrant requirement is
The exigent circumstances exception to the warrant requirement recognizes that some situations present a compelling need for
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instant arrest, and that delay to seek a warrant will endanger life, limb[,] or overriding law enforcement interests. In these cases, our strong preference for use of a warrant must give way to an urgent need for immediate action.
* * *
Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.
Commonwealth v. Richter, 791 A.2d 1181, 1184-85 (Pa. Super. 2002)
exist involves a balancing of
unreasonable intrusions against the interest of society in investigating crime
Commonwealth v. Hinkson, 461 A.2d 616, 618
ding
Id. (citing Commonwealth v. Harris,
239 A.2d 290, 292 (Pa. 1968)).
Potts, 73 A.3d at
1280 (citing Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa. 2009)).
Indeed, Pennsylvania courts specifically have singled out domestic disputes
as a situation that may give rise to exigency:
al for imminent physical harm in the domestic context implicate exigencies that may justify limited police intrusion into a
Commonwealth v. Wright, 742 A.2d 661, 664 (Pa. 1999). The relevant inqui
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reasonable basis for believing that medical assistance was Michigan v. Fisher, 558 U.S. 45, 49 (2009) (citation and quotation marks omitted). must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and Ryburn v. Huff, 132 S.Ct. 987, 992 (2012) (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
Potts, 73 A.3d at 1280-81 (citations modified).
In the instant case, the officers were responding to a domestic dispute
-7. En route t
officers received a radio transmission advising that a stabbing had recently
occurred at the same address. Id. at 7-8. Upon arriving at the scene, the
officers heard screaming between a man and a woman emanating from
s apartment. Id. at 8-10. Immediately after knocking on
Id. at 10-11. The officers described the loud thud as akin to the sound of a
head striking a wall. Id. Following the verbal outburst and loud thud, the
argument inside of the apartment suddenly ceased. Id. at 11.
the officers attempted to forcibly enter the
apartment. Id. While both officers were issuing verbal commands for
McKinney to open the door, McKinney eventually complied. Id. at 12.
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a
Id. at 12-13. The officers
could not see past McKinney into the apartment. Id. at 21. One of the
officers further testified that
blocking the doorway] were stopping me from verifying injuries and aiding
Id.
at 13. Ultimately, the officers physically restrained and removed McKinney
Id. at 13.
This recitation of events indicates that the police were responding to
an exigency created by their first-hand observations, which led them to
believe that a woman inside of the dwelling had been injured during a
domestic dispute. The police were on-hand to hear the dispute occurring
behind closed doors, and were able separately to identify the voices of
McKinney and his putative paramour. Immediately after attempting to gain
of the apartment went silent. Even after opening the door, McKinney sought
to prevent the police officers from entering, which precluded the officers
from determining whether anyone actually had been injured.
Reviewing the totality of these circumstances, the police were justified
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an act of domestic violence had occurred. Specifically, these observations
Potts, Galvin,
supra. These exigent circumstances allowed the officers to t
without a warrant. Wright, supra.
apartment was permitted pursuant to exigent circumstances, we turn to the
uncovered narcotics.
Under emergent circumstances, protective sweeps are a well- recognized exception to the warrant requirement. In Commonwealth v. Crouse, 729 A.2d 588 (Pa. Super. 1999), this Court held that properly conducted protective sweeps violate neither the Fourth Amendment [to] the United States Constitution nor Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Witman, 750 A.2d 327, 335-36 (Pa. Super. 2000)
premises, incident to an arrest and conducted to protect the safety of police
officers or Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa.
2001) (quoting Maryland v. Buie, 494 U.S. 325, 327 (1990)).
Buie sets forth two levels of protective sweeps. Buie, 494 U.S. at 334. The two levels are defined thus:
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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 those on the arrest scene.
Id. 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 (citations modified).
Instantly, there is no allegation that the officers were present at
McKinney was not under arrest when the police initially entered and
invest
Taylor, supra.
Potts is highly instructive in this context. In Potts, police officers,
responding to a domestic dispute, heard screaming and yelling emanating
apartment door for approximately twenty seconds before the yelling and
screaming stopped. When no one answered the door, the officers drew their
weapons. Finally, the victim in Potts opened the door, appearing
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Id. One of the officers then saw the appellant run into a
bedroom and shut the bedroom door. When asked to identify the man who
had just run into the bedroom, the victim identified the appellant as her
boyfriend. The officers asked the appellant to come out of the bedroom.
Id. The appellan
Id. At this point, the officers became concerned
for their own safety, as well as for the safety of the victim. Id. at 1279.
the officers entered the bedroom
to perform a protective sweep in order to check for other people or weapons
that might pose a threat to the victim or to officers. Id. Upon entry into the
bedroom, the officer discovered, and eventually seized, an open suitcase
filled with a large amount of marijuana. Id. The appellant filed a motion to
suppress the evidence obtained as the fruits of an allegedly illegal protective
sweep, which the trial court subsequently denied after a hearing. Id. On
appeal, this Court concluded that the totality of the circumstances justified
danger. Id. argument that, because the
appellant had not yet been arrested the officers were not permitted to
Id. at 1282 (quoting
Michigan v. Long, 463 U.S. 1032, 1049-50 (1983)). Specifically, we
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quoted the United States Supreme Court in Long
while conducting a [protective sweep], the officer should, as here, discover
contraband other than weapons, he clearly cannot be required to ignore the
Id. Thus, in Potts
Id. at 1281-82.
Here, the record contains ample articulable facts which, when taken
together with the rational inferences drawn from those facts, would justify
Potts, 73 A.3d at 1282
(citation omitted). Specifically, the exigent circumstances that justified the
protective sweep. See supra at 6-8. The fact that McKinney had not yet
been arrested at the time of the protective sweep is immaterial. Potts,
Long, supra. Furthermore, the investigating officers were not required to
conducting the sweep. Id.; see N.T. Suppression at 25-27 (identifying
where the police officers initially saw the narcotics). Based upon the
1 Id. ____________________________________________
plain view doctrine is an exception to the warrant requirement. Horton, 496 U.S. at 133. The plain view doctrine permits the warrantless seizure of (Footnote Continued Next Page)
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In his second issue, McKinney alleges that there was insufficient
evidence for the trial court to conclude that McKinney was in constructive
possession of the marijuana for which he was subsequently charged and
convicted. Brief for McKinney at 12.
When reviewing challenges to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the Commonwealth as the
verdict winner, giving the Commonwealth the benefit of all reasonable
inferences to be drawn from the evidence. Commonwealth v. Duncan,
deemed sufficient to support the verdict when it establishes each material
element of the crime charged and the commission thereof by the accused,
Id. (quoting Commonwealth v. Brewer, 876
A.2d 1029, 1032 (Pa. Super. 2005), appeal denied, 887 A.2d 1239 (Pa.
2005)). Moreover, this Court may not substitute its judgment for that of the _______________________ (Footnote Continued)
an object when: (1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to the officer that the object is incriminating; and (3) the officer has a lawful right of access to the object. Commonwealth v. Brown, 23 A.3d 544, 552 (Pa. Super. 2011) (citing Horton, 496 U.S. at 136-37). In the instant case and as noted above, the police officers had a lawful right of access to the M to exigent circumstances. See supra at 8. Upon performing a protective sweep and without having to open any doors, the officers noticed two
which contained what the officers immediately suspected to be marijuana. N.T. Suppression at 25-27. The record reflects that the officers viewed the evidence from a lawful vantage point and that its incriminating nature was immediately apparent. See Brown, 23 A.3d at 552.
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factfinder, and where the record contains support for the convictions, they
may not be disturbed. Id. Lastly, the finder of fact is free to believe some,
all, or none of the evidence presented. Commonwealth v. Hartle, 894
A.2d 800, 804 (Pa. Super. 2006).
A defendant is guilty of possession of a small amount of marijuana if
he possesses less than thirty grams of marijuana for personal use. 35 P.S.
§ 780- unable to prove that a suspect
had a controlled substance on his person, the Commonwealth may show
Commonwealth v. Davis, 480
A.2d 1035, 1045 (Pa. Super. 1984) (citation omitted).
The existence of constructive possession of a controlled substance is demonstrated by the ability to exercise a conscious dominion over the illegal substance: the power to control the [illegal substance] and the intent to exercise that control. An intent to maintain a conscious dominion may be inferred from the totality of the circumstances. Thus, circumstantial evidence may be used to establish constructive possession of the illegal substance. Additionally, [the Pennsylvania Supreme Court] has recognized that constructive possession may be found in one or more actors where the item in issue is in an area of joint control and equal access.
Commonwealth v. Johnson, 26 A.3d 1078, 1093-94 (Pa. 2011) (citations
of the narcotics and intent to exercise control over such may be inferred
from access to such drugs and the other surrounding circumstances, even
Davis, 480 A.2d at 1045
(citation omitted).
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Commonwealth v. Mudrick, 507 A.2d 1212 (Pa. 1986), is instructive
in the instant case. In Mudrick, local police officers and narcotics agents
warrant on the girlfriend. Id. The appellee answered the door, and directed
Id. Officers entered the bedroom and
placed the girlfriend under arrest. Id. The appellee told officers that he
Id. at
1212-13. Officers then observed a box of marijuana on the living room
coffee table. Id. at 1213. After obtaining a search warrant, the officers
performed a search of the residence, which produced marijuana from the
living room coffee table as well as cocaine in the bedroom and study. Id.
The appellee was arrested, and subsequently convicted of various charges. 2 and the
Commonwealth appealed. Id. at 1212. Our Supreme Court reinstated the
judgment of
constructive possession may be found in either or both actors if contraband
Id. at 1212, 1214.
Because the appellee and his girlfriend shared control and access of the
2 Commonwealth v. Mudrick, 508 A.2d 341 (Pa. Super. 1984) (table).
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constructive possession of the marijuana openly accessible to him on the
Id. at 1214.
In the instant case, the record reflects that the evidence presented by
possession of a small amount of marijuana. Upon entry into the apartment,
officers discovered two bags of marijuana in plain view on a living room
coffee table. N.T. Suppression at 25. The record indicates that McKinney
lived at the residence where the drugs were found. Id. at 28. One of the
responding officers testified that McKinney conceded, both on the night in
question and in prior dealings, that he lived at the apartment in question.
Id. at 10-11. When McKinney opened his door, he told the officers
Id. at 12.
time of the incident. Id. at 28.
McKinney testified that, although his girlfriend had her own apartment,
she had been living with McKinney in his apartment prior to and on the night
of the incident in question. Notes of Testimony -
16/2014, at 140-41. Although McKinney disclaimed possession of the
marijuana, his denial offered no alternative explanation of ownership.
finding McKinney guilty pursuant to 35 P.S. § 780-113(a)(31), the jury
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clearly chose to disbelieve McKinney. Precedent forbids us from disturbing
such credibility determinations in the context of sufficiency of the evidence.
Based upon the foregoing, there was sufficient evidence to allow the
jury to conclude that McKinney was in constructive possession of the
marijuana in his living room.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/7/2014
3 McKinney has offered no alternative explanation for the presence of the marijuana in his apartment. However, McKinney does suggest that his
Assuming, arguendo, that McKinney and his paramour had equal access to the living room, either party could have been considered in constructive possession of the marijuana. Mudrick, 507 A.2d at 1212-14.
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