Com. v. Terrell, B. ( 2016 )

J-A11036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BERNARD J. TERRELL
Appellant No. 236 EDA 2015
Appeal from the Judgment of Sentence January 12, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0011246-2014
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2016
Appellant, Bernard J. Terrell, appeals from the judgment of sentence
imposed in the Philadelphia County Court of Common Pleas following his
convictions for carrying a firearm on public streets or property in
Philadelphia.1 Appellant argues that the trial court erred by failing to
suppress evidence and by admitting evidence in contravention of the corpus
delicti rule. We affirm.
The trial court summarized the underlying facts as follows:
On January 12, 2015, Officer Ronald Kwiatkowski, a
probation and parole officer with the Juvenile Division,
YVRP (Youth Violence Reductionship Program), Juvenile
Warrant, credibly testified that on August 8, 2014 at
around 7:45 a.m. he was working with the Juvenile
Warrant Division at 1646 West Nedro Avenue, 3rd Floor, in
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6108.
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Philadelphia, Pennsylvania. Officer Kwiatkowski stated
that he has been with the Juvenile Warrant Department,
specifically the YVRP for eight (8) years. Officer
Kwiatkowski stated that he was looking for Nyree Terrell
[Appellant’s brother] on the morning in question . . . .
Officer Kwiatkowski stated that when his team
approached the front door of the apartment it knocked and
announced. The Officer stated that at that time the team
received a radio [c]all from police covering the side of the
building notifying them that someone was trying to come
out via the fire escape. The team continued to knock and
announce at the front door, until it was opened by
[Appellant’s] father. Officer Kwiatkowski stated two (2)
officers entered before him and proceeded towards the
kitchen area. These officers apprehended [Appellant] in
the kitchen, where the fire escape is located. He stated
that he started to clear the house for officer safety and
search with the rest of the team.
Officer Kwiatkowski testified that he entered the
hallway and then the first bedroom on the left to look for
Nyree Terrell. The door was not locked. He began to clear
the bedroom looking for Nyree Terrell, searching
“anywhere a body can be hiding.” This included looking
under the bed, at which time Officer Kwiatkowski observed
a handgun. He immediately saw what looked like a steel
pipe that resembled a baton at that time. Upon further
investigation, the officer went to the side of the bed and
saw the firearm on the other side of the baton. Officer
Kwiatkowski notified his supervisor and the police at the
scene, who then came to the bedroom and recovered the
gun.
Officer Kwiatkowski was then directed to go in the living
room and guard [Appellant] to make sure that he was
secured while the other officers completed the search of
the premises. Shortly after the gun was recovered, Nyree
Terrell was located. Officer Kwiatkowski testified that
while he was in the living room [Appellant’s] father was
notified of the gun found under the bed, and turned to
[Appellant] and disappointedly asked, “A gun?”
[Appellant] replied facing his father, “It’s mine. I found it
about a week ago in a red Camaro.” Officer Kwiatkowski
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stated that he did not ask [Appellant] any questions while
in the living room nor did any other officers present with
him.
* * *
On cross-examination, Officer Kwiatkowski affirmed that
he was on a warrant sweep, going from residence to
residence collecting individuals who are wanted on active
warrants. . . . Officer Kwiatkowski stated that the warrant
issued for Nyree Terrell was for failing to appear. He also
stated that he had no information on [Appellant], and no
information that either posed any safety threat. He
explained that prior to executing the warrant, he reviews
pictures and was aware of what Nyree Terrell looked like to
an extent. Officer Kwiatkowski explained that when he
enters a house, all persons are secured inside until they
can be positively identified.
Officer Kwiatkowski testified that when he opened the
door to the bedroom he did not see an outline of a person
under the bed and when he actually looked under the bed,
no one was there. He reiterated that he first saw a steel
pipe under the bed and that when he moved the bed away
from the wall to identify the object, he saw the gun
between the pipe and the wall. Officer Kwiatkowski stated
that there were two young children, aged seven (7) to nine
(9), who did not pose a safety threat as they were on top
of the bed. Once the gun was found, he instructed a
female officer that was in the hallway to take the two
children into the living room to sit with the father. Officer
Kwiatkowski stated that as he searched the bed he
received information that Nyree Terrell had been found at
the back of the house in the hallway.
Officer Kwiatkowski testified that he did not see a
wallet, license or anything else that initially identified the
ownership of the gun. He stated that before finding the
gun, he saw that [Appellant] was handcuffed after he was
found trying to exit the kitchen onto the fire escape.
Officer Kwiatkowski explained that [Appellant] was seated
in a chair in the living room across from his father, who
was seated next to the two little children. Officer
Kwiatkowski’s supervisor notified [Appellant’s] father that
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a weapon was found. The gun was in a bag when officers
showed it to [Appellant]. Officer Kwiatkowski stated that
police were not standing over [Appellant] and that
[Appellant] was not read his Miranda rights prior to his
statement.
Evidence was introduced at trial by way of stipulation by
and between counsel that the firearm found in the
bedroom by Officer Kwiatkowski was recovered by Officer
Rockemore and Officer Bruhns and that [Appellant] was
not licensed to carry a firearm. That firearm was an
operable Firestar 40 caliber gun loaded with five (5)
rounds and was placed on [a] property receipt.
Trial Ct. Op., 4/27/15, at 2-6 (citations omitted).
Appellant was initially charged with carrying a firearm without a
license,2 carrying a firearm on public streets or property in Philadelphia, 3 and
possession of a controlled substance.4 On January 8, 2015, Appellant filed a
motion to quash, and on December 12, 2014, Appellant filed a motion to
suppress physical evidence, including the firearm here at issue. On January
15, 2015, the trial court conducted a suppression hearing followed by a
stipulated non-jury trial. The court denied Appellant’s motion to quash and
motion to suppress. The court found Appellant guilty of carrying a firearm
on public streets or property in Philadelphia, and sentenced him to time
served to twelve months’ incarceration followed by forty-eight months’
2
18 Pa.C.S. § 6106.
3
18 Pa.C.S. § 6108.
4
35 P.S. § 780-113.
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reporting probation. This timely appeal followed. Appellant timely filed a
court-ordered Pa.R.A.P. 1925(b) statement and the trial court filed a
responsive Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues for our review:
1. Did not the lower court err in denying [A]ppellant’s
motion to suppress evidence where the [A]ppellant was
detained and evidence was subsequently seized without
probable cause or a search warrant or an exception to the
warrant requirement; specifically, after [Appellant] had
already been detained, a warrant officer, while conducting
a protective sweep of [Appellant’s] residence pursuant to
the effectuation of a warrant to arrest another resident of
the home, exceeded the scope of the permissible search by
moving a bed, thus uncovering a firearm, after the officer
ascertained that there was no person hiding under the bed
and before the officer saw any item whose nature as a
weapon or contraband was apparent to the officer?
2. Did not lower court err in failing to quash the indictment
and in permitting [Appellant’s] statement (that he
possessed a firearm found at the location) to be introduced
in evidence against him at trial without the Commonwealth
first establishing the corpus [delicti] of a crime through
evidence independent of the statement?
Appellant’s Brief at 4.
In his first issue, Appellant argues that the trial court erred by failing
to suppress evidence of the gun because Officer Kwiatkowski exceeded the
scoop of a search permitted pursuant to a “protective sweep” incident to an
arrest. Specifically, Appellant avers that Officer Kwiatkowski effectively
conducted an impermissible search when he “moved a bed” in order to
recover the gun. Appellant contends that because the bed was moved, the
gun was not subject to the “plain view” exception to the warrant
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requirement. Further, he asserts that the metal pipe initially detected by
Officer Kwiatkowski did not constitute evidence of a weapon or contraband in
need of further investigation. We disagree.
When considering the trial court’s denial of a motion to suppress, this
Court employs the following standard of review:
[An appellate court’s] 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, [the appellate court is] bound by
[those] 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 the courts below are
subject to [ ] plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)
(citation omitted).
“A warrantless search or seizure is presumptively unreasonable under
the Fourth Amendment and Article I, § 8, subject to a few specifically
established, well-delineated exceptions.” Commonwealth v. McCree, 924
A.2d 621, 627 (Pa. 2007). A “protective sweep” is one such exception:
[i]t is well settled that “[u]nder emergent circumstances,
protective sweeps are a well-recognized exception to the
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warrant requirement.” Commonwealth v. Witman, 2000
Pa. Super. 92, 750 A.2d 327, 335 (Pa. Super. 2000), appeal
denied 564 Pa. 138, 764 A.2d 1053 (Pa. 2000), cert.
denied, 534 U.S. 815, 122 S. Ct. 42, 151 L. Ed. 2d 15
(2001).
A protective sweep is “a quick and limited search of
premises, incident to an arrest and conducted to protect
the safety of police officers or others.” Maryland v. Buie,
494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 27
(1990). Buie sets forth two levels of protective sweeps. Id.
at 334, 110 S. Ct. 1093. The two levels are defined thus:
[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. Pursuant to the first level of a protective sweep,
without a showing of even reasonable suspicion, police
officers may make cursory visual inspections of spaces
immediately adjacent to the arrest scene, which could
conceal an assailant. The scope of the second level permits
a search for attackers further away from the place of
arrest, provided that the officer who conducted the sweep
can articulate specific facts to justify a reasonable fear for
the safety of himself and others.
Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261,
1267 (Pa. 2001), cert. denied, 534 U.S. 994, 122 S. Ct.
462, 151 L. Ed. 2d 380 (2001).
Commonwealth v. Potts, 73 A.3d 1275, 1281–82 (Pa. Super. 2013).
A properly conducted sweep is for persons:
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It cannot be used as a pretext for an evidentiary search.
It cannot be lengthy or unduly disruptive. It must be swift
and target only those areas where a person could
reasonably be expected to hide.
Commonwealth v. Crouse, 729 A.2d 588, 598 (Pa. Super. 1999).
In addition, “[t]he ‘plain view’ doctrine is often considered an
exception to the general rule that warrantless searches are presumptively
unreasonable . . . .” McCree, 924 A.2d at 627 (quoting Horton v.
California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2306, 110 L. Ed. 2d 112
(1990)).
We note the following legal precepts regarding the plain view doctrine:
The plain view doctrine permits the warrantless seizure of
evidence in plain view when: (1) an officer views the
object from a lawful vantage point; and (2) it is
‘immediately apparent’ to him that the object is
incriminating.
In determining ‘whether the incriminating nature of an
object is immediately apparent to the police officer,’ we
look to the totality of the circumstances.’ An officer can
never be one hundred percent certain that a substance in
plain view is incriminating, but his belief must be
supported by probable cause.
Commonwealth v. Johnson, 921 A.2d 1221, 1223 (Pa. Super. 2007)
(citations omitted).
When reviewing whether an object’s criminal nature is “immediately
apparent,” we note that probable cause
merely requires that 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; it does not demand any
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showing that such a belief be correct or more likely true
than false. A practical, non-technical probability that
incriminating evidence is involved is all that is required.
Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super. 1995)
(citations, emphasis, and internal quotation marks omitted) (emphasis
omitted).
In the case sub judice, we conclude that the trial court properly
determined that the gun in question was discovered pursuant to the plain
view exception to the warrant requirement during a permissible protective
sweep incident to the arrest of Appellant’s brother, Nyree Terrell.
Specifically, officers arrived at Appellant’s residence pursuant to a valid
search warrant on Appellant’s brother for failing to appear in juvenile court.
Trial Ct. Op. at 9. Accordingly, Officer Kwiatkowski, for purposes of the
officer’s own safely and protection under the protective sweep doctrine,
properly searched under a bed to see if Nyree Terrell was present there.
See Potts, 73 A.3d at 1281-82; Crouse, 729 A.2d at 598.
However, instead of the fugitive, Officer Kwiatkowski saw an object
that caught his immediate attention. The object appeared to be metal and
baton-like but in order to be sure it was not a weapon or contraband, the
officer moved the bed slightly, at which time he was able to plainly observe
the gun in question. We hold that a ‘practical non-technical’ view of the
facts available to Officer Kwiatkowski, including the object’s placement in a
corner under the bed and the valid warrant on Appellant’s brother, supports
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the conclusion that a person of reasonable caution would have probable
cause to believe that the object initially viewed under the bed could
constitute a weapon or contraband. See Johnson, 921 A.2d at 1223;
McEnany, 667 A.2d at 1148. Thus, Officer Kwiatkowski’s further
investigation of the object was lawful and led to the discovery of the gun in
plain view. Accordingly, we hold that Officer Kwiatkowski properly seized the
gun pursuant to the plain view doctrine because (1) he lawfully engaged in a
search under the subject bed pursuant to the protective sweep doctrine
incident to a valid warrant for Appellant’s brother’s arrest and (2) he had
probable cause, under the totality of the circumstances, to believe that the
object he observed under the bed was evidence of criminal activity. See
Johnson, 921 A.2d at 1223; McEnany, 667 A.2d at 1148. Therefore, we
conclude that the trial court did not err by declining to suppress the gun and
Appellant’s first issue lacks merit.
Turning to his second issue, Appellant contends that the trial court
erred by admitting Appellant’s incriminatory statement in violation of the
corpus delicti rule. Appellant argues that the Commonwealth failed to
present sufficient evidence of the commission of a crime, prior to the
admission of Appellant’s statement confessing to illegal possession of the
gun. Specifically, Appellant avers that the evidence presented was
insufficient to prove, either by a preponderance of the evidence or beyond a
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reasonable doubt, that he had carried a firearm on a public street or
property in Philadelphia, absent his statement. We do not agree.
As a prefatory matter, we note our standard of review:
[t]he corpus delicti rule is an evidentiary one. On a
challenge to a trial court’s evidentiary ruling, our standard
of review is one of deference.
The admissibility of evidence is solely within the discretion
of the trial court and will be reversed only if the trial court
has abused its discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding
or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of
record.
Commonwealth v. Hernandez, 39 A.3d 406, 410-411 (Pa. Super. 2012)
(citations omitted).
“The corpus [delicti] rule places the burden on the prosecution to
establish that a crime has actually occurred before a confession or admission
of the accused connecting him to the crime can be admitted.”
Commonwealth v. Dupre, 866 A.2d 1089, 1097 (Pa. Super. 2005)
(citations omitted). However, “[t]he Commonwealth need not prove the
existence of a crime beyond a reasonable doubt as an element in
establishing the corpus delicti of a crime, but the evidence must be more
consistent with a crime than with accident.” Id. at 1098 (citation omitted).
In addition, it is well settled that the corpus delicti may be proven by
circumstantial evidence. Commonwealth v. Hogans, 584 A.2d 347, 349
(Pa. Super. 1990). Further, we note:
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Establishing the corpus delicti in Pennsylvania is a two-step
process. The first step concerns the trial judge’s admission
of the accused’s statements and the second step concerns
the fact finder’s consideration of those statements. In
order for the statement to be admitted, the
Commonwealth must prove the corpus delicti by a
preponderance of the evidence. In order for the statement
to be considered by the fact finder, the Commonwealth
must establish the corpus delicti beyond a reasonable
doubt.
Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006).
In this case, we conclude that the trial court was well within its
purview when finding that ample evidence supported the admission and
consideration of Appellant’s incriminating statement under the corpus delicti
rule, under both a preponderance of the evidence standard and a beyond a
reasonable doubt standard, where the evidence presented was consistent
with criminal activity and not mistake. See Young, 904 A.2d at 956.
Dupre, 866 A.2d at 1097. As aptly noted by the court, the Commonwealth
established that Officer Kwiatkowski discovered a loaded gun, situated in a
corner under a bed at Appellant’s residence, in the presence of young
children. Appellant was not licensed to carry a gun. Further, the officers
found Appellant adjacent to the fire escape, moments after a radio call
indicating that someone had been seen trying to exit via the fire escape.
Accordingly, we conclude that the trial court did not abuse its discretion by
admitting Appellant’s incriminating statement in light of the significant
circumstantial evidence presented to establish the requisite corpus delicti.
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See Hogans, 584 A.2d at 349. Therefore, Appellant’s second issue on
appeal must also fail and we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judge Mundy joins this Memorandum.
Judge Shogan files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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