Com. v. Rudolph, S.

• Court: Superior Court of Pennsylvania
• Decided: September 13, 2022
• Docket: 699 WDA 2021
• Status: Unpublished

Opinion

J-S11014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SPENCER GENE RUDOLPH : : Appellant : No. 699 WDA 2021

Appeal from the Judgment of Sentence Entered August 26, 2020 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000164-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SPENCER GENE RUDOLPH : : Appellant : No. 700 WDA 2021

Appeal from the Judgment of Sentence Entered August 26, 2020 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000165-2019

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED: SEPTEMBER 13, 2022

In this consolidated case, Spencer Gene Rudolph appeals from his

judgment of sentence for, inter alia, possession with intent to distribute

(“PWID”) at criminal docket CP-16-165-CR-2019 and his judgment of

sentence for, inter alia, drug delivery resulting in the death of William Stout

at criminal docket CP-16-164-CR-2019. Rudolph’s single issue on appeal is J-S11014-22

whether the trial court erred by denying his motion to suppress controlled

substances and other contraband found during a search of his house. We

agree with Rudolph that the trial court erred, as the record is clear the

Commonwealth did not meet its burden at the suppression hearing of

establishing the search warrant was lawfully executed. The Commonwealth

concedes it made an error at Rudolph’s suppression hearing and advocates

that we remand for a second suppression hearing to redress that error. We

decline to do so, as that would require us to ignore the clear burden the

Commonwealth carried - but failed to meet - at Rudolph’s suppression

hearing. Instead, we vacate Rudolph’s judgments of sentence, reverse the

suppression order and remand for proceedings consistent with this

Memorandum.

When this Court reviews a trial court’s denial of a suppression motion,

as we are tasked to do in this case, we are limited to reviewing only the

evidence presented at the suppression hearing. See Commonwealth v.

Carey, 249 A.3d 1217, 1223 (Pa. Super. 2021). Because the Commonwealth

prevailed before the suppression court, we are further limited to considering

only the evidence presented by the Commonwealth and that evidence

presented by Rudolph that remains uncontradicted when read in the context

of the record as a whole. See id.

Here, the trial court held a joint suppression hearing for both docket

numbers on October 7, 2019. There was little, if any, testimony relevant to

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the instant appeal at the suppression hearing. However, the Commonwealth

did incorporate the notes of testimony from Rudolph’s joint preliminary

hearing held on April 9, 2019 into the record of the suppression hearing.

At the preliminary hearing, the Chief of Police of Clarion Borough, Chief

William Peck, was the only person to testify. Peck confirmed he began

investigating the death of Stout from a fentanyl overdose on November 20,

2018. See N.T., 4/9/19, at 22-23. Peck recounted that he looked through

Stout’s phone and saw a contact for “Spencer.” See id. at 25-26. He testified

he had separately received information that Rudolph was dealing drugs out of

his house, see id. at 25, and that a “light bulb went off” connecting that

information to the “Spencer” name in Stout’s phone. Id. at 26. He entered

the phone number associated with “Spencer” in Stout’s contact list into

Facebook Messenger, and Rudolph’s Facebook profile emerged. See id. At

that point, Peck began focusing his investigation into Stout’s death on

Rudolph. See id.

Peck testified he conducted surveillance of Rudolph’s house and

“observed numerous vehicles com[e] to the house, go inside, come back out

within minutes and leave.” Id. at 11. Peck recounted that he applied for a

search warrant for Rudolph’s house on February 11, 2019, and the warrant

was issued that same day. See id. at 6-7, 13. The warrant was then executed

on February 13, 2019. See id. at 7. Regarding the warrant’s execution, Peck

testified he waited in his police vehicle while the Pennsylvania State Police

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“SWAT” team executed the warrant at approximately 6:05 a.m. on February

13, 2019. See id. at 14-15. When asked if the state police knocked or waited

for a response, Peck replied:

A. I was in a vehicle.

Q. So you don’t know?

A. The protocol is they knock and announce. I heard them verbally yelling stuff, so that would be announcing to me, and they were yelling prior to going in.

Q. Did you witness anybody knocking, or no?

A. I did not.

Id. at 15-16.

Peck testified the state police made a forced entry and found Rudolph

inside the house. See id. at 16-17. Peck entered the house afterwards. During

a search of the house, the police found multiple controlled substances and

drug paraphernalia, including one-half to three-quarters of a pound of

marijuana packaged in different amounts, suspected cocaine, as well as stamp

bags and other packaging material. See id. at 8. Peck interviewed Rudolph,

and according to Peck, Rudolph told Peck that he both used and sold drugs.

See id. at 9, 19-20. Rudolph also told Peck he had worked with Stout. Peck

testified that Rudolph originally denied selling heroin or fentanyl to Stout, but

then admitted to selling him five stamp bags of heroin on November 19, 2018.

See id. at 28. Peck recounted that Stout was found dead inside his home on

November 20, 2018. See id. at 33.

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Peck proceeded to testify about his subsequent investigation into Stout’s

death and drug activity involving Rudolph. That investigation “revealed a

network of drug distribution that spanned multiple counties,” Appellant’s Brief

at 8, and included Rudolph as a “runner” for that network.1

These two events that Peck testified to at the preliminary hearing - the

search of Rudolph’s house and the subsequent investigation into the larger

drug network and its connection to Stout’s death - led to two separate filings

of charges against Rudolph. First, following the search of Rudolph’s house,

Rudolph was charged on February 15, 2019 with multiple drug offenses at

criminal docket 165-CR-2019. Specifically, he was charged with four counts

of PWID, two counts of conspiracy, three counts of possession of a controlled

substance and one count of possession of paraphernalia. Then, on March 15,

2019, Rudolph was charged at criminal docket 164-CR-2019 with drug

delivery resulting in death, corrupt organizations, conspiracy to commit

corrupt organizations, criminal use of a communications facility and

involuntary manslaughter. All of the charges in both cases were held for court

following the preliminary hearing.

____________________________________________

1Although the details of this investigation are not necessary to the resolution of this appeal, Peck did testify about those details at the preliminary hearing as they were clearly relevant to his charges at criminal docket 164-CR-2019. See id. at 30-70. The trial court also summarized the investigation in its opinion supporting its motion to deny the suppression motion. See Trial Court Opinion and Order, 11/7/19, at 4-5.

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Rudolph filed several pre-trial motions: 1) a petition for writ of habeas

corpus; 2) a motion to suppress his statement - corpus delicti; and 3) a motion

to suppress evidence based on an unlawful search and seizure. The only

motion at issue in this appeal is the third, the motion to suppress based on an

unlawful search and seizure. In that motion, Rudolph challenged the search

warrant for his house on several fronts. He argued that the search warrant

was not supported by probable cause, that the warrant was defective as it did

not mark the date and time of its issuance, and that the search warrant had

been unlawfully executed. As to this last assertion, the suppression motion

specifically averred the police “failed to provide [Rudolph] with sufficient time

to open the door and allow them to enter,” and that the police entry was

therefore unreasonable under the “knock and announce” rule. Motion to

Suppress - Unlawful Search and Seizure, 8/14/19, at 4 (unpaginated).

The trial court, as noted above, held a joint suppression hearing on all

three motions on October 7, 2019. At the beginning of the hearing, the

Commonwealth stated:

[T]here are three separate motions that were filed. [One] motion was the motion to suppress unlawful search and seizure. That was based on a warrant that was issued for the search in [ ] Rudolph’s residence in which [Rudolph argued that the warrant] was not supported by probable cause, and therefore, the fruits of that search shall be suppressed. That would be the four corners of the search warrant issue, so I’ll just move to admit Commonwealth’s Exhibit A which is that search warrant. It is two pages: the front cover and the affidavit of probable cause.

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N.T., 10/7/19, at 3-4. When defense counsel was asked if there was any

objection, he replied there was not. See id. at 4.

The court admitted the search warrant into evidence. The affidavit of

probable cause provided more information supporting the search warrant in

addition to that testified to by Peck at the preliminary hearing. For instance,

Peck stated in the affidavit that a confidential informant had initially provided

Peck with the information that Rudolph was dealing drugs out of his house,

and that there were text messages between the confidential informant and

Rudolph. Peck also elaborated on the surveillance he had conducted on

Rudolph’s house. He recalled that on February 8, 2019, he had seen three

vehicles pull up to Rudolph’s house in a manner that he described as

consistent with drug-related activity. Lastly, Peck averred in the affidavit that

on February 9, 2019, the police contacted a confidential informant to arrange

a controlled drug buy with Rudolph, and the confidential informant then

purchased ten stamp bags of purported heroin/fentanyl inside of Rudolph’s

house that same day.

After the search warrant was admitted into evidence, Peck was called to

testify at the suppression hearing. As with the preliminary hearing, Peck was

the only witness the Commonwealth called to testify at the suppression

hearing. Peck’s suppression hearing testimony, however, was not relevant to

the motion to suppress based on an unreasonable search and seizure. Instead,

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Peck’s testimony primarily focused on a discussion of stamp bags and their

use in drug-related activity.

Following the suppression hearing, the court asked the parties for briefs.

In its brief-in-opposition, the Commonwealth recognized Rudolph had

specifically argued in his suppression motion and his brief-in-support that the

execution of the search warrant had violated the “knock and announce” rule.

The Commonwealth also acknowledged it had relied on the four corners of the

search warrant at the suppression hearing to establish the constitutionality of

the search warrant. It recognized in its brief, however, that this reliance on

the search warrant itself was not sufficient to establish that the warrant had

been lawfully executed and that it had “mistakenly overlooked” Rudolph’s

issue regarding the warrant’s execution.

Despite its mistake, the Commonwealth noted there had been testimony

at the preliminary hearing that briefly touched on the execution of the warrant.

The Commonwealth argued that such testimony, which had been incorporated

into the suppression hearing record, was sufficient to refute Rudolph’s claim

that the police had violated the “knock and announce” rule. In the alternative,

the Commonwealth asserted that because the issue was “mistakenly not

addressed at the time of the [suppression] hearing,” the court should

essentially remand for a second suppression hearing in the event that it

“need[ed] further testimony before making a decision” on Rudolph’s challenge

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to the constitutionality of the warrant’s execution. Commonwealth’s Brief in

Opposition to Defendant’s Omnibus Pretrial Motions, 10/28/19, at 9-10.2

The trial court did not remand for further testimony. Instead, it denied

all three of Rudolph’s pre-trial motions. In denying the motion to suppress

based on an unreasonable search and seizure, the court found the search

warrant had been supported by probable cause and that it had been properly

executed. As for the latter, the court concluded Peck’s testimony that the

protocol for the state police was to “knock and announce” and that the police

had yelled before entering Rudolph’s house was sufficient to establish there

had been no violation of the “knock and announce” rule.

The matters proceeded to two separate jury trials. At docket 165-CR-

2019, the jury found Rudolph guilty of two counts of PWID, three counts of

possession of a controlled substance and one count of possession of drug

paraphernalia. At docket 164-CR-2019, the jury convicted Rudolph of all

2 The Commonwealth asserted in its brief-in-opposition that the defense had stipulated that the four corners of the search warrant would be sufficient to address the merits of his suppression motion based on an unreasonable search and seizure. However, the record of the suppression hearing only reveals defense counsel declining to object to the Commonwealth’s request to admit the search warrant for purposes of establishing the probable cause component of Rudolph’s suppression motion. The Commonwealth also asserted in its brief-in-opposition that the parties had agreed that the trial court should reopen the record and essentially hold a second suppression hearing if the court deemed it necessary in order to address Rudolph’s “knock and announce” claim, but the Commonwealth does not point to any place in the record showing such an agreement. In any event, the Commonwealth does not make either of these assertions on appeal.

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counts with the exception of involuntary manslaughter, which had been nolle

prossed. The court held a joint sentencing hearing for both dockets on August

26, 2020. The court sentenced Rudolph at both cases to an aggregate term of

imprisonment of 169 months to 392 months. Rudolph appealed from both

judgments of sentence, and this Court sua sponte consolidated the two.

Rudolph raises the following singular issue in both appeals:

Whether the lower court erred in denying [Rudolph’s] suppression motion related to a search warrant for one or more of [three] reasons: 1) lack of probable cause for issuance; 2) defect in application and approval; and 3) violation of Pa.R.Crim.P. 207 [codifying the “knock and announce” rule].

Appellant’s Brief at 4 (unnecessary capitalization omitted).

When this Court reviews a challenge to the denial of a suppression

motion, we look to see whether the suppression court’s factual findings are

supported by the record and whether the legal conclusions drawn from those

facts are correct. See Carey, 249 A.3d at 1223. We are bound by the

suppression court’s factual findings if those findings are supported by the

record. See id. We are not, however, bound by the suppression court’s legal

conclusions. See id. To the contrary, it is our duty to determine if the

suppression court properly applied the law to the facts. See id. On review, we

remain mindful that it is the Commonwealth which bears the burden at a

suppression hearing to prove by a preponderance of the evidence that the

evidence sought to be suppressed by the defendant was not obtained in

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violation of the defendant’s rights. See Commonwealth v. Kane, 210 A.3d

324, 329 (Pa. Super. 2019).

With these standards in mind, we address the third part of Rudolph’s

issue first as it is this particular claim that we find merits relief. There, Rudolph

argues the trial court erred by finding the Commonwealth met its burden of

refuting Rudolph’s assertion that the police violated Pa.R.Crim.P. 207,

commonly referred to as the “knock and announce” rule, when executing the

search warrant on his house. We agree.

Rule 207 codifies the “knock and announce” rule:

(A) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of the officer’s identity, authority, and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require the officer’s immediate forcible entry.

(B) Such officer shall await a response for a reasonable period of time after this announcement of identity, authority, and purpose, unless exigent circumstances require the officer’s immediate forcible entry.

(C) If the officer is not admitted after such reasonable period, the officer may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

Pa.R.Crim.P. 207.

As the text of Rule 207 makes clear, the rule does not actually impose

any specific obligation on the police to knock, despite frequently being referred

to as the “knock and announce” rule. See Commonwealth v. Frederick, 124

A.3d 748, 754 (Pa. Super. 2015). What Rule 207 does require, however, is

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that the police announce their identity, purpose and authority - and then wait

a reasonable amount of time for the occupants to respond prior to forcibly

entering the premises. See id.

It is this second part, which is embodied in section (B) of Rule 207,

which Rudolph argues was not met here. He states:

A review of the testimony presented at the suppression hearing shows no testimony related to the execution of the search warrant. We are left, then, with the testimony from the preliminary hearing, which was admitted as an exhibit at the suppression hearing. [There], the affiant testified, ‘the protocol is they knock and announce. I heard them verbally yelling stuff, so that would be announcing to me, and they were yelling prior to going in.’ The lower court mistakenly concluded this testimony satisfied Pa.R.Crim.P. 207. While [Rudolph] concedes this may satisfy section (A) of the Rule, it completely ignores section (B). The preliminary hearing testimony did not speak at all to the amount of time that elapsed between the announcing and the entry.

Appellant’s Brief at 21.

We agree. As an initial matter, we question whether Peck’s fleeting

testimony that the state police’s general protocol is to “knock and announce”

and that the police officers executing the search warrant in this case engaged

in some sort of yelling before entering Rudolph’s house was sufficient to

support a finding that the officers made a constitutionally-valid announcement

of their identity, purpose and authority. Even if we were to conclude that it

was sufficient for that purpose, the Commonwealth still did not present any

testimony at the suppression hearing regarding the time the police waited

between this yelling and their entry, if any time at all. It is undisputed the

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Commonwealth did not call the state police officers who actually executed the

warrant to testify at the suppression hearing. This omission left only Peck’s

testimony from the preliminary hearing, which did not touch upon the amount

of time that had elapsed between any announcement the state police officers

may have made and their forced entry into Rudolph’s home just minutes after

six in the morning.

Without any testimony regarding this amount of time in the record, we

are obviously unable to ascertain whether that time was reasonable under the

circumstances of this case. This Court has made clear that when evaluating

whether the police waited a reasonable amount of time before forcibly entering

a property, we must look to the specific facts and circumstances the police

officers faced at the time their decision to enter was made. See Carey, 249

A.3d at 1227. The Commonwealth simply did not provide any of those facts

and circumstances regarding the entry into Rudolph’s home at the suppression

hearing, as was its clear burden to do. We therefore agree with Rudolph that

the Commonwealth failed to meet its burden of proving that, contrary to what

Rudolph explicitly alleged in his suppression motion, the police complied with

Rule 207 when executing the warrant to search his house.3

3 We recognize the Commonwealth may meet its burden of disproving a claim that the police violated the “knock and announce” rule either by showing compliance with the rule or, in the alternative, by showing there were exigent circumstances exempting the police from compliance. See Frederick, 124 A.3d at 755 (noting this standard and listing the four recognized exigent

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The Commonwealth once again acknowledges in its appellate brief that

the issue “of whether ‘knock and announce’ was violated was not addressed”

and that it “mistakenly overlooked [this issue] at the time of the suppression

hearing.” Commonwealth’s Brief at 4, 10. The Commonwealth argues the

“proper remedy for such an oversight would be to remand the case for another

suppression hearing.” Id. at 18. It points to Commonwealth v. Ryan, 419

A.2d 762 (Pa. Super. 1980), as support for its argument that a second

suppression hearing is the proper remedy for its failure to meet its burden of

establishing at the suppression hearing that the police did not violate the

“knock and announce” rule.

In Ryan, the police executed two separate search warrants on Ryan’s

place of business. Ryan sought to suppress the evidence obtained pursuant to

those search warrants, arguing, inter alia, that the confidential informant on

whose information the first search warrant was issued was not reliable. See

id. at 1346. At the suppression hearing, the Commonwealth produced the

search warrants and accompanying affidavits but did not produce any

witnesses or testimony. See id. The trial court denied Ryan’s suppression

motion. Ryan appealed, asserting the Commonwealth’s failure to produce

circumstances justifying noncompliance with the “knock and announce” rule). Although the Commonwealth does not argue there were exigent circumstances present here, we note that the sparse record regarding the execution of the search warrant would not support a finding that there were any such exigent circumstances facing the state police when they entered Rudolph’s house.

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anything other than the search warrants deprived him of his right to challenge

the veracity of the information in the warrants. See id. at 1347. In response,

the Commonwealth relied on Pa.R.Crim.P. 2003(b), subsequently re-

numbered to Pa.R.Crim.P. 203(D), to argue that it was only required to

produce the search warrant affidavit at the suppression hearing; it was Ryan’s

burden to produce any other evidence he deemed relevant. See id.

The Ryan panel held that pursuant to Pa.R.Crim.P. 323(h),

subsequently re-numbered to Pa.R.Crim.P. 581(h), the Commonwealth bore

the burden “of establishing the validity of the search warrant and the burden

is not carried by merely introducing the search warrant and affidavit with no

supporting testimony[.]” Id. at 1348. As the Commonwealth correctly points

out, this Court, after our Supreme Court issued an order remanding the matter

for clarification, remanded to the trial court for a new suppression hearing.

See Commonwealth v. Ryan, 414 A.2d 37 (Pa. 1980); 419 A.2d 762 (Pa.

Super. 1980). Essentially, the Ryan Court found that the Commonwealth had

committed a good faith mistake of law, but a mistake nonetheless, in

interpreting Rule 2003. It therefore remanded the case to the suppression

court to allow the Commonwealth, now aware of the proper reading of Rule

2003, an opportunity to meet its burden.

The circumstances in Ryan are clearly different from those here,

starting with the fact that Ryan is not a “knock and announce” case. The

Commonwealth here makes no argument that it mistakenly believed the four

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corners of the search warrant were, or could be, sufficient to prove the police

complied with the “knock and announce” rule. In fact, as noted above, it

acknowledges just the opposite, admitting it mistakenly overlooked Rudolph’s

claim of a “knock and announce” violation when it relied on the four corners

of the search warrant at the suppression hearing. This represents mere

carelessness, not a good faith mistake of law.

The Commonwealth also does not argue that it was unaware of its

burden as it relates to the “knock and announce” rule or that such a burden

was not clearly defined. To be sure, in cases involving the “knock and

announce” rule, such as the instant one, we have stated:

Our Supreme Court has determined that the remedy for noncompliance with the knock and announce rule is always suppression.

During a suppression hearing, the Commonwealth bears the burden of proving the police seized evidence without violating [the] defendant's constitutional rights. The Commonwealth can satisfy its burden by establishing either that the police complied with the knock and announce rule or that the circumstances satisfied an exception.

Frederick, 124 A.3d at 755 (internal citations and quotation marks omitted)

(some emphasis removed).

Finally, we note that Ryan may no longer represent the law in

Pennsylvania. In 2013, our Supreme Court opined that, assuming

Pa.R.Crim.P. 581(J) allows the Commonwealth to supplement the record after

the suppression hearing has closed, it could only do so with evidence that was

previously unavailable. See In re L.J., 79 A.3d 1073, 1084 n.14 (Pa. 2013).

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We have already determined the Commonwealth failed to meet its

burden of showing the state police officers did not violate the “knock and

announce” rule, and in turn Rudolph’s constitutional rights, when the officers

forcibly entered Rudolph’s house. The Commonwealth was aware of its

burden, and it admirably recognizes it made a mistake in its efforts to meet

that burden at the suppression hearing. However, the remedy for that mistake

cannot, under the circumstances present here, be a remand for a second

suppression hearing. Such a remedy would unjustifiably afford the

Commonwealth a second opportunity to attempt to produce the substantive

evidence it simply made no attempt to produce at the time it was undisputedly

required to do so. The remedy must be suppression. See id.; see also

Commonwealth v. Iacavazzi, 443 A.2d 795, 798 (Pa. Super. 1981) (holding

that the Commonwealth was not entitled to a second suppression hearing to

cure its omission of proof that a search warrant was not properly issued or

executed, when the defendant made specific objections to the warrant’s

issuance and execution in his suppression motion and the Commonwealth

produced no evidence at the suppression hearing to dispute those objections).

As we find the trial court erroneously denied Rudolph’s suppression

motion based on the Commonwealth’s failure to produce evidence disproving

Rudolph’s claim that the police violated the “knock and announce” rule, we

need not address Rudolph’s remaining grounds for challenging the denial of

this suppression motion.

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Judgments of sentence vacated. Order denying suppression of evidence

obtained during the search of Rudolph’s home reversed. Remanded to the trial

court to conduct proceedings consistent with this Memorandum. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/13/2022

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