Commonwealth v. Vega

12 Pa. D. & C.4th 494, 1991 Pa. Dist. & Cnty. Dec. LEXIS 167
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedFebruary 27, 1991
Docketno. 896/1989
StatusPublished

This text of 12 Pa. D. & C.4th 494 (Commonwealth v. Vega) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Vega, 12 Pa. D. & C.4th 494, 1991 Pa. Dist. & Cnty. Dec. LEXIS 167 (Pa. Super. Ct. 1991).

Opinion

MELLENBERG, J,

— We have before this court defendant’s post-trial motion for a new trial. By bench trial, held September 27 and 28, 1989, defendant was convicted of possession of a controlled substance, possession with intent to deliver a controlled substance, and possession of drug paraphernalia. Defendant timely filed a .post-trial motion averring that the trial court erred by failing to grant defendant’s motion to suppress certain evidence discovered during a search of defendant’s apartment. Said motion to suppress seized evidence was not máde until trial after the Commonwealth presented its case-in-chief without objection.

The facts pertaining to defendant’s post-trial motion are as follows. On February 9, 1989, Sgt. Michael Combs, Officer Robert Palmer, Sgt. Larry [495]*495Heintzelman, and Lt. Scott Mitchell, of the Allentown Police Department, as well as troopers from the Pennsylvania State Police arrived at 704 South Jefferson Street, Apartment no. 4, in the City of Allentown, at approximately 8:30 p.m. to execute a search warrant issued by District Justice Theodore Russiano. Defendant and others were inside Apartment 4 behind a locked front door. Sgt. Combs unlocked the door with the key previously obtained from the apartment complex supervisor, opened the door, announced “police, search warrant,” and proceeded into the apartment.. Prior to unlocking the door, the police did not knock or announce their purpose. The door by Which the police entered the apartment opened directly into the apartment’s living room where Officer Combs observed other individuals. Once inside the apartment, the police officers conducted a search of the premises and seized evidence which has been identified as Commonwealth’s exhibits 1 through 23. Lt. Mitchell indicated that in drug search cases such as this, officers must also be on the lookout for possible weapons and must also be concerned regarding the preservation and/or destruction of evidence.

As noted previously, defense counsel did not move to suppress evidence seized in the search conducted until the close of the Commonwealth’s case-in-chief. At the time the motion was made, the Commonwealth objected to, among other things, the untimeliness of said motion. Defense counsel argued that the motion had not been made previously because he was unaware how entry was gained until after Officer Palmer had testified at trial. The court ruled that the interests of justice required entertaining defendant’s motion at the aforementioned time. However, the court denied defendant’s motion, [496]*496proceeded with the trial and found defendant guilty after all the evidence was presented.

Two issues are before the court for disposition. First, has defendant waived his motion to suppress because said motion was not made until after all of the evidence relating to the execution of the search warrant had been presented at trial? The Pennsylvania Rules of Criminal Procedure provide that a motion to suppress shall be made in an omnibus pretrial motion, unless the opportunity did not previously exist or the interests of justice otherwise ' require. Pa.R.Crim.P.306. If timely motion is not made, the issue of suppression of such evidence, shall be deemed to be waived. See Pa.R.Crim.P. 323(b). As stated aforesaid, this court held at trial that, in the interest of justice, defendant should be permitted in the interest of justice to present any other witness or witnesses to establish any additional facts the Commonwealth deemed necessary to justify the method of entry. The Commonwealth did not avail itself of this ruling and relied upon the established record. This court affirms its decision made at time of trial that the motion to suppress was not waived.

The remaining issue before the court is whether the actions of the police violated the “knock and announce” rule. Initially, we note that the authorization of entry given by an apartment building manager in a case such as this would not be effective against the defendant. Commonwealth v. Cerulla, 223 Pa. Super. 24, 27 n.5, 296 A.2d 858, 859 n.5 (1972), citing Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966). Absent authorization to conduct a search, police must adhere to the “knock and announce” rule of the Fourth Amendment. Rule 2007 of the Pennsylvania Rules of Criminal Procedure constitutes a codification of the “an[497]*497nouncement” rule. Commonwealth v. Golden, 277 Pa. Super. 180, 419 A.2d 721 (1980). This rule states:

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

“(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.

“(c) If the officer is not admitted after such reasonable period, he may forcibly epter the premises and may use as much physical force to effect entry therein as is necessary to execute the warrant.” Pa.R.C.P. 2007. ,

The purpose of the “knock and announce” rule is to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry. Commonwealth v. Morgan, 517 Pa. 93, 97, 534 A.2d 1054, 1056 (1987). Even where the police announce both their identity and purpose, forcible entry remains impermissible if the occupants of the premises sought to be entered have not been provided with the opportunity to relinquish the premises voluntarily.. Commonwealth v. DeMichel, 442 Pa. 553, 561, 277 A.2d 159, 163 (1971).

We first address whether entry in this case, gained by opening the door with a passkey, constitutes a forcible entry. The mere fact that police are in possession of a passkey and did not have to resort to physical force to gain entry to private premises does not make their intrusion any less “forcible.” An [498]*498unauthorized entry by means of a passkey is equivalent to a forcible entry. Commonwealth v. Clemson, 234 Pa. Super. 191, 338 A.2d 649 (1975); Commonwealth v. Cerulla, 223 Pa. Super. 24, 296 A.2d 858 (1972). The requirement that police officers give notice of their identity and purpose before attempting to enter private premises remains even though the occupant’s door is unlocked by the police with a passkey. Commonwealth v. Clemson, supra.

Any authorization for the search intended to be granted by the apartment building on-site manager by his delivering a key to the officers is not effective against defendant to alleviate the requirement of the police officers in complying with the “knock and announce” rule. Lt.

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Related

Commonwealth v. Morgan
534 A.2d 1054 (Supreme Court of Pennsylvania, 1987)
Commonwealth v. Balliet
542 A.2d 1000 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Perry
386 A.2d 86 (Superior Court of Pennsylvania, 1978)
Commonwealth v. DeMichel
277 A.2d 159 (Supreme Court of Pennsylvania, 1971)
Commonwealth v. Mason
490 A.2d 421 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Golden
419 A.2d 721 (Superior Court of Pennsylvania, 1980)
Commonwealth v. Cerulla
296 A.2d 858 (Superior Court of Pennsylvania, 1972)
Commonwealth v. Stanley
446 A.2d 583 (Supreme Court of Pennsylvania, 1982)
Commonwealth v. Clemson
338 A.2d 649 (Superior Court of Pennsylvania, 1975)
Commonwealth v. Ellsworth
218 A.2d 249 (Supreme Court of Pennsylvania, 1966)

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Bluebook (online)
12 Pa. D. & C.4th 494, 1991 Pa. Dist. & Cnty. Dec. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-vega-pactcompllehigh-1991.