Com. v. Murphy, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH MURPHY :
:
Appellant : No. 1973 EDA 2017
Appeal from the Judgment of Sentence May 19, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009094-2014
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 12, 2018
Kenneth Murphy appeals from his judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after he was convicted of one
count each of carrying a firearm without a license,1 carrying a firearm on the
streets of Philadelphia,2 possessing an instrument of crime (PIC),3 and two
counts each of terroristic threats4 and simple assault.5 After careful review,
we affirm.
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1 18 Pa.C.S. § 6106.
2 18 Pa.C.S. § 6108.
3 18 Pa.C.S. § 907.
4 18 Pa.C.S. § 2706(a)(1).
5 18 Pa.C.S. § 2701(a).
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Around 9:00 p.m. on July 22, 2014, Philadelphia Police Sergeant Juan
Rivera was on routine patrol with his partner, Officer Michael Sidebotham.
They responded to a police radio call regarding a person with a gun on the
6400 block of North 15th Street. Upon arrival at the location, the officers met
two young males who told them that Murphy, who at that time was sitting on
the patio of a nearby row home, had gotten into an altercation with them over
a parking spot. The young males told Officer Sidebotham that Murphy had
produced a firearm from a white towel and “said something to the effect that
I’m about to move too.” N.T. Suppression Hearing, 5/19/16, at 32. They also
told Officer Sidebotham that Murphy had taken the towel and gun back into
his house after the incident. Id. at 33.
At that point, Sergeant Rivera approached Murphy on the porch,
identified himself as a police officer, and told Murphy that he had received a
call for a person with a gun and he was trying to ascertain whether or not
Murphy had been involved in the argument. Sergeant Rivera testified that
Murphy was sweaty and seemed agitated with his questions. Murphy told the
sergeant that he had been involved in a disturbance with his neighbors,
however, he did not have a gun on him. Id. at 24. Murphy also told the
sergeant that he was a retired Southeastern Pennsylvania Transit Authority
(SEPTA) police officer. Id. at 10-11. When Sergeant Rivera asked Murphy
for identification, Murphy told him he had some inside the house. Id at 11.
Sergeant Rivera informed Murphy that for his own safety he needed to
go with Murphy inside the home to retrieve his identification. Id. at 11.
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Sergeant Rivera testified that Murphy said, “no problem,” unlocked the door
and opened the door so they could enter the home. Id. at 11, 20. Sergeant
Rivera accompanied Murphy to the upstairs, front bedroom of the row home
where Murphy retrieved his identification from a dresser drawer; Officer
Sidebotham remained in the downstairs living room of the residence. Id. at
12. Officer Sidebotham testified that as the men were going upstairs, Murphy
“glanced toward the sofa to [Officer Sidebotham’s] left.” Id. at 33. Officer
Sidebotham then observed a white towel in plain view sitting on the couch;
once Sergeant Rivera and Murphy were upstairs, Officer Sidebotham retrieved
the white towel. Id. at 34. The towel was wrapped around a loaded, black
Smith & Wesson .38 revolver. Id. at 36. At that point, Officer Sidebotham
told Sergeant Rivera to handcuff Murphy; Murphy was placed under arrest.
Id. at 45-46.
On December 11, 2014, Murphy filed a pre-trial motion to suppress,
alleging that the warrantless search of his residence and his arrest were illegal
and that the gun seized from the search of his row house should be
suppressed. On May 19, 2016, the trial court held a suppression hearing
where Sergeant Rivera, Officer Sidebotham, and Murphy testified. The trial
judge6 denied Murphy’s motion to suppress, making the following findings of
fact and conclusions of law on the record:
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6 We note that the Honorable Giovanni Campbell presided over Murphy’s
suppression hearing, while the Honorable Glenn B. Bronson presided over
Murphy’s trial and sentencing.
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The Commonwealth bears the burden by a preponderance of the
evidence to prove that all police activity is lawful. I do find that
both officer[s], Rivera and Officer Sidebotham[,] testified credibly
in this case. I find that the defendant testified credibly for the
most part, and that his testimony for the most part corroborates
the material evidence of the Commonwealth.
I find that the situation began as a mere encounter and quickly
became a situation that had ample reasonable suspicion to stop
and frisk the defendant although he was not.
I do find that the defendant’s con[sent] for the officers going to
the home was voluntary and unequivocal and it is consistent with
his – which to identify himself to officers as a retired SEPTA police
officer. And I find he probably thought it would make this all go
away.
I do not find that he was coerced into the residence.
I do find that [there were] ample bas[e]s to conduct a safety frisk
of the home that would have included inspection and the discovery
of the towel since it was identified as contraband. But we need
not rely on that.
I do find that upon entering with consent and the defendant’s
glancing towards the sofa and then the officer seeing a white towel
assuming what was described by the complainant did provide
probable cause to recover it lawfully in the reviewing area.
This probable cause [is] established by a totality of the
circumstances [that] are . . . not limited to[:] the radio call, the
complainant’s report immediately before the sitting [sic] of the
towel[] by both officers[, t]he defendant’s own conduct before
going into the house, which included his evasive and . . . verbally
aggressive behavior[,] the defendant’s glancing toward the towel
once they were all inside the home. The coincidental presence of
the white towel on the couch immediately after the complaint that
included a report of the defendant going back into the house with
a white towel that contained a gun.
Therefore, the entry was lawful. The recovery is supported by
probable cause and the motion to suppress is denied.
N.T. Suppression Hearing, 5/19/16, at 70-72. Following a one-day bench
trial, Murphy was convicted of the above-stated offenses; he was sentenced
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on May 19, 2017, to an aggregate term of 6-23 months’ incarceration,
followed by a five-year probationary tail. Murphy filed a timely notice of
appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Murphy raises the following two issues for our
consideration:
(1) Was not [the] evidence (a gun) unconstitutionally seized
during a warrantless search of [Murphy’s] house where
[Murphy] involuntarily consented to police entry into the
house only because the officer said he would have to
accompany [Murphy] into the house as [Murphy] was going
to retrieve identification requested by the officer?
(2) As the gun seized from the house was not in plain view, did
not the police need a warrant to open the white towel in
order to ascertain whether a gun was secreted inside of the
towel (notwithstanding the purported consent to enter)?
Appellant’s Brief, at 3.7
Murphy argues he did not voluntarily consent to the officers entering his
home to accompany him to retrieve identification from an upstairs bedroom.
He also contends that even if the officers did lawfully enter his home, they
needed a warrant to search the towel that secreted the gun because the gun
was not in plain view. We disagree.
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7 When reviewing an order denying a motion to suppress evidence, we must
determine whether the trial court’s factual findings are supported by the
evidence of record. If the evidence supports the trial court’s findings, we are
bound by them and may reverse only if the legal conclusions drawn therefrom
are erroneous. Commonwealth v. Blair, 860 A.2d 567, 571 (Pa. Super.
2004).
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“Both the United States and Pennsylvania Constitutions prohibit
unreasonable searches and seizures.” Commonwealth v. Garibay, 106 A.3d
136 (Pa. Super. 2013). “[A]s a general rule, a search warrant is required
before police may conduct any search. Absent the application of one of a few
clearly delineated exceptions, a warrantless search or seizure is presumptively
unreasonable.” Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super.
2013) (citations and quotation marks omitted). Voluntary consent is one such
exception. Commonwealth v. Kemp, 961 A.2d 1247, 1260 (Pa. Super.
2008) (en banc). The voluntariness of consent is a question of fact that is
determined by looking at the totality of the circumstances. Commonwealth
v. Edwards, 735 A.2d 723, 725 (Pa. Super. 1999).
Instantly, the trial court found Sergeant Rivera and Officer Sidebotham
credible. Commonwealth v. Slaton, 556 A.2d 1343, 1347 (Pa. Super. 1989)
(credibility findings are within sole province of trial court and will not be
disturbed on appeal). Based on a totality of the circumstances, the court
concluded that Murphy was not coerced into his residence to retrieve his
identification, but rather that he voluntarily and unequivocally consented to
the officers entering his home. Kemp, supra. The record supports this
conclusion where Murphy unlocked the door for the officers to enter the
residence and testified that the officers did not show any signs of physical
force when they asked him to retrieve his identification. N.T. Suppression
Hearing, 5/19/16, at 50-51. Moreover, in order to ensure his safety, it was
reasonable for Sergeant Rivera to accompany Murphy into his residence to
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retrieve his identification. See Commonwealth v. Johnson, 68 A.3d 930(Pa. Super. 2013) (law of search and seizure remains focused on delicate
balance of protecting right of citizens to be free from unreasonable searches
and seizures and protecting safety of citizens and police officers by allowing
police to make limited intrusions on citizens while investigating crime).
Accordingly, we conclude that the police lawfully entered Murphy’s home
without a warrant.
With regard to the warrantless search of the white towel sitting on the
couch in Murphy’s home, the suppression judge determined that the item had
been lawfully seized under the plain view exception to the warrant
requirement. We agree.
The plain view doctrine provides that:
[E]vidence in plain view of the police can be seized without a
warrant. The plain view doctrine applies if: 1) police did not
violate U.S. Const. amend. IV during the course of their arrival at
the location where they viewed the item in question; 2) the item
was not obscured and could be seen plainly from that location; 3)
the incriminating nature of the item was readily apparent; and 4)
police had the lawful right to access the item.
Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012)
(citations omitted). A police officer has probable cause to believe that an
object is incriminating where “the facts available to the officer would ‘warrant
a man of reasonable caution in the belief,’ that certain items may be
contraband or stolen property or useful as evidence of a crime[.]”
Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super. 1997). The
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probable cause standard does not require the officer’s belief to be “correct or
more likely true than false.” Id.Based on the young men’s account that Murphy had just threatened
them with a gun that was wrapped in a white towel and that Murphy had taken
the towel and gun back inside his home right before the officers arrived at the
scene, Officer Sidebotham had probable cause to believe that this white towel
was the same white towel that contained contraband in the earlier altercation.
Because: (1) the officers were lawfully in Murphy’s home; (2) the white towel
was not obscured and could be seen plainly from where Officer Sidebotham
was standing in the living room; (3) the incriminating nature of the item was
readily apparent because he had just received information that Murphy had
brandished a gun that was wrapped in a white towel; (4) and the officer had
the lawful right to access the item, it was properly seized under the plain view
doctrine. Anderson, supra.
Because the trial court’s factual findings are supported by the evidence
of record, Blair, supra, we conclude that the trial court properly denied
Murphy’s suppression motion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/18
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