Com. v. Cozzalio, C. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHRISTOPHER H. COZZALIO, : No. 1281 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, April 23, 2015,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0003113-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 13, 2016
Christopher H. Cozzalio appeals from the April 23, 2015 judgment of
sentence following his conviction of possession of marijuana.1 We affirm.
The trial court provided the following relevant findings of fact and
conclusions of law:
1. On August 13, 2014, Officer Richard Barth and
Sergeant Matthew Deceder of the West
Whitefield Township Police Department
responded to a 911 call regarding a domestic
disturbance at 215 Aberdeen Avenue, Exton,
Chester County.
2. The officer and the sergeant were not familiar
with the residents or the layout of the
apartment at that address. They knocked on
the front door and announced their presence.
They heard raised voices coming from inside
the residence and a female’s loud scream (one
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35 P.S. § 780-113(a)(31).
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of the officers described the scream as
“blood-curdling”). The officer radioed for
assistance and the sergeant forced open the
front door by kicking it.
3. The officer and the sergeant saw a staircase
leading up to the living space of the
apartment. The defendant was standing at the
top of the stairs and a female was standing in
front of the defendant screaming for the
defendant to let her go.
4. The defendant was instructed to “get down.”
The defendant did not comply until the officers
drew their weapons and again instructed the
defendant to “get down.”
5. There were red marks on the female’s neck
observed by both officers.
6. The male and female were separated.
Officer Barth escorted the female, and the
young child she was carrying, outside while
Sergeant Deceder placed the defendant in
handcuffs and had him sit on the living room
couch.
7. Two minutes after the officer had called for
back-up, Lieutenant Matthew Herkner of the
West Whiteland Township Police Department
arrived at the scene. The lieutenant saw the
officer taking a statement from the “hysterical”
female and was told that the sergeant was
alone with the defendant in the apartment.
8. The lieutenant continued to the second floor
apartment to assist Sergeant Deceder with the
defendant.
9. The sergeant told the lieutenant that the other
rooms in the apartment had not been checked.
10. The officers did not know whether there were
or were not any other individuals in the
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apartment but had concerns for their safety
and felt vulnerable to attack from the adjacent
rooms while in the apartment with the
defendant who was detained and subsequently
arrested.
11. The bedroom was one of the rooms
immediately adjacent to the living room.
12. The lieutenant conducted a protective sweep of
the bedroom and saw what he recognized to
be marijuana and drug paraphernalia on a
table at the foot of the bed. The lieutenant
also saw a loaded, semi-automatic Glock 9mm
pistol on a shelf in the closet.
13. The gun was seized immediately for safety
reasons. There are no criminal charges,
relating to the gun, pending against the
defendant.
14. The defendant was arrested and charged with
assault related to the domestic altercation and
possession of a controlled substance and drug
paraphernalia.
Conclusions of Law
....
2. When the sergeant handcuffed the defendant,
the sergeant deprived the defendant of his
physical freedom of action. Commonwealth
v. Medley, 531 Pa. 279, 612 A.2d 430 (1992).
The sergeant testified that his intention, at the
time he handcuffed the defendant, was to
detain him during the course of their
investigation of the domestic altercation.
Arguably, the defendant was under arrest at
the point he was handcuffed irrespective of the
sergeant’s intention. If that is the case, the
protective sweep was incident to arrest and
falls under the exception. It certainly was a
protective sweep of the “arrest scene” given
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the fact that the defendant was arrested before
the officers left the residence.
3. The officers were able to articulate their
suspicions and concerns for their safety
allowing them to perform a protective sweep of
the rooms adjacent to the living room where
they had the defendant detained. The
situation was a violent, fluid scene.
Order of court, 11/5/14 at 1-2. Appellant was also charged with three
counts of harassment and possession of marijuana. On September 16,
2014, appellant filed a motion to suppress evidence seized from his
apartment, claiming that the search and seizure conducted incident to
appellant’s arrest was in violation of his rights under the United States and
Pennsylvania Constitutions. A hearing was held on October 21, 2014, and
the trial court denied appellant’s motion to suppress.
On April 23, 2015, the day of the trial, the Commonwealth withdrew all
charges with the exception of possession of marijuana. A bench trial was
held and the trial court found appellant guilty and imposed a fine of $200.
On April 24, 2015, appellant filed a post-sentence motion, which was denied
by the trial court. Appellant filed a notice of appeal on May 5, 2015. The
trial court ordered appellant to produce a concise statement of matters
complained of on appeal on May 7, 2015, pursuant to Pa.R.A.P. 1925(b),
with which appellant complied on May 27, 2015. The trial court has filed an
opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
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1. Did the trial court err in denying defendant’s
Motion to Suppress because police officers had
no authority to conduct a “protective sweep”
throughout the various rooms of the
residence?
Appellant’s brief at 3.
Our standard of review for challenges to the denial of a motion to
suppress is as follows:
Our standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether
the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed
before 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 suppression court’s
factual findings are supported by the record, we are
bound by these findings and may reverse only if the
court’s legal conclusions are erroneous. Where . . .
the appeal of the determination of the suppression
court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding
on an appellate court, whose duty it is to determine
if the suppression court properly applied the law to
the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Best, 120 A.3d 329, 346 (Pa.Super. 2014), quoting
Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), appeal
denied, A.3d (Pa. 2015) (citations omitted).
Both the United States Constitution and the Pennsylvania Constitution
guarantee that individuals shall not be subject to unreasonable searches or
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seizures. See U.S. Const. Amend. IV; Pa. Const. Art. I, § 8. A search or
seizure conducted without a warrant is, under the Fourth Amendment and
Article I, Section 8, presumed to be unreasonable. Commonwealth v.
McCree, 924 A.2d 621, 627 (Pa. 2007) (citations omitted).
Evidence obtained as a result of an unlawful search is subject to the
fruit of the poisonous tree doctrine. The United States Supreme Court has
stated that any material, tangible, or verbal evidence “obtained either during
or as a direct result of an unlawful invasion” is inadmissible at trial. Wong
Sun v. United States, 371 U.S. 471, 485 (1963).
The United States Supreme Court has recognized exceptions to the
warrant requirement, including a search conducted incident to a lawful
arrest, also known as a “protective sweep.” Maryland v. Buie, 494 U.S.
325 (1990). In Buie, the Supreme Court held that, “the Fourth Amendment
would permit [a protective sweep] if the searching officer ‘possesse[d] a
reasonable belief based on “specific and articulable facts which, taken
together with the rational inferences of those facts, reasonably warrante[d]”
the officer in believing,’ that the area swept harbored an individual posing a
danger to the officer or others.” Id. at 327, quoting Michigan v. Long, 463
U.S. 1032, 1049-1050 (1983) (citations omitted).
The Court established the following standard in which a protective
sweep without a warrant could take place without violating an individual’s
Fourth Amendment rights:
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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 the arrest scene.
Id. at 334 (footnotes omitted).
Pennsylvania adopted the protective sweep exception to the warrant
requirement in Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001); see
also In re J.E., 937 A.2d 421, 425 (Pa. 2007) (stating that the protective
sweep search is limited to “ensure the safety of arresting officers”). In
Taylor, our supreme court applied the same standard as Buie:
To decide whether the facts justified a protective
sweep, the reviewing court must consider all of the
facts objectively and from the position of the
reasonably prudent police officer. Because the
sweep in the present case extended beyond the area
within the immediate vicinity of the arrest, 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 the arrest scene.”
Id. at 1267-1268, citing Buie, 494 U.S. at 327, 334. The Taylor court also
made clear that “the scope of a protective sweep extends only to a visual
inspection of those places in which a person might be hiding and lasts no
longer than is necessary to dispel the fear of danger.” Taylor, 771 A.2d at
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1268 (citations omitted); see also Commonwealth v. Crouse, 729 A.2d
588, 598 (Pa.Super. 1999) (protective sweeps “cannot be used as a pretext
for an evidentiary search” and can only target “areas where a person could
reasonably be expected to hide”), appeal denied, 747 A.2d 364 (Pa. 1999).
We also note that, “[i]f, while conducting a [protective sweep], the
officer should, as here, discover contraband other than weapons, he clearly
cannot be required to ignore the contraband, and the Fourth Amendment
does not require its suppression in such circumstances.” Commonwealth
v. Potts, 73 A.3d 1275, 1282 (Pa.Super. 2013), quoting Long, 463 U.S. at
1049-1050. See also Commonwealth v. Witman, 750 A.2d 327, 336
(Pa.Super. 2000) (stating that evidence observed in plain view during a
protective sweep is admissible).
In the case sub judice, appellant avers that the police did not conduct
a lawful protective sweep and that the police did not have the authority to
seize evidence discovered during the protective sweep. As noted supra, in
order for the police to conduct a protective sweep incident to arrest beyond
the immediate vicinity of the arrest, the police must be able to articulate
facts that would cause a reasonably prudent police officer to believe that
there was a danger to the officer’s safety on the premises.
Here, the trial court found that the officers did not know if anyone else
was in the apartment and they had concerns for their safety. (See trial
court findings of facts and conclusions of law, 11/5/14 at 2.) The officers
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were unfamiliar with appellant’s apartment, were unfamiliar with both
appellant and the female victim, and could not say for certain whether
anyone else was inside the apartment and, therefore, were justified in
conducting a protective sweep beyond the immediate vicinity of the arrest.
The record supports the trial court’s factual finding through Sergeant
Deceder’s following testimony:
Q: Can you articulate any facts which then [led]
you to conclude there was anyone else in the
apartment?
A: . . . I was [in] very close proximity to the
actual entryway doorway to the apartment,
therefore the majority of the apartment was
unavailable to me as far as viewing it. I could
see the kitchen. I could not tell if anyone was
there or not.
Q: Would it be fair to say you didn’t have any
reason to believe either there was or was not
anyone else in the apartment, right?
A: In my training I always assume there is [sic]
more people in a residence than there are, so I
do not -- I didn’t know who lived there before.
I’d never been to the residence before.
Q: . . . Is it correct that you didn’t have any
information that [led] you affirmatively to
conclude there was anybody else there?
A: I had no information whether there were or
wasn’t [sic].
Notes of testimony, 10/21/14 at 26-27. Lieutenant Herkner also testified
that he “had no knowledge whether there was or was not [sic] any additional
people in there.” (Id. at 34.) The officers’ testimony provides ample
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support within the record that articulable facts existed that would cause a
reasonably prudent police officer to believe that an individual may be hiding
somewhere in the apartment.
We therefore find that the protective sweep of appellant’s apartment
was in compliance with our supreme court’s decision in Taylor and that the
police were authorized to conduct a cursory search to determine whether
additional parties were in the apartment, and were also authorized to seize
any contraband that was visible in plain view.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2016
2
In his motion to suppress and in his brief, appellant did not argue with
specificity whether, if the officers were justified in conducting a protective
sweep, any of the contraband seized was inadmissible because it was not in
plain view.
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