Com. v. Rose-Calhoun, B.

Superior Court of Pennsylvania

Com. v. Rose-Calhoun, B.

DecidedMay 24, 2023

Docket1648 EDA 2022

StatusUnpublished

This text of Com. v. Rose-Calhoun, B. (Com. v. Rose-Calhoun, B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Com. v. Rose-Calhoun, B., (Pa. Ct. App. 2023).

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Opinion

J-A07024-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BILAH AMOS ROSE-CALHOUN : : Appellant : No. 1648 EDA 2022

Appeal from the Judgment of Sentence Entered May 31, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002955-2021

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 24, 2023

Bilah Amos Rose-Calhoun appeals the judgment of sentence entered

following his conviction for persons not to possess, use, manufacture, control,

sell or transfer firearms.1 He maintains that the trial court erred in denying his

motion to suppress. We affirm.

We glean the following facts from the hearing on the motion to suppress.

Sergeant James Derwin McCaughan arrived at 110 West Baltimore Avenue

around 11:52 a.m. after a 911 call went out about a Black male with a black

tracksuit who had pointed a firearm “and then went into the apartment of 110

West Baltimore, specifically Apartment B.” N.T., Motion to Suppress,

11/30/21, at 8, 10. Sergeant McCaughan described the building as follows:

____________________________________________

1 18 Pa.C.S.A. § 6105(a)(1). J-A07024-23

So 110 West Baltimore Avenue is an apartment that it’s a two-story apartment, but it’s a row – so it’s a row, so it goes from like 110 all the way down to I believe it’s 122, it’s a row of apartment buildings. . . There’s a first floor and second floor. . . . A and B. So there’s a front door that leads you to, like, kind of like a little lobby landing, and then you go up the stairs to Apartment B, and then up the stairs to – I mean, to Apartment A, and then up to B. And then there’s stairs that go down to a – like a garage area and a laundry room, so it’s a laundry room, and then a garage beyond that.

Id. at 10-11.

Sergeant McCaughan testified that after about 10 minutes of knocking

and ringing the doorbell, Rose-Calhoun’s mother, Venus Calhoun (“Mother”),

looked out from the second-floor window and asked what was going on. Id.

at 9. Sergeant McCaughan and Sergeant Christopher Schiazza explained “that

[the police] had received a call for a subject with a gun that went into that

building[.]” Id. at 9, 11. Mother came to the front door and told officers that

no one had entered her apartment, Apartment B. Id. at 11. When asked if

they could “check” the building “for firearms,” Mother and Rose-Calhoun’s

aunt, Kenya Wilson (“Aunt”), who lived in the first floor of the building and

had come to the door, said yes. Id. at 11, 12, 13, 27. While speaking with

Mother, Sergeant McCaughan saw Rose-Calhoun in the “laundry room area”

at the bottom of the steps. Id. at 12. Sergeant McCaughan asked what he

was doing, and Rose-Calhoun said he had just woken up and was doing

laundry. Id.

Sergeant McCaughan began his search in the laundry room, searching

areas “where someone might hide a gun.” Id. at 13. He then went to the

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garage area and “opened up the lid to the trash can that was in the garage,

and I saw a bullet sitting on top.” Id. At this point, Mother asked if Sergeant

McCaughan needed a warrant to search. He responded that he did not since

she had given her consent. Id. However, believing that Mother might revoke

her consent, Sergeant McCaughan decided to get a search warrant and left

the premises. Id. at 14.

Shortly afterward, Chief Rutherford, the chief of police, spoke with

Mother and Aunt and obtained their consent to search the property. Id. at

15.2 Chief Rutherford informed Sergeant McCaughan, who then returned to

the residence. Before conducting a second search, Sergeant McCaughan

explained Mother and Aunt’s rights regarding the search including “that they

didn’t have to consent, and again, that we were going to get a search warrant

if they did not consent.” Id. at 15,16. Both Mother and Aunt gave their consent

to search. Id. at 17. Sergeant McCaughan also recorded their consent via a

tape recorder. Id. at 16.

After receiving consent to search, Sergeant McCaughan returned to the

garage and found a firearm in the same trash-can where he had initially found

the bullet. Id. at 17-18. Sergeant McCaughan also testified that he did not

ask Rose-Calhoun for consent because he did not live at the property. Id. at

27.

2 Chief Rutherford’s first name is not included in the notes of testimony.

-3- J-A07024-23

Mother testified that she lived at 110 West Baltimore Avenue. Id. at 50.

She testified that during her initial interaction with Sergeant McCaughan, he

explained that “he had got a call . . . that somebody came in and ran in our

apartment with a gun[.]” Id. at 51. She testified that she invited the police in

to look for a person and that when Sergeant McCaughan began looking in the

washing machines and boxes, she said, “[Y]ou are searching, you need to go

get a search warrant.” Id. at 52. She testified that Sergeant McCaughan

continued to search and when he found the bullet in the trash-can, he said,

“[O]h, now I’ve got to get a search warrant.” Id. at 54. She also testified that

she expected them to search her apartment. Id. at 56. Mother conceded that

she gave the officers consent to search the second time they arrived but said

that she was confused. Id. at 59.

Aunt testified that she lived in Apartment A at 110 Baltimore Avenue.

Id. at 64. She testified that officers told her that “they got a call that a guy

and a girl was fighting, and the guy had a gun . . . and ran into the apartment

building, and went to Apartment B.” Id. at 65, 66. She testified that officers

asked if she had a lease to the apartment and she stated that she did. Id. at

67. She also testified that Sergeant McCaughan asked if he could “look” and

she said yes. Id. at 67, 68. She testified that when he asked if he could look,

she thought it meant that “he was looking for someone.” Id. at 68. She agreed

that when officers arrived the second time, she gave consent to search the

property. Id. at 70. While Aunt maintained that officers never said that they

were searching for a gun, she testified Sergeant McCaughan “said that the call

-4- J-A07024-23

. . . said that there was a -- the guy had a gun.” Id. Aunt also testified that

the laundry area is a shared area for both apartments. Id. at 66.

The trial court denied the motion to suppress and concluded Rose-

Calhoun “failed to prove the consent given in this case by his mother and his

aunt” was not voluntary. Order Denying Defendant’s Motion to Suppress, filed

1/31/22, at 7. It determined that Mother and Aunt both testified that they

initially gave Sergeant McCaughan consent to search the residence and

Sergeant McCaughan stopped searching and left the premises when they

questioned the scope of his search. Id. The court also determined that Mother

and Aunt gave consent again when officers returned. Id.

Rose-Calhoun proceeded by way of a stipulated bench trial and the court

found him guilty of the above-referenced offense. The court sentenced him to

72 to 144 months’ incarceration followed by one year of reporting probation.

Rose-Calhoun filed a post-sentence motion, which the trial court denied. This

timely appeal followed.

Rose-Calhoun raises the following issue: “Whether the court below erred

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