Com. v. Gainey, A. ( 2019 )

J. A21043/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTIONE GAINEY, : No. 2224 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered July 24, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001165-2017
BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 04, 2019
Antione Gainey appeals from the July 24, 2018 aggregate judgment of
sentence of 11½ to 23 months’ imprisonment, followed by 5 years’ probation,
imposed after he was found guilty in a bench trial of unlawful possession of a
firearm.1 After careful review, we affirm the judgment of sentence.
The suppression court summarized the relevant facts of this case as
follows:
During the suppression hearing, the Commonwealth
presented the testimony of Philadelphia Police
Detective Myrna Rivera of the East Detective Division
Warrant Unit, who testified that, on December 14,
2016, at about 6:45 a.m., she and three police officers
proceeded to 4107 North 5th Street to serve an arrest
warrant and two absconder warrants on [a]ppellant.
Upon arrival at that location, the officers were met at
the door by Calvin Gainey. After being told of the
1 18 Pa.C.S.A. § 6105.
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reason for police presence, he advised the detective
that [a]ppellant was in a second floor front bedroom.
The other officers proceeded to the bedroom and took
[a]ppellant, who was hiding in a bathroom, into
custody while Detective Rivera remained downstairs
speaking to Calvin Gainey.
While in the bedroom, one of the officers,
Officer Shaw, observed a case of live .22 caliber
bullets sitting in plain view on top of the mattress of a
bed situated in the room. Upon being informed of the
presence of the bullets, Detective Rivera went up to
the bedroom and recovered the case of bullets. The
detective then ordered the residence secured so that
a search warrant could be obtained.
Moreover, when the detective was inside the
bedroom, she observed additional live bullets in plain
view and also that the mattress in the bedroom was
tilted. In her experience, the mattress was positioned
in such a manner that caused her to believe that
someone might be hiding behind or under it who could
be a danger to her own and the officers’ safety. With
the assistance of one of the other officers,
Detective Rivera lifted the mattress revealing a black
handgun between the bed’s mattress and box spring
along with additional bullets. These items were
collected by Detective Rivera.
Police thereafter obtained a search warrant for the
property. Upon executing the warrant, police
recovered identification cards for [a]ppellant and an
additional bullet from the front bedroom.
Suppression court opinion, 12/5/18 at 1-2 (citations to notes of testimony
omitted).
Appellant was charged with one count of unlawful possession of a
firearm in connection with this incident. On May 19, 2017, appellant filed an
omnibus pre-trial motion to suppress the firearm and other physical evidence
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seized from the warrantless search of his bedroom. The suppression court
held an evidentiary hearing on November 2, 2017, at the conclusion of which
appellant’s motion was held under advisement. On November 27, 2017, the
suppression court entered an order denying appellant’s suppression motion.
Appellant waived his right to a jury and proceeded to a bench trial upon
stipulated evidence2 on May 25, 2018. On July 24, 2018, the trial court found
appellant guilty of unlawful possession of a firearm and sentenced him to
2 At trial, the parties stipulated to the following:
On December 14, 2016, police arrived at [appellant’s]
residence to serve an arrest warrant on [appellant]
and were directed by a third party to [appellant’s]
room. (Notes of testimony, 5/25/18 at 7-8.)
[Appellant] was found outside that room. (Id. at 8.)
Inside the room, they found a loaded .22 caliber
Beretta Model 21A, 86 .22-caliber live rounds,
three 7.62 rifle rounds, a box of .45-caliber live
rounds, one .357 round, and a school ID and parole
card in [appellant’s] name. (Id. at 8-9.) [Appellant]
has two prior Possession With Intent to Deliver felony
convictions, making him ineligible to carry a firearm.
(Id. at 10.) If called to testify, [appellant’s] Aunt
would testify that [appellant] lived at the address
where the firearms were recovered. (Id. at 10-11.)
Additionally[,] photographs of [appellant’s] room,
[appellant’s] warrants for arrest, [appellant’s]
criminal record, and a Firearms Identification Unit
Laboratory Report proving firearms were operable
were all entered into evidence. (Id. at 11.)
Trial court opinion, 10/11/18 at 1 n.1 (notes of testimony citations
reformatted).
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11½ to 23 months’ imprisonment, followed by 5 years’ probation. This timely
appeal followed.3
Appellant raises the following issue for our review:
Did not the [suppression] court err in denying
[appellant’s] motion to suppress the firearm and other
items recovered incident to the illegal search of his
bedroom without a warrant?
Appellant’s brief at 3.
Our standard of review when addressing a challenge to a trial court’s
denial of a suppression motion is well settled.
[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.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
Appellant contends that the suppression court erred in denying his
motion to suppress the firearm and ammunition found under a mattress in his
3 Appellant and the trial court complied with Pa.R.A.P. 1925.
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bedroom because “the warrantless search between the mattress and box
spring exceeded the permissible scope of a protective sweep pursuant to an
arrest.” (Appellant’s brief at 10 (extraneous capitalization omitted).)
Appellant maintains that the suppression court’s “factual finding that the
mattress was tilted in such a manner permitting Detective Rivera to form a
reasonable belief that someone could be hiding under it . . . is not supported
by the record.” (Id. at 11 (internal quotation marks omitted).) We disagree.
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d 158
(Pa. 2009) (citation and internal quotation marks omitted). “[W]arrantless
searches and seizures are . . . unreasonable per se, unless conducted
pursuant to a specifically established and well-delineated exception to the
warrant requirement.” Id. at 556. One well-recognized exception to the
warrant requirement is the protective-sweep doctrine. “A protective sweep is
a quick and limited search of [the] premises, incident to an arrest and
conducted to protect the safety of police officers or others.” Commonwealth
v. Harrell, 65 A.3d 420, 435 (Pa.Super. 2013) (citation and internal quotation
marks omitted), appeal denied, 101 A.3d 785 (Pa. 2014). This court has
recognized that a protective sweep “cannot be lengthy or unduly disruptive
. . . and target only those areas where a person could reasonably be expected
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to hide.” Commonwealth v. Witman, 750 A.2d 327, 336 (Pa.Super. 2000)
(citation omitted), appeal denied, 764 A.2d 1053 (Pa. 2000), cert. denied,
534 U.S. 815 (2001).
Police may perform a ‘protective sweep’ as an incident
to a lawful arrest, in order to protect the safety of
police officers and others. In such circumstances,
officers may look into spaces immediately adjoining
the place of arrest from which an attack could be
immediately launched without any degree of suspicion
other than that necessary to support the arrest. A
protective sweep beyond such immediately adjoining
areas is proper if police can articulate specific facts to
justify a reasonable fear for the safety of police
officers or others. We consider the information
available to police at the time of the sweep from the
perspective of a reasonably prudent police officer.
Commonwealth v. Hall, 199 A.3d 954, 959 (Pa.Super. 2018) (citations,
internal quotation marks, and footnote omitted), appeal denied, 206 A.3d
1028 (Pa. 2019).
Upon review, we find that the police officers’ protective sweep of
appellant’s bedroom in this case was constitutionally permissible. The record
reveals that on the morning of December 14, 2016, Philadelphia Police
Detective Myrna Rivera and three members4 of the East Detective Warrant
Unit went to appellant’s home to execute an arrest warrant and two absconder
warrants on him. (Notes of testimony, 11/2/17 at 7-8, 20.) Upon arriving at
the home, the officers were informed by appellant’s cousin, Calvin Gainey,
4 The first names of Officers Shaw, Redanauer, and Flynn are not indicated in
the suppression hearing transcript.
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that appellant was located in the upstairs bedroom. (Id. at 8.)
Detective Rivera remained downstairs while the other officers proceeded to
the second floor of the residence and subsequently found appellant hiding in
a bathroom adjacent to the upstairs bedroom. (Id. at 8-10.) During the
course of apprehending appellant, Officer Shaw observed a case of .22 caliber
ammunition in plain view on the top of the mattress in the upstairs bedroom.
(Id. at 9.) Detective Rivera testified that after she went upstairs, she
observed “bullets on the bed, and bullets across from the bed inside of the
bedroom.” (Id. at 9, 14.) Detective Rivera further testified that the bed and
the mattress were “tilted” or positioned in such a way that she reasonably
believed that someone who posed a danger to their safety could be hiding
behind it. (Id. at 9, 17.) As a result, Detective Rivera and Officer Shaw briefly
lifted up the mattress to see if anyone was underneath it and discovered a
loaded black handgun and three bullets between the mattress and the box
spring. (Id. at 9, 17, 28.)
Here, it is evident that the officers’ brief inspection under appellant’s
bedroom mattress was “conducted to protect the[ir] safety,” Harrell, 65 A.3d
at 435, and was not “lengthy or unduly disruptive.” Witman, 750 A.2d at
336. Detective Rivera “articulate[d] specific facts” at the suppression hearing,
based on the information available to her at the time of the sweep, including
the presence of multiple rounds of ammunition in plain view in the bedroom
suggesting a firearm was nearby, “to justify a reasonable fear for the safety
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of [her fellow] police officers[.]” Hall, 199 A.3d at 959. Moreover, the sweep
“target[e]d only those areas where a person could reasonably be expected to
hide” – in this instance, under the shifted bedroom mattress. Witman, 750
A.2d at 336. Nor is the suppression court’s finding that someone could
potentially conceal themselves under a shifted mattress, as Detective Rivera’s
testimony at the suppression hearing suggests, entirely unreasonable. As the
suppression court reasoned:
THE COURT: I’m not thinking in terms of [a person]
hiding between a mattress and box spring. That
would be pretty silly.
I’m saying if the mattress is ajar -- you have a box
spring, you’ve got a mattress. It usually goes on top
of it.
If I walk into a room and I see it like this, well, is it
reasonable for me to assume if I’m looking at it that
maybe somebody is hiding underneath here and you
walk over and lift it up and say, “Oh, there’s a gun”?
Because believe it or not, I’ve actually played
hide-and-seek with my kids in the past. And I’ve
actually pulled the mattress off the box spring a little
bit to secrete myself. Not in between the mattress
and the box spring. I’m using the mattress almost
like a roof on a fort.
Notes of testimony, 11/2/17 at 36.
Based on the foregoing, we find that the suppression court’s factual
findings are supported by the record and the court’s legal conclusion that the
firearm and ammunition were lawfully seized pursuant to a constitutionally
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permissible protective sweep is correct. Accordingly, we discern no error on
the part of the suppression court in denying appellant’s motion to suppress.5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/19
5 Appellant raises multiple alternative arguments in support of his claim that
the suppression court erred in denying his suppression motion. Specifically,
appellant contends that the search was not justified under the more relaxed
rules governing searches and seizures that are applied to probationers; and
that “there was no independent source” for the firearm and bullets recovered,
“nor would they have been inevitably discovered.” (Appellant’s brief at 12, 14
(extraneous capitalization omitted).) Because we have determined that the
suppression court properly denied appellant’s suppression motion on the basis
that the firearm and other physical evidence was lawfully seized pursuant to
the protective sweep doctrine, we need not consider these alternative theories
for affirming the suppression court’s order.
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